2011

Rep. John Sullivan (R-Okla.) clarified that today’s hearing is not on climate science but on whether Congress or EPA makes climate policy and the cost of EPA’s greenhouse gas regulations. Right!

Somebody though needs to ask Administrator Jackson questions that flesh out Sullivan’s point:

1. When will EPA respond to the environmental groups’ December 2009 petition to establish national ambient air quality standards (NAAQS) for CO2 set at 350 parts per million (ppm)?
2. The Waxman-Markey “stabilization target” was 450 ppm by 2050. Yet the Clean Air Act requires states to attain NAAQS within 5-10 years. Wouldn’t a CO2 NAAQS thus require far more draconian cuts in fossil energy use than would Waxman-Markey, a bill Congress considered too costly to pass?
3. Would EPA then have to issue a new “Tailoring Rule” re-imagining the Act’s 5-10 NAAQS timeline to mean, say, 50-100 years?
4. What does it tell us about EPA and the Court’s reading of the Clean Air Act that EPA has to amend – or in bureaucrat-speak, “tailor” – the law in order to avoid “absurd results,” notably, an administrative quagmire that would both paralyze environmental enforcement and freeze economic development?

That’s the question Rep. Henry Waxman just asked EPA Administrator Lisa Jackson. She replied: “The Supreme Court said greenhouse gases fit into the Clean Air Act’s broad definition of ‘air pollutants.'” Or words to that effect.

Civics 101:

• Congress, not the Supreme Court, wrote the Clean Air Act (CAA).
• The Supreme Court is not infallible. If it were, Supreme Court decisions would always be unanimous. Massachusetts v. EPA, the case to which Administrator Jackson alludes, was a 5-4 decision.
• Congress and the Supreme Court are co-equal branches under the Constitution. Every Member of Congress takes an oath to “uphold the Constitution.” Therefore, every Member has a constitutional duty to exercise his own judgment as to what the Constitution means, what statutes mean, and whether agency actions under enacted statutes comport with or flout congressional intent.
• If Members think the Court messed up, or if they merely think that the Court’s decision leads to bad public policy, they have a constitutional duty to rectify the Court’s error by passing laws like the Inhofe-Upton-Whitfield Energy Tax Prevention Act.

As it happens, a strong case can be made that the Court erred when it decided, in Massachusetts v. EPA, that greenhouse gases are “air pollutants” within the meaning of the statute.

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I’m watching the House Energy and Commerce hearing on the Inhofe-Upton-Whitfield draft legislation, the Energy Tax Prevention Act, to stop EPA from ‘enacting’ climate policy through the regulatory backdoor.

Rep. Henry Waxman (D-Calif.) is off to his usual demagoguery, claiming that Messrs. Inhofe, Upton, and Whitfield are trying to “re-write the laws of nature.” He accuses them of trying to overturn EPA’s endangerment finding (which he equates with SCIENCE) by legislative fiat. The premise of the bill, he says, is that climate change is a hoax.

Poppycock. Read the draft legislation. It says nothing about climate science. The bill’s real premises are:

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As noted previously on GlobalWarming.Org, Obama’s “Clean Energy Standard” would effectively impose the Waxman-Markey cap-and-trade bill’s emission reduction target on the electric power sector.

Under Obama’s proposal, “By 2035, 80% of America’s electricity will come from clean energy sources” (i.e. from wind, solar, hydro, nuclear, “clean coal,” and natural gas). Similarly, an estimated 81% of U.S. electricity would come from such sources in 2030 in the Energy Information Administration’s “Basic Case” analysis of the Waxman-Markey bill.

There is one difference though. Emission reductions accomplished via Soviet-style production quota (mandates) such as a clean energy standard would likely be more costly than emission reductions accomplished via market-like mechanisms such as cap-and-trade. National Journal reporter Amy Harder spotted this issue last Friday:

“One of the things that happens implicitly when you set a standard is that you have in fact put a price on carbon, but it’s the clumsiest way to do it,” said Kevin Book, managing director at ClearView Energy Partners, an energy consulting company. “You’re not looking for an efficient, market-based solution. You’re looking for just enough to meet the standards solution.”

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Sen. James Inhofe (R-Okla.), ranking member of the Senate Environment and Public Works Committee, Rep. Fred Upton (R-Mich.), chairman of House Energy and Commerce Committee, and Rep. Ed Whitfield (R-Ky.), chairman of the energy subcommittee, have released a discussion draft of the “Energy Tax Prevention Act,” a bill to block EPA regulation of greenhouse gases via the Clean Air Act.  The full House Energy and Commerce Committee plans to hold a hearing next week.

Their draft bill is not as comprehensive as Sen. John Barrasso’s (R-Wy.) S. 228, the “Defending America’s Affordable Energy and Jobs Act,” introduced last Monday. Barrasso’s bill would preempt greenhouse gas regulation under all existing federal statutes. It would also preempt litigation under federal common law to restrict or otherwise penalize greenhouse gas emissions. The Inhofe-Upton-Whitfield draft legislation focuses just on the Clean Air Act to “avoid jurisdictional problems at the committee level in the House,” explains my colleague Myron Ebell.

Sen. Inhofe certainly wants to prevent any agency from ‘legislating’ climate policy under all existing statutes, none of which Congress designed or intended to be used for that purpose. Indeed, Inhofe is a co-sponsor of Sen. Barrasso’s bill. If, as expected, the Inhofe-Upton draft bill clears the Energy and Commerce Committee, House Members can amend it on the floor to provide more complete protection from regulatory excess. Myron adds: “This is now a fast-moving train in the House and is apparently a priority of Speaker John Boehner.”

Here’s a quick summary of what’s in these kindred legislative initiatives.

Inhofe-Upton-Whitfield Draft Energy Tax Prevention Act:

• Amends Title III of the Clean Air Act (CAA) to preclude regulation of greenhouse gases to address climate change.
• Amends  CAA Sec. 302(g) so that the term “air pollutant” does not include greenhouse gases based on their potential climate change effects.
• Allows EPA to implement its “tailpipe rule” establishing greenhouse gas emission standards for new motor vehicles covering model years 2011 to 2016.
• Stops the tailpipe rule from triggering greenhouse gas permitting requirements for stationary sources.
• Prohibits EPA from establishing motor vehicle greenhouse gas emission standards for model year 2017 and later, and prohibits EPA from granting California a waiver to do so.
• Overturns the legal force and effect of EPA’s endangerment rule, the tailoring rule, and other rules establishing greenhouse gas permitting requirements for stationary sources and/or State permitting agencies.
• Allows States to regulate greenhouse gas emissions within their borders but deems such policies not to be part of federal law and prohibits EPA from enforcing them.

Barrasso’s Defending America’s Affordable Energy and Jobs Act:

• Finds that regulation of greenhouse gases under current law “is divorced from any intent expressed by Congress during the enactment of the authorizing statutes governing those mechanisms.”
• Prohibits the President or any agency from regulating greenhouse gases under any statute unless necessary to protect the public from imminent harm via direct exposure at levels substantially greater than atmospheric concentrations.
• Allows the tailpipe rule to run its course.
• Overturns the force and effect of EPA’s endangerment rule, tailoring rule, and other rules establishing greenhouse gas permitting requirements for stationary sources and/or State permitting agencies.
• Prohibits EPA from establishing motor vehicle greenhouse gas emission standards for model year 2017 and later, and prohibits EPA from granting California a waiver to do so.
• Prohibits Federal Common Law or civil tort litigation to limit or penalize greenhouse gas emissions.
• Prohibits States from regulating emitters of greenhouse gases outside their borders.

The bills are quite similar. The main differences are that the Barrasso bill: (1) preempts greenhouse gas regulation under the Endangered Species Act, Clean Water Act, National Environmental Policy Act, and all other federal statutes, as well as the Clean Air Act; (2) prohibits Federal Common Law and civil tort litigation to limit or penalize greenhouse gas emissions; and (3) more pointedly prohibits States from regulating greenhouse gas emitters outside their borders.