EPA’s Top-Ten Tricks to Steal More Power, Nos. 10 through 6

Power grabbing is hard work. Usually the power grabbee resists the infringement of its rights, so the Environmental Protection Agency has had to employ a number of machinations to get the job done. Without further ado, I present to you nos. 10 through 6, of EPA’s top 10 tricks to steal more power:

10. Divide and Complicate: Under the Clean Air Act, regulation of pollution emitted by mobile and stationary sources is triggered by a finding by EPA that the pollutant “endangers” public health and welfare. Almost always, the “endangerment” finding and the regulations it engenders are published contemporaneously. However, in promulgating climate regulations, the Agency decoupled the “endangerment” finding from the regulations it begat. In so doing, EPA is trying to frustrate judicial review of its dubious interpretation of the Clean Air Act. In a nutshell, EPA wants to avoid the court’s from considering whether the Agency had to consider the “absurd” regulatory results of its decision to regulate greenhouse gases. For much, much more about EPA’s climate policy power grab, read these two studies by my colleague Marlo Lewis.]

9. Misdirection: In December, EPA issued the Mercury and Air Toxics rule, perhaps the most expensive regulation, ever. EPA’s absurd justification for this regulation was the protection of America’s supposed population of pregnant, subsistence fisherwomen. Given this tenuous rationale, EPA has largely ignored mercury emissions reductions (the purpose of the regulation), and instead touted the rule’s “co-benefits.” Controls that reduce mercury also reduce other pollutants—primarily fine particulate matter and sulfur dioxide, and EPA bases its public justification of the Mercury and Air Toxics rule on purported health benefits attributable to these reductions of non-mercury pollution. This is disingenuous, however, because these other pollutants already are regulated at levels to provide an adequate margin to protect public health, under the National Ambient Air Quality Standard regime. For more about EPA’s mercury misdirection, see this excellent analysis by the Institute for Energy Research, “Death and Toxins: How Paul Krugman Botched His Mercury Commentary.”

8. Power Meld: As I’ve explained here and here, EPA is hybridizing disparate provisions of the Clean Air Act in order to engineer greater regulatory authority for itself on policy to improve visibility.

7. Make Shit Up: On January 13, 2011, the Environmental Protection Agency (EPA) vetoed the issuance of a Clean Water Act permit by the U.S. Army Corps of Engineers to the Mingo Logan Coal Company for the Spruce No. 1 Mine in Logan County, West Virginia. This is the first time the EPA has used this authority since the Congress passed the Clean Water Act in 1972. EPA’s unprecedented action would prevent the creation of 250 jobs. In February, 2011, I performed an audit of the scientific reasomnning behind EPA’s veto, and what I found was troubling. Among the lowlights:

• The EPA’s claim that “6.6 miles of high quality stream” will be buried conveniently omits the fact that 99.6 percent of the streams are intermittent or ephemeral, that they scored “below average” on a habitat assessment, and that they fall well short of meeting West Virginia’s definition of “high quality” streams.

• The EPA asserts that five species of fish would be buried, despite the fact that no fish  were found at the site.

• The EPA commits numerous referencing mistakes, including two direct misquotes. Throughout the document, the EPA draws incorrect conclusions from the literature it cites.

6. Turning Back Time: Not all States went along with EPA’s climate policy power grab. In particular, Texas has resisted. To be sure, EPA has the authority to override the State, and impose a permitting program for new, large sources of greenhouse gas emissions; however, doing so would require anywhere from one to three years—that’s how long the Clean Air Act affords States to make changes to their regulatory regimes that are deemed necessary by EPA. This long time horizon did not comport with EPA’s rush to regulate. In order to skirt regulatory timelines established by federal procedural law, EPA issued a rule in December 2010, claiming that it had erred when it approved Texas’s Prevention of Significant Deterioration permitting program in 1992, because the State did not grant itself the authority to regulate greenhouse gases, at that time. This is outrageous. In 1992, global warming alarmism wasn’t even a blip on the news cycle. Moreover, the Congress in 1990 explicitly declined to regulate greenhouse gases as part of major amendments to the Clean Air Act that were enacted that year. The Agency is stretching the truth well past the breaking point when it asserts that it was wrong to approve Texas’s PSD program almost 20 years ago, due to EPA’s inability to predict that a future administration would seize the power to regulate greenhouse gases. To read EPA’s “Error Correction Rule,” click here.