McCarthy Shows Her Cards

In a June 25 speech unveiling a new, authoritarian climate plan, President Obama explained that Congressional inaction was a pretext for his administration to fight global warming by executive fiat.

Newly-confirmed EPA Administrator McCarthy got the message loud and clear. According to InsideEPA, McCarthy said in a July 22 video memo to agency employees, “We have a clear responsibility to act now on climate change. That’s what President Obama has called on us, and the American people, so that we protect future generations.”

It is noteworthy that she didn’t mention the Congress. By significant bi-partisan margins, cap-and-trade policies have died repeatedly in the Senate. Of course, EPA’s authority to regulate climate change is derivative of the Clean Air Act. And yet, as my colleague Marlo Lewis has explained aptly,

EPA claims that its greenhouse-gas regulations derive from the CAA as interpreted by the Supreme Court in Massachusetts v. EPA*. But in the last Congress, after almost two decades of global-warming advocacy, Congress declined to give EPA explicit authority to regulate greenhouse gases, when Senate leaders mothballed cap-and trade legislation. A bill authorizing EPA to do exactly what it is doing now — regulate greenhouse gases under the CAA as it sees fit — would have been dead on arrival. The notion that Congress gave EPA such authority when the Clean Air Act was passed in 1970, years before global warming emerged as a public concern, defies both history and logic.

*[As an aside, the Supreme Court is now in the process of determining whether it will revisit Mass v. EPA by choosing to review the D.C. Circuit’s decision to uphold EPA’s climate regulatory regime.]

There’s another troubling aspect to McCarthy’s video memo. In it, she said that the agency will be taking an “all hands on deck” approach to implementing regulations to reduce greenhouse gases. Specifically, MCarthy was speaking about diverting EPA’s limited resources into a regulation known as the New Source Performance Standards for greenhouse gases. Here’s the problem: This regulation is a discretionary responsibility. That is, EPA chose to do it. The Agency didn’t have to.

As I demonstrated in a study released earlier this month, EPA is out of compliance with roughly 98% of its non-discretionary responsibilities. These are duties that the Congress explicitly stipulated that EPA perform. Yet the agency is ignoring them! Instead, Administrator McCarthy is pouring resources into a discretionary responsibility. All of which raises an important question: Why is the EPA giving priority to duties chosen by unelected bureaucrats, rather than responsibilities assigned by elected representatives?