Green Missive Moves Up Economic Doomsday Clock to Three Minutes until Midnight

by William Yeatman on January 25, 2015

in Blog, Features today sped up its economic doomsday clock to three minutes until midnight, in response to last week’s launch of a green missive that calls to mind the terrifying extent to which the U.S. economy operates under the imminent threat of economic apocalypse engendered by enviro litigation.

doomsday-clock-110516The immediate impetus for alarm is a letter issued Thursday from 5 green groups. Its purpose is to remind EPA of a May deadline to render a decision whether GHGs from airplanes “endanger” public health & welfare. That sounds boring and innocuous, but in fact the letter portends the ominous consequences of the Obama administration’s 2010 decision to trigger Clean Air Act regulations for greenhouse gases. This fateful determination has provided environmental special interests the opportunity to seize the reins of the U.S. economy through litigation, as I explain briefly below.

The problem is that the Clean Air Act regulates like a chain reaction: one provision triggers another provision triggers another, and so on and so forth. So, for example, EPA’s first action—the push that got this regulatory snowball rolling down the hill—was to regulate GHGs from automobiles. Under longstanding EPA statutory interpretation, auto regulations set off Clean Air Act requirements for stationary sources. Henceforth, new major stationary sources must install “best available control technology” to limit GHGs. (Of course, the agency is working on a bundle of climate  regulations that would overhaul the electricity industry, but that’s a discretionary regime.)

First automobiles…then stationary sources…and the next non-discretionary duty brought about by EPA’s opening of a regulatory Pandora’s Box pertains to the airline industry. The statutory tripwire that activated the 2010 auto regulations—the rule that set off this whole mess—was a 2009 EPA determination that tailpipe GHG emissions “endangered” public health and welfare. Under the Clean Air Act, an identical threshold exists for the regulation of airline emissions. That is, if the agency finds that airline GHG emissions “endanger” the public, then it must regulate the sector. 

Thanks to the Clean Air Act’s citizen suit provision (which I bemoaned yesterday), green groups can sue to require the agency to determine whether a given “pollutant” endangers public health, which is known as an “endangerment finding.” They did so in 2007, and, in 2011, won an Article III court ruling to compel an EPA response. As a result, an “endangerment finding” regarding airline GHG emissions is due in May. Thursday’s letter–from Sierra Club, NRDC, Friends of the Earth, EarthJustice, and the Center for Biological Diversity–was meant to remind EPA of this responsibility. Were the agency to try avoid airline GHG regulations, green groups would sue and I don’t see how they could lose. Of course, if auto emissions endanger the public–which the agency has already determined–then airline emissions also must do so. To decide otherwise would make no sense. In any case, EPA is preparing to regulate, according to my colleague Marlo Lewis.

Alas, the next link in this runaway regulatory chain reaction is the END GAME. As I explain here, the Clean Air Act provides an obvious litigation path by which greens could effectively shut down the U.S. economy in order to fight climate change. That sounds hyperbolic, but, I’m sorry to say, the stakes are truly that great.

Which is why we’ve moved the economic doomsday clock to three minutes until midnight.

As I explain here, in the course of debunking the oft-claimed notion that the Supreme Court ordered EPA to regulate GHGs, the agency could’ve avoided this whole hot mess.

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