Marlo Lewis

Sen. Boxer now compares Sen. Murkowski’s resolution to an attempt to repeal the Surgeon General’s famous report in 1964 linking cigarette smoking to cancer.

She ignores the fact that the Surgeon General’s report was purely an assessment of the medical literature. It had no legal force and effect. Indeed, the Surgeon General’s report did not even provide policy recommendations.

If EPA’s endangerment finding were simply one agency’s review of the scientific literature, the Senate would not have any business voting on it either. However, unlike the Surgeon General’s report, the endangerment finding is both trigger and precedent for policy changes potentially affecting millions of businesses and homes and trillions of dollars in cumulative GDP.

Congress never intended for the Clean Air Act to be a framework for climate policy, never voted for EPA to use the Act as such a framework, and never signed off on the far-reaching regulatory cascade the endangerment finding triggers.

Therefore it is entirely proper for the Senate to debate and vote on the ”legal force and effect” of the endangerment finding. Indeed, overturning the endangerment finding is a constitutional imperative.

Sen. Boxer (D-Calif.) is now speaking against the Murkowski resolution (S.J.Res.26). Her demagoguery knows no bounds.

She asks us to imagine a hundred Senators, who are not scientists, who are not health experts, presuming to determine which pollutant is dangerous and which is not. “It is not our expertise, it is not our purview.” “It is ridiculous.” “It is the height of hubris.” “What are we going to do next, repeal the laws of gravity?” “Maybe we’ll say the Earth is flat and will argue that one too.” “We could pass a resolution that says there shouldn’t be any more rain, and then I guess there wouldn’t be any more rain.”

Boxer ignores — and conceals — the simple fact that the Murkowski resolution would overturn the “legal force and effect” of the endangerment finding, not its scientific reasoning or conclusions.

The resolution is a referendum not on climate science but on who shall make climate policy: Elected lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Boxer champions the endangerment finding because it empowers EPA to implement policies that she and other members of the greenhouse faction have been unable to secure the old fashioned way — by ratifying treaties and enacting laws.

Opponents of S.J.Res.26 will do and say anything to avoid restoring political accountability to climate policymaking.

Today, the Senate will debate and vote on S.J.Res.26, Sen. Lisa Murkowski’s resolution of disapproval to overturn the legal force and effect of EPA’s endangerment finding, which is both trigger and precedent for sweeping policy changes Congress never approved.

The Obama Administration and the Auto Alliance strongly oppose S.J.Res.26, claiming that it would harm the auto industry by blocking implementation of the joint fuel economy/greenhouse gas emission standards rule that EPA and the National Highway Traffic Safety Administration (NHTSA) finalized in March.

The National Automobile Dealers Association (NADA) demolishes the Administration’s argument in a letter sent to U.S. Senators yesterday afternoon.

If Congress wants NHTSA to tighten fuel economy standards, the agency already has all the authority it needs under the 1975 Energy Policy and Conservation Act as modified by the 2007 Energy Independence and Security Act (EISA). NHTSA’s authority does not come from the Clean Air Act and in no way depends on EPA’s endangerment finding.

Under the EPA/NHTSA joint rule, three different agencies will set fuel economy standards — NHTSA, EPA, and the California Air Resources Board (CARB). Enactment of S.J.Res.26 would indeed block implementation of the rule. But that would benefit the auto industry by helping to “restore a single national fuel economy standard, with rules set by Congress.”

“Opponents of S.J.Res. 26 fail to explain how being regulated by three different fuel economy standards with three different sets of rules administered by three different agencies is more beneficial than a single national fuel economy standard,” the NADA letter points out.

The letter provides a detailed chart showing that there are important differences and inconsistencies between NHTSA’s fuel economy standards and EPA’s greenhouse gas emission standards, as well as inconsistencies between the federal standards and the CARB standards.

NADA’s letter concludes:

The EPA and CARB fuel economy standards in effect today have been foisted on the American people by bureaucratic fiat. It is extremely unlikely any Senator would even propose a three-different-fuel-economy standards framework, especially one filled with exemptions, lower standards for some, and conflicting policies, Passage of S.J.Res. 26 would partially correct this onerous and redundant policy.

On Thursday (June 10, 2010), the Senate will vote on Alaska Sen. Lisa Murkowski’s resolution of disapproval (S.J.Res.26) to overturn the U.S. Environmental Protection Agency’s finding that greenhouse gas emissions endanger public health and welfare.  

The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved.

Tomorrow, I will speak in support of S.J.Res.26 at an 11:00 a.m. Capitol Hill press conference hosted by Americans for Prosperity. My prepared statement follows.

Prepared Statement of Marlo Lewis

Sen. Murkowski’s resolution of disapproval would stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door.

The endangerment finding is a classic case of bureaucratic self dealing. EPA has positioned itself to determine the stringency of fuel economy standards, set climate policy for the nation, and even amend provisions of the Clean Air act – powers Congress never delegated to the agency.

Worse, America could end up with a pile of greenhouse gas regulations more costly than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

The Murkowski resolution puts a simple question before the Senate: Who shall make climate policy — lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Because the endangerment finding dramatically expands EPA’s power, the agency fiercely opposes S.J.Res.26, depicting it as an attack on science.

That is nonsense. Although a strong case can be made that the endangerment finding is scientifically flawed, the Murkowski resolution neither takes nor implies a position on climate science.

The resolution would overturn the “legal force and effect” of the endangerment finding, not its reasoning or conclusions. It is a referendum not on climate science but on who should make climate policy.

Climate policy is too important to be made by non-elected bureaucrats. That ought to be a proposition on which all Senators can agree.

The importance of Thursday’s vote is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

Twice during the past six months, the eco-litigators at the Center for Biological Diversity (CBD) have underscored the political necessity for Congress to overturn EPA’s endangerment finding.

Yes, that is very far from CBD’s intention. CBD is a fervent defender of the endangerment finding, the December 2009 rulemaking in which EPA concluded that greenhouse emissions endanger public health and welfare.

The endangerment finding compels EPA to establish greenhouse gas emission standards for new motor vehicles, which in turn makes carbon dioxide (CO2) a “regulated air pollutant”  under the Clean Air Act, which in turn makes ”major” stationary sources of CO2 ”subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. CBD must be thrilled by the endangerment finding and the regulatory cascade it has triggered.

CBD wants EPA to follow through on all the regulatory commitments logically entailed by the endangerment finding and CO2’s new status as a “regulated air pollutant.” But that’s where things get dicey for President Obama and his congressional allies. Once the regulatory genie is out of the bottle, Obama officials may not be able to control it.

Even EPA acknowledges that applying the Act’s permitting programs to CO2 leads to “absurd results.” For example, EPA and its state counterparts would have to process 41,000 PSD permit applications per year (instead of 280) and 6.1 million Title V permits per year (instead of 14,700). The resulting administrative quagmire would paralyze environmental enforcement, slam the brakes on development, and force millions of firms to operate in legal limbo. A more potent anti-stimulus package would be hard to imagine. 

To avoid this red ink nightmare, EPA has issued a Tailoring Rule that exempts small CO2 emitters from the Act’s permitting programs for six years. However, nothing in the statute authorizes EPA to suspend or modify the permitting requirements. In reality, EPA’s Tailoring Rule is an amending rule. It’s anybody’s guess whether courts will uphold this breach of the separation of powers.

Even if they do, the endangerment finding will still endanger the U.S. economy and our constitutional system of separated powers and democratic accountability. Thank you, CBD, for bringing this peril to light!

Last December, CBD petitioned EPA to establish national ambient air quality standards (NAAQS) for greenhouse gases set below current atmospheric levels. CBD is only acting on the obvious implication of EPA’s assertion that endangerment comes from the “elevated concentration” of greenhouse gases in the atmosphere.

Why should Obama and congressional leaders worry? The Clean Air Act requires states to come into attainment with a primary (health-based) NAAQS within five or at most 10 years. Yet not even a global depression lasting several decades would suffice to lower CO2 concentrations from today’s level (390 parts per million) to the stabilization target (350 parts per million) demanded by CBD and its co-petitioners. Because EPA may not take compliance costs into account when establishing NAAQS, the endangerment finding sets the stage for eco-litigators to transform the Act into a de-industrialization mandate.  No elected official wants to take ownership of so crazy a policy. If CBD prevails, however, Obama and the Democrats — the Party of Endangerment — will be left holding the bag. 

Yesterday, CBD filed suit to overturn EPA Administrator Lisa Jackson’s reconsideration of her predecessor Stephen Johnson’s memorandum determining when a pollutant is “subject to regulation” under the PSD program. Jackson’s reconsideration held that a pollutant is subject to regulation not when EPA finalizes an emissions control rulemaking but when the rule takes effect. Since EPA’s greenhouse gas motor vehicle standards rule does not take effect until January 2011, Jackson concluded that EPA may not regulate greenhouse gases from stationary sources until then. CBD says EPA should have started already to regulate large emitters via PSD.

CBD’s lawsuit makes EPA regulation of greenhouse gases a real-time issue for this Congress, not just a post-election issue for the next Congress. It increases the pressure on Democrats to get the monkey off their back. If courts strike down Jackson’s reconsideration, they will be more likely to strike down the Tailoring Rule, which undeniably flouts statutory language. Courts will also be more likely to look favorably on CBD’s NAAQS petition, which simply demands that EPA, having made an endangerment finding, follow the letter of the law.   

Democratic Senators who don’t want to bet their political futures on EPA’s ability to control the cascading effects of greenhouse gas regulation under the Clean Air Act – or who simply believe that climate policy is too important to be made by non-elected bureaucrats, trial lawyers, and activist judges appointed for life – will soon get their opportunity.

On June 10, the Senate will vote on a resolution of disapproval (S.J.Res.26), sponsored by Alaska Sen. Lisa Murkowski, to nullify the legal force and effect of EPA’s endangerment finding. If enacted, S.J.Res.26 will:

1. Avert the threat of an administrative meltdown under the PSD and Title V programs.
2. Avert the threat of sky-is-the-limit, money-is-no-object regulation of greenhouse gases via the NAAQS program.
3. Avoid the need for EPA to play lawmaker and ’amend” a statute it is supposed merely to administer.

Most importantly, enacting Sen. Murkowski’s resolution will ensure that the big decisions about the content and direction of national policy are made by the people’s representatives, as the Constitution requires.

On June 10, the Senate will debate and vote on S.J.Res.26, a resolution of disapproval sponsored by Republican Senator Lisa Murkowski of Alaska to stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door.

S.J.Res.26 would overturn the legal force and effect of EPA’s endangerment finding, a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved. America could end up with a bundle of greenhouse gas regulations more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

Of course, not everbody sees it that way. In a recent letter urging Senators to vote against the Murkowski resolution, former EPA Administrator Russell Train contends that Congress did intend for EPA to regulate greenhouse gases through the Clean Air Act. His argument may be summarized as follows: 

1. Congress enacted the Clean Air Act.
2. The Act requires EPA to regulate air pollutants which in its judgment endanger public health or welfare.
3. EPA has determined that greenhouse gas emissions endanger public health and welfare.
4. Therefore, Congress intended for EPA to regulate greenhouse gases.
5. Hence, S.J.Res.26 would “roll back” and “undermine” the Clean Air Act.

A moment’s reflection, however, reveals that this argument is an empty suit. All it proves is that EPA has jumped through the requisite procedural hoops, which nobody disputes. It in no way demonstrate that Congress intended for EPA to regulate greenhouse gases.

As I explain today on MasterResource.Org, the free-market energy blog, Train ignores the obvious:

1. Congress did not design the Clean Air Act to be a framework for climate policy.
2. Congress has never voted for the Act to be used as such a framework.
3. Applying the Clean Air Act to carbon dioxide leads to “absurd results” — regulatory consequences that conflict with and undermine congressional intent, as even EPA admits.
4. Unless stopped, EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even ‘amend’ portions of the Clean Air Act (to avoid some, but not all, absurd results). These are powers Congress never delegated to EPA.

The importance of the vote on S.J.Res.26 is hard to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

Today’s Greenwire (subscription required) includes an edited transcript of an interview with Lindsey Graham (R-SC) that recalls Bill Clinton’s famous line, “It all depends on what the meaning of ‘is’ is.”

Graham was at pains to explain his position on the Kerry-Graham-Lieberman cap-and-trade bill. On the one hand, he asserted that, “I’m in this to win.” On the other hand, he pulled the rug out from under Kerry and Lieberman two weeks ago when he backed out at the last minute from a press conference at which the bill was to be unveiled, and he is not expected to join them when they introduce the bill next week. Sen. John Cronyn (R-TX) aptly described Graham as the hokey pokey man: “You put your right foot in. You take your right foot out. I’m not sure where he [Graham] is right now.”

Although the bill includes a cap-and-trade program for the electric power sector, which is to be extended over time to other sectors of the economy, Graham is still asserting that it’s neither a cap-and-trade bill nor a global warming bill. He stated: “It’s not a global warming bill to me. Because global warming as a reason to pass legislation doesn’t exist anymore.” He also explained: “There is no bipartisan support for a cap-and-trade bill based on global warming.”

Permit me to translate Graham’s Clintonese: “We want capntrade even if the original and central rationale is no longer credible, and oh, by the way, we’re not calling it capntrade anymore. I’m in this to win but I’ll be a no-show when Kerry and Lieberman introduce the non-global warming, non-capntrade, global warming-capntrade bill.”

In the interest of ensuring public access to climate-related documents that may be hard to find, I am posting here the original, June 1998 study by technology analyst Mark P. Mills of the sprawling compliance burdens of EPA regulating carbon dioxide (CO2) as an air pollutant under the Clean Air Act (CAA).

The study, entitled A Stunning Regulatory Burden: EPA Designating CO2 As A Pollutant, estimated that applying CAA permitting requirements to CO2 would compel EPA to regulate over 1 million small- and mid-size businesses.

In September 2008, Mills and his daughter Portia updated the study for the Chamber of Commerce in a report entitled A Regulatory Burden: The Compliance Dimension of Regulating CO2 as a Pollutant.

Although superceded by the later report, the June 1998 report remains highly relevant to the climate policy debate.

A Stunning Regulatory Burden was a direct response to the April 1998 Memorandum by then EPA General Counsel Jonathan Z. Cannon asserting EPA’s authority under the Clean Air Act to regulate CO2 and other greenhouse gases (GHGs). Petitioners in Massachusetts v. EPA partly relied on the Cannon memorandum to press their claim that EPA had a statutory obligation to issue an endangerment finding and regulate GHG emissions from new motor vehicles under Sec. 202 of the Act.

Most importantly, the June 1998 Mills study reminds us that EPA had to know all along that a victory for petitioners in Massachusetts v. EPA would dramatically expand its regulatory reach beyond any plausible delegation of regulatory authority from Congress.

Yet during all the years when the case was being litigated (Sep. 2004 – April 2007), EPA never pointed out the regulatory ramifications of a victory for petitioners. Only long after losing case, in its Advanced Notice of Proposed Rulemaking (July 2008) and Tailoring Rule (October 2009), did EPA acknowledge that the endangerment finding tees up the very sorts of regulatory excesses Mills warned about a decade earlier. 

The 5-4 majority in Mass v. EPA decided in favor of petitioners partly in the belief that an endangerment finding would not lead to ”extreme measures” (p. 531). But according to the Tailoring Rule, unless EPA “tailors” — that is, amends — the CAA, the endangerment finding will lead inexorably to a host of “absurd results” that conflict with and undermine congressional intent.  

The question arises: Why didn’t EPA explain this when it really mattered? Why did EPA pull its punches in Mass. v. EPA? Why didn’t EPA make the case that the endangerment finding sought by petitioners would lead a regulatory cascade that Congress never intended and would not approve?

I think the answer is obvious. For EPA, losing the Massachusetts case meant gaining the power to regulate fuel economy for the auto industry and, more importantly, the power to determine climate and energy policy for the nation. Strong circumstantial evidence suggests that EPA wanted to be thrown into the greenhouse briar patch all along.

Well, it’s not really so old. I’m referring to a March 10, 2009 letter by atmospheric scientist John Christy to EPA Administrator Lisa Jackson. I post it on Open Market and GlobalWarming.Org because it is hard to find on the Internet, and Dr. Christy makes a key point that will need to be made again and again in the upcoming Senate battle over the Murkowski resolution of disapproval to veto EPA’s endangerment finding.

The endangerment finding is the  statutory prerequisite for the joint greenhouse gas/fuel economy standards rule that EPA and the National Highway Traffic Safety Administration (NHTSA) finalized on April 1, 2010. Veto the endangerment finding, Murkowski foes warn, and NHTSA will have to ”de-couple” its portion of the joint GHG/fuel economy rule, which could delay by a year implementation of model year 2012 fuel economy standards.

Well, boo-hoo! Keeping the model year 2011 standards in place for an extra year would make no perceptible difference in atmospheric CO2 concentrations, average global temperature, weather patterns, or public health, even if one assumes that climate change is a big problem.

Christy’s letter puts this in perspective. For the sake of argument, Christy adopts the IPCC’s warming projections for its mid-range (A1B) emissions scenario. Even if the United States were to adopt immediately a 43 mpg fuel-economy standard, the net reduction in average global temperature would be 0.01°C in 2100. Such a change would be too small to detect. Even more microscopic would be the impact of the 34.1 mpg standard that NHTSA and EPA want to phase in by model year 2016. Whether that standard is delayed for a year or implemented on schedule is climatologically irrelevant.

In contrast, the economic and safety benefits of a one-year delay could be substantial. The distressed auto industry would not have to spend an estimated $5.9 billion in incremental technology investments (Table 4A.5-6) in model year 2012.

In addition, slower implementation of economy standards would slow the pace at which automakers decrease average vehicle size and weight. Reducing vehicle weight and size is a vintage method of improving fuel economy — but it also negatively affects vehicle safety. NHTSA’s 2002 fuel economy report concluded that regulatory-induced vehicle downsizing contributed to 1,300-2,600 fatalities and 13,000 to 26,000 serious injuries in 1993, a typical year. 

EPA and NHTSA struggle to belittle the size-safety tradeoff in their joint rule. However, they do include a “worst-case” scenario in which the new standards cause an additional 493 deaths in model year 2016 (see p. 144). Slowing the pace of fuel economy regulation would save lives.