William Yeatman

Indulge me for a moment, and imagine if an American president nominated the CEO of ExxonMobil to head the Environmental Protection Agency. Do you think that would fly with the public? I doubt it. Regardless of the nominee’s beliefs on environmental policy, it looks wrong. Yet the flip side also holds true: A rainbow warrior is an incongruous choice to head the Commerce Department. Again, it simply doesn’t look right.

This is why I’m amazed that President Barack Obama nominated John Bryson, co-founder of the environmental special interest Natural Resources Defense Council, to be the Secretary of Commerce.  Mr. Bryson isn’t merely a discordant nomination; his record suggests he’s an awful one. Environmentalist lawyers, such as the ones employed by the NRDC, are a clear and present danger to job creation. At every turn, they litigate to stop employment opportunities that would benefit  human beings, in order to protect insects, or minnows, or America’s supposed population of pregnant, subsistence fisherwomen. For environmental extremists like John Bryson, economic development—the purpose of the Commerce Department—takes a backseat to critters and phantom communities.

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Regulating air quality under the Clean Air Act is like eating Pringels: Once you pop, you can’t stop. That is, the Clean Air Act is structured such that regulation begets more regulation. This chain reaction is a major reason why the Obama administration’s decision to regulate greenhouse gases pursuant to the Clean Air Act was either foolish or diabolical. In so doing, the Environmental Protection Agency opened Pandora’s Box. It wants to choose when and where it regulates greenhouse gases, but it doesn’t have this discretion. Environmentalist special interests can and will use the courts to force the EPA’s hand. By the same token, however, this means EPA can use such suits as political cover, claiming it does not want to regulate this or that industry, or does not want to regulate under this or that Clean Air Act provision, but has no choice because ‘the court made us do it.’

To wit, last week the Center for Biological Diversity, an extremist environmental organization, won a significant case against the EPA in the D.C. Circuit Court. The litigation stemmed from the Center for Biological Diversity’s desire for the EPA to regulate greenhouse gas emissions from the aviation sector under the Clean Air Act. The first step towards such regulation is for the EPA to determine that greenhouse gases from airplanes “endanger” public health and welfare. In December 2007, the Center for Biological Diversity petitioned the EPA to make this “endangerment” finding. To date, the EPA has refused. So the Center for Biological Diversity sued to compel action.

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Last Thursday I appeared on Fox Business News to discuss the Cross-State Air Pollution Rule, the Obama administration’s latest salvo in its war on coal. See the segment here.

Truth be told, the Cross-State Rule is probably the least objectionable of this administration’s many anti-energy regulations. The Clean Air Act’s “good neighbor” provision (section 110(a)(2)(D)(i)(I)) requires upwind states to control emissions that affect the ability of downwind states to meet federal air quality regulations. In 1997, and again in 2006, the Environmental Protection Agency tightened air quality standards for ozone and particulate matter. Computer models suggest that emissions from 27 upwind states contribute to violations of these standards in downwind states. If the EPA did not regulate this interstate transport of ozone and particulate matter, downwind states would sue to force the EPA’s hand. According to the EPA’s economic analysis (which is almost assuredly a low-ball), the Cross-State Rule will cost the power industry in the eastern U.S. $6.5 billion through 2014. The coal-fired power industry will bear virtually all of these costs.

That said, the Cross-State Rule only can be described as “least objectionable” relative to the Obama administration’s other anti-coal regulations. For example, it’s not as bad as destroying the surface coal mining industry in Appalachia in order to protect a bug that lives for a day. Nor is it as egregious as the Utility MACT, one of the most expensive regulations ever, whose primary justification is to protect America’s supposed population of pregnant, subsistence fisherwomen. If, however, the Cross-State Rule is considered on its own, absent a comparison to other policies that are part of the current administration’s war on coal, then it is very objectionable. This is due to the EPA’s seemingly vindictive treatment of Texas.

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