Last Friday, April 29th, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to EPA’s “California waiver”.  That waiver permitted California to set its own greenhouse-gas emissions for new vehicles.  Because CO2 was the major gas that California was seeking to control, its rules amounted to a new, more stringent automotive fuel-economy standard.  And because at least 14 other states had adopted California’s standard, its actions may well have effectively replaced the federal CAFE standard with a higher one set in Sacramento.

The California waiver has a complicated history.  CARB (the California Air Resources Board) originally filed its waiver request with EPA in late 2005, claiming that the state had a uniquely compelling need to control atmospheric CO2 levels.  (The fact that the alleged problem at issue is global warming, not California warming, apparently didn’t faze CARB.)  After deliberating for more than two years, EPA denied CARB’s request, finding that it hadn’t demonstrated any extraordinary conditions to justify the waiver.

But in January 2009, one day after President Obama was sworn in, CARB resubmitted its request, and EPA granted the waiver several months later.  Then, in April 2010, the Administration, California and the auto industry struck a deal which imposed a higher set of federal fuel economy standards through model year 2016.  During that time, California agreed to merge its own newly-approved standards into the federal program, giving the auto industry the national uniformity in standards that it dearly wanted.

As part of the deal, the automakers agreed not to litigate the California waiver.  The Chamber of Commerce and NADA (the National Auto Dealers Association), however, filed their own lawsuit, and it was this case that the D.C. Circuit dismissed last week.  The court did not reach the merits of the case, ruling instead that neither party had standing to bring the action because they had not shown injury to their members.

The court’s ruling is somewhat of a shocker.  Fuel economy standards clearly affect vehicle marketing and design in ways that run counter to consumer demand; that, in fact, is the very rationale for these government regulations.  And so the notion that auto dealers can’t litigate the legality of this impact on the products they sell seems strange.  It also appears to run counter to the fuel-economy cases that CEI and Consumer Alert brought in 1989 thru 1995, challenging the federal CAFE standards on the grounds that they increased traffic deaths by restricting the availability of larger, more crashworthy cars.

The court based its ruling on several points:  the fact that the carmakers had agreed to the deal and had indicated they could meet the higher standards with no adverse effects on their products; the amount of time which had already passed since the waiver’s approval; and the specifics of NADA’s affidavits on standing and the agency record.  And the court went into a detailed comparison of those specifics with the evidence that was presented in the CEI/Consumer Alert litigation.

I’m pleased to see CEI’s old CAFE cases discussed so approvingly in a current court decision.  Nonetheless, I wonder how this latest ruling may impact the ability of retailers, and the public, to challenge the regulations that affect our lives.

On April 6, 2011, 50 Senators voted for S. 482, the Energy Tax Prevention Act, a bill to stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act. Supporters needed 60 votes to pass the bill. “Senate Definitively Beats Back Efforts to Restrict EPA Climate Rules,” declared the title of Inside EPA’s column (April 8, 2011) on the vote. That is spin masquerading as news.

Let’s review some not-so-ancient history. In 2003, Sens. John McCain (R-Ariz.) and Joe Lieberman (D-Conn.) introduced S. 139, the Climate Stewardship Act, a carbon cap-and-trade bill. It was defeated by a vote of 43-55. In 2005, McCain and Lieberman introduced a revised version, S. 1151, the Climate Stewardship and Innovation Act. It went down in flames by a bigger margin: 38-60. In 2007, McLieberman introduced yet another iteration (S. 280), which never even made it to the floor for a vote.

In three different Congresses, the McLieberman bill died in the Senate. After these continual defeats, did Inside EPA, the bill’s sponsors, or any environmental group declare that the Senate “definitively” rejected cap-and-trade?

Of course not. Yet S. 482 garnered more votes than any cap-and-trade bill the Senate has ever debated. Sponsors of S. 482 say they will press for other opportunities to hold additional votes. The day after the Senate vote, the House passed an identical measure (H.R. 910) by a vote of 255-172, a large victory margin that should improve prospects for eventual passage in the Senate. 

Another vote could occur as early as next month when Congress debates whether to raise the national debt ceiling. House Speaker John Boehner (R-Ohio) suggested last week that legislation to raise the debt ceiling — a key priority for Team Obama and Senate Majority Leader Harry Reed (D-Nev.) – might have to include curbs on EPA’s regulatory authority (The Hill, April 16, 2011). 

Since reports of S. 482′s demise are greatly exaggerated, it is useful to examine the tactics of leading Senate opponents. Previous posts review California Sen. Barbara Boxer’s tirade against S. 482 and Montana Sen. Max Baucus’s alternative legislation to codify EPA’s ever-growing ensemble of greenhouse gas (GHG) regulations. Today’s post offers a running commentary on New Jersey Sen. Frank Lautenberg’s floor statement opposing S. 482 (Congressional Record, April 6, 2011, pp. S2170-71). If Lautenberg’s rant is the best opponents can do, they have “definitively” lost the debate.

Mr. LAUTENBERG. Mr. President, this afternoon, this Chamber is going to face a clear question: What matters more, children’s health or polluters’ profits? We will be voting on amendments that would cripple the government’s ability to enforce the Clean Air Act.

A double whopper. The real question facing the Senate is: What matters more, protecting our constitutional system of separated powers and democratic accountability or protecting EPA’s purloined power to ‘enact’ climate policies the people’s representatives have never voted on or approved?

Overturning EPA’s GHG regulations would not decrease by one iota, much less “cripple,” the government’s ability to “enforce the Clean Air Act” or protect children from air pollution. For one thing, Congress never intended, and never subsequently voted for, the Clean Air Act to be used as a framework for climate policy. The terms “greenhouse gas” and “greenhouse effect” occur nowhere in the Act.

As even EPA admits, regulating GHGs through the Clean Air Act leads to ”absurd results” — an administrative meltdown that would cripple environmental enforcement. To avoid an administrative debacle of its own making, EPA had to re-write (“Tailor“) the Act’s clear, unambiguous, numerical definitions of “major emitting facility” to exempt small GHG-emitters from Clean Air Act permitting requirements. “Tailoring,” however, simply substitutes one absurd result for another, because administrative agencies have no authority to amend statutes. Lautenberg has it backwards: S. 482 would restore the Clean Air Act to its original statutory purposes, thereby eliminating the risk of bureaucratic paralysis.

Lautenberg, of course, is not alone in claiming that S. 482 cripples or ‘guts’ the Clean Air Act. All opponents say this. But how can that be? Congress enacted the Clean Air Act in 1970, but EPA did not start regulating GHGs until Jan. 2, 2011. If not regulating GHGs ‘guts’ the Clean Air Act, then the Act was ‘gutted’ during all of its first 40 years. In the debate on the 1990 Clean Air Act Amendments, Congress rejected amending language sponsored by Sen. Baucus to regulate CO2 and other gases based on their “global warming potential.” Would Lautenberg say that Congress in 1990 ‘gutted’ the already ‘gutted’ 1970 Clean Air Act? S. 482 opponents unwittingly — and absurdly – talk trash about the Clean Air Act they profess to revere.

Lautenberg also ignores the important differences between carbon dioxide (CO2) — the principal gas subject to EPA’s GHG rules — and the bona fide air pollutants Congress intended EPA to regulate. Here and throughout his remarks, Lautenberg employs an old rhetorical trick — when you can’t attack something (or someone) on the merits, call it (or him) by the name of something else — in this case, “pollution” — that your audience hates and fears.

In reality, CO2 — like water vapor, the atmosphere’s main greenhouse gas — is a normal and natural constituent of clean air. A colorless, odorless, trace gas, CO2 is non-toxic to humans at 30 times ambient concentrations, and is an essential building block of the planetary food chain. The increase in the air’s CO2 content since the dawn of the industrial revolution — from 280 to 390 parts per million – boosts the water-use efficiency of trees, crops, and other plants; helps protect green things from the damaging effects of ozone smog, sulfur dioxide pollution, and UV-B radiation stress; and helps make food more plentiful and nutritious. The many health and welfare benefits of atmospheric CO2 enrichment  make CO2 unlike any other gas EPA has ever regulated as an “air pollutant.”

This is a landmark law that protects our children from toxic chemicals in the air and illnesses such as asthma and lung cancer. In 2010, the Clean Air Act prevented 1.7 million cases of childhood asthma and more than 160,000 premature deaths. The numbers are big, but numbers do not mean much unless it is your child. If it is your child, there is no number that is too large to take care of that child’s health.

Lautenberg implies that repealing EPA’s hijacked power to control CO2 emissions will stop EPA from regulating “toxic chemicals.” A complete non sequitur, because CO2 is not a toxic chemical, and no provision authorizing EPA to regulate toxic substances would be repealed or otherwise limited (see previous comment). The numbers he cites – 1.7 million cases of asthma and more than 160,000 premature deaths prevented — should be taken with several handfuls of salt. Those numbers are EPA’s estimates — a product of self-evaluations in which the agency graded its own work.    

If you want to know the real value of clean air to American families, talk to parents who live in fear of their child’s next asthma attack. It is a fear my family knows very well. I have a grandson who is a terrific athlete, who is very energetic. He suffers from asthma. He is an athletic child. Every time he goes to play soccer, my daughter—his mother—will check first to see where the nearest emergency room is. She knows very well that if he starts wheezing, she has to get him to a clinic in a hurry. No parent should have to worry about letting their children play outside.

As my colleague Myron Ebell puts it, childhood asthma has become the “last refuge” of climate alarmists, who — thanks to Climategate and the outing of cap-and-trade as a stealth energy tax – can no longer sell their agenda as, well, climate policy. Carbon dioxide emissions neither cause nor aggravate childhood asthma. In fact, nowadays, not even bona fide air pollution is a major factor in asthma. As Joel Schwartz and Steven Hayward document in Air Quality in America (chapter 7), asthma rates have risen even as air pollution levels have declined, and hospital visits for asthma are lowest in July and August, when air temperatures and ozone levels are highest.

One can only speculate as to why asthma rates have gone up as air pollution has gone down. It may partly be an unintended consequence of the energy-efficiency crusade (which these days is inseparable from the global-warming crusade). A leading way to make homes more energy-efficient is to “seal” the “envelope” or “building shell”  to prevent outside air from leaking into the house and inside air from leaking out. A well-sealed home, however, might also be described as a poorly-ventilated home, a domicile that concentrates indoor air pollution. Indoor allergens such as roach feces and saliva can cause or contribute to asthma, as EPA acknowledges.

In any event, contrary to Lautenberg’s innuendo, a vote for S. 482 is not a vote against clean air. It is a vote against EPA awarding itself power beyond any plausible legislative mandate contained in the Clean Air Act.

If Lautenberg really believes EPA knows best and should be free to regulate GHG emissions as it sees fit, then he should introduce legislation authorizing the agency to do just that. He surely knows, however, that such a bill would be dead on arrival. He must also then realize that in 1970, years before global warming was a gleam in Al Gore’s eye, Congress could not possibly have granted EPA carte blanche to regulate GHG emissions. However, rather than respect the will of the people’s representatives, Lautenberg resorts to sophistry to protect EPA’s power grab. He should put on a dunce cap and go sit in the corner. 

The fact is, the Clean Air Act has improved life for millions of young people. The Supreme Court and scientists agree that the Clean Air Act is a tool we must use to stop dangerous pollution.

Ah yes, the appeal to authority: “The Supreme Court and scientists agree . . .” First off, a strong scientific case can be made against climate alarm; see, for example, Craig and Shirwood Idso’s remarkable literature review, Carbon Dioxide and the Earth’s Future: Pursuing the Prudent Path. Second, however honest climate scientists may be as individuals, few qualify as honest brokers – persons with no stake or material interest in the outcome of political, regulatory, and legal battles. Climate science as an enterprise is so heavily dependent on federal funding, and funding levels are so sensitive to public perceptions of risk and peril, that climate science has become thoroughly politicized. Third, scientists qua scientists don’t understand the Clean Air Act better than any other interest group. Fourth, as I explain here, the Supreme Court’s legal reasoning in Massachusetts v. EPA, the case positioning EPA to ‘enact’ climate policy, was deeply flawed.

This picture demonstrates so clearly what it is like with smog in the air, and it permits us to imagine what it looks like inside a child’s lung. This picture shows what toxic skies look like. It is an ugly scene, but it is much uglier when it is inside the child’s lungs or a child’s body or anybody who is sensitive to polluted air. That is the picture coming out of the smokestacks, and the picture turns into reality when it is in the lungs or the body of an individual.

A picture is worth a thousand words — except when it’s used to prejudice and mislead. In case Sen. Lautenberg hasn’t heard, CO2 is as invisible as oxygen. Whatever gunk appears in Lautenberg’s photograph, it isn’t CO2.

Allowing companies to reduce pollution, they say, would cost too much for polluters. Too bad. What is a life worth? What does it mean to someone who is sensitive to polluted air not to be able to get out or stop coughing or stop wheezing?

Again, the wilful confusion of CO2 emissions and air pollution and the outrageous claim that S. 482 would gut the Clean Air Act, leaving children to the mercy of “polluters.” Note that for Lautenberg, it’s not enough to assert these falsehoods once, twice, or even thrice. He repeats them at every turn. Rather like a propagandist — fancy that!

Allowing companies to continue polluting does not eliminate the costs. It simply shifts the costs to our families, our children, and all of us who breathe that air.

If CO2 is “pollution,” then the only way to eliminate it is to stop using the fossil (carbon-based) fuels of which CO2 is the intentional and inescapable byproduct. Does Lautenberg really suppose there would be no cost to families and children if America stopped using fossil fuels?

The American Lung Association and five other health groups sent a letter opposing all of these amendments. They say:

The Clean Air Act protects public health and reduces health care costs for all by preventing thousands of adverse health outcomes, including: cancer, asthma attacks, heart attacks, strokes, emergency room visits, hospitalizations, and premature deaths.

He’s starting to sound like a broken record (for those of us old enough to remember vinyl).  

I am aware of the threat asthma can be. I had a sister who was a victim of asthma. If our families traveled together, she would have a little respirator that could be plugged into the cigarette lighter hole and enable her to breathe more comfortably. One day she was at a school board meeting in Rye, NY, where she was a member of the school board. She felt an attack coming on. Her instinct was to try to run to her car so she could plug in the machine to the lighter hole. She collapsed in the parking lot, and she died 3 days later. We saw it upfront and personal. It was a terrible family tragedy. She had four children at the time.

Lautenberg provides no evidence that air pollution caused his sister’s asthma or triggered her fatal attack. More importantly, he provides no evidence that air pollution at today’s historically low levels induces fatal asthma attacks, or that regulating CO2 would prevent such attacks.  

When we hear talk about how threatening it is to control pollution, we say, no, the threat is to family health and to our well-being. That is what we are about in families with young people across this country and across the world.

He really can’t stop repeating himself.

It does not matter what the cost is. There is not a family in the world that would not dispose of all of their assets to protect and continue the life of a child.

It matters a great deal what the cost is. Public health and welfare hugely depend on prosperity and per capita income. Wealthier is healthier, richer is safer. Per capita income, CO2 emissions, and life expectancy are closely correlated.

History shows that the cost of cleaner air is very low compared to its enormous benefits. Thanks to the Clean Air Act, fewer parents miss work to take care of children suffering from asthma. More families avoid the crushing health care costs associated with a heart attack or stroke. People live longer, more comfortably, and have more productive lives. Simply put, weakening the Clean Air Act puts the profits of polluters ahead of the health of our children.

Yes, of course, cleaning up life- and health-damaging air pollution is worth the cost. That’s not what we’re debating here. By “polluters,” Lautenberg means CO2-emitters, and (for the umpteenth time) CO2 emissions are not associated with heart attack, cancer, stroke, or asthma. 

By “polluters,” Lautenberg means energy producers, because CO2-emitting fossil fuels provide 85% of America’s energy. EPA wants to regulate America “beyond petroleum” into a “clean energy future.” But if lower-cost, higher-quality forms of energy were available, EPA would not need to rig the market in their favor. EPA’s never-ending parade of GHG rules injects a massive dose of regulatory uncertainty into an economy still struggling to recover from the worst downturn since the 1930s. Asthmatic children will not be better off if their parents don’t have jobs. 

To see what the United States would look like without the Clean Air Act, we only need to look at China. On a visit there, I was scolded by the minister of environment that the United States was using too much of the world’s oil, creating difficulties in the air. When I was in the minister’s office, I invited him to join me at the window 23 stories up in the air. We looked outside and we could not see the sidewalk. That is how thick the polluted air was. The air in China is so polluted that many people wear masks when they walk outside. We do not want to be doing that in America.

Lautenberg talks as if the debate on S. 482 were a debate on whether to keep or repeal the Clean Air Act. When opponents stoop to arguments that dumb and mendacious, they have clearly lost the debate. It should only be a matter of time before they lose the vote. 

This poison must not be the future. I do not want it for my grandchildren, and I do not want it for anybody else’s children or grandchildren.

Carbon dioxide is a “poison”? Too bad chemicals cannot sue politicians for defamation.

In our Senate, in our Congress, our goal must be to take care of our obligations to protect our families. And the strongest obligation anyone has, anybody we know who has children does not want to endanger their health.

I ask all of my colleagues: Stand up. Vote down these dangerous efforts to destroy the Clean Air Act. It belongs as part of our environment. It protects our children, it protects the environment, and we must not let this opportunity be misunderstood and say: We have to vote no to give polluters a preference before our children.

Children, blah, blah, polluters, blah, blah, Clean Air Act, blah, blah.

Yesterday, Sen. Barbara Boxer (D-Calif.) mounted a tirade (Congressional Record, pp. 1955-57) against the McConnell amendment (a.k.a. S. 482, the Inhofe-Upton Energy Tax Prevention Act) to the small business reauthorization bill (S. 493). The amendment would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act (CAA), a statute enacted in 1970, years before global warming emerged as a public policy issue.

The Senate is expected to vote later today on S. 493, so it worthwhile examining Boxer’s speech, which opponents of the bill will undoubtedly recycle in today’s debate.

I discuss the rhetorical traps S. 482 supporters should avoid in an earlier post. Stick to your moral high ground, namely, the constitutional premise that Congress, not an administrative agency with no political accountability to the people, should make the big decisions regarding national policy. The fact that Congress remains deadlocked on climate and energy policy is a compelling reason for EPA not to ‘enact’ greenhouse gas (GHG) controls. It is not an excuse for EPA to substitute its will for that of the people’s representatives.

Okay, that said, let’s examine Boxer’s rant. It is lengthy, repetitive, and often ad homonym, so I’ll try to hit just the main points.

Boxer: S. 482 would “stop the Environmental Protection agency forever from enforcing the Clean Air Act as it relates to carbon pollution.”

She begs the question. How does the CAA “relate” to carbon pollution? The CAA never mentions “greenhouse gases,” “greenhouse effect,” or “global climate change.” It mentions carbon dioxide (CO2) only once — Sec. 103(g) — a provision authorizing EPA to “develop, evaluate, and demonstrate non regulatory strategies for air pollution prevention” (emphasis added). Lest any trigger-happy EPA regulator see the words “carbon dioxide” and go off half-cocked, Sec. 103(g) concludes with an admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.”

Boxer: “This [S. 482] is a first of a kind. It has never been done. It is essentially a repeal of the Clean Air Act as it involves one particular pollutant, carbon, which has been found to be an endangerment to our people.”

Again, the only provision in the CAA “as it involves” CO2 admonishes EPA not to regulate.

Boxer: “I guess the question for us as a body is, Whom do we stand with, the biggest polluters in America or the American people, 69 percent of whom said in a bipartisan poll: ‘EPA should update Clean Air Act standards with stricter air pollution limits.’’’

The folks Boxer is pleased to call “polluters” are also energy producers and job creators.

The poll she invokes is meaningless. Everybody is for cleaner air in the abstract. That tells us nothing about how much they are willing to pay for it, or what other public priorities (e.g. affordable energy, job creation) they are willing to sacrifice or put at risk. Far more relevant for Congress is the November 2010 elections. Voters punished lawmakers who supported the stealth energy tax formerly known as cap-and-trade. By threatening to sic EPA on CO2 emitters if Congress did not enact cap-and-trade, Team Obama tacitly acknowledged that EPA’s GHG regulations are less efficient, less predictable, and potentially more costly than the Waxman-Markey bill they could not sell to Congress and the public.

[Update: In a Mar. 27-29, 2011 survey by the Tarrance Group of 800 likely registered voters, 64% agree that "no new expensive regulation of business should be allowed without first getting approval from Congress," and a majority (53%) say that the level of environmental regulation should remain where it is now (25%) or there should be less (28%).]

Boxer: “Mr. President, 69 percent believe ‘EPA scientists, not Congress, should set pollution standards.’ But we have Senators playing scientist, putting on their white coats, deciding what EPA should do, when it ought to be based on science.”

S. 482 takes no position one way or the other on climate science. Nor would it put Congress in charge of setting pollution standards. Rather, S. 482 simply affirms that Congress, not EPA, should decide national policy on climate change.

Note also the biased phrasing (“EPA scientists”) of the poll question Boxer quotes. EPA and its apologists would have us believe that the agency is an apolitical honest broker — a gathering of scientific elders who seek only truth and care not for their agency’s power, prestige, and budget, and act in splendid isolation from the policy preferences and agendas of the environmental movement. Dream on!

Although there are surely honest people at the agency, EPA is not an honest broker. EPA is a major stakeholder, a big dog in the fight. Boxer ignores the massive conflict of interest that Congress, wittingly or otherwise, built into the CAA. The same agency that makes endangerment findings gets to regulate based on such findings. EPA therefore has an organizational interest in interpreting the science in ways that expand its power. This ethically flawed situation was tolerable when EPA confined itself to regulating substances that Congress authorized EPA to regulate (ambient air pollutants, toxic air pollutants, acid rain precursors, ozone depleting substances). But, to repeat the obvious fact that Boxer studiously avoids, Congress never told EPA to regulate the class of substances known as “greenhouse gases.”

Boxer: “What is the science telling us? That it is dangerous to breathe in air pollution with lots of carbon in it.”

Got that? In the same breath that Boxer scolds her GOP colleagues for not heeding science, she demonstrates her ignorance of science.  Carbon dioxide, like water vapor, the atmosphere’s main greenhouse gas, is an essential constituent of clean air.

S. 482 supporters please note: The oft-repeated phrase “carbon pollution” is meant to mislead the public. It embodies one of the oldest rhetorical tricks in the book, which is to call something benign or even beneficial by a name commonly given to something odious. When EPA’s apologists deliberately confuse CO2 with air pollution and denounce S. 482 as the “dirty air act,” they tacitly confess that they cannot sell global warming policy on its own merits.

Boxer: “Every single time we try to rein in pollution, special interests say: No, no, no, a thousand times no. We will stop growth. We will stop jobs. We will kill the economy. It is awful, awful, awful. Let me give one economic fact: If you can’t breathe, you can’t work. Here is a picture of a little girl suffering, struggling. I urge my colleagues who support Senator McConnell to look at this. They are not here, but maybe on TV they will. Look at this picture. Is that what we want for her future?”

This is either sheer demagoguery or invincible ignorance. Let me count the ways: (1) Boxer provides not one scrap of evidence that the child in the picture would not have asthma or would not have to wear a respirator if EPA adopts tougher controls on air pollution. (2) S. 482 in no way restricts EPA from issuing regulations targeting ozone, particulate matter, or other pollutants that affect respiratory function. (3) Air pollution will continue to decline even if EPA were to freeze current regulations in place because newer, cleaner vehicles and equipment will continue to replace older models and capital stock. (4) Air pollution at today’s historically low levels is not likely a major factor in childhood asthma. As Joel Schwartz and Stephen Hayward observe (see Chapter 7 of their book, Air Quality in America), air pollution has declined as asthma has been rising, and hospital visits for asthma are lowest in July and August, when ozone levels are highest.

Boxer: “If I went up to you and I said: If you know something worked perfectly well, would you mess with it? Would you change it? No. Why would you, if it is working well?”

The CAA may not be perfect, but it was certainly working better before EPA started to mess with it. As EPA itself confesses, regulating GHGs via the CAA leads to “absurd results” — policy outcomes that conflict with and undermine congressional intent. EPA and its state counterparts would have to process an estimated 81,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.

To avoid such “absurd results,” EPA issued its so-called Tailoring Rule, which revises CAA definitions of “major emitting facility” to exempt all but very large CO2 emitters from the permitting programs. But this just substitutes one absurdity for another.

“Tailoring” is bureaucrat-speak for “amending.” To avoid breaking the CAA beyond repair, EPA must play lawmaker, flout the separation of powers, and effectively rewrite portions of the statute. Nothing in the CAA authorizes EPA to revise the text in order to avoid an administrative debacle of its own making.

One would think that a Senator might be jealous of the authority exclusively vested in Congress by the Constitution. But no, Boxer is eager to have EPA ‘legislate’ climate policy and ‘amend’ the CAA provided the agency implements an anti-carbon agenda the Senate has repeatedly declined to pass.