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.

House Committee Acts To Stop President’s de facto Drilling Moratorium

The House Natural Resources Committee marked up three bills on Wednesday that would require the Obama Administration to stop its obstructive tactics and start producing more oil and natural gas from federal Outer Continental Shelf areas.  Committee Democrats dragged out the mark-up for nine hours by offering and insisting on recorded votes on a series of amendments to weaken or gut the three bills—H. R. 1229, 1230, and 1231.  None of their amendments was adopted.

It is expected that the House will pass all three bills in May.  Committee Chairman Doc Hastings (R-Wash.) plans to introduce additional bills in the next few months to increase domestic oil and gas production on federal lands in Alaska and the Rocky Mountains as part of House Republicans’ American Energy Initiative.

House Leadership Tacitly Endorses Excellent EPA Strategy

Environment and Energy News reported this week that House Speaker John Boehner (R-Ohio) did not rule out attaching something like the Energy Tax Prevention Act (H. R. 910) to the bill to raise the federal debt ceiling.  H. R. 910 would block the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions.  It passed the House last week on a 255 to 172 vote, but failed as an amendment in the Senate on a 50 to 50 vote.

Rep. Fred Upton (R-Mich.), Chairman of the Energy and Commerce Committee and main sponsor of H. R. 910, made similar remarks earlier in the week: “No debt limit is going to pass by itself. You’ll have to have some significant pieces with it.”

House Committee Counters Coal Crackdown

The House Energy and Commerce Committee held subcommittee hearings this week on the proposed coal ash rule and on the proposed utility, boiler, and cement Maximum Available Control Technology (or MACT) rules.

Rep. David McKinley (R-WV) has introduced a bill, H. R. 1391, to deny EPA the authority to regulate coal ash as a hazardous waste under the Solid Waste Disposal Act.  Coal ash has many industrial uses, including as a replacement for part of the Portland cement in concrete and in drywall.  Classifying coal ash as a hazardous waste would threaten its commercial use and thereby raise costs of producing coal-fired power.

It has been reported that bills will be introduced next month to block or delay EPA’s proposed three Clean Air Act MACT rules.  Each rule would have devastating economic effects.

For example, Rep. Greg Walden (R-Oreg.) at the hearing raised the example in his district (and in my home county of Baker County, Oregon) of a cement plant that has spent $20 million to install technology to reduce mercury emissions by 95%.  Under the proposed cement MACT rule, the plant would be required to reduce mercury emissions by 98.5%.

Achieving the additional 3.5% reduction would be too expensive and therefore the plant will probably be shut down if the rule goes into effect.  With the closure of the National Forests to commercial timber production, the Ash Grove cement plant is the largest employer (after the taxpayer-funded Forest Service, Bureau of Land Management, and local school district) in the county.

If Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) in the House, or Sens.  Barbara Boxer (D-Calif.) and Harry Reed (D-Nev.) in the Senate, were to introduce legislation authorizing EPA to use the Clean Air Act (CAA) as it sees fit to regulate greenhouse gases (GHGs), would the bill have any chance of passing in either chamber of Congress?

No. Aside from a few diehard global warming zealots, hardly any Member of Congress would vote for such a bill. Most lawmakers would run from such legislation even faster than the Senate last year ditched cap-and-trade after its outing as a hidden tax on energy. 

Now consider what that implies. If even today, after nearly two decades of global warming advocacy by the United Nations, eco-pressure groups, ’progressive’ politicians, left-leaning media, corporate rent-seekers, and celebrity activists, Congress would not pass a bill authorizing EPA to regulate GHGs, then isn’t it patently ridiculous for EPA and its apologists to claim that when Congress enacted the CAA in 1970 — years before global warming was a gleam in Al Gore’s eye — it gave EPA that very power?

These simple questions cut through the fog of sophistry emitted by the likes of Waxman, Markey, and Boxer to defend EPA’s hijacking of legislative power. As I have explained elsewhere in detail (here, here, here, and here), EPA, under the aegis of the Supreme Court’s poorly-reasoned, agenda-driven decision in Massachusetts v. EPA, is using the CAA in ways Congress never intended and never subsequently approved. EPA is defying the separation of powers. It should be stopped.

Last Thursday, 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 CAA. The bill did not pass because 60 votes were required for passage. The House, on the other hand, passed H.R. 910, an identical measure, by a vote of 255 to 172.  

Every Member of Congress should have voted for both measures, because every Member should resist attempts by other branches to encroach on Congress’s constitutional prerogatives. Article I, Sec. 1 of the Constitution vests “all legislative Powers” in Congress. Not in EPA. Not in the Supreme Court. In Mass. v. EPA, however, a 5-4 majority decided to ‘legislate’ from the bench, positioning EPA to ‘legislate’ from the bureau.

Sen. Boxer summed up the attitude of EPA’s apologists during last year’s debate on Alaska Sen. Lisa Murkowski’s resolution of disapproval (S.Res.26) to overturn EPA’s Endangerment Rule, the trigger and precedent for EPA’s ever-growing ensemble of GHG regulations. Boxer complained that if the public has to wait for Congress to enact controls on GHG emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Yes, but how in the world does that authorize EPA to substitute its will for that of the people’s representatives? The fact that Congress remains deadlocked on climate policy is a compelling reason for EPA not to act, not a license for EPA to elevate itself into Super Legislature.

The legislative process is often slow and frustrating. It is so by constitutional design! The slow process of legislative deliberation moderates out politics, fosters continuity in law and policy, and, more importantly, forces elected officials to take responsibility for policy decisions so that ordinary citizens can hold them accountable at the ballot box.

Every Member of Congress should know from Civics 101 that the legislative process is more valuable than any policy outcome an administrative agency might achieve by circumventing and undermining it. Regrettably, the 50 Senators who voted ‘no’ on S. 482 seem to think that EPA’s climate agenda is more valuable than any constitutional scruple that might interfere with it.

Defending the separation of powers becomes all the more urgent as America slouches towards insolvency. If the next economic crisis is worse than the present one, Congress will be hard put to resist the clamor for an Imperial Executive to make the trains run on time. Now is no time to turn a blind eye to — or cheerlead for — an executive agency’s court-abetted seizure of legislative power.

The Senate may get another chance to vote on S. 482. Nonetheless, the sad fact remains that 50 Senators just voted to trash the separation of powers. They fiddle while the Republic burns.

The House of Representatives this afternoon passed H. R. 910, the Energy Tax Prevention Act, by a vote of 255 to 172.  Nineteen Democrats voted Yes.  No Republicans voted No.  This is a remarkable turnaround from the last Congress when on 26th June 2009 the House voted 219 to 212 to pass the Waxman-Markey cap-and-trade bill.

The Energy Tax Prevention Act, sponsored by Rep. Fred. Upton (R-Mich.), the Chairman of the Energy and Commerce Committee, would prohibit the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions and thereby put a potentially huge indirect tax on American consumers and businesses.   Coal, oil, and natural gas produce carbon dioxide, the principal greenhouse gas, when burned.  Those three fuels provide over 80% of the energy used in America.  Thus regulating carbon dioxide emissions essentially puts the EPA in charge of running the U. S. economy.

This is just the first step in stopping the Obama Administration’s attempt to raise energy prices .  The House bill now heads to the Senate, where yesterday an attempt to add the Energy Tax Prevention Act (introduced in the Senate as S. 482 by Senator James M. Inhofe of Oklahoma) as an amendment to another bill was defeated on a 50-50 vote.  Minority Leader Mitch McConnell’s amendment would have required 60 votes to be attached to S. 493.  Four Democrats joined 46 Republicans in voting for the amendment–Senators Joe Manchin of West Virginia, Mary Landrieu of Louisiana, Ben Nelson of Nebraska, and Mark Pryor of Arkansas.  Senator Susan Collins of Maine was the only Republican to vote No.

The strong House vote in favor of the Energy Tax Prevention Act should build new momentum to pass it in the Senate later this year.  Of course, the White House has already issued a veto threat, which shows that President Obama is not interested in creating new jobs and restoring prosperity to America.  Congress has now rejected cap-and-tax resoundingly, but the President still hopes to achieve through backdoor regulation his goals of skyrocketing electric rates and gasoline prices at the $10 a gallon European level.

How many agencies does it take to regulate fuel economy?

Only one — the National Highway Traffic Safety Administration (NHTSA) — if we follow the law (1975 Energy Policy and Conservation Act, 2007 Energy Independence and Security Act); three — NHTSA + EPA + the California Air Resources Board — if law is trumped by the backroom, “put nothing in writing,” Presidential Records Act-defying deal negotiated by former Obama Environment Czar Carol Browner.

Tomorrow, the Senate is expected to vote on S. 493, the McConnell amendment, which is identical to S. 482, the Inhofe-Upton Energy Tax Prevention Act. S. 493 would overturn all of EPA’s greenhouse gas (GHG) regulations except for the GHG/fuel economy standards EPA and NHTSA jointly issued for new motor vehicles covering model years 2012-2016, and the GHG/fuel economy standards the agencies have proposed for medium- and heavy-duty trucks covering model years 2014-2018. The legislation would leave intact NHTSA’s separate statutory authority to regulate fuel economy standards for automobiles after model year 2016 and trucks after model year 2018.

Bear in mind that GHG emission standards and fuel economy standards are largely duplicative. As EPA acknowledges, 94-95% of all GHG emissions from motor vehicles are carbon dioxide (CO2) from the combustion of motor fuels. And as EPA and NHTSA acknowledge, “there is a single pool of technologies for addressing these twin problems [climate change, oil dependence], i.e., those that reduce fuel consumption and thereby reduce CO2 emissions as well” (Joint GHG/Fuel Economy Rule, p. 25327).

The National Auto Dealers Association (NADA), whose members know a thing or two about what it takes to meet the needs of the car-buying public, sent a letter to the Senate today urging a “Yes” vote on S. 493. NADA stresses three points. S. 493 would:

• End, after 2016, the current triple regulation of fuel economy by three different agencies (NHTSA, EPA, and California) under three different rules.
• Restore a true single national fuel economy standard under the CAFE program, with rules set by Congress, not unelected officials. Ensure jobs, consumer choice, and highway safety are considered according to federal law when setting a fuel economy standard.
• Save taxpayers millions of dollars by ending EPA’s duplicative fuel economy regime after 2016.

Let’s examine the first two points in a bit more detail. The NADA letter says:

The McConnell amendment would restore the statutory clarity that was lost in 2009 when EPA allowed states to begin regulating fuel economy by granting California a waiver from preemption under the Clean Air Act for its fuel economy/greenhouse gas rules, and when EPA elected to also regulate fuel economy as part of its voluntary response to the remand in Massachusetts v. EPA by the U.S. Supreme Court. The McConnell amendment would reestablish the historical system of a single national fuel economy standard, once the triple regulation of fuel economy embodied in the National Program has run its course after model year 2016.

What NADA calls the “historical system” is also the statutory system. The Clean Air Act provides no authority to any agency to regulate fuel economy. A completely separate statute, the 1975 Energy Policy and Conservation Act (EPCA), authorizes EPA to monitor compliance with federal fuel economy standards (49 U.S.C. 329). The same statute authorizes the Department of Transportation, not EPA, to prescribe fuel economy standards.

The NADA letter also handily shoots down the falsehood that S. 493 would “massively increase America’s oil dependence”:

The [NHTSA-administered] CAFE [corporate average fuel economy] program alone provides virtually all of the fuel economy increases/GHG reductions in the current National Program, since raising the fuel economy of a vehicle automatically reduces its GHG emissions. EPA’s rule provides only minor incremental GHG reductions by also regulating vehicle air conditioners. To our knowledge, EPA has never offered any evidence demonstrating that giving credits to automakers for installing improved air conditioners after 2017 would save, as EPA claims, “hundreds of millions of barrels of oil.” To the contrary, under EPA’s MY 2012-2016 rule, air conditioning credits are extended to automakers primarily for switching to coolants that are less greenhouse gas intensive, which has a negligible impact on oil savings.

Opponents assert that S. 493 would harm the auto industry. That defies common sense. Opponents “fail to explain how being regulated by three different fuel economy programs with three different sets of rules administered by three different agencies pursuant to three different laws is more beneficial than a single national fuel economy standard.”

My organization, the Competitive Enterprise Institute (CEI), has long argued that fuel-economy regulation per se is bad policy because it restricts consumer choice, increases vehicle cost, and, most importantly, literally kills people.

Fuel economy standards inevitably induce automakers to decrease average vehicle size and weight. Lighter cars have less mass to absorb collision forces. Smaller cars provide less space between the occupant and the point of impact. The National Academy of Sciences found that in 1993 (a typical year), CAFE-induced downsizing contributed to an additional 1,300-2,600 fatalities and 13,00-26,000 serious injuries.

As long as we’re stuck with fuel economy regulation, however, the agency setting the standards should be the one required by law to consider all adverse unintended consequences. That agency is NHTSA, not EPA:

When setting a fuel economy standard, NHTSA considers job loss, consumer choice, consumer acceptability, and highway safety. Congress mandated that NHTSA consider these important factors to ensure that fuel economy increases do not needlessly put people out of work or limit sales of certain types of vehicles. This balancing of protections for workers, consumers, and highway safety is not replicated in the Clean Air Act, as that statute was not designed to regulate fuel economy. Passage of the McConnell amendment would ensure that jobs and highway safety are given the consideration Congress mandated.

The American Lung Association is right up there with the Union of Concerned Scientists as a leftist activist organization pretending to be a professional association with high-minded objectives.  In fact, the American Lung Association is a bunch of political thugs.  Their latest hit job is putting up billboards in Rep. Fred Upton’s district in Michigan that urge him to “protect our kids’ health. Don’t weaken the Clean Air Act (PDF).” The billboard has a photo of an adolescent girl with a respirator.

The American Lung Association is opposing a bill, the Energy Tax Prevention Act (H. R. 910), that is sponsored by Rep. Upton, the Chairman of the House Energy and Commerce Committee.  Upton’s bill, which is expected to be debated on the House floor in early April, does nothing to weaken the Clean Air Act.  It simply prevents the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions.

Congress never intended the Clean Air Act to be used to enforce global warming policies on the American people.  As my CEI colleague Marlo Lewis recently noted, attempts to add provisions to the Clean Air Act Amendments of 1990 that would allow the EPA to regulate greenhouse gas emissions were defeated in the Senate.  A similar attempt in the House went nowhere.

So what Rep. Upton is trying to do is to restore the Clean Air Act to the purpose originally intended by Congress—that is, to reducing air pollution.  The American Lung Association should welcome his effort because it removes a huge distraction and financial drain from the EPA.  Clarifying that the Clean Air Act cannot be used to solve global warming will allow the EPA to concentrate on protecting people’s health.

Instead, the American Lung Association implies that Rep. Upton is supporting a bill that will increase childhood asthma rates.  The charge is ludicrous.  If the American Lung Association cared about children, they would consider the effects on families of being forced to pay higher energy prices as a result of EPA’s global warming regulations.  There is a large amount of medical literature that shows the adverse health effects of poverty.  The effects are especially pronounced on infants and young children.

As JunkScience.com reports, the most scandalous aspect of the American Lung Association’s lobbying against the Energy Tax Prevention Act is that one of its major funders is the Environmental Protection Agency.  The EPA has given the American Lung Association over twenty million dollars in the last ten years.  So the EPA pays the American Lung Association, which in turn lobbies against a bill that would rein in EPA.  The impropriety is obvious, but then the American Lung Association is shameless.

Today at Pajamas Media.Com, I discuss the latest stratagem of the greenhouse lobby to protect EPA’s purloined power to dictate national climate and energy policy: Sen. Max Baucus’s (D-Mont.) amendment to the small business reauthorization bill.
 
The Baucus amendment would essentially codify EPA’s Tailoring Rule, which exempts small greenhouse gas (GHG) emitters from Clean Air Act (CAA) permitting requirements.
 
That may seem innocent enough. However, if enacted, the Baucus amendment would also codify the ever-growing ensemble of EPA climate initiatives of which the Tailoring Rule is only a small piece.
 
EPA’s current and probable future climate regulations include GHG/fuel-economy standards for all categories of mobile sources (cars, trucks, marine vessels, aircraft, non-road vehicles and engines) and GHG/energy-efficiency standards for dozens of industrial source categories. 
 
Congress, however, never authorized EPA to determine fuel economy standards for motor vehicles, much less dictate national policy on climate change. The Baucus amendment would put Congress’s legislative stamp of approval on EPA’s end-run around the legislative process.
 
The amendment has almost no chance of passing in the GOP-led House of Representatives. However, it does not need to pass to perpetuate EPA’s shocking power grab. All it has to do is peel off enough votes in the Senate to prevent passage of the Inhofe-Upton Energy Tax Prevention Act. That bill, which is almost certain to pass in the House, would overturn most of EPA’s current GHG regulations and stop the agency permanently from promulgating climate change policies Congress never approved.
 
Whether the Baucus amendment is adopted or just blocks passage of Inhofe-Upton, the U.S. economy will be exposed to the risk that EPA will be litigated into establishing national ambient air quality standards (NAAQS) for GHGs, and to the risk that EPA will use BACT (“best available control technology”) determinations and NSPS (New Source Performance Standards) to restrict America’s access to affordable, carbon-based energy.
 
With the possible exception of Michigan Rep. John Dingell, who chaired the House-Senate conference committee on the CAA Amendments of 1990, nobody on Capitol Hill should know better than Sen. Baucus that Congress never authoried EPA to regulate GHGs for climate change purposes. During congressional debate on the CAA Amendments, Baucus tried and failed to persuade the Senate to adopt language requiring EPA to set CO2 emission standards for motor vehicles. He also tried and failed to persuade House-Senate conferees to adopt language establishing GHG emission reduction as a national goal and requiring EPA to regulate manufactured substances based on their “global warming potential.”
 
EPA today is exercising the very powers that Baucus tried and failed to persuade Congress to grant the agency in 1989. Hence the title of my column on the Senator’s amendment: “EPA’s Greenhouse Power Grab: Baucus’s Revenge, Democracy’s Peril.”
 
Sadly, more than a few Members of Congress today seem to believe that the greenhouse agenda is more important than any constitutional principle that might interfere with it. How Senators vote on the Baucus amendment will be a test of their respect for the Constitution.

Yesterday, the House Energy and Commerce Committee approved H.R. 910, the Energy Tax Prevention Act, as amended, by 34-19. The bill would stop EPA from ’legislating’ climate policy through the Clean Air Act. All 31 Republicans and three Democrats (Mike Ross of Arkansas, Jim Matheson of Utah, and John Barrow of Georgia) voted for the bill.

Opponents introduced several amendments, all of which were defeated.

Ranking Member Henry Waxman (D-Calif.) offered an amendment stating that Congress accepts EPA’s finding that “climate change is unequivocal.” Rep. Diana DeGett (D-Colo.) offered an amendment stating that Congress accepts as “compelling” the scientific evidence that man-made greenhouse gas emissions are the “root cause” of climate change. Rep. Jay Inslee (D-Wash.) offered an amendment stating that Congress accepts EPA’s finding that greenhouse gas emissions endanger public health and welfare. Rep. Bobby Rush (D-Ill.) offered an amendment limiting H.R. 910′s applicability until the Secretary of Defense certifies that climate change does not threaten U.S. national security interests. Rep. Ed Markey (D-Mass.) offered an amendment allowing EPA to issue greenhouse gas regulations that reduce U.S. oil consumption. Rep. Lois Capps (D-Calif.) offered an amendment limiting H.R. 910′s applicability until the Centers for Disease Control certify that climate change is not a public health threat. Rep.  Inslee also offered an amendment limiting H.R. 910′s applicability until the National Academy of Sciences certifies the bill would not increase the incidence of asthma in children.

These amendments had no chance of passing, but that was not their purpose. The objective, rather, was to enable opponents to claim later, when the full House debates the bill, that a vote for H.R. 910 is a vote against science, public health, national security, energy security, and children with asthma. This is arrant nonsense, as I will explain below.

Markey’s oil demand reduction amendment was perhaps the cleverest. After all, most Republicans are as alarmist about U.S. dependence on foreign oil as are most Democrats. All 31 Republicans voted against Markey’s amendment, but they had trouble explaining why.

Here’s why Markey’s amendment deserved defeat. Congress gave the National Highway Traffic Safety Administration (NHTSA), not EPA, authority to set fuel economy standards for new motor vehicles. Moreover, Congress gave NHTSA that authority under the 1975 Energy Policy and Conservation Act (EPCA) and 2007 Energy Independence and Security Act (EISA). The Clean Air Act provides no authority to any agency to set fuel economy standards.

Yet EPA is effectively setting fuel economy standards by establishing greenhouse gas emission standards for new cars and trucks.  As EPA acknowledges, 94-95% of motor vehicle greenhouse gas emissions are carbon dioxide from motor fuel combustion. And as both EPA and NHTSA acknowledge, “there is a single pool of technologies for addressing these twin problems [climate change, oil dependence], i.e. those that reduce fuel consumption and thereby reduce CO2 emissions as well” (p. 25327).

In short, by setting greenhouse gas emission standards, EPA has hijacked fuel economy regulation. EPCA authorizes EPA to monitor automakers’ compliance with federal fuel economy standards, but it gives EPA no power to set those standards.

The Markey amendment would reward EPA’s power grab by dramatically expanding the agency’s power! As Markey explained, his amendment would authorize EPA to reduce oil consumption throughout the economy — not just cars and trucks but also aircraft, marine vessels, non-road vehicles and engines, and industrial boilers. This exceeds any authority granted to any agency under any existing federal statute.

It is amazing that Markey would propose to make such a sweeping change in national policy in a one-sentence amendment based on five minutes of debate. Congress typically spends many years debating changes in fuel economy policy before enacting them because so many competing interests come into play even when the changes affect just one subset of one sector of the economy — passenger vehicles and light duty trucks. Yes, fuel economy standards may reduce oil consumption somewhat. However, fuel economy standards also increase the cost of motor vehicles and restrict consumer choice. More importantly, by encouraging automakers to produce lighter, smaller vehicles that provide less protection in collisions, fuel economy standards increase traffic fatalities and serious injuries.

What unintended consequences would ensue from applying fuel economy standards to planes, boats, boilers, etc.? Nobody knows. Congress has never held a hearing to find out. If Markey really wants EPA to control oil consumption throughout the economy, then he should draft a bill, try to find co-sponsors, try to persuade the majority to hold hearings, and try to persuade colleagues and the public to support it. Instead, he attempts through a one-sentence provision not only to legalize EPA’s hijacking of fuel economy regulation but expand it across the board to all oil-using machines! This sets a new standard for chutzpah.

All of the hostile amendments were designed to trick H.R. 910 supporters into abandoning their moral high ground. All were designed to suck supporters into affirming controversial positions that H.R. 910 neither presupposes nor implies. Opponents’ strategy was to change the subject so that H.R. 910 supporters would end up debating climate science, climate change risk, or oil dependence rather than the constitutional impropriety of EPA ‘legislating’ climate and energy policy through the regulatory backdoor. More than a few Republicans took the bait, allowing the other team to define, and thereby occupy, the moral high ground.

When the bill finally gets to the House floor, supporters need to do a better job of anticipating and foiling opponents’ rhetorical tricks. If I were writing a floor statement for an H.R. 910 supporter, it would go something like this:

H.R. 910 is called the Energy Tax Prevention Act. It could also be called the Democratic Accountability in Climate Policy Act. Or the Separation of Powers Restoration Act.

What are the premises on which this legislation is based? The Constitution puts Congress, not non-elected bureaucrats, in charge of determining national policy. Congress has never authorized EPA to determine national policy on climate change. The Clean Air Act was enacted in 1970, years before global warming emerged as a policy issue. The terms “greenhouse gas” and “greenhouse effect” do not even occur in the statute. The Clean Air Act is an even less efficient, less predictable, and potentially more costly framework for restricting the American people’s access to affordable energy than the cap-and-trade legislation that Congress and the public rejected last year.

Don’t take my word for it. Ask EPA Administrator Lisa Jackson, Rep. Ed Markey, and others who only last year warned that if we did not preempt EPA by enacting a cap-and-trade bill, we would get a greenhouse gas regulatory system that cap-and-trade critics would like even less.

I hope we can have a candid debate on H.R. 910. So far, however, opponents have tried to avoid the real issue, which is simply: Who shall make climate policy — the people’s representatives, or an administrative agency not accountable to the people at the ballot box? Our Constitution permits only one answer to that question.

Opponents say that Congress should step aside and let EPA make climate policy, because Congress won’t enact cap-and-trade or other measures they support.

That’s a very strange notion of democracy. Opponents seem to think they are entitled to win even if they lose in the halls of Congress and the court of public opinion.

H.R. 910 is designed to safeguard the constitutional separation of powers and the political accountability such separation was intended to secure. Opponents don’t want you to know that. That’s why they keep trying to change the subject. They want to have a debate on climate science. Or on oil dependence. They have their views on these topics. I have mine. What we think about climate science and oil dependence is irrelevant to what we are debating today.

Today we are not debating what climate and energy policy should be. We are debating who should make it. Some seem to think it’s okay for EPA to exercise power beyond any plausible legislative mandate because they and EPA share the same basic agenda. That’s not right.

No agenda is so important that it excuses congressional passivity or even complicity when an agency gets too big for its britches and starts acting like a Super-Legislature.

EPA is initiating major changes in national policy — changes fraught with large potential impacts on jobs and the economy. The Clean Air Act does not authorize EPA to establish or tighten fuel economy standards for new cars and trucks, yet that is effectively what it is doing. And EPA will soon be dictating fuel economy standards for aircraft, marine vessels, and non-road vehicles, even though no existing statute authorizes any agency to do that. If not stopped, EPA will eventually issue greenhouse gas performance standards for dozens of industrial categories, and could even be litigated into establishing national ambient air quality standards for greenhouse gases set below current atmospheric concentrations.

America could end up with a greenhouse gas regulatory regime more costly and intrusive than any climate bill Congress has declined to pass, or any climate treaty the Senate has declined to ratify, yet without the people’s representatives ever voting on it.

Making policy decisions of such economic and political magnitude is above EPA’s pay grade. It is above any administrative agency’s pay grade.

Our opponents claim that we seek to repeal a scientific finding, as if, like King Canute, we were trying to command the tides to halt. That’s very clever, but it’s an outrageous misrepresentation.

H.R. 910 does not repeal EPA’s endangerment finding. Rather, it repeals the Rulemaking in which EPA published its finding. H.R. 910 repeals the legal force and effect of EPA’s finding. H.R. 910 takes no position whatsoever on the validity of EPA’s reasoning or conclusions.

Opponents keep asking, ‘What is your plan’ to address climate and energy issues? That is putting the cart way before the horse. Our first order of business is to restore democratic accountability to climate policymaking. Then and only then can Congress, no longer distracted by EPA’s attempt to narrow our options and prejudge our decisions, consider these issues properly — on their merits.

Congress is a deliberative body. Sometimes Congress does not act as quickly as some Members would like. Sometimes Congress does not enact legislation that some Members support. That, however, does not authorize EPA to implement far-reaching policy changes Congress has not approved.

The legislative process is often frustrating and slow. It is supposed to be! It moderates our politics and promotes continuity in law and policy. This slow, deliberative legislative process is more valuable than any result that an administrative agency might obtain by doing an end run around it. Of all people, Members of Congress should understand this basic precept of our constitutional system.

The Senate may vote today on the McConnell Amendment to S. 493.  The amendment is identical to S. 482, the Energy Tax Prevention Act, which was passed out of the House Energy and Commerce Committee yesterday evening, with bipartisan support. The legislation would revoke the EPA’s authority to regulate greenhouse gases under the Clean Air Act.

Although this looked like a long shot when Senator Minority Leader Mitch McConnell (R-KY) surprised everyone by offering it yesterday, the Democratic leadership realized late yesterday afternoon that they might lose.  That’s when Senator Jay Rockefeller (D-WV) introduced his two-year delay bill as an amendment.  That has fallen flat.  The outcome appears to be in doubt this morning.  There could be a vote and McConnell’s amendment could pass narrowly.  There could be a vote and the amendment could fail narrowly.  There could be a deal on all the amendments pending and the amendment could be withdrawn as part of the deal.  McConnell could pull the amendment because it’s going to fail.  Senate Majority Leader Harry Reid (D-NV) could pull the bill from the floor because the amendment is going to pass.

My guess is that they can’t quite get to 60.  It might be worth a vote if it fails narrowly because then we would know who needs encouragement.  But if it’s going to fall short, the better outcome in my view would be to pull the amendment, wait for an overwhelming House vote to build momentum, and then provide encouragement to a lot of Senators for a vote later this year.  But that’s just my view.  There’s quite a bit that we don’t know, and in the end it will be up to McConnell and Reid

Last Thursday, the House Energy & Power Subcommittee, on a voice vote, approved H.R. 910, the “Energy Tax Prevention Act.” My colleague Myron Ebell blogged about it over the weekend in a post titled Inside the Beltway.

The present post offers additional commentary. The full House Energy and Commerce Committee marks up the legislation today and tomorrow.

Rep. Henry Waxman (D-Calif.) led the charge for the minority, claiming H.R. 910 “rolls back” the Clean Air Act. Wrong. H.R. 910 restores the Clean Air Act (CAA). Congress never intended the CAA to be a framework for greenhouse gas regulation, and never subsequently voted for it to be used as such a framework. The terms “greenhouse gas” and “greenhouse effect” never even occur in the Act, which was enacted in 1970, years before global warming was even a gleam in Al Gore’s eye. 

The CAA as amended in 1990 does mention “carbon dioxide” and ”global warming potential,” but only once, in the context of non-regulatory provisions, and each time followed by a caveat admonishing EPA not to infer authority for “pollution control requirements” or “additional regulation.” This language would have been superfluous and without legal effect if, as Waxman assumes, EPA already had authority since 1970 to control carbon dioxide as an “air pollutant” or regulate greenhouse gases in general based on their ”global warming potential.” The only time Congress spoke directly to the issue of global warming in the Clean Air Act, it instructed EPA not to jump to regulatory conclusions. For further discussion, see my columns EPA’s End-Run Around Democracy and Endangerment Smackdown: Should Congress Heed Russell Train’s Advice.

Waxman said H.R. 910 “overturns EPA’s scientific finding.” Reps. Ed Markey (D-Mass.) and Jay Inslee (D-Wash.) go further, asserting that Republicans are trying to repeal the law of gravity and the first law of thermodynamics. Rubbish. Nature is what it is. EPA’s assessment of the science is what it is. H.R. 910 takes no position on climate science. It does not presume to command Nature or rescind EPA’s assessment of the scientific literature. Rather, H.R. 910 aims to overturn the legal force and effect of the rule in which EPA published its assessment, the so-called endangerment finding.

As even Rep. Waxman might admit, science should inform, not dictate, policy. EPA, however, is using its allegedly scientific assessment to dictate policy. EPA’s Endangerment Rule obligates EPA to regulate greenhouse gas emissions from new motor vehicles, which then obligates EPA to impose CAA permitting requirements on stationary sources of greenhouse gases. In addition, the Endangerment Rule authorizes or obligates EPA to establish emission standards for other mobile sources (aircraft, marine vessels, non-road vehicles) and New Source Performance Standards (NSPS) numerous industrial source categories. EPA may even be litigated into establishing National Ambient Air Quality Standards (NAAQS) for greenhouse gases set below current atmospheric concentrations.

Thus, by publishing an assessment of the science literature, EPA authorized itself to ‘legislate’ national policy on climate change. America could end up with a climate regulatory regime more costly and intrusive than any cap-and-trade bill Congress has declined to pass, or any climate treaty the Senate has declined to ratify, yet without the people’s representatives ever voting on it. H.R. 910 would stop this trashing of our constitutional system of separated powers and democratic accountability.

Waxman said: “Some Republicans on the committee will argue today that this bill is not a rejection of science, but if they believed in the serious threat posed by climate change, they would have accepted our offer to work together without preconditions to develop a responsible plan for promoting clean energy and reducing carbon emissions.” Two problems here. First, Waxman confuses science with his view of the science. Some scientists, such as University of Alabama in Hunstville climatologist John Christy, who recently testified before the Energy and Power Subcommittee, take a decidedly non-alarmist view. 

Second, a “clean energy standard” (CES), like the failed Waxman-Markey cap-and-trade bill, is just another way of ”skinning the cat,” as President Obama put it. A CES is another way to “bankrupt” coal power plants and cause electricity rates to “necessarily skyrocket.”  Obama’s CES proposal aims at almost exactly the same mix of electricity fuels that the Waxman-Markey cap-and-trade bill would have created. A CES resembles a Soviet-style production quota and would probably be less efficient than cap-and-trade. Why should Republicans and Blue Dog Democrats who oppose cap-and-trade feel obliged to support something even worse?  

Waxman said: “It is hard to know how to respond when the other side calls H.R. 910 the Energy Tax Prevention Act but EPA has no authority to levy taxes, nor does the Agency propose to do so.” Rep. John Dingell (D-Mich.) made the same point, claiming that the sponsors had a “truth in advertising” problem, because EPA is not collecting revenues from taxpayers. This kind of nit-picky literalism misses the point. Granted, rhetoric can distort reality. An apt example is Waxman and Markey’s “American Clean Energy and Security Act,” which would have inflated gasoline prices, destroyed jobs, and increased our reliance on costly and unreliable wind and solar power.

Rhetoric, however, can also demystify convoluted agendas so that the public can understand who’s trying to fleece them. Although economists had long argued that a carbon tax is more efficient, the global warming movement preferred cap-and-trade because its economic impacts are less obvious. Calling it ”cap-and-tax” opened peoples eyes. Even though cap-and-trade was not strictly a tax, it would have some of the same effects as an energy tax, such as causing electric rates to “necessarily skyrocket.” EPA’s regs would similarly penalize fossil energy production and use, raising consumer energy prices. H.R. 910′s title spotlights this valid concern. As Subcommittee Chair Ed Whitfield (R-Ky.) later said, the bill would repeal a “de facto tax on energy.”

Rep. Mike Doyle (D-Penn.) argued that EPA’s greenhouse rules can’t be sending jobs to China because they apply only to facilities that are “new” or “drastically modified.” Two problems here. First, Doyle tacitly concedes that EPA’s rules could send future jobs to China, by discouraging firms to undertake new construction or major modifications. But that means the rules could be sending jobs to China already, because people invest today based on their expectations for the future (duh!). Moreover, EPA has announced that it plans to apply greenhouse gas performance standards to existing, non-modified coal power plants. Besides, the purpose of H.R. 910 is not merely to undo any economic damage that EPA’s greenhouse gas regulations have done since Jan. 2, 2011, when they took effect, but to safeguard America’s economic future for years to come.

Rep. Inslee denounced H.R. 910 as the “dirty air act” (not very original), asserting it would prevent EPA from fighting childhood asthma. If Inslee really believes that, then I have a bridge I’d like to sell him. To restate the obvious, carbon dioxide is not an asthma-triggering or -exacerbating air pollutant. EPA already has all the power it could possibly want under traditional CAA programs to control air pollution. U.S. air quality is not a major factor in childhood asthma. Asthma rates have risen even as air pollution has declined, and hospitalizations for asthma are lowest in July and August — months when smogs levels are highest. For further discussion, see Chapter 7 of Joel Schwartz and Steven Hayward’s book, Air Quality in America: A Dose of Realty on Air Pollution Levels, Trends, and Risks.
 
Rep. Eliot Engel (D-N.Y.) suggested that allowing EPA to regulate greenhouse gases through the CAA would grow the economy: “Since its adoption, the Clean Air Act has reduced key air pollutants by 60 percent, while at the same time the economy has grown by over 200 percent.” Yes, but who today would say that the economy is in great shape? Unemployment hovers near 10%. Imposing virtual taxes on energy can only impede recovery.

Small business is the main job creator. Environmental compliance already “costs 364 percent more [per employee] in small firms than in large firms,” according to the Small Business Administration Office of Advocacy. EPA’s Tailoring Rule shields small greenhouse gas emitters from CAA permitting requirements by effectively amending the statute’s numerical definitions of “major emitting facility.” If courts strike down the Tailoring Rule as a violation of the separation of powers, then small business compliance costs will “necessarily skyrocket.” Even if courts uphold the Tailoring Rule, EPA’s regulations will increase small business energy costs.

Waxman opined that H.R. 910 would jeopardize EPA’s model year 2012-2016 greenhouse gas tailpipe standards, on which auto companies have already based their plans, despite language leaving those standards in place. “The exception doesn’t address the issue of whether those standards can survive legal challenge without the endangerment finding,” he said. His point being that H.R. 910 would overturn EPA’s Endangerment Rule, without which EPA could not legally issue the Tailpipe Rule. True but irrelevant. As Subcommittee Counsel Maryam Brown noted, if Congress via H.R. 910 codifies the Tailpipe Rule, then there can be no legal challenge to it. 
 
Brown’s point also takes care of Waxman’s concern that a decoupling of EPA’s greenhouse gas motor vehicle emission standards from the National Highway Traffic Safety Administration’s (NHTSA’s) fuel economy standards would decrease greenhouse gas reductions by 30% relative to the joint rulemaking the agencies issued in May 2010. I’m not sure where Waxman gets that percentage. P. 25429 of the joint rule says that an automobile air conditioner (AC) system must be 30% more efficient than the current average to qualify for a greenhouse gas reduction credit. That’s the only place in the joint rule where the figure “30%” occurs.
 
EPA and NHTSA confirm that “there is a single pool of technologies for addressing these twin problems [climate change, oil dependence], i.e. those that reduce fuel consumption and thereby reduce CO2 emissions as well” (p. 25327). EPA estimates that 94-95% of motor vehicle greenhouse gas emissions are carbon dioxide from motor fuel combustion, the remaining portion coming from the refrigerants used in automobile AC systems. Thus, even if H.R. 910 did have the effect of decoupling EPA’s greenhouse emission standards from NHTSA’s fuel economy standards, there should be only a small decrease in greenhouse gas reductions relative to the joint rule’s projected baseline. 
 
Let’s also put things in perspective. EPA and NHTSA estimate their joint rule will avert 0.011°C of warming and 0.09 cm of sea-level rise by 2100 (p. 25637). Those effects are too small to be detected and make no practical difference to any public health or environmental concern. A 30% reduction in such puny “climate protection” is irrelevant.
 
Waxman also denounced H.R. 910 because California could not apply for another waiver to set even tougher greenhouse gas emission standards for cars manufactured after the 2016 model year. But EPA should never have granted California a waiver to establish its own greenhouse gas emission standards in the first place. The California program is massively “related to” fuel economy, and, as such, is preempted by the 1975 Energy Policy Act.

In addition, as Rep. Brian Bilbray (R-Calif.) ably argued, the waiver provision established by CAA Sec. 209 has no rational application to greenhouse gases. The CAA authorizes California to obtain waivers to go beyond federal motor vehicle emission standards because those are not tough enough to bring California, with its unique topography and meteorology, into attainment with federal air quality standards. There are no national air quality standards for greenhouse gases. Therefore, California has no need under the CAA to establish vehicle emission standards for greenhouse gases. Moreover, because greenhouse gases are well-mixed in the global atmosphere, greenhouse gases, unlike smog or soot, are no more heavily concentrated in California than anywhere else.

Engel argued that overturning EPA’s endangerment finding would be unprecedented in the history of the CAA. Counsel Brown countered that there is precedent for repealing EPA rulemakings and that EPA’s issuance of a ”stand-alone” endangerment finding, without accompanying regulatory requirements, is itself “unprecendented.” I would put the matter this way. EPA’s Endangerment Rule is “stand-alone” only as a publication. It is the trigger, prelude, and precedent for a cascade of regulations Congress has not approved. If the “finding” were merely that — EPA’s interpretation of climate science – then Congress would not be voting on it. The Endangerment Rule is separate only in the trivial sense that it was published before all the other greenhouse gas regulations that flow from it.

Rep. Markey argued that because H.R. 910 takes away EPA’s authority over greenhouse gases, it also takes away EPA’s authority to reduce oil consumption in aircraft, marine vessels, non-road vehicles, boilers, etc. And that is bad, he reasoned, because NHTSA has no authority to reduce oil consumption from such entities. Markey fails to grasp the implication of his remarks. If the nation’s fuel economy laws (1975 Energy Policy Act, 2007 Energy Independence and Security Act) do not authorize NHTSA to reduce oil consumption from entities other than cars and trucks, then Congress obviously did not authorize EPA to do so through the Clean Air Act, which provides no authority whatsoever to set fuel economy standards.

If Markey thinks EPA should be reducing oil consumption throughout the economy, then he should draft a bill, introduce it, and try building legislative majorities to pass it. But that would be hard work, and it might not succeed. So instead Markey wants EPA to play lawmaker and impose his will on the nation.

I would summarize the core premise of Waxman, Markey, and Inslee’s opposition to H.R. 910 as follows: We know what is good for America and the world. It’s a future without fossil fuels. We can’t persuade the people’s representatives to support our agenda and turn it into law. Therefore, it is necessary for EPA to ‘enact’ our agenda regardless of the defeat of cap-and-trade, the November 2010 elections, and the separation of powers. The triumph of our agenda is more important than any constitutional principle that might interfere with it.