On Friday (September 23, 2011), the House passed a bill that would block two of the administration’s flagship Clean Air Act (CAA) regulations targeting coal-fired power plants. It would also establish a new Cabinet-level committee to examine the “cumulative and incremental impacts” of a dozen EPA actions affecting the electric power sector. The bill, known as the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act (H.R. 2401), sponsored by Rep. John Sullivan (R-Okla.), passed by a vote of 233-180.

The TRAIN Act declares that two EPA regulations “shall be of no force and effect”: the Cross State Air Pollution Rule (CSAPR), finalized in August, and maximum available control technology standards regulations for hazardous air pollutants from electric generating units (Utility MACT Rule), finalized in May. EPA would be prohibited from promulgating a new cross state air pollution rule until three years after the multi-agency committee submits its regulatory impacts report to Congress (due August 1, 2012). EPA would also be prohibited from promulgating new hazardous air pollutant regulations for electric generating units until one year after the committee submits its report.

The inter-agency committee would assess the cumulative and incremental impacts of various EPA actions on U.S. global economic competitiveness; national, state, and regional electricity and fuel prices; national, state, and regional employment; and the reliability and adequacy of U.S. bulk power supply.

EPA actions to be assessed include two Bush administration rules — the 2005 Clean Air Interstate Rule (CAIR) and 2008 national ambient air quality standards (NAAQS) for ozone — plus several Obama administration regulations: Boiler MACT Rule, Utility MACT Rule, Coal Combustion Residuals Rule, Primary (health-based) national ambient air quality standard (NAAQS) for Sulfur Dioxide, Primary NAAQS for Nitrogen Oxides, Cement Plants MACT Rule, New Source Performance Standards (NSPS) addressing greenhouse gases, New Source Review pre-construction permitting requirements addressing greenhouse gases, Title V operating permit requirements addressing greenhouse gases, any rule establishing or modifying a NAAQS (such as new standards for ozone), and any CAA rule addressing motor fuels.

The TRAIN Act gets its name from the claim, voiced by the agency’s critics, that EPA is engineering a “regulatory train wreck.” By imposing too many new regulatory requirements on coal-fired power plants within too short a time frame, critics contend, EPA is creating a high risk of service disruptions, premature unit retirements, and increases in electric rates, which in turn will lead to job and GDP losses.

The American Legislative Exchange Council’s (ALEC) was the first to make a detailed case that EPA is on a disaster course, publishing EPA’s Regulatory Train Wreck: Strategies for State Legislators in February 2011.  The Congressional Research Service, in EPA’s Regulation of Coal-Fired Power: Is a Train Wreck Coming? (August 8, 2011), came to a different conclusion, arguing that although EPA’s rules would accelerate the retirement of old inefficient coal plants, electric supply and reliability would not be affected and consumer price impacts would be moderate.

In a report published last week, Potential Impacts of EPA Air, Coal Combustion Residuals, and Cooling Water Regulations, NERA Economic Consulting argues that EPA’s Cross State Air Pollution, Utility MACT, Coal Combustion Residuals, and Cooling Water Rules would:

• Lead to the premature retirement of 39 gigawatts of coal-fired capacity in 2015 (equivalent to 12% of U.S. coal-fired capacity in 2010).
• Increase electric-sector compliance and capital expenditure costs by $127 billion from 2012 through 2020.
• Increase natural gas generation by 19.7% and natural gas prices by 10.7%, which in turn would increase industrial, commercial, and residential natural gas costs by $58 billion over the 2012-2020 period.
• Decrease net employment by 183,000 jobs per year during 2012-2020.
• Decrease cumulative GDP by $190 billion during 2012-2020.

After Friday’s vote in the House, Greenwire (subscription required) summed up the political state of play:

With the Senate controlled by Democrats and the White House promising a veto, the TRAIN Act is unlikely to ever become law. But it puts pressure on President Obama, who recently told EPA to wait on stricter smog standards because of concerns about the economy.

House Republicans will use this fall’s floor agenda to keep fighting the agency’s rules. In two weeks, the House is scheduled to vote on bills that would overturn EPA’s new limits on mercury and other toxic emissions from industrial boilers and cement kilns.

“The ozone rule is just the tip of the regulatory iceberg,” Energy and Commerce Chairman Fred Upton (R-Mich.) wrote in an op-ed published today in the conservative journal Human Events. “If the president is really serious about job creation, he must do much more to rein in EPA’s overreach.”

The California Air Resources Board (CARB) boasts that its greenhouse gas (GHG) emission standards save more fuel than the National Highway Traffic Safety Administration’s (NHTSA) Corporate Average Fuel Economy (CAFE) standards – but denies that GHG standards are fuel economy standards. Huh?

Well, of course, CARB denies it, because the Energy Policy Conservation Act (EPCA) prohibits states from adopting laws or regulations “related to” fuel economy.

But CARB has to trumpet the fuel savings from its GHG standards to attack H.R. 910, the Energy Tax Prevention Act. H.R. 910, says CARB, would make America more dependent on foreign oil by prohibiting CARB and EPA from adopting tougher GHG standards.

H.R. 910 opponents talk as if policymaking were a game in which the regulatory option with the biggest fuel savings wins. By that criterion, why not just let EPA and CARB impose a de facto 100 mpg CAFE standard and declare America to be “energy independent”?

If Congress thinks NHTSA’s standards don’t go far enough, there is a simple fix. Pass a law! What H.R. 910 opponents want is for EPA and CARB to legislate in lieu of Congress. That is neither lawful nor constitutional.

EPA, NHTSA, and CARB claim that EPA’s GHG standards for model year (MY) 2012-2016 passenger cars and NHTSA’s CAFE standards for those same vehicles are “harmonized and consistent.” Yet they also contend that NHTSA’s standards de-coupled from EPA’s standards would result in 25% more oil consumption over the lifetimes of those vehicles. How is that possible?

That’s the question House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) asked California Air Resource Board (CARB) Executive Director James Goldstene regarding the latter’s testimony at a hearing on H.R. 910, the Energy Tax Prevention Act. (The House passed H.R. 910 by 255-172. Although the bill failed in the Senate, where it fell 10 votes shy of the 60 needed to overcome a filibuster, sponsors say they’ll try to force additional votes in the future.)

H.R. 910 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 was a gleam in Al Gore’s eye. H.R. 910 would overturn all of EPA’s GHG rules except for the agency’s current GHG standards for MY 2012-2016 passenger cars and the agency’s proposed GHG standards for MY 2014-2018 heavy trucks. However, H.R. 910 would preclude EPA from setting new, tougher GHG motor vehicle standards in later years. Similarly, it would prohibit EPA from granting waivers to CARB to set tougher standards. But that means, opponents argue, that H.R. 910 would have the effect of making America more dependent on foreign oil.

Are the opponents correct? And even if so, is that a valid reason for allowing CARB to determine the stringency of national fuel economy regulation or for allowing EPA to dictate climate policy?

As noted, H.R. 910 would not repeal EPA’s MY 2012-2016 GHG emission standards (a.k.a. Tailpipe Rule) nor EPA’s proposed GHG standards for MY 2014-2018 medium- and heavy-duty trucks (a.k.a. Heavy Truck Rule). It’s not that the bill’s sponsors — Rep. Upton and Sen. James Inhofe (R-Okla.) — have any great fondness for those rules. Nor is it the case that Congress would have adopted those standards anyway via legislation. H.R. 910 would leave EPA’s current and proposed GHG motor vehicle standards in place because automakers and engine manufacturers have already made plans and investments to comply with them.

But that just means EPA is using the regulatory process to preempt congressional deliberation and narrow Congress’s policy options. Congress must act soon before stationary sources (power plants, steel mills, pulp and paper factories, refineries, cement production facilities) also spend big bucks complying with GHG-related “best available control technology” (BACT) standards and New Source Performance Standards (NSPS).

A common argument by opponents of H.R. 910 is that, even though it would leave intact NHTSA’s Energy Policy Conservation Act (EPCA) authority to establish Coporate Average Fuel Economy (CAFE) standards for new motor vehicles, NHTSA-only regulation would do less than joint EPA-NHTSA regulation to reduce U.S. oil consumption. Typically, opponents cite CARB’s estimate that stripping EPA’s portion out of the Tailpipe Rule would reduce fuel savings by 25% over the lifetimes of MY 2012-2016 vehicles.

CARB is by no means a disinterested bystander. EPA’s GHG standards are none other than the GHG standards CARB developed and EPA approved (in May 2009) via a waiver from federal preemption of state emission standards.

Here’s the puzzle for which Upton sought clarification. EPA, NHTSA, and CARB claim that EPA and NHTSA’s portions of the Tailpipe Rule are “harmonized and consistent.” Yet the agencies also contend that NHTSA’s portion of the Tailpipe Rule would reduce oil consumption by 58.6 billion barrels over the lifetimes of MY 2012-2016 vehicles whereas the complete rule including CARB/EPA’s GHG standards would reduce oil consumption by 77.7 billion barrels. How can this be?

In a letter dated March 11, 2011, but just now making the email rounds, CARB executive director Goldstene offers this explanation:

That the National Program [NHTSA + EPA] achieves greater emissions reductions and fuel savings than the CAFE standards alone is a result of the different underlying statutory authority that results in different program components. The four key differences are: 1) unlike the Energy Policy Conservation Act (EPCA), the CAA allows for the crediting of direct emission reductions and indirect fuel economy benefits from improved air conditioners, allowing for greater compliance flexibility and lower costs; 2) EPCA allows Flexible Fuel Vehicle (FFV) credits through model year 2019, whereas the EPA standard requires demonstration of actual use of a low carbon fuel after model year 2015; 3) EPCA allows for the payment of fines in lieu of compliance but the CAA does not; and 4) treatment of intra firm trading of compliance credits between cars and light trucks categories. 

Difference 1) doesn’t get us anywhere near the additional 19.1 billion gallons in projected fuel savings. According to the Tailpipe Rule, (i) carbon dioxide (CO2) emissions related to air conditioner-related loads on automobile engines account for only 3.9% of total passenger car GHG emissions (p. 25427), and (ii) various technologies could reduce air conditioner CO2 emissions by 10% to 30% (p. 24528). Even a 30% reduction of the 3.9% of motor vehicle emissions associated with air conditioner engine load would reduce oil consumption by only 1.1% — nowhere near the additional 25% fuel savings that supposedly depend on EPA’s GHG standards.

Differences 2) and 3) are likely the big factors. Per difference 2), automakers cannot comply with EPA’s GHG standards by manufacturing flexible-fueled vehicles. And per difference 3), automakers cannot pay fines in lieu of compliance with EPA’s GHG standards. 

Why do those differences have the effect of tighening fuel economy standards? Because EPA’s GHG emission standards are basically fuel economy regulation by another name! As EPA acknowledges, 94-95% of motor vehicle GHG 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” (Tailpipe Rule, p. 25327). 

Because of differences 2) and 3), EPA will always be able to make NHTSA’s fuel economy standards more stringent than they would be if administered under the statutory scheme Congress created.

What this means, of course, is that the Tailpipe Rule is “harmonized and consistent” only in the sense that EPA and CARB are now calling the shots. The consistency and harmony is that of the first mate saying “aye aye, sir” to the captain. That should trouble a Congress jealous of its constitutional prerogatives, because Congress delegated the power to prescribe fuel economy standards to NHTSA, not EPA — and certainly not CARB.

EPA’s authority to set motor vehicle emission standards, and to grant CARB waivers to regulate motor vehicle emissions, comes from the CAA. The CAA confers no authority on any agency to regulate fuel economy. EPCA authorizes EPA to monitor automakers’ compliance with CAFE standards, but it delegates to NHTSA only the authority to prescribe CAFE standards.

Moreover, EPCA prohibits states from adopting laws or regulations that are even “related to” fuel economy standards. CARB’s GHG standards are massively “related to” fuel economy standards.

EPCA Sec. 32919 states:

a) General. – When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.

In his letter to Upton, Goldstene tries to explain why EPCA does not preempt CARB’s GHG standards:

CARB has never claimed that there is no relation between the pollution [CO2] emitted by burning fossil fuels and the rate at which they are burned [gallons of fuel consumed per distance traveled, i.e. fuel economy].  CARB merely maintains the fact that pollution control and fuel economy are not identical — fuel economy and pollution control regulations have different policy objectives, utilize different incentive and flexibility features, and there are technologies that reduce pollution that are not counted under fuel economy measures, and some fuel economy improvements do not reduce emissions commensurately.

That doesn’t cut it. Let me count the ways.

1. A GHG standard does not have to be “identical” to a fuel economy standard to be “related to” it.
2. CARB is hardly one to maintain that fuel economy and GHG standards “have different policy objectives” when CARB’s big selling point for GHG regulation is that it saves more fuel than CAFE standards do! 
3. The fact that CARB/EPA’s GHG standards utilitize “different incentives and flexibility features” is irrelevant. Neither GHG regulation nor fuel economy regulation is defined by those features and incentives. The CAFE program, for example, would still be a fuel economy program even if it did not allow for payments of fines in lieu of compliance or award credits for flex-fuel vehicle sales. 
4. Just because some technologies — e.g., improved sealants for automobile air conditioning systems — “are not counted under fuel economy measures” does not mean that the Tailpipe Rule does not chiefly regulate fuel economy. Only 5.1% of motor vehicle GHG emissions are due to leakage of air conditioner refrigerants (Tailpipe Rule, p. 25424), which means CO2 from motor fuel combustion makes up 94.9% of all motor vehicle GHG emissions. To repeat, there is a “single pool of technologies . . . that reduce fuel consumption and thereby reduce CO2 emissions as well.” Almost 95% of EPA and CARB’s GHG reductions come from fuel economy enhancements.
5. Because 5.1% of motor vehicle GHGs are leaked air conditioner refrigerants, ”some fuel economy improvements do not reduce emissions commensurately.” But fuel economy improvements do reduce emissions commensurately for 94.9% of all motor vehicle GHG emissions.

H.R. 910 opponents talk as if policymaking were a game in which the regulatory option with the biggest fuel savings wins. By that criterion, why not just let EPA and CARB impose a de facto 100 mpg CAFE standard and declare America to be “energy independent”?

If Congress thinks NHTSA’s standards don’t go far enough, there is a simple fix. Pass a law! What H.R. 910 opponents want is for EPA and CARB to legislate in lieu of Congress. That is neither lawful nor constitutional.

The Natural Resources Defense Council (NRDC) Action Fund commissioned a poll from a Democratic pollster finding that voters in Rep. Fred Upton’s district disapprove of the GOP congressman’s efforts to overturn EPA’s climate change regulations. Hold the presses! Man bites dog! I mean, what are the odds that a poll conducted by Public Policy Polling and commissioned by NRDC would reach that conclusion?

Actually, what’s surprising is that Greenwire (May 19, 2011, subscription required) would bother covering the NRDC poll as if it were news.

Some background to put things in context. House Energy and Commerce Chairman Fred Upton (R-Mich.) is the lead sponsor of H.R. 910, the Energy Tax Prevention Act. H.R. 910 would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act — a statute enacted years before Al Gore ever heard of global warming. Although opponents defeated companion legislation in the Senate on a 50-50 vote, Upton and his allies won big in the House with a vote of 255-172.

The NRDC poll supposedly finds that voters in Michigan’s 6th District ”have reservations” about Upton’s plan to rein in EPA. The poll reveals “significant disappointment” among constituents with Upton’s “current policy choices,” according to Matt Howes, a spokesman for the group.

The poll has not yet been released to the general public, but judging by Greenwire‘s description, it’s not worth the recycled paper it’s printed on. The questions posed employ rhetorical tricks to elicit a predetermined conclusion, namely, Upton is out of step with his constituents and risks electoral defeat in 2012.

The survey, says Greenwire, ”asked residents their views on whether EPA should do more to regulate air pollutants in general. Fifty-three percent of respondents answered in the affirmative, while 33 percent said they opposed the idea and 14 percent had no opinion.” 

The opening question is almost meaningless. It’s equivalent to asking residents whether they want the air to be cleaner or dirtier. The pollster might as well ask whether Upton’s constituents think schools should do more to teach math and science, drug companies should do more to cure cancer, or the Department of Homeland Security should do more to secure the borders. 

Most people reflexively say they want more of any perceived public good in the abstract. The NRDC-sponsored poll tells us nothing about how much Upton’s constituents are prepared to pay — in higher energy prices, fewer jobs, higher taxes, or lower GDP, for example — to achieve how much incremental improvement in air quality.

Note also that by starting with a question about unspecified “air pollutants,” the poll implicitly identifies ”carbon dioxide” — the topic of the next question — with air pollution. Because most people try to give logically consistent answers, anyone who answered yes to the first question will feel obliged to answer yes to the second question.

The second question, as described by Greenwire, is “whether constituents supported EPA’s taking steps to limit carbon dioxide and other heat-trapping emissions, rather than waiting for Congress to pass a new climate change law.” Greenwire elaborates: 

“The Head of the American Petroleum Institute says Congress should decide when and how greenhouse gases should be regulated. But others say Congress should let EPA do its job,” the question read. “The head of the American Public Health Association says that blocking the EPA’s work to reduce carbon dioxide could mean the difference between a healthy life for many Americans or chronic debilitating illness. Which opinion do you support?” The survey showed that 59 percent of respondents chose the answer “Congress should let the EPA do its job,” more than twice the 28 percent who said the agency should wait for Congress to act.

Several rhetorical tricks are at work here. First, rather than just state opposing opinions and ask the respondent to choose between them, the poll identifies one position with the head of the American Petroleum Institute and the other with the head of the American Public Health Association. The question thus appeals to a widespread prejudice — propagated by groups like NRDC – that Big Oil is bad and self-described ‘public health’ advocates like, well, NRDC, are good.

If the poll is going to name names and it aims to tell us something about Fred Upton’s district, then why not identify Upton’s policy with Upton rather than the head of API? Very likely, because the information that Upton is the key proponent of the policy would sway responses in favor of it. This poll, ostensibly about voter attitudes towards Upton’s policy choices, never mentions him by name, as far as we can tell from the Greenwire article.

Second, the API head simply says Congress should decide when and how greenhouse gases should be regulated without giving a reason. In contrast, the APH head gives a reason why he thinks EPA should act — the unsupported but scary assertion that stopping EPA “could mean the difference between a healthy life for many Americans or chronic debilitating illness.”

Third, the pro-Upton answer is to “wait for Congress to act.” Not very appealing, as it calls to mind the negative phrase ”do-nothing Congress.”

Fourth, and most importantly, the other possible answer, “let EPA do its job,” is Orwellian. EPA’s job is to implement policy, not legislate it. H.R. 910 aims to relimit EPA to the job it’s supposed to perform under our constitutional system of separated powers and democratic accountability.

Try this thought experiment. Suppose that Massachusetts v. EPA had never been litigated. Suppose also that Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.), instead of introducing a cap-and-trade bill in 2009, sponsored legislation authorizing EPA to regulate GHG emissions via the Clean Air Act as it sees fit. How many votes would it have gotten? Far fewer than the narrow majority that voted for the Waxman-Markey cap-and-trade bill, which subsequently died in the U.S. Senate. A bill authorizing EPA to do exactly what it is doing today would have no chance of passage notwithstanding the global warming movement’s 15-plus-year campaign to persuade Congress and the public of the necessity of curbing GHG emissions.

It is absurd to suppose that in 1970, years before the advent of the global warming scare, Congress, when it enacted Clean Air Act, also authorized EPA to regulate greenhouse gases. Determining climate policy is not EPA’s job. Deciding when and how greenhouse gases should be regulated is above EPA’s pay grade.

The NRDC poll, in short, pushes respondents to draw a stupendously false conclusion.

Three of the Congress’s most influential energy policymakers this week “urged” the Environmental Protection Agency to delay an ultra-costly regulation targeted at coal-fired power plants, the source of 50 percent of America’s electricity generation.  For the sake of keeping the lights on, all Americans should hope the Obama administration heeds these Congressmen’s request.

Senate Environment and Public Works Ranking Member James Inhofe (R-OK), House Energy and Commerce Chair Fred Upton (R-MI), and House Energy and Power Subcommittee Chair Ed Whitfield (R-KY) yesterday sent a letter to Environmental Protection Agency Administrator Lisa Jackson demanding a longer comment period for a proposed regulation known as the Utility HAP MACT

[The HAP stands for “Hazardous Air Pollutant,” and the MACT stands for "Maximum Achievable Control Technology"; to learn what these terms entail, read this summary of the regulation, Primer: EPA’s Power Plant MACT for Hazardous Air Pollutants.]

The EPA issued the Utility HAP MACT in mid-March, and it gave the public 60 days to comment. The Congressmen “urge the agency [to] extend the comment period to a minimum of 120 days to allow adequate time for stakeholders to assess and comment on the proposal.”

The extended comment period is well warranted. For starters, the EPA included a number of “pollutants” in the proposed regulation that shouldn’t be there. The EPA’s authority to regulate hazardous air pollutants from power plants is derivative of a study on the public health effect of mercury emissions. The EPA’s proposed regulation, however, would regulate acid gases, non-mercury metals, and organic air toxins, in addition to mercury. Yet the EPA’s evidence only pertains to mercury. The EPA’s authority to regulate these non-mercury emissions, despite their not having been a part of the aforementioned study, will be challenged, and the DC Circuit Court ultimately will decide.

Why would the EPA include these non-mercury emissions into its proposed regulation? My guess is that the agency wanted to leave no stone unturned in its war on domestic coal demand. Thanks to an emerging technology known as “sorbent injection,” removing mercury from post-combustion emissions could be achieved at many power plants without having to install flue gas desulphurization equipment, a.k.a. “scrubbers,” which are far more expensive, and which had been the primary method of mercury control. But the EPA wants all power plants to install these “scrubbers.” Consider the title of slide 8 of this EPA presentation on the proposed Utility HAP MACT rule, “Many Exiting Coal Units Lack Advanced Controls.” The only way to ensure that ALL plants have to install expensive “scrubbers” was to include non-mercury “pollutants” into the regulation.

As Inside the EPA reported on March 18,

Despite the focus on mercury emissions, the major upcoming fight over the rule could center on the proposed limits for emissions of other hazardous air pollutants (HAPs) including hydrogen chloride (HCl). EPA is proposing to set a “conventional” MACT limit for HCl that will act as a surrogate for limiting acid gases.

The HCl limit could set such strict limits on acid gases that even the smallest coal-fired power plants with the lowest emissions levels might have to install expensive “scrubber” technology to cut their emissions, an industry source has said, boosting concerns from mining and other industries about the rule’s potential costs…

…The National Mining Association (NMA) is warning that the HCl limit has the biggest potential for opposition from industry because it could require almost every coal-fired power plant in the country to invest in expensive scrubbers to reduce acid gas emissions.

The EPA’s Utility MACT overreach engenders serious reliability concerns. Many utilities will find it cheaper to shutter older, smaller units, rather than to install “scrubbers.” According to a study by Bernstein & Associates, mandating scrubbers, which is essentially what the EPA proposes, would result in the premature closure of almost 33,000 megawatts of coal fired power capacity. Moreover, most of that capacity is located east of the Mississippi, and this geographical concentration accentuates the regional threat to grid reliability. To put it another way, if you live in the Ohio Valley, you should be very concerned.

Then there’s the cost. “Scrubbers” entail huge capital expenditures, usually $100 million to $200 million per power plant. The EPA concedes that its proposed Utility HAP MACT regulation would cost $10 billion a year by 2015, making it one of the most expensive regulations, ever. This is likely a low ball. According to the Electric Reliability Coordinating Council, the price tag is as much as $100 billion a year.

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.

Tomorrow, the Senate is scheduled to vote on the Inhofe-Upton Energy Tax Prevention Act (S. 482) to overturn EPA’s Endangerment Rule and most of the agency’s other greenhouse gas (GHG) regulations. The bill is based on 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 reason for EPA not to act — not an excuse for the agency to substitute its will for that of the people’s representatives.

I am a huge fan of the Inhofe-Upton bill. But even a good thing can be improved. S. 482 should be amended to preempt public nuisance litigation against GHG emitters under federal common law. Indeed, in its current form, S. 482 could actually increase the risk that the Supreme Court will empower trial lawyers and activist judges to ‘legislate’ climate policy. 

To belabor the obvious, trial lawyers and activist judges are even less accountable to the people than is the EPA, which at least depends on Congress for its annual appropriations.

The Supreme Court is currently reviewing State of Connecticut v. American Electric Power, a case in which six states, New York City, and three conservation groups are suing five large coal-burning electric utilities for their alleged contribution to climate change-related “injuries.” Plaintiffs claim the utilities’ carbon dioxide (CO2) emissions are a “public nuisance” under federal common law. They seek a remedy whereby the utilities would be required to reduce their CO2 emissions by a “specified percentage each year for at least a decade.” A new Congressional Research Service (CRS) report, Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance (March 25, 2011), provides a useful overview of the case and the associated legal issues.

A win for plaintiffs would endanger the economy and further erode our constitutional system of separated powers and democratic accountability.

Plaintiffs say they just want to compel the nation’s biggest coal-burning utilities to cut their emissions. However, once the precedent is established, there can be no principled basis for shielding any class of emitters from lawsuits. If state, municipal, or private parties can sue large utilities for emitting CO2, they can also sue smaller utilities and manufacturers. In principle, they can sue almost anyone. Utilities, after all, only emit CO2 in the process of serving customers who use electricity. People lighting their homes, running their businesses, and using their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else — which implies that everybody has standing to sue everybody else. Plaintiffs may preach “green peace,” but they sow the seeds of a war of all against all.

If plaintiffs win in Connecticut v. AEP, firms large and small could face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. A victory for plaintiffs could destroy for many firms the legal predictability essential to business planning. 

In August of last year, the Obama administration filed a brief on behalf of the utilities, clearly laying out the absurdities of attempting to determine climate policy via common law nuisance litigation. Not only are there no “judicially discoverable and manageable standards” for balancing the public’s  undeniable interest in reliable and affordable energy with the public’s hypothetical interest in climate change mitigation, but the potential pool of plaintiffs and defendants whose interests would be affected literally number in the billions.

Strangely, the Obama brief failed to state the conclusion implied by its argument, namely, that climate policy is a non-justiciable “political question.” Instead, the brief argued that EPA’s ever-growing ensemble of GHG regulations “displaces” the federal common law of nuisance. Implication: All that stands between the U.S. business community and climate litigation chaos is EPA’s newfound career as GHG regulator.

The Court set the stage for EPA’s climate policy initiatives, and very likely wants to protect EPA’s greenhouse agenda from S. 482 and other legislative challenges. The Court may then be tempted to reach a decision blocking CO2 nuisance litigation solely on displacement grounds, so that Congress would arguably be exposing U.S. businesses to an even greater peril by overturning EPA’s policies.

The CRS report alludes to this problem:

Also interesting in the case before the Supreme Court is how EPA’s GHG-related actions under the Clean Air Act since the Second Circuit’s decision in 2009 (and further actions being discussed at the agency) will be seen to affect whether the federal common law of nuisance has been displaced. The Second Circuit explicitly noted this future possibility. Not surprisingly, petitioners-utilities argue that EPA’s actions do require displacement. On the other hand, should any of several bills before the 112th Congress eliminating EPA authority to regulate GHG emissions be enacted, the argument that federal common law has been displaced would be weakened. (Emphasis added).

 None of the foregoing is to suggest that the Senate should not pass S. 482. The point rather is that S. 482 should be amended to ensure that the Court cannot use the prospect of litigation chaos to intimidate opponents of EPA’s power grab. What would an appropriate amendment look like?

S. 228, the Barrasso-Walberg Defending America’s Affordable Energy Act, has a provision that would keep the climate ambulance chasers on ice, allowing Congress to nix EPA’s climate rules without fear of getting something even worse:

ACTIONS AT LAW.—No cause of action, whether based on common law or civil tort (including nuisance) or any other legal or equitable theory, may be brought or maintained, and no liability, money damages, or injunctive relief arising from such an action may be imposed, for— (1) any potential or actual contribution of a greenhouse gas to climate change; or (2) any direct or indirect effect of potential or actual atmospheric concentrations of a greenhouse gas.

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.

The House Energy and Commerce Committee on Tuesday marked up and passed H. R. 910, the Energy Tax Prevention Act, by a 34 to 19 vote.  All 31 Republicans on the committee supported Chairman Fred Upton’s (R-Mich.) bill.  They were joined by three Democrats—Representatives John Barrow (D-Ga.), Jim Matheson (D-Utah), and Mike Ross (D-Ark.).

The mark-up started on Monday afternoon with opening statements from members of the committee and then lasted most of Tuesday.  A number of amendments offered by Democrats were variations on the theme that the Congress accepts that global warming science is settled and that it’s a crisis.  All these amendments were defeated easily, but, as my CEI colleague Marlo Lewis points out, Republican supporters of the bill for the most part didn’t defend the bill very well against the Democrats’ attacks.

What the proponents should argue, but did not in committee mark-up, is that H. R. 910 is not about the science or what we should do about potential global warming.  The bill simply says that the EPA cannot use the Clean Air Act to regulate greenhouse gas emissions until the Congress authorizes it to do so.  Chairman Upton’s bill is designed to re-assert congressional authority to make laws (which the Constitution gives Congress the sole authority to do) and rein in an out-of-control executive branch.

Speaker John Boehner (R-Ohio) has said that passing the Upton bill is a priority.  It is now expected that the bill could be debated on the House floor as soon as the week of 27th March.  On 26th June 2009, the House Democratic leadership railroaded the mammoth Waxman-Markey cap-and-trade bill through the House in a single day of debate with only one Republican amendment allowed to be offered.  The Republican leadership under Boehner is doing things differently, so there will probably be several days of debate with numerous amendments considered.  The bill should pass easily, with almost unanimous Republican and significant Democratic support.

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.