Note: A nearly identical version of this column appeared last week in Forbes Online. I am reposting it here with many additional hyperlinks so that readers may more easily access the evidence supporting my conclusions.

The November 2012 elections ensure that President Obama’s war on coal will continue for at least two more years. The administration’s preferred M.O. has been for the EPA to ‘enact’ anti-coal policies that Congress would reject if such measures were introduced as legislation and put to a vote. Had Gov. Romney won the presidential race and the GOP gained control of the Senate, affordable energy advocates could now go on offense and pursue a legislative strategy to roll back various EPA global warming regulations, air pollution regulations, and restrictions on mountaintop mining. But Romney lost and Democrats gained two Senate seats.

Consequently, defenders of free-market energy are stuck playing defense and their main weapon now is litigation. This is a hard slog because courts usually defer to agency interpretations of the statutes they administer. But sometimes petitioners win. In August, the U.S. Court of Appeals struck down the EPA’s Cross State Air Pollution Rule (CSAPR), a regulation chiefly targeting coal-fired power plants. The Court found that the CSAPR exceeded the agency’s statutory authority. Similarly, in March, the Court ruled that the EPA exceeded its authority when it revoked a Clean Water Act permit for Arch Coal’s Spruce Mine No. 1 in Logan County, West Virginia.

A key litigation target in 2013 is EPA’s proposal to establish greenhouse gas (GHG) “new source performance standards” (NSPS) for power plants. This so-called carbon pollution standard is not based on policy-neutral health or scientific criteria. Rather, the EPA contrived the standard so that commercially-viable coal plants cannot meet it. The rule effectively bans investment in new coal generation.

We Can Win This One

Prospects for overturning the rule are good for three main reasons.

(1) Banning new coal electric generation is a policy Congress has not authorized and would reject if proposed in legislation and put to a vote. Once again the EPA is acting beyond its authority.

The proposed “carbon pollution” standard requires new fossil-fuel electric generating units (EGUs) to emit no more than 1,000 lbs of carbon dioxide (CO2) per megawatt hour (MWh). About 95% of all natural gas combined cycle power plants already meet the standard, according to the EPA. No existing coal power plants come close; even the most efficient, on average, emit 1,800 lbs CO2/MWh.

A coal power plant equipped with carbon capture and storage (CCS) technology could meet the standard, but the levelized cost of new coal plants already exceeds that of new natural gas combined cycle plants, and “today’s CCS technologies would add around 80% to the cost of electricity for a new pulverized coal (PC) plant, and around 35% to the cost of electricity for a new advanced gasification-based (IGCC) plant,” the EPA acknowledges.

In short, the EPA has proposed a standard no economical coal plant can meet. Not surprising given President Obama’s longstanding ambition to “bankrupt” anyone who builds a new coal power plant and his vow to find other ways of “skinning the cat” after the 2010 election-day slaughter of 29 cap-and-trade Democrats. But the big picture is hard to miss: Congress never signed off on this policy.

The only time Congress even considered imposing GHG performance standards on power plants was during the debate on the Waxman-Markey cap-and-trade bill. Section 216 of Waxman-Markey would have established NSPS requiring new coal power plants to reduce CO2 emissions by 50% during 2009-2020 and by 65% after 2020 – roughly what the EPA is now proposing. Although Waxman-Markey narrowly passed in the House, it became so unpopular as “cap-and-tax” that Senate leaders pulled the plug on companion legislation.

Team Obama is attempting to accomplish through the regulatory backdoor what it could not achieve through the legislative front door. The “carbon pollution” rule is an affront to the separation of powers.

(2) The “carbon pollution” standard is regulation by misdirection – an underhanded ‘bait-and-fuel-switch.’

In Massachusetts v. EPA (April 2007), the Supreme Court held that GHGs are “air pollutants” for regulatory purposes. This spawned years of speculation about whether the EPA would define “best available control technology” (BACT) standards for “major” GHG emitters so stringently that utilities could not obtain pre-construction permits unless they built natural gas power plants instead of new coal power plants.

In March 2011, the EPA published a guidance document assuring stakeholders that BACT for CO2 would not require a permit applicant “to switch to a primary fuel type” different from the fuel type the applicant planned to use for its primary combustion process. The agency specifically disavowed plans to “redefine the source [category]” such that coal boilers are held to the same standard as gas turbines.

The EPA reiterated this assurance in a Q&A document accompanying the guidance. One question asks: “Does this guidance say that fuel switching (coal to natural gas) should be selected as BACT for a power plant?” The EPA gives a one-word response: “No.”

This bears directly on the legal propriety of the “carbon pollution” standard. In general, NSPS are less stringent than BACT. NSPS provide the “floor” or minimum emission control standard for determining an emitter’s BACT requirements. BACT is intended to push individual sources to make deeper emission cuts than the category-wide NSPS requires.

Yet despite the EPA’s assurance that BACT, although tougher than NSPS, would not require fuel switching or redefine coal power plants into the same source category as natural gas power plants, the “carbon pollution” rule does exactly that.

In April 2011, the House passed H.R. 910, the Energy Tax Prevention Act, sponsored by Rep. Fred Upton (R-Mich.), by a vote of 255-172. H.R. 910 would overturn all of the EPA’s GHG regulations except for those the auto and trucking industries had already made investments to comply with. Sen. James Inhofe’s companion bill (McConnell Amdt. 183) failed by one vote. In June 2010, Sen. Lisa Murkowski’s (R-Alaska) Congressional Review Act resolution to strip the agency of its Mass v. EPA-awarded power to regulate GHGs failed by four votes. One or both of those measures might have passed had the EPA come clean about its agenda and stated in 2009 that it would eventually propose GHG performance standards no affordable coal power plant can meet.

(3) The “carbon pollution” rule is weirdly contorted, flouting basic standards of reasonableness and candor.

Under the Clean Air Act, an emission performance standard is supposed to reflect “the degree of emission limitation achievable through the application of best system of emission reduction” that has been “adequately demonstrated.” The EPA picked 1,000 lbs CO2/MWh as the NSPS for new fossil-fuel EGUs because that is the “degree of emission limitation achievable through natural gas combined cycle generation.”

But natural gas combined cycle is not a system of emission reduction. It is a type of power plant. The EPA is saying with a straight face that natural gas combined cycle is an emission reduction system that has been adequately demonstrated for coal power plants. By that ‘logic,’ zero-carbon nuclear-, hydro-, wind-, or solar-electric generation is an emission reduction system that has been adequately demonstrated for natural gas combined cycle.

A coal power plant could meet the standard by installing CCS, but, as the EPA acknowledges, CCS is too costly to qualify as “adequately demonstrated.” The only practical way for utilities to comply is to build new gas turbines instead of new coal boilers. This is the first time the EPA has defined a performance standard such that one type of facility can comply only by being something other than what it is.

The EPA sets performance standards for specific categories of industrial sources. A coal boiler is different from a gas turbine, and up to now the agency reasonably regulated them as different source categories, under different parts of the Code of Federal Regulations – Subpart Da for coal boilers, Subpart KKKK for gas turbines. The EPA now proposes to regulate coal boilers and gas turbines as a single source category — “fossil-fuel EGUs” — under a new subpart numbered TTTT. But only for CO2! Coal boilers and gas turbines will continue to be regulated as separate source categories for criteria and toxic pollutants under Subparts Da and KKKK.

Why hold coal boilers and gas turbines to different standards for those pollutants? The EPA’s answer: “This is because although coal-fired EGUs have an array of control options for criteria and toxic air pollutants to choose from, those controls generally do not reduce their criteria and air toxic emissions to the level of conventional emissions from natural gas-fired EGUs.”

The same reasoning argues even more strongly against imposing a single GHG standard on coal boilers and natural gas turbines. Coal boilers do not have an “array of control options” for CO2 emissions, and have no “adequately demonstrated” option for reducing CO2 emissions to the level of gas-fired EGUs. Subpart TTTT is an administrative contortion concocted to kill the future of coal generation.

Why Care Even If You Don’t Mine or Combust Coal for a Living

At this point you may be wondering why anyone outside the coal industry should care about this cockamamie rule. There are several reasons.

First and most obviously, banning new coal generation could increase electric rates and make prices more volatile. For generations, coal has supplied half or more of U.S. electricity, and still provides the single largest share. The “carbon pollution” standard is risky because coal’s chief competitor, natural gas, has a history of price volatility and a future clouded by the environmental movement’s hostility to hydraulic fracturing, the technology transforming gas from a costly shrinking resource to an affordable expanding resource.

The “carbon pollution” standard itself could put the kibosh on new gas-fired generation if the EPA concludes, as Cornell researchers contend, that fugitive methane emissions from hydraulic fracturing make gas as carbon-intensive as coal.

The EPA is also developing GHG performance standards for refineries. “Unconventional” oil production from shale and oil sands is booming in North America, creating thousands of jobs, generating billions of dollars in tax revenues, and reducing U.S. dependence on OPEC oil. But unconventional oil production is energy-intensive and therefore carbon-intensive. It is unknown whether or how the forthcoming GHG standard for refineries will address the carbon intensity of unconventional oil. What we do know is that the environmental groups who litigated the EPA into proposing these standards are arch foes of unconventional oil.

In any event, the “carbon pollution” standard for power plants is just the start of a regulatory trajectory, not its end point. The EPA’s settlement agreement with environmental groups and state attorneys general obligates the agency to extend the standard to “modified” coal power plants and establish emission “guidelines” for non-modified units.

Moreover, the standard sets a precedent for promulgating NSPS for other GHG source categories, and for contriving new source categories (e.g. “electric generating units”) to hammer natural gas. As indicated above, if gas can set the standard for coal, then wind and solar can set the standard for gas. And at some point the refinery standard could undermine the profitability of unconventional oil. Although initially directed against new coal, the standard puts all fossil-energy production in an ever-tightening regulatory noose.

Pandora’s NAAQS

Taking a longer view, the “carbon pollution” rule moves the U.S. economy one step closer to the ultimate environmental policy disaster: national ambient air quality standards (NAAQS) for GHGs.

In December 2009, the EPA issued a rule under Section 202 of the Clean Air Act declaring that GHG emissions from new motor vehicles endanger public health and welfare. The endangerment rule was both prerequisite and trigger for the agency’s adoption, in January 2011, of first-ever GHG motor vehicle standards. The agency now claims that it need not issue a new and separate endangerment finding under Section 211 to adopt first-ever GHG performance standards for power plants, because subsequent science confirms and strengthens its Section 202 finding.

An implication of this argument is that the EPA need not make a new endangerment finding to promulgate NAAQS for GHGs under Section 108, because the Section 202 finding would suffice for that as well.

Section 108 of the Clean Air Act requires the EPA to initiate a NAAQS rulemaking for “air pollution” from “numerous or diverse mobile or stationary sources” if such pollution “may reasonably be anticipated to endanger public health and welfare.” Carbon dioxide obviously comes from numerous and diverse mobile and stationary sources, and the EPA has already determined that the associated “air pollution” – the “elevated concentrations” of GHGs in the atmosphere – endangers public health and welfare. Logically, the EPA must establish NAAQS for GHGs set below current atmospheric concentrations.

Eco-litigants have already put this ball in play. The Center for Biological Diversity and 350.Org petitioned the EPA more than two years ago to establish NAAQS for CO2 at 350 parts per million (roughly 40 parts per million below current concentrations) and for other GHGs at pre-industrial levels.

The potential for mischief is hard to exaggerate. Not even a worldwide depression that permanently lowers global economic output and emissions to, say, 1970 levels, would stop CO2 concentrations from rising over the remainder of the century. Yet the Clean Air Act requires States to adopt implementation plans adequate to attain primary (health-based) NAAQS within five or at most 10 years. A CO2 NAAQS set at 350 parts per million would require a level of economic sacrifice vastly exceeding anything contemplated by the Waxman-Markey cap-and-trade bill or the Copenhagen climate treaty, which aimed to stabilize CO2-equivalent emissions at 450 parts per million by 2050.

The EPA has yet to decide on the CBD-350.Org petition. Perhaps this is another case of punting unpopular regulatory decisions until Obama’s second term. The one instance where the administration addressed the issue is not reassuring. In a brief submitted to the Supreme Court in American Electric Power v. Connecticut, the Obama Justice Department described Section 108 as one of the provisions making the Clean Air Act a “comprehensive regulatory framework” for climate change policy.

Ultimately, only the people’s representatives can protect coal generation, hydraulic fracturing, and unconventional oil from hostile regulation. But nixing the “carbon pollution” standard would be a big setback to both the EPA and the eco-litigation fraternity, and would help safeguard America’s energy options until a future Congress reins in the agency.

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.

The House today votes on H.R. 910, the Energy Tax Prevention Act, as amended. The bill 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 became a public policy issue.

Debate will last for one hour. The Rules Committee is allowing Democrats to offer twelve hostile amendments. Three Republican amendments to strengthen the bill (by, for example, prohibiting federal agencies from regulating greenhouse gases via the Endangered Species Act) were ruled out of order. As my colleague Myron Ebell notes, Democrats allowed Republicans to offer only one amendment on the Waxman-Markey cap-and-trade bill. The November 2010 elections notwithstanding, the House GOP still suffers from an acute case of  minority-itis.

The most mischievous of the Democratic amendments are:

• Jackson Lee (TX) – #36 “Would require an EPA study to determine the long term impact of a complete ban on their authority to regulate greenhouse gases.”
• Waxman (CA), DeGette (CO), Inslee (WA) - #5 “Would add a new section with respect to Congressional Acceptance of Scientific Findings: Congress accepts the scientific finding of the Environmental Protection Agency that climate change is occurring, is caused largely by human activities, and poses significant risks to public health and welfare.”
• Quigley (IL) – #6 “Would require GAO to report to Congress the results of a study of the health care costs in the U.S. as affected by the elimination of EPA regulation under this Act, as compared to health care costs in the U.S. as would be affected by the EPA proceeding under their regulatory authority as determined by Massachusetts v. EPA.”
• Markey (MA) – #12 “Would ensure that any prohibition on or limitation to EPA’s authority contained in the bill would not apply to any action EPA could take to reduce demand for oil.”
• Rush (IL) – #39 “Would prevent the provisions of this bill from going into effect until the EPA administrator, in consultation with the Secretary of Defense, certifies that the consequences of not regulating greenhouse gas emissions, and its subsequent impact on climate change, including the potential to create sustained natural and humanitarian disasters and the ability to likely foster political instability where societal demands exceed the capacity of governments to cope, do not jeopardize American security interests at home or abroad.”
• Kind (WI), Owens (NY) – #9 “Would codify the Environmental Protection Agency’s Tailoring Rule in order to protect farms, small businesses, and small- and medium-sized stationary sources from greenhouse gas regulation.”

These amendments have zero chance of passing, but that is not their purpose. The objective is to confuse the public by changing the subject and diverting attention from the real issue. Opponents know they cannot defend the indefensible thesis that EPA, an administrative agency, should dictate national policy on climate change. They know they cannot make a plausible case that Congress, in 1970, authorized EPA to implement a national de-carbonization program. So they offer hostile amendments in the hope of tricking Republicans into affirming controversial opinions that H.R. 910 neither presupposes nor implies. Above all, they want to create the false impression that a vote for H.R. 910 is a vote against science, public health, energy security, and national defense.

H.R. 910 supporters will surely defeat these amendments, but it is possible to win the vote and still lose in the court of public opinion. Today’s vote could be a Pyrrhic victory if H.R. 910 supporters cede the moral high ground to EPA’s apologists.

Here’s why the hostile amendments deserve to go down in flames.

Jackson Lee #36: There is no need to require EPA to study the impacts of a ban on its power to regulate greenhouse gases, because EPA’s opinions on this subject are well known, and the agency needs no encouragement from Congress to preach the alleged dangers of anthropogenic climate change. The proposed study would simply repackage EPA’s Endangerment Rule. The amendment is designed to trick Republicans into debating climate science so that Jackson Lee and her comrades can falsely but plausibly claim that a vote for H.R. 910 is a vote against climate science.

Warning to H.R. 910 supporters: Don’t take this bait! Politely remind Rep. Jackson Lee that H.R. 910 takes no position whatsoever on the scientific content of EPA’s Endangerment Rule. What supporters object to is EPA using its self-interested interpretation of science to transform itself into a Super Legislature. Repeat over and over again: ”H.R. 910 does not overturn EPA’s scientific finding, it overturns the legal force and effect of the rulemaking in which EPA published its finding.” 

Much the same response applies to the Waxman, DeGette, Inslee (#5), Quigley (#6), and Rush (#39) amendments. Climate change may or may not pose significant risks to public health and welfare, increase U.S. health care costs, or endanger U.S. national security. That is irrelevant to the issue the House is debating today, namely, the constitutional impropriety of EPA regulating greenhouse gases without a plausible legislative mandate.

All the concerns raised by these amendments were raised last year — and have been raised for more than a decade — by supporters of cap-and-trade legislation. Cap-and-trade narrowly passed in the House in 2009 but died in the Senate in 2010 when the public figured out that cap-and-trade is a stealth energy tax. As presidential candidate Barack Obama acknowledged, cap-and-trade would “bankrupt” coal power plants and cause electric rates to “necessarily skyrocket.” Clearly, EPA’s greenhouse gas regulations are, in President Obama’s words, another way of “skinning the cat.” Obama administration officials said repeatedly last year that an EPA-run system would be less efficient than the Waxman-Markey bill Congress declined to pass. Congress could not possibly have authorized EPA to implement this less efficient de-carbonization program in 1970, before global warming was even a gleam in Al Gore’s eye. Congress has a constitutional duty to stop EPA’s end-run around the legislative process. That is the purpose of H.R. 910.

If Reps. Waxman, DeGette, Inslee, Quigley, and Rush really believe that EPA knows best, then they should introduce legislation authorizing EPA to implement its greenhouse regulations, try to persuade GOP chairmen to hold hearings on their legislation, and try to assemble a legislative majority in favor of their bill. They know such legislation has no chance of passing. That is why they want EPA to legislate instead of Congress. They seem to have forgotten that our constitutional system of separated powers and democratic accountability is more valuable than any policy result EPA might achieve by undermining it.

The Kind and Lee amendment (#9) would not merely codify EPA’s Tailoring Rule, it would also codify the entire ever-growing ensemble of EPA greenhouse gas regulations of which the Tailoring Rule is a part. It would put Congress’s legislative seal of approval on EPA’s seizure of legislative power. Passing this amendment would obviously defeat the constitutional purpose of H.R. 910.

Markey’s oil demand reduction amendment (#12) is perhaps the cleverest. After all, most Republicans are as alarmist about U.S. dependence on foreign oil as are most Democrats.

Here’s why Markey’s amendment deserves 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! The 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 10 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.

The House of Representatives is scheduled to debate and vote on final passage of H. R. 910, the Energy Tax Prevention Act.  The Rules Committee is allowing the Democrats to offer twelve amendments to weaken or gut the bill.  (It is worth recalling that on 26th June 2009, the Democrats allowed only one Republican amendment and couldn’t even provide an accurate copy of the bill, since 300 pages had been added in the middle of the night, but the new sections hadn’t been put in their proper places in the 1200 page bill that had been released four days before.)  No Republican amendments to strengthen to the bill will be allowed.  The rule can be found here.  It is quite possible that the vote on final passage will be delayed until tomorrow.

Senate Majority Leader Harry Reid (D-NV) has scheduled votes on amendments offered by Sens. Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Max Baucus (D-MT), and Debbie Stabenow (D-MI) amendments to S. 493, a re-authorization bill for small business subsidies, for some time after 4 PM today.  The McConnell amendment is the Senate version of the Energy Tax Prevention Act, S. 482.  The other amendments are attempts to give some ground without blocking EPA regulation of greenhouse gas emissions permanently (that is, until Congress authorizes such regulations).  This shows how far the debate has shifted.  It appears that the three straddling amendments may each get fifteen to thirty votes.  It appears that the McConnell amendment (#183) will get 51 or perhaps even 52 votes, but will not be adopted because it is not a germane amendment and therefore requires 60 votes to survive a point of order.  All 47 Republicans are expected to vote for it plus Sens. Joe Manchin (D-WV), Mary Landrieu (D-LA), Ben Nelson (D-NE), and Mark Pryor (D-AR).  Maybe one more Democrat, such as Sen. Claire McCaskill (D-MO).  Senate Majority Leader Harry Reid could of course still change his mind.

The White House yesterday sent a veto threat to the Hill yesterday.  The full statement can be found here, although this excerpt aptly summarizes the President’s position.

“If the President is presented with this legislation, which would seriously roll back the CAA authority, harm Americans’ health by taking away our ability to decrease carbon pollution, and undercut fuel efficiency standards that will save Americans money at the pump while decreasing our dependence on oil, his senior advisors would recommend that he veto the bill.”

This indicates two things: that passage is becoming a real possibility; and that the White House is sending a message that some House Democrats who want to get re-elected can vote for it in the knowledge that the White House is standing by to save them from the consequences.

After today’s votes, the next step will be to attach H. R. 910 / S. 482 to a vehicle that the President will have a hard time vetoing.  Did anyone say debt ceiling?

Update [5:45 PM]: The Senate Votes Are in

McConnell amendment (Inhofe’s Energy Tax Prevention Act, S. 482): 50 Yes, 50 No.

Rockefeller amendment: 12 Yes, 88 No.

Stabenow amendment: 7 Yes, 93 No.

Baucus amendment: 7 Yes, 93 No.

Democrats Voting Yes on the McConnell amendment:

Joe Manchin of West Virginia
Mary Landrieu of Louisiana
Ben Nelson of Nebraska
Mark Pryor of Arkansas

Republicans Voting No on the McConnell amendment:

Susan Collins of Maine

House Ready To Pass Upton Bill Next Week

The House has scheduled H. R. 910, the Energy Tax Prevention Act, for floor debate and passage on Wednesday, 6th April.  This could still slip given the wrangling that is going on between the House and the Senate over the Continuing  Resolution to fund the federal government for the rest of FY 2011 after the current CR runs out on 8th April.

Energy and Commerce Committee Chairman Fred Upton’s (R-Mich.) bill will pass easily with over 250 votes.  That most likely includes all 241 Republicans and 12 to 20 Democrats.

The Rules Committee has not yet met to decide which amendments will be in order.  Conservative Republicans in the Republican Study Committee are considering offering several amendments to strengthen the bill.

H. R. 910 as marked up by the Energy and Commerce Committee prohibits the EPA from using the Clean Air Act to regulate greenhouse gas emissions, but does not prohibit the Administration from using other existing statutes to regulate emissions.  Nor does it ban common law nuisance lawsuits against emitters of greenhouse gases, such as power plants, manufacturers, railroads, airlines, and cement producers.

Thus one obvious amendment would be to ban common law nuisance suits.  The Supreme Court is currently considering such a case.  It may find that such suits may proceed, but even if it does not it could do so for the wrong reason—namely, that the EPA is regulating emissions and has thereby pre-empted common law.

Democrats led by Rep. Henry Waxman (D-Beverly Hills) will undoubtedly offer some of the same silly, irrelevant grandstanding amendments that they offered in committee.  Waxman was reported this week as expressing confidence that the bill has no chance in the Senate.

That was certainly true of his Waxman-Markey cap-and-trade bill in the last Congress.  One significant difference is that Waxman-Markey barely passed the House, 219-212.  The Upton-Whitfield bill will pass by a much wider margin.

Moreover, cap-and-trade was swimming against strong public opposition, while blocking EPA’s attempt to achieve cap-and-trade through the regulatory backdoor is swimming with public opinion.  That’s why, for example, Senator Claire McCaskill (D-Mo.) is still undecided about voting for the McConnell amendment (which is identical to the Senate version of H. R. 910) in the Senate.  She doesn’t want to vote for it, but she’d like to be re-elected in 2012.

Will the Senate Ever Vote on the McConnell Amendment?

The Senate spent another week without voting on Senator Mitch McConnell’s (R-Ky.) amendment to block EPA from using the Clean Air Act to regulate greenhouse gas emissions or either of the two Democratic alternatives.  It is quite possible that there will be votes next week.  It is also quite possible that Majority Leader Harry Reid (D-Nev.) will work out a deal with McConnell to dispose of many of the amendments to the underlying bill without votes and proceed to passage of the Small Business Innovation Research Re-Authorization Act.  Or Reid may keep stalling.

McConnell originally introduced his amendment (#183 if you’re keeping track) to S. 493 on 15th March.  It is identical to Senator James M. Inhofe’s (R-Okla.) Energy Tax Prevention Act, S. 482, which is identical to the House bill of the same name, H. R. 910.

Senator Jay Rockefeller (D-WV) introduced an amendment to try to provide cover for fellow Democrats and thereby siphon support from McConnell’s amendment.  Rockefeller would delay EPA regulations for two years.

That hasn’t gained much support, so Senator Max Baucus (D-Mont.) introduced another amendment that would codify EPA regulation of major emitters, but permanently exempt minor emitters, such as small businesses, farms, and ranches.  The American Farm Bureau Federation’s strong opposition has discredited the case for Baucus’s amendment.

The wrangling has gone on for so long that a third Democratic amendment, combining some of the worst aspects of the two other Democratic amendments, was introduced this week by Senator Debbie Stabenow (D-Mich.).  Her amendment has fallen flat, too.

Should the Senate vote on the McConnell amendment, it looks to have the support of all 47 Republicans and three Democrats—Joe Manchin of West Virginia, Mary Landrieu of Louisiana, and Ben Nelson of Nebraska.  That makes 50.  Because of the Senate rules on non-germane amendments, passage requires 60 votes.

That’s not going to happen, but I think it’s important that they get at least 51 votes.  That would demonstrate majority support and would give Reid problems in trying to keep it from being introduced as a germane amendment to other bills.  There appears to be only a couple more possible Democratic votes in favor—Claire McCaskill of Missouri and Debbie Stabenow of Michigan.  Both are up for re-election in 2012.

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.

Late in the 111^th Congress, Senator Lisa Murkowski (R-AK) was building bipartisan support for a Resolution of Disapproval under the Congressional Review Act that would strip the Environmental Protection Agency of its authority to regulate greenhouse gases under the Clean Air Act.

Due to a parliamentary quirk, the Resolution needed only a majority to pass (that is, it wouldn’t necessitate 60 votes to beat a filibuster) and it was entitled to a vote, so the Democratic leadership in the Senate could not sweep it under a rug. Moreover, there are 23 Senate Democrats up for re-election in 2012, and the political mood of the country in the summer of 2010 was shifting right. (This was evidenced by the GOP’s success in last November’s elections.) As such, an EPA reform bill was an attractive vote for many Senate Democrats from purple states, where the EPA is held is lower esteem than in, say, California or New York. As a result of these factors, Sen. Murkowski’s Resolution appeared to have good prospects.

Enter Sen. Jay Rockefeller (D-WV). Just as Sen. Murkowski’s Resolution was gaining steam, Sen. Rockefeller introduced legislation that would delay the EPA’s regulation of greenhouse gases for two years, rather than repeal its authority outright (as Sen. Murkowski’s Resolution would have done).

By introducing this lesser measure, Sen. Rockefeller provided Sen. Majority Leader Harry Reid (D-NV) an opportunity. Sen. Reid had been in a bind. He didn’t want Sen. Murkowski’s Resolution to pass, because it would upset the DNP’s environmentalist base. But he recognized the tough political position of his colleagues.

Sen. Reid’s solution was to promise to hold a vote on the Rockefeller bill, at some unspecified future date. This provided Democratic Senators political cover from having to make a tough decision on the Murkowski Resolution. They could voice their support for Rockefeller’s measure, and thereby prove to their constituents that they want to reign in the EPA, without having to take a controversial vote. As a result of Sen. Reid’s promise, Senator Murkowski’s Resolution failed in the Senate, by a 53-47 vote.

Naturally, the Senate Majority Leader proceeded to break his promise. The 111^th Congress ended without a vote on EPA reform. Reid had used Rockefeller’s legislation for political expediency, and then discarded it.

In the 112^th Congress, it’s déjà vu all over again. This time around, it’s Senator James Inhofe (R-OK) and Representative Fred Upton (R-MI) who are building bipartisan support to stop the EPA from regulating greenhouse gases. They co-wrote a bill, H.R. 910 (the Energy Tax Prevention Act of 2011), that would have the same effect as the Murkowski Resolution. Last week, they gained the support of two senior House Democrats (Rep. Colin Peterson (D-MN)and Rep. Nick Rahall (D-WV)), and this week, the legislation passed out of the Energy and Commerce Committee with strong bipartisan support.

On Tuesday, Senate Minority Leader Mitch McConnell unexpectedly introduced the Energy Tax Prevention Act of 2011 as an amendment to S. 493, legislation that provides federal funding for research and development programs for small businesses. As was the case in the last Congress, EPA reform has good political prospects in the upper chamber, due to the fact that 23 Senate Democrats are up for re-election in 2012, and also because the paramount concern of voters is the economy.

So Senate Majority Leader Harry Reid was in a bind, again. And again, he turned to Rockefeller. Last night Rockefeller indicated he will offer his legislation to delay EPA climate regulations as an amendment to S. 493. According to an Energy and Environment News report this morning (subscription required), Senate leadership is thinking about offering the Rockefeller amendment “side by side” with the McConnell amendment. That way, some politically vulnerable Senate Democrats could vote for the Rockefeller effort, and some could vote for the McConnell amendment. Neither measure would pass, but all Senate Democrats get to vote for EPA reform, and thereby attain political coverage.

As of noon today, the vote on S. 493 had yet to take place. It is unclear from the latest news reports whether Senate leadership intends to hold a vote today or after next week’s recess. [Update: It is now being reported that the vote will be delayed until after next week's recess]

While I can’t fault Senate Majority Leader Reid for this cynical strategy (it’s his job), I don’t see how West Virginians aren’t appalled by their senior Senator’s actions. Thanks to the Obama administration’s war on coal, the entire West Virginia Congressional delegation supports H.R. 910/McConnell amendment…except for Senator Jay Rockefeller.

Worse still, it’s not as if Rockefeller is sitting out the debate; rather, he’s actively undermining EPA reform—for the second time! His constituents are getting hammered by this Administration’s EPA, more so than any other state in America. Yet he continues to spurn the interests of West Virginians in order to carry Harry Reid’s water.

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.