Sen. Lisa Murkowski

Post image for Gina McCarthy’s Responses to Sen. Vitter’s Questions Part I: Bait-and-Fuel-Switch*

Gina McCarthy — President Obama’s pick to succeed Lisa Jackson as EPA Administrator — is often described as a “straight shooter” and “honest broker.” As my colleague Anthony Ward and I explain in Forbes, McCarthy has a history of misleading Congress about the EPA’s greenhouse gas regulatory agenda.

Specifically, McCarthy and the Air Office over which she presides gave Congress and the electric power sector false assurances that the EPA’s greenhouse gas regulations would not require utilities planning to build new coal-fired power plants to “fuel switch” to natural gas. McCarthy also denied under oath that greenhouse gas motor vehicle standards are “related to” fuel economy standards, even though anyone with her expertise must know that the former implicitly and substantially regulate fuel economy.

McCarthy and the Air Office’s misleading statements about fuel switching discredited critics who claimed the EPA was waging a war on coal and would, if left to its own devices, ban new coal generation. The fiction that greenhouse gas emission standards are unrelated to fuel economy standards gave the EPA legal cover to gin up a regulatory nightmare for auto makers — the prospect of a market-balkanizing, state-by-state, fuel-economy “patchwork” — just so the White House, in hush-hush negotiations, could demand auto industry support for the administration’s motor vehicle mandates as the price for averting the dreaded patchwork. This is a complicated tale, which I will discuss in Part 2 of this series.

The bottom line is that if the EPA had not dissembled on fuel switching and not obfuscated on fuel economy, more Senators might have voted for legislative measures, sponsored by Sen. Lisa Murkowski (R-Alaska) in 2010 and Sen. James Inhofe (R-Okla.) in 2011, to rein in the agency. In addition to their well-publicized transparency concerns about the EPA under the leadership of Lisa Jackson and Gina McCarthy, Senators should also have separation of powers concerns.

Earlier this week, Sen. David Vitter (R-La.), Ranking Member of the Senate Environment & Public Works Committee, released a 123 page document containing McCarthy’s responses to hundreds of questions on a wide range of issues. In today’s post, I comment on McCarthy’s responses to Sen. Vitter’s questions about fuel switching. In Part 2 of this series, I will comment on McCarthy’s responses regarding the administration’s motor vehicle program. [click to continue…]

This morning, Sen. Jay Rockefeller (D-WV) and Majority Leader Harry Reid (D-NV) were scheduled to discuss a lame duck floor vote on Rockefeller’s proposed two-year suspension of EPA’s plans to regulate greenhouse gas emissions from power plants, factories, and other “stationary sources,” Politico reports.

Reid’s promise in June to hold a vote on the Rockefeller bill after the August recess was likely the critical maneuver defeating Sen. Lisa Murkowski’s resolution (S.J.Res.26) to overturn EPA’s Endangerment Rule. The Endangerment Rule is the trigger, prerequisite, and precedent for a cascade of both mobile and stationary source greenhouse gas regulations under the Clean Air Act.

On June 10, the Senate rejected the Murkowski resolution by a vote of 47-53. All 41 Senate Republicans and six Democrats voted for S.J.Res.26. Had four additional Democrats voted for the resolution, it would have passed.

Reid’s promise to hold a vote on the Rockefeller bill gave fence-straddling Democrats cover to vote against S.J.Res.26. They could profess to oppose EPA’s looming energy tax on power plants and factories while in fact doing nothing to stop it.

Some observers speculated at the time that the Honorable Mr. Reid’s promise was a bait-and-switch — that he’d never get around to scheduling a vote on Rockefeller’s bill. Maybe, maybe not. Time will surely tell.

Now that cap-and-trade is dead, the urgent question facing lawmakers is not what U.S. climate policy should be but who should make it. Should climate policy be made by the people’s elected representatives, or by politically-unaccountable bureaucrats, trial lawyers, and activist judges appointed for life? The U.S. Constitution, which vests “all legislative powers” in Congress, permits only one answer.

Thanks to the Supreme Court’s decision in Massachusetts v. EPA and the agency’s expertise in bureaucratic self-dealing, EPA has positioned itself to regulate fuel economy, set climate policy for the nation, and even amend the Clean Air Act — powers never delegated to it by Congress.

Overturning EPA’s Endangerment Rule would nip all this mischief in the bud. There may be enough votes in the new (112th) Congress to pass a resolution of disapproval. 

In the meantime, opponents of EPA’s greenhouse power grab should consider a beefed-up version of Rockefeller’s two-year suspension. How about this: Suspend greenhouse gas regulation of stationary sources until such time as Congress votes to remove the suspension?

Rockefeller’s bill as written doesn’t take a clear stand on the bedrock constitutional principle that EPA’s power grab endangers. It would merely delay, not stop, EPA from Kyotoizing the U.S. economy notwithstanding the lack of any plausible legislative mandate to do so.

The beefier version suggested above would allow a clear up or down vote on the proposition that EPA’s job is to administer public policy, not enact it. Any Senator opposing such a bill would admit by that very fact that he wants EPA, not Congress, to “legislate” climate policy.