Post image for Why Courts Should Repeal EPA’s ‘Carbon Pollution’ Standard (and why you should care)

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. [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.