The Environmental Protection Agency on July 11 released an Advance Notice of Proposed Rulemaking for regulating carbon dioxide emissions under the Clean Air Act. This is the administration’s response to the Supreme Court’s 5 to 4 decision in April 2007 that the EPA did have authority under the act to regulate CO2. This advance notice is not so much a request for public comments as it is a draft regulatory rule several hundred pages long. However, it will indeed be open for public comment for 120 days beginning on the day it is published in the Federal Register in the next week or two.
The APNR was accompanied by a short introduction by EPA Administrator Stephen Johnson explaining why he thought that the EPA document demonstrated why using the Clean Air Act to regulate CO2 would be inappropriate, plus eight letters from the heads of other departments and agencies (Energy, Commerce, OIRA, etc.) summarizing their objections and a ten page-memo highlighting the problems such regulation would cause. In addition, the White House put out a strong statement that argues that the EPA notice demonstrates the folly of trying to use the Clean Air Act to regulate something it was never designed to regulate and that calls on Congress to take action immediately to avoid the regulatory trainwreck that will ensue if EPA is allowed to proceed.
It may well seem odd that the White House should condemn a document produced by the administration and approved by the White House’s Office of Management and Budget. But it makes sense. If OMB had tried to edit the document to conform to presidential policy (and make it less insane), they would have invited widespread and scathing criticism that they were censoring the EPA, ignoring and over-ruling expert opinion, trying to derail regulation mandated by the Supreme Court, persecuting scientists, kicking puppies, etc. This way, they are offering the Congress and the public a view of what is in store for the country if EPA is allowed to do what the career EPA staff are clearly eager to do. The result would be a bewildering number of new regulations that would be litigated for years, which once implemented would be colossally expensive and probably ineffective at reducing carbon dioxide emissions. The Congress and the next administration now have no excuse not to know what is coming unless they act to prevent it.