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Did the Senate “Definitively” Reject Efforts to Rein in EPA? A Commentary on Lautenberg’s Rant

by Marlo Lewis on April 18, 2011

in Blog, Features

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.

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