This afternoon, the EPA is expected to announce new, more stringent fuel efficiency targets for automakers. The regulations are bad enough—they force people to buy smaller cars, which results in increased vehicular fatalities—but it gets worse. The EPA’s announcement will mark the first time that it has used its authority under the Clean Air Act to regulate greenhouse gas emissions. That’s a big deal, because the Clean Air Act is written such that regulation triggers more regulation. Thus, today’s announcement on fuel efficiency is like reaching critical mass in a regulatory chain reaction, and the result is a weapon of massive economic destruction.
Here’s how it works. Once the Clean Air Act applies to mobile sources, like cars, it must also apply to stationary sources, like buildings. These regulations, in turn, engender stringent National Ambient Air Quality Standards. And so on and so forth. You get the idea.
But the Clean Air Act was written in 1970 to fight smog, not global warming. Greenhouse gases are much more prevalent than smog forming emissions, so the thresholds for what constitutes a polluter are all out of whack. If the EPA adheres to the text of the legislation, then it would have to regulate everything larger than a mansion—your apartment building, your office complex, your small business. It would be a nightmare.
Even the EPA admits that regulating greenhouse gases under the Clean Air Act is “absurd.” To avoid having to shackle the entire economy, the EPA wants to increase the threshold for the regulation of greenhouse gas “pollution” under the Clean Air Act, from 250 tons a year, to 25,000 tons a year. Otherwise, the EPA argues, it will be forced to regulate almost everything, which would be, the EPA concedes, “absurd.”
But it’s not that simple. The EPA is part of the executive branch of government, and it is unconstitutional for the executive to legislate. The EPA’s attempt to alter the text of the Clean Air Act flies in the face of the separation of powers, one of America’s founding political principles. Environmentalist litigation groups undoubtedly will sue to ensure the full implementation of the Clean Air Act, and if they win, then the EPA will be forced to impose an unprecedented regulatory straightjacket on the American economy.
This is why the Congress never voted to subject greenhouse gases to the Clean Air Act. In fact, the Senate actually stripped greenhouse gas provisions from the 1990 Amendments to the Act. Michigan Rep. John Dingell, who authored the Clean Air Act, said that, “This [regulating greenhouse gases] is not what was intended by the Congress.” Despite this legislative history, the Supreme Court ruled in 2007 that the EPA could regulate greenhouse gases.
The U.S. Supreme Court ruled that the EPA could regulate greenhouse gases, not that the EPA must regulate. Former President George W. Bush had the good sense to let sleeping dogs lie. President Obama, on the other hand, thinks he can leverage the Supreme Court’s decision into a political victory.
He had campaigned for the presidency on a promise to deliver a “cap-and-trade” program to reduce greenhouse gas emissions, but he is having trouble getting it through Congress. So the President devised a high-stakes game of chicken. He is threatening to unleash the EPA in order to coerce climate legislation out of Congress. Today’s California waiver announcement is the consummation of Obama’s threat.
These are hyper-partisan times, but both parties in Congress agree that they don’t like being pushed around by The White House. In the Senate, Republican Sen. Lisa Murkowski of Alaska has joined with Democratic colleagues Blanche Lincoln of Arkansas, Ben Nelson of Nebraska and Mary Landrieu of Louisiana to sponsor legislation, known as a Resolution of Disapproval, which would strip the EPA of the authority to regulate greenhouse gases under the Clean Air Act.
Due to a procedural quirk, this Resolution of Disapproval (S.J. 26) cannot be filibustered, so it only needs a majority to pass in the Senate. There is a legally mandated time limit before which the bill must be considered, so the Senate will address S.J. 26 shortly after returning from the Easter recess. The vote is expected to be very close.
If it fails, get ready for the green police.
William Yeatman is an energy policy analyst at the Competitive Enterprise Institute and editor of Globalwarming.org.