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The Environmental Spectator
Clean Air’s Dirty Residue
The EPA is a case study in just how broken our system is.
A lot has been made of recent court filings in which the Environmental Protection Agency suggested that it needed 230,000 more bureaucrats to regulate greenhouse gas emissions. It didn’t actually say that, but what it did say was even more shocking — an illustration of how all three branches of our Republic are failing to do their jobs.
What the EPA said in its filings was that, if it were to administer the Clean Air Act as written with respect to greenhouse gases, then it would need to hire 230,000 more staff and spend $21 billion annually to deal with the deluge of paperwork that would result. We’ll come back to the EPA and what it proposes to do instead of hiring and spending that much, and what that means shortly, but for the moment we should examine just how this situation arose.
The Clean Air Act was passed in 1963, and was last significantly amended over 20 years ago, in 1990. That should raise the question of why the EPA has only now realized that it needs so many more bureaucrats to administer it. The answer is that the Clean Air Act doesn’t apply to the emissions of what we now call greenhouse gases (GHG), especially carbon dioxide (CO2), from power generation.
The notion that the Act would empower the EPA to regulate GHG emissions began only a few years ago, when, at the height of global warming alarmism, a group of blue states, led by Massachusetts, banded together with a gamut of environmental pressure groups to sue the EPA, contending that greenhouse gases were indeed pollutants and that the EPA should regulate them under the Act. In short, the EPA, in its recent filings, is legitimizing a groundless activist lawsuit.
As my colleague Marlo Lewis has pointed out repeatedly, to treat CO2 and other such gasses as if they were particulate air pollution would eventually lead to the enforced deindustrialization of the United States. The expansion of the EPA would be the first step along that road. Yet the agency did not advance the argument that such an interpretation would lead to absurd results clearly not intended by Congress.
The case reached the Supreme Court, which held, on a 5-4 vote, essentially that anything in the air added by man was a pollutant under the terms of the Act. As Justice Antonin Scalia pointed out in his dissent, this would render a Frisbee a pollutant! In reaching this decision, the Court failed in its duty to consider whether interpreting the Act the way it did would lead to absurd results — thereby essentially changing the law.
At this point, the matter returned to the Bush EPA, which kicked the can down the road to the Obama EPA. Unsurprisingly, the Obama EPA decided it had to regulate greenhouse gases. There was an attempt by the administration to use the threat of these regulations, which were as onerous as commentators had predicted, to force Congress to pass a cap and trade scheme, which would have overridden the Clean Air Act with respect to greenhouse gases.
Thankfully, cap and trade died an ignominious death in the Senate. However, Congress failed to follow up the next logical step, which would have been to overturn the EPA’s finding that greenhouse gases endangered human health and welfare, or to amend the Clean Air Act to make it clear that it did not apply to greenhouse gases. Thus, Congress also failed the American people once more, by allowing the EPA’s onerous regulations to go forward.
Returning to the EPA, we see the final betrayal of the American people in this sorry affair, this time by the executive branch. Despite recognizing, as shown by the court filing, that regulating greenhouse gases under the Act would change the nature of the EPA completely, the agency perversely decided that it should rewrite the law itself, through something called a “tailoring rule.” This rule purports that when Congress wrote the law, it gave the agency the discretion to say that in the case of greenhouse gases it could alter the statutory threshold — 250 tons per year — at which emissions should be regulated.
That is because, while only major industrial facilities emit 250 tons per year of “traditional” pollutants, office buildings, fast food stores, schools, and hospitals all emit more than 250 tons of greenhouse gases. Hence the need for 230,000 more bureaucrats in the absence of the tailoring rule.
The trouble is that Congress did not give the agency this discretion. A legislative effort to enact the tailoring rule as law floundered in the face of environmental groups’ opposition.
The legal basis for the rule is extremely flimsy. In its effort to retain power without responsibility, the executive branch has failed the American people in one of the most egregious ways it can — by ignoring the Constitution’s separation of powers.
The mess the EPA now finds itself in may be the clearest example of how badly broken the American political system is. Executive, legislative, and judiciary alike have failed the people. A clear reaffirmation of what the Clean Air Act is actually meant to do is needed from one of these branches. There is no sign of it on the horizon.
About the Author
Iain Murray heads the Center for Economic Freedom at the Competitive Enterprise Institute and is the author of Stealing You Blind: How Government Fatcats Are Getting Rich Off of You.
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Brian Mc| 10.3.11 @ 6:17AM
When will we wake up, re-gain our sanity and banish this monolith to the ash-heap of history? Might be that it will only transpire once there is no more money after it has killed the goose...seems that's where we are headed.
Mick Hawk| 10.3.11 @ 6:41AM
As with any Federal bureaucracy, the original purpose is now lost (if it was ever needed). EPA has become an overreaching rogue agency whose purpose is to regullate. Regulate whatever it can and to expand it's power. It hace become an agency of tyranny controlling aspects of the ecomomy and encraoching on individual freedom far in excess the original mandate. It is time it's unconstitutional dictates are terminated with it's existence ended.
Quartermaster| 10.3.11 @ 6:52PM
The only purpose of a Federal agency is survival of the agency so they can keep printing paychecks. The mission gets lost within months after the creation of the agency these days, where it took a generation before. The prime example of the former is TSA, which protects no one.
oldfart| 10.3.11 @ 7:09AM
Using the logic of the EPA and the Supreme Court of the United States and taking the GHG argument to the logical conclusion – the EPA should ban all animal life in the United States and start by ordering the mass suicide of all humans in the United States. After all animal life exhales CO2 in quantities that are unregulated. That will certainly help 'save the planet'.
oldfart| 10.3.11 @ 7:30AM
Actually I think I overstated by case. There should be a few of the 'chosen' allowed to stay.
1. The US Congress
2. The US Supreme Court
3. Anyone living 'inside the beltway'
4. People of 'proper' political thinking in NYC
5. People of 'proper' political thinking in Mass.
6. People of 'proper' political thinking in Berkely, CA
7. People of 'proper political thinking who are actors (being a good actor is not required).
8. And the Great Pretender.
David W| 10.3.11 @ 8:37AM
I imagine what life would be like for the chosen few then? They would quickly realize how important the unwashed masses are for things like food, gas, cars, shelter, and maid service.
Timothy L. Pennell| 10.3.11 @ 7:25AM
The mess that the EPA now finds itself in may be the clearest example of how badly broken the American Political system is. Executive, Legislative, and Judiciary alike, have failed the people.
I have an idea: Let's have these very same people run our HEALTH CARE.
Whadda ya think?
John Navratil| 10.3.11 @ 8:44AM
Timothy L. Pennell,
I think you're right. It's why Congress should get out of the delegating business and back into the law making business it was hired to do.
Five Departments - Defence, Interior, Justice, Treasury and State - are all we need. If it isn't part of one of those functions, it doesn't belong.
USSAlabama| 10.3.11 @ 7:39AM
So . . . what happens when we de-industrialize the entire world?
oldfart| 10.3.11 @ 7:55AM
We go back to hunter/gatherer societies and subsistence farming as exists in the jungles of the Amazon basin. No metal tools, only stone and wood. Also – no medical care except for what can be found naturally in the environment. Average lifetime – most likely less than 40 years.
John Navratil| 10.3.11 @ 8:45AM
oldfart,
And everybody in a city dies. Too hard to get food in and poop out.
NYMPH| 10.3.11 @ 12:02PM
Lifespan of 40 years solves the social security/medicare problem......
Johnny| 10.3.11 @ 1:14PM
Hey, you solved the problems with social security. Dang that was easy wasn't it!
Dan Hirsch| 10.3.11 @ 6:25PM
Don't think they haven't thought about it...
DTOM
MM| 10.3.11 @ 8:28AM
A part of the Liberal agenda - to abolish industry - and every country on earth will be Copenhagen.
They don't worry about the obvious hardships and what kind of world we would actually live in if they were to accomplish these things -
They think "Just get it in place and we'll deal with that when we get to it. Everyone will adjust and it will all be better; for the world and everything in it."
Utopians.
Ken (Old Texican)| 10.3.11 @ 7:55AM
To my knowledge, Perry and Palin are the only two who have not been suckered by the "climate change" myths.
USSAlabama| 10.3.11 @ 8:30AM
The ONLY. Even Christie is a believer. Not sure about Cain and Santorum.
Louis Jenkins| 10.3.11 @ 9:30AM
The EPA should be nixed. Everyone wants clean air and water, but these guys have went over the edge. 240,000 more workers at the EPA? Why that's just an average hiring day for our president.
Johnny| 10.3.11 @ 1:17PM
There's obama's green jobs he promised, they'll all be workin' for tha EPA...
Stammon| 10.3.11 @ 9:32AM
The surest way for the liberal environmentalists to run their ideological ship aground is to try enforcing the idea of CO2 as a pollutant. When, not if, the common voter's standard of living collapses from this regulatory smothering of business life, people will vote. Ultimately people vote their livelihoods. The Left's viral load on the body politic is going to trigger an immune response. Hopefully soon.
Who will fight for the trees need to breath?
Maddox| 10.3.11 @ 10:02AM
"if it were to administer the Clean Air Act as written with respect to greenhouse gases, then it would need to hire 230,000 more staff and spend $21 billion annually"
Give me the power and I can administer The Clean Air Act as it should be for free. Abolish the EPA and leave regulation to The States.
loulou| 10.3.11 @ 10:02AM
Just who is that little piglet pictured with Obama and what are her credentials?
Tiddly| 10.3.11 @ 12:54PM
The EPA is a nearly all-woman organization. That should explain a few things.
KaribooKidd| 10.3.11 @ 3:23PM
That would be lisa jackson. Owebama appointed her to lead the EPA. She claims to be mixed race just like her master. That's what's important.
Redstateboy| 10.3.11 @ 10:30AM
Until we confront the Liber-uls Religion of Man Man Global Warming and crush it once and for all, we will never be free. This insanity is the basis for everything they do and until we have a real National conversation - asking every current and potential office holder/seeker: "Do you believe in Man Made Global Warming?" We will continue to go down this moronic road which is strangling our economy and job growth.
no name| 10.3.11 @ 10:51AM
The answer is quite simple actually. Everyone can agree that the sun plays the most important part in climate change. Too much sun-drought. Too little sun-ice age. What is needed here is to have obomba appoint a committee to over see and regulate the hours the sun can shine. I propose investing $890,000,000,000,000.45 to initate a investigative czar, which will begin the end of our problem. I only recently graduated harvurrd and know what I'm talking about.
DaveD| 10.3.11 @ 11:21AM
Whether or not Anthropogenic Global Warming is a serious treat to all humankind is not the issue here. Rather it is the over reach of an unelected and unaccountable bureaucracy in attempting to enact by executive fiat changes that cannot pass muster in a constitutional manner. This cannot be allowed to stand.
But there is an even bigger issue here. When established the EPA had a clear mission and there was a need for action in the U.S. That need has largely disappeared to a large extent through the efforts of the EPA, and the EPA should be applauded for giving us cleaner air. And if the EPA were still constrained by its enabling legislation, the agency could pretty much shut its doors and go home now.
However, bureaucracies don't wither up and die when their mission is accomplished. Instead they tend to find more things to do and always, as they extend their reach, your and my liberties suffer as the regulations increase.
Congress needs to step back in and reassess the bureaucratic monster that has developed over time. The EPA is the current obvious choice as CO2 regulation is an attempt to legislate in spite of Congressional action to the contrary. But Congress shouldn't stop here. The EPA is only one of many agencies that needs to be constrained.
Al Adab| 10.3.11 @ 11:22AM
Here we have the perfect example of what is wrong with our regulatory mandarin class. We see an agency driven by ideology rather than facts and the cost to our economy is huge. What others as well cost more than any good they do? Dept. of Energy, Education, OSHA...?
DaveD| 10.3.11 @ 12:43PM
It may not be so much drive by ideology as it is simple human nature. Put yourself in their shoes and you can begin to understand it.
Are you willing, in your job, to work so well and efficiently that your position is no longer needed? Well neither are they.
So, when the first spate of activity is nearing completion and the justification for the agency is rapidly being addressed, what is a poor hapless bureaucrat to do? Complete the job and no longer have a justification for continued employment, or find something else to mess with and thereby ensure that they remain busy for years to come.
Naturally, they choose the latter course, and thus bureaucracies continue to grow and expand beyond their original mandate. Unless and until Congress steps back in and puts on the brakes, this will continue for ever.
Al Adab| 10.3.11 @ 3:35PM
Correct assessment Dave. We have entrenched a permanent class of self-interested workers unelected and unaccountable to any. Congress creates these executive agencies then allows them to rule through regulation and directives. It represents an abrogation of their legislative authority each time they do so. One might rightly wonder if in fact it is legal to so create and pass the buck as it were.
DaveD| 10.3.11 @ 4:04PM
Technically, this situation is not Constitutional. Only Congress has the power to levy taxes. And arguably, a regulation is a cost that is levied on business and/or individuals which is only not a tax in that government does not directly profit from the added expense. Fines, on the other hand, sure smell an awful lot like taxes to me.
(see below response to "Johnny.")
Johnny| 10.3.11 @ 1:37PM
Dave D., you are very astute in your analysis of the bureaucracy situation and the simple solution is to have congress do a better job of over site. When creating one of these departments to address a situation there needs to be direction for how long it will take to accomplish that goal and include a date for dissolving that particular department after review by a committee in congress. Also, any mandates made by the department should bu contingent upon congressional review prior to implementation. The only problem with all of that is that congress would have to actually do it's job.
DaveD| 10.3.11 @ 4:13PM
I believe (though I will stand corrected if necessary) that Congress does agree to all regulations put forward by the numerous agencies of the executive branch. This is usually done in the morning, when nothing much else is going on and most everybody is still sleeping in, as part of the normal housekeeping business routine - and on a voice vote only. Furthermore, it is not on a regulation by regulation basis, but more along the lines of "The EPA proposes 13 new regulations numbered 1,034,563,756 - 1,034,563,768. All those in favor say 'Aye.' Motion carried."
Thus the legality of the regulations is established but not seriously or conscientiously examined. What we really need to ask (demand) is that Congress take a look at each regulation one at a time in committee.
Of course, if they did that Congress wouldn't be able to get much of anything else done as there are so dad gum many of these things produced on an almost daily basis. Come to think of it, maybe that isn't such a bad idea.
JP| 10.3.11 @ 3:02PM
If the DOD acted like the EPA, would we Generals and Admirals taking Congress to court over budget cuts, and Colonels openly questioning the chain of command. The EPA is attempting a soft coup. And, I would say thus far it is a quiet success.
Marc Jeric| 10.3.11 @ 4:21PM
This global warming conspiracy needs to be put in perspective to be properly understood. This far-left attack by government-paid drones started in the 1970′s with the global cooling scam: we should disarm our nuclear bombers and fill them with soot to be spread over the poles and so prevent those new glaciers from descending south and crushing the New York skyscrapers to dust. When that did not work the same fakers invented the global warming hoax in the 1990′s; we should nationalize all industries and organize a UN-sponsored world socialist government based on “social justice” with the fakers in charge. What with 12 years of substantial cooling the fakers switched to the climate change flimflam in the 2000′s; so whatever happens we should…see above under the global warming hoax. And now we are faced with the cap & trade power grab – but the aim is the same as above. Our socialists, marxists, communists, Hollywood stars, university professors in social and political “sciences”, and environmentalists are all clamoring for action while spurring President Obama ("Tomorrow the oceans will stop rising and the planet will start healing") and his 35 czars/komissars to undertake immediate measures to save the planet – with the same aims as described above.
In the meantime our Mian Stream Media are unanimous in spreading this criminal propaganda daily; the ABC, CBS, NBC, MSNBC, CNN, NPR, the NY Times, the Washington Post, etc. drive this drivel daily. What is totally ignored are the detailed descriptions of faked data, skewed computer programs, politically revised conclusions by the UN-sponsored far-left clique of biased scientists – all government-paid drones that no private enterprise would hire. Another thing ignored is the “Global Warming Petition” (see Internet) where 31,487 independent US scientists (including 9,029 of them with PhD degrees) dispute decisively the findings of the UN-sponsored panel; also ignored is the “Manhattan Declaration on Climate Change” (see also Internet) where a smaller number of competent world scientists, about 712, including 142 pure climatologists, state the same – i.e., that the man-caused catastrophic global warming is a farce. The books by Christopher Horner, Robert Carter, and AW Montford describing the lies, fakes, phony data, opposite conclusions, redacting by UN political hacks, reverse graphs, etc., have exposed this far-left propaganda in painful detail.
In the case of the above mentioned Petition, several "environmentalists" had submitted phony names with phony credentials in order to sabotage that effort. It took several years of painstaking and expensive effort (we contributed a lot of private money for that) to clean up the list from those saboteurs and verify all academic and professional data of the signatories.
To put this whole conspiracy in terms of numbers, let me say that the projected world-threatening increase of carbon dioxide of 100 ppm (parts per million) by the end of this century would increase the termal absorptivity of the atmosphere by one-eighth of one percent; that is the definition of something totally negligible. On the other hand the sun cycles of cooling and heating are thousands of times more powerful with regard to the carbon dioxide in the air; when the sun is cold the oceans absorb many millions of tons of it; and when the sun heats up the oceans release the carbon dioxide in quantities thousands of times bigger than anything the mankind could produce. To illustrate this point in more accessible terms to somebody who who is not a climatologist or a scientist or an engineer; the argument of catastrophic anthropogenic (human-caused) global warming issued by our panic driven socialist/marxist government-paid hacks is like saying that a burp of a lonely wolf in Alaska will transform Florida into a Sahara-like desert - immediately!
As for that bloviating gasbag Al Gore, for Dr. Mann who inverted cause and effect in his "studies", and for the current EPA Administrator - they should be brought to the The International Court in The Hague on charges of crimes against humanity.
Rev. Jim Whittle| 10.3.11 @ 4:44PM
Perhaps a simple law could be passed in Congress to deal with this and other excesses. "Any regulations written by the Executive Branch to enforce a law written by a previous Congress must be approved by the current Congress."
PattyMor| 10.3.11 @ 5:24PM
No, Sarah has the best answer: End the EPA. It was created illegally by executive order by Trickey Dick. Its nothing but a instrument to shut down production and electricity in the U.S. Its evil plain and simple.
shipley130| 10.3.11 @ 6:17PM
EPA will be in the death spiral after 2012.
Pecos Pete| 10.3.11 @ 6:40PM
One can hope!
Brian| 10.3.11 @ 7:26PM
Repub politicians have figured out that the more the leftists/anti-christian agenda progresses in America the more energized repub voters become. So Repub Pol's are actually working behind the scenes pushing the leftist/anti-christian agenda.
POST American| 10.3.11 @ 10:49PM
---As GE's Jeff I--Melt-down remains
unchallenged, TAX FREE and at large
building genuinely dirty plants across the
world---as those flawed GE Mox reactors
spew radiation across the northern hemisphere
(BTW---each of the 5 reactors giving off 50X the
radiation of Chernoby--- SEE Bloomberg News)
---Anyway, that photo is misleading.
All that smoke is really little more than steam
from our domestic clean coal plants.
SO kiddies, keep ALLLL eyes on the CFR/RIIA
Globalist-EUGENISTS and their ROT-child
engineered moves to bring in 'SSS--US--Stain
---a---bill---IT---he' and 'Awe--stare--IT---he'.
(---as ever ---remember, we're the 'ITs')
JeffT| 10.5.11 @ 1:30PM
It's not that hard to end programs and departments that have outlived their usefulness. When I was working, years ago, my boss assigned me to a "diversity" panel meeting in Cincinnati. I lived in NY at the time and had to travel once a month to this one day meeting. After about 6 meetings, I asked why we were meeting. No one had an answer. The group had accomplished all they were originally chartered to do. Why not disband, I suggested. Surprisingly, the majority of the people agreed and that was the last meeting. It can be done. we just need someone with guts to take on the task of ending something who's time has come and gone. And that applies to most government programs, agencies and programs. Vested interests are hard to crush. The time has come to start crushing these sacred cows.
Melvin| 10.13.11 @ 8:18AM
Another thought could be. Why do we need Congress and the Senate 24/7? These bodies at least at the present are completely ineffective.
We do not need government pounding out edicts and laws 12 months out of the year. Eventually there will be so many laws that everything will be illegal.
These bodies should be regulated to meeting once a quarter for a period of one month, and of course in National Emergencies.
That act in-itself would at least prevent the Air Force from providing then Speaker of the House Nancy Pelosi chocolate covered strawberries on her birthday during a flight home to San Francisco.
wedding dresses | 11.14.11 @ 3:13AM
Thus the legality of the regulations is established but not seriously or conscientiously examined. What we really need to ask (demand) is that Congress take a look at each regulation one at a time in committee.