The Environmental Spectator

Clean Air’s Dirty Residue

The EPA is a case study in just how broken our system is.

By 10.3.11

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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.

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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.