Special Report

EPA Vote Coming Down to the Wire

Congress set to reject EPA power grab on global warming.

By 6.10.10

Last year, the EPA announced an enormous power grab on global warming, far exceeding its constitutional authority by rewriting the Clean Air Act and essentially threatening Congress to legislate with the threat of blunt force trauma to the economy. This blatant move annoyed one of the more moderate Republican Senators, Lisa Murkowski of Alaska, so much that she announced a resolution to have the EPA's move disapproved by Congress. The vote is today, and it's going to be close. If Sen. Murkowski wins, it will send a clear signal to the Administration and its allies in the green movement that they can't get away with such shenanigans. It's essential that she does.

The EPA's move followed the quixotic decision of the Supreme Court in the case Massachusetts v. EPA to decide that the Clean Air Act, passed in 1970, was intended by Congress to deal with the problem of increasing concentrations of Carbon Dioxide as well as more traditionally regarded air pollutants. The ruling allowed the EPA to regulate fossil fuel emissions. President Obama's EPA jumped at this opportunity, but was faced with a problem.

The plain language of the Clean Air Act would apply the regulations to anyone who emits more than 250 tons of CO2 in a year. That means fast food franchises, apartment buildings. and hospitals would be subject to regulations aimed at clamping down on pollution from large industrial facilities. Even the EPA recognized the absurdity of this result. It took it upon itself to rewrite the law, saying that what the Clean Air Act meant in this case was 25,000 tons, not 250, and issued what it called a "tailoring rule" to this effect. This represents a significant assault on the principle of separation of powers.

The interesting thing is that everyone agrees that the EPA regulations are potentially disastrous. For example, Democratic Senator John D. Rockefeller (WV) has said that "EPA regulation will have an enormous impact on the economic security of West Virginia and our energy future." His colleague Mark Begich of Alaska seemed to agree, saying, "I believe that the EPA's enforcement of the endangerment finding would be clumsier and less targeted than if Congress were to act."

Yet Sen. Begich and many of his colleagues seem to think that the threat of EPA action is a good thing, with him continuing on to say, "We need a comprehensive energy plan and if this keeps the fire under these guys to get something major done, I'm all for it." In other words, he's all for the EPA usurping Congressional authority if it forces Congress to pass something he's in favor of, which leads one to wonder if he'd be so in favor of agency overreach in an area where he didn't approve of the action.

It was exactly this overreach that led Sen. Murkowski to propose her resolution to disapprove the finding on which the EPA based its power grab, a finding that greenhouse gases endanger public health and welfare. Such a ruling, made under the provisions of the Congressional Review Act, would simply overturn the "legal force and effect" of the finding, and not the reasoning or conclusions. There are plenty of Senators wholly convinced of the reality of man-made global warming who are preparing to vote for the resolution.

Sen. Rockefeller and several of his more realistic Democratic colleagues have said they will support the resolution, which only requires 51 votes to pass. President Obama has already said he will veto the resolution should it pass both Houses, but a vote in favor would still send a strong signal to the Administration -- and the Courts -- about Congressional intent in this area. The vote is on the knife-edge.

Who could be the hero that puts the vote tally over the top? Senator Byrd of West Virginia has often voted in favor of sensible energy policy in the past and could join his colleague Sen. Rockefeller in voting for his state against his President, for which he would be owed many thanks. Yet even his vote might not guarantee approval.

Step forward Senator Scott Brown (R-MA). He has been on the fence on the issue, probably because of his state's role in the underlying court case. But during his election campaign, he said the following:

"I just want to make sure if in fact… the earth is heating up, that we have accurate information, and it's unbiased by scientists with no agenda. Once that's done, then I think we can really move forward with a good plan.''

The EPA made its decision before Climategate or any of the other recent scandals that have revealed how politicized climate science has become. If Sen. Brown wants the really good plan he said he did, he should vote for the motion so that neither the EPA nor Congress takes precipitate, job-destroying action based on shaky science.

Given the bipartisan support for the resolution, it would be appropriate for Sen. Brown, unapologetic truck driver that he is, to cast his vote in favor. If he does so, he will have saved the nation from EPA's regulatory anti-stimulus, and upheld an important constitutional principle to boot.

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About the Author

Iain Murray is Vice-President for Strategy at the Competitive Enterprise Institute.