The Spectacle Blog

EPA’s Short-Order Rule Cramdown

By on 11.30.10 | 2:45PM

It was only two weeks ago that EPA proposed rules to that would force large industries to use "best available control technology" to reduce their greenhouse gas emissions, with a deadline of December 1 for the public to comment or complain. You may have noticed there was the Thanksgiving holiday during that time period, which further limited the amount of time that those affected would have to respond. Jay Lehr, Maureen Martin and James Taylor, my colleagues at the Heartland Institute, had a few choice words about these bureaucratic shenanigans:

Lehr:

This command-and-control form of government brings to mind Nancy Pelosi's announcement to the House of Representatives last spring regarding Obamacare - when she said "we have to pass the bill so that you can find out what is in it." Of course most of us know how that turned out.

Martin:

Enactment of such regulations is always subject to advance notice to the public and provision of a lengthy period of time-often months-in which to file comments on the proposal. The agency then reviews the comments, responds to them, and sometimes revises the proposed regulations before making them final.

Congress established an exception to the strict notice-and-comment requirement, however, for agency documents called "guidance." This exception applies when the pronouncement is merely explanatory. As one judge described it, these pronouncements "simply state what the administrative agency thinks the statute means." And many courts have held for many decades that agency documents creating substantive new legal obligations must go through the rigorous notice-and-comment period.

Obama's EPA calls its proposed new permit requirements mere "guidance." But it undoubtedly creates substantive new legal obligations-permits are legally binding contracts between the government and the particular industrial operation involved. So EPA is thumbing its nose at decades of established law by unleashing a new regulatory regime without any kind of meaningful notice and opportunity for public comment.

Taylor:

Forcing power plants to purchase and implement the "best available" technology to reduce greenhouse gas emissions every time a plant is built or any kind of significant maintenance or renovations occur, however, means by definition that electricity prices are going to start rising in a manner that will make the economy-shocking energy price spikes during the summer of 2008 seem downright wimpy by comparison.

With EPA forcing them to spend whatever it takes to purchase and implement the most greenhouse-gas restrictive fuels, emissions-trapping devices, and who-knows-what-else expensive technologies to fight a speculative-at-best global warming problem, power plants will have no choice but to pass those costs on to electricity consumers.

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