On April 17, the administration spawned a ticking time bomb with its release of a proposed endangerment finding for carbon dioxide and five other greenhouse gases. This proposal finds that carbon dioxide is a dangerous pollutant that threatens the public health and welfare and therefore must be regulated under the Clean Air Act. This so-called “endangerment finding” sets the clock ticking on a vast array of taxes and regulation that EPA can impose across the economy, and all with little or no political debate or congressional control.
Just two weeks later, on May 12, we learned of a White House document marked ‘privileged and confidential’ buried deep within the docket of the proposed rule. It outlines some of the very same concerns shared by me and many of my colleagues, including Sen. John Barrasso (R.-Wyo.).
This document, allegedly a compilation of concerns from unnamed officials within the government as part of an inter-agency review of the proposed regulation, raises some very serious criticisms of the endangerment proposal. Chief among them are questions raised about the link between the EPA’s scientific argument for endangerment and its political summary.
It states: “The finding rests heavily on the precautionary principle, but the amount of acknowledged lack of understanding about basic facts surrounding greenhouse gases seem to stretch the precautionary principle to providing for regulation in the face of unprecedented uncertainty.” In other words, there is a lot we don’t know, yet we’re stretching the science to justify an endangerment finding.
In addition it states: “There is a concern that EPA is making a finding based on ‘harm’ from substances that have no demonstrated direct health effects, such as respiratory or toxic effects, and that available scientific data that purport to conclusively establish the nature and the extent of the adverse public health and welfare effects are almost exclusively from non-EPA sources.”
EPA Relying on U.N.
One may ask: What source is the EPA relying on? That source is the U.N.’s Intergovernmental Panel on Climate Change and its Fourth Assessment Report, which, as I have documented in speeches before on the Senate floor, is a political and not a science-based body and has no accountability here in the United States.
In addition, this White House memo also warns of a cascade of unintended regulatory consequences if the endangerment finding is finalized. It states “Making the decision to regulate CO2 under the Clean Air Act for the first time is likely to have serious economic consequences for regulated entities throughout the U.S. economy, including small business and small communities.”
For one thing, I am glad to know that we are not alone with our concerns and that several in the Obama administration share views similar to ours on the endangerment finding. I am hopeful more will come forward.
So what was the administration’s official response to the release of this memo? Well, it depended on who you asked. One source in the Obama administration chose again to blame it on the Bush administration, stating it was written by a holdover appointed by George W. Bush. However, earlier in the day, Peter Orszag, who heads the White House Budget office where the memo allegedly came from, stated that the quotations circulating in the press are from a document in which OMB simply “collated and collected disparate comments from various agencies during the inter-agency review process of the proposed finding. These collected comments were not necessarily internally consistent, since they came from multiple sources, and they do not necessarily represent the views of either OMB or the administration.”
This begs the question, then: Does this document reflect one rogue leftover Bush appointee, who, based on follow-up news reports, actually appears to be a Democrat, or do they reflect a more systematic summary of comments from various agencies who have serious concerns with the proposed finding, as Orszag suggested? I am hopeful someone from the administration will come forth with a consistent response.
In either case, I welcome the comments as an open and honest discussion of the potential costs, benefits, and legal justifications for such a finding. Regardless of the Supreme Court decision, the EPA has the discretion to carefully weigh the science, and the causes and effects in its determination of endangerment, and, despite recent claims by administration officials, is under no court order to find in the affirmative that such greenhouse gases endanger public health or welfare, or cause or contribute to air pollution.
If we are going to have a debate on this issue, let’s have it here in Congress, where the American people deserve open and honest discussion about the costs and alleged benefits, about the effectiveness of such policies, and what it will mean for consumers who will ultimately pay the bill.
This administration, and this EPA in particular, have claimed they will usher in a new era of transparency. In April, EPA Administrator Lisa Jackson issued a sweeping memo to all EPA employees committing the agency to an unprecedented level of transparency. I applaud her for this action. In this memo, the administrator states:
“The success of our environmental efforts depends on earning and maintaining the trust of the public we serve. The American people will not trust us to protect their health or their environment if they do not trust us to be transparent and inclusive in our decision-making. To earn this trust, we must conduct business with the public openly and fairly. This requires not only that EPA remain open and accessible to those representing all points of view, but also that EPA offices responsible for decisions take affirmative steps to solicit the views of those who will be affected by these decisions.”
Certainly the allegations in this White House memo make one question whether EPA is open and accessible to all points of view. For one thing, it was marked privileged and confidential; secondly it was buried deep within the docket, hopefully never to be found.
My colleagues may criticize the Bush administration for how it handled the endangerment finding, but at least they did not try and bury or hide these types of comments when it proposed its advanced notice of proposed rulemaking last summer. In fact, the previous administration went so far as to lay all of these comments out in public view, so all sides could be represented. If this latest action is any indication on how the EPA has begun to operate, then the American public should have serious reason to be concerned.
On this CO2 endangerment issue, potentially the largest and most sweeping EPA regulatory effort ever to be proposed, transparency should be a cornerstone of every agency action, and opinions from all sides, pro and con, and certainly from all other agencies, should be weighed equally and fairly, and just as important, openly, in full view for the American people. The American people deserve to know all sides, all costs, and all benefits.
New Finding Needed
Because of these issues, I am hopeful that the administrator will commit to a determination on endangerment that would be based on the record of the scientific data and empirical evidence, rather than political or other non-scientific considerations. It is of the utmost importance that regulatory matters of this of this scope and magnitude are based on the most objective, balanced scientific and empirical data.
While I am still hopeful that ultimately Congress or the agency will decide to take this option off the table, a full on-the-record examination during any endangerment rulemaking should be a minimum requirement of transparency.
But with the administration essentially politicizing the issue by presenting policymakers with a false choice — use an outdated, ill equipped and economically disastrous option under the Clean Air Act, or pick another bad option, cap and trade, that commits us to requirements for which affordable and reliable technology does not exist — they are admitting that this is more about political leverage than science or facts or costs and benefits. This is not a choice I want for my constituents or the country.