Getting a grip on the Environmental Protection Agency must be at the top of the upcoming Republican-controlled House’s “To Do” list.
Of immediate concern are the EPA rules for regulating greenhouse gas (GHG) emissions. Unless stopped by a federal court, the Obama EPA will implement on Jan. 2 a flagrantly illegal scheme to regulate emissions from power plants and other large emitters. This enactment will kill jobs and raise the prices of energy, and thus of all good and services.
The Obama administration originally designed the scheme as a regulatory sword of Damocles to pressure Congress and industry into agreeing on a cap-and-trade framework.
But cap-and-trade reached its high-water mark in June 2009 when the House barely passed the controversial Waxman-Markey bill. Cap-and-trade’s prospects then deteriorated quite rapidly, placing the Obama administration in the position of having to make good on its threat to unleash the EPA’s carbon dogs on America.
The Obama EPA bootstrapped itself into the carbon regulation business with its December 2009 “endangerment finding,” decreeing that GHG emissions threaten the public welfare. The EPA based its finding on a 2007 report of the UN Intergovernmental Panel on Climate Change (IPCC)—a report that, while always controversial, came under even more fire as a result of the November 2009 Climategate scandal.
Already on shaky legal ground, the EPA ventured clearly into law-breaking territory with its June 2010 “tailoring rule.” Under the Clean Air Act, if the EPA regulates a “pollutant,” it must regulate all sources that emit as little as 100 tons per year.
Implementing this requirement for GHGs would put the EPA in the impossible position of having to regulate virtually every small business and multi-family residential complex—a total of more than 6.1 million sources nationwide. The EPA estimated it would require 1.4 billion work hours costing $63 billion over three years to accomplish that task.
Rather than comply with the law, the habitually rogue EPA went totally outlaw in unilaterally deciding to raise the permitting threshold to sources emitting 75,000 tons per year, cutting the number of regulated sources to a more manageable 20,000.
Congressional Democrats have so far blocked efforts to rein in the EPA. Last June, Senate Democrats narrowly defeated the so-called Murkowski resolution to block the EPA from regulating GHGs. Though Sen. Jay Rockefeller (D–WV) proposed to delay EPA regulation for two years, there is no indication his effort will advance during the lame duck session.
Congressional failure has left enforcement of the law to private parties and to states such as Alabama, Texas, and Virginia, which have filed a number of lawsuits against the EPA. And while it is possible that some federal judge may enjoin the EPA from acting before Jan. 2, we shouldn’t hold our breaths waiting.
The federal judiciary is politicized, unpredictable, and not necessarily tethered to traditional notions of law and fact. Current federal law and existing Supreme Court decisions make it difficult to challenge the EPA successfully. And while the lawyers for the parties suing the EPA no doubt know the law as well as the opposing counsel does, there is a question of motivation to consider.
The Obama administration lawyers are ideologically motivated, backed by the force of an aggressive government, have nothing to lose, and, consequently, are out to win at all costs. They will be facing off against plaintiffs’ lawyers who represent firms that are squishy, politically-sensitive, and bipartisan, as well as trade associations with a variety of agendas, a fear of angering the government or of upsetting the Democrats’ hierarchical chain of command. It would be a shock to see these lawyers break any china to on behalf of their clients.
While our hearts should be with those who are suing the EPA, our money should be on the likelihood of seeing lousy lawyering and worse judging involved in addressing their cause.
This sad finding brings us to our last best chance for getting the EPA under control: the Republican-dominated House. From denying the EPA funding for its programs, particularly the agency’s air and enforcement offices, to oversight investigations of the White House and the EPA, the House can throw much-needed monkey wrenches into the Obama administration’s jihad against GHG emissions and our economy.
With its mandate to end government profligacy and abuses of power, and to revive our economy, the House GOP needs to be fully engaged in the battle against the EPA, starting promptly on Jan. 2.