Even the regulatory agency admitted regulating CO2 under the Clean Air Act would be “absurd.”
The Environmental Agency is planning to double its budget to $21 billion and expand its workforce of 18,000 to 230,000 regulators over the next four years.
The Clean Air Act states that any stationary source that emits as little as 100 tons of pollutants per year must get permits from the EPA and state agencies. A typical restaurant or apartment house sends out 100 tons of carbon dioxide (CO2). Currently about 14,000 entities have to get permits. But by regulating CO2 through the Clean Air Act, the number of businesses requiring EPA permits will soar to more than 6 million.
This potential explosion of regulators all began with a Supreme Court decision in a landmark environmental case decided in April 2007. The court’s ruling was an historic turning point in the environment of fright over global warming. The environmentalists almost went gaga over the court ruling. In a 5-4 strange decision the court said that carbon dioxide—the air every human and animal exhales—is a pollutant under the Clean Air Act and that the EPA had the power to regulate CO2 emissions from vehicles. The case, Massachusetts vs. EPA, was a defeat for the Bush Administration.
A key question in the case was: Does EPA have the discretion not to regulate those emissions?
The Court remanded the case to EPA, requiring the agency to review the contention that it had discretion in regulating carbon dioxide and other greenhouse gas emissions. The Court found the current rationale for not regulating to be inadequate and required the agency to articulate a reasonable basis in order to avoid regulation.
During the Bush Administration, the EPA had argued that it had no authority to regulate so-called “tailpipe emissions” of carbon dioxide and other greenhouse gases that supposedly contribute to global warming, because they are “non-point” emission sources. They are not fixed geographically, unlike coal-fired power plants that are “point” sources and closely regulated. Vehicles account for about 20 percent of U.S. carbon dioxide emissions, while power plants account for about 40 percent.
The case put three questions before the court:
Do states have the right to sue the EPA to challenge its decision?
Does the Clean Air Act give EPA the authority to regulate tailpipe emissions of greenhouse gases?
Does EPA have the discretion not to regulate those emissions?
The court answered yes to the first two questions. On the third question, the court stopped short of requiring the EPA to regulate carbon dioxide emissions. Instead, the court ordered the agency to re-evaluate its position that it has no obligation to regulate vehicle tailpipe emissions of greenhouse gases and is free to exercise its discretion to leave the problem unaddressed.
The majority, led by Justice John Paul Stevens, said the EPA had offered a “laundry list” of reasons for failing to regulate carbon dioxide emissions and told the agency that its rationale must be grounded in the Clean Air Act if it wants to continue arguing that it should not be required to regulate carbon dioxide and other greenhouse gases.
"EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," Stevens said in the majority opinion. Joining Stevens in the majority were Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and Anthony Kennedy.
Chief Justice John Roberts and the court’s three other conservative justices—Samuel Alito, Antonin Scalia and Clarence Thomas—dissented in the decision.
While hailing the Supreme Court decision as a heart-throbbing victory in the fight to reduce global warming, environmentalists also noted that Congress would have to take up where the court left off.
“It's important to remember the Court did not rule EPA has to take action on climate change; that’s why this is ultimately up to Congress. The Court did all it can, but if we’re really going to fix climate change, Congress has to pass a cap on carbon pollution, and soon," said Fred Krupp, president of the Environmental Defense Fund.
In a Sept 28 article Steven F. Hayward, the F.K. Weyerhaeuser Fellow at the American Enterprise Institute, and an expert on the Clean Air Act, wrote that “Congress never intended this and even said so” during floor debate over 1990 amendments to the Clean Air Act. Senate Environmental Committee Chair Barbara Boxer (D-Calif), however, took up the environmentalists’ cause as if wielding a cattle prod in her anxiety to make new rules.
Hayward noted in his article that the delegation of power to administrative agencies is “sorely abused.” He cited ObamaCare as an example. This delegation of law-making power, can give any decision “the force of law.”
The EPA itself says the proposed greenhouse gas rules may be “absurd” and “impossible to administer” by its self-imposed deadline of 2016. EPA is being challenged in court by petitioners who maintain that such a decision should be left to Congress. The Coalition for Responsible Regulation, a trade group, is suing the EPA.
EPA admitted its regulatory efforts aren’t likely to succeed. But it decided, with political drive, to move ahead anyway. “Hiring the 230,000 full-time employees necessary to produce the 1.4 billion work hours required to” increase the “permitting functions would result in an increase in Title V administration costs of $21 billion per year,” EPA wrote in a court brief.
The Institute for Energy Research, a non-profit research group founded in 1989, warned EPA in 2009 that if the agency went forward, the Clean Air Act would require the agency to regulate large sources of carbon dioxide emissions, but also 260,000 office buildings, 150,000 warehouses, 100,000 schools, 92,000 health-care facilities, 58,000 food service buildings, 37,000 churches, 26,000 place of public assembly and 17,000 farms. It said that Congress never intended such regulations under the Clean Air Act.
“With Private investment stalled and unemployment unacceptably high, the American economy needs regulatory certainty and lower energy prices, not even more constraints and hurdles placed on job creators,” the Institute for Energy Research said in plain English that even uncaring Obama’s EPA should be able to understand.