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The EPA’s Day in Court
Tomorrow, the EPA’s greenhouse gas regulations are put on trial.


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Hans A. von Spakovsky

A number of states have joined with industry organizations to challenge new rules from the Environmental Protection Agency on the grounds that they run contrary to the Clean Air Act. Oral arguments began on February 28 before D.C.’s Court of Appeals.

Previous cases have not gone so well. In 2007, in Massachusetts vEPA, the Supreme Court affirmed the EPA’s authority to regulate carbon dioxide as a pollutant under the Clean Air Act. And last year, the Court unanimously threw out a lawsuit, American Electric Power Co. v. Connecticut, that was brought by eight states. In its decision, the court held that neither states nor private parties could bring a global-warming claim under the federal common-law theory of “public nuisance” because the EPA held authority over this issue. That decision leaves all such regulation solely in the hands of the EPA and threatens the right of plaintiffs even to appeal its decisions.

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But as the agency has moved to issue regulations intended to remedy “global warming,” an increasingly broad and robust set of empirical observations compels the conclusion that its operating theory and predictive models of climate are both wrong.

From a legal standpoint, one major problem with the EPA’s risk-assessment model — known as the Endangerment Finding — is that it is completely disconnected from the regulations that EPA itself claims the Finding automatically triggered; namely, the “Tailpipe Rule,” “Timing Rule,” and “Tailoring Rule.” In basic terms, this means that the “solution” was designed without any reference to the description of the problem. There is, for example, no definition of how much greenhouse gas is “too much,” what level causes “endangerment,” or what quantity is “safe.” There is, therefore, no goal around which to rationalize the EPA’s regulations, and no fixed line in the sand to halt the scope of the agency’s power.

Such a disconnect is both legally unprecedented and a radical departure from prior regulation, and it effectively allows regulation of a non-toxic and ubiquitous byproduct of civilization based on the arbitrary and unlimited discretion of the EPA, with no attendant restraint on the agency’s powers. 

Let’s look at the three main regulations. First, the “Tailpipe Rule,” which is a joint venture with the National Highway Traffic Safety Administration (NHTSA). On their own, the NHTSA’s CAFE mileage standards for vehicles achieve almost all of the greenhouse-gas reductions that the EPA’s rule is intended to effect. The one exception that it does not cover: vehicle air conditioners. Assuming that the EPA is right on the science — a very daring assumption — the incremental environmental benefit of its being involved in the area at all is a best-case-scenario reduction of .004 degrees centigrade over 90 years. Don’t take my word for it; this statistic is from the EPA’s own estimates, which are published in the Federal Register. Such a change is well below the threshold of detection: .05 degrees centigrade.

And by just how much will such regulation have prevented a “sea level rise” after 90 years? In the best case scenario, by only .05 centimeters — or the width of a line drawn by a fine-point pen. As well as being insignificant in the extreme, this is also well below the threshold of detection. 



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