Secondly, with its “Timing Rule,” the EPA adopts the position that its regulation of greenhouse gases from cars under the Tailpipe Rule automatically requires it also to regulate greenhouse gases from stationary sources, non-moving emitters such as factories, power plants, offices, and so forth. But on such a basis, if it applied the Clean Air Act literally, 6 million facilities across the United States would have to apply individually for permits from the EPA. This would obviously be absurd, and the EPA readily acknowledges that it would be impossible to manage and that it is not what Congress intended.
Such a problem explains the third instrument, the “Tailoring Rule,” by which the EPA purports to “tailor” the unambiguous numerical permitting thresholds in the Clean Air Act from 100 and 250 tons per year for pollutants from stationary sources, to 75,000 tons per year for carbon dioxide and other gases supposedly involved in global warming. In other words, because it’s literally impossible to regulate greenhouse gases under the terms of the Clean Air Act, the EPA decided to rewrite the Act on its own. Naturally, this regime imposes a massive regulatory burden on industrial America.
One would not know that from the EPA’s language, however, which classifies its tailoring rule as “regulatory relief” and thus leaves newly regulated companies no room to complain. As a result, we are left with the risible fact that the second day of oral arguments before the Court of Appeals will be spent, in part, arguing about whether or not the plaintiffs have legal standing to complain about these new regulations. The EPA’s nutty legal theory is that the regulatory relief afforded by the tailoring rule gives would-be plaintiffs no grounds on which to complain. The agency further contends that it made the decision to automatically trigger stationary-source regulation three decades ago, and that no party can challenge it today, even if it is 100 percent wrong.
Since these rules are classified as “regulatory relief,” the EPA calculates no environmental benefit from the regulation of stationary sources. Even more absurdly, the agency ascribes a negative cost to its regulations on the basis that its “tailoring” will save money. You read that right: Even though these regulations would subject stationary sources to greenhouse gas regulation and permitting requirements for the first time, there is no real analysis by the EPA of the costs or benefits of doing so. None.
If the EPA had just let the NHTSA continue with its CAFE standards — and not adopted the EPA Tailpipe Rule — there would be no stationary-source regulation.
Thus, since the incremental benefit of the EPA’s Tailpipe Rule is effectively zero, it appears that the rule was little more than a Trojan horse, designed to introduce stationary-source regulation. This suspicion is only strengthened by the fact that the rule’s definition of greenhouse gases includes two gases that aren’t even emitted by mobile sources, only by stationary ones.
The EPA’s rules, which radically expand regulatory authority, are premised on a scientific claim that is being increasingly refuted by empirical evidence. And the science aside, its regulatory program is structured in a fundamentally deceptive manner. The Court of Appeals should strike down these actions. If allowed to stand, the new rules will impose enormous and unjustified costs on business that will permanently damage our economic future.
— Hans von Spakovsky is a senior fellow in The Heritage Foundation’s Center for Legal and Judicial Studies.