The CBD, the folks who successfully petitioned and sued the Fish & Wildlife Service to list the polar bear as a threatened species under the Endangered Species Act (ESA), announced last week the opening of a new Climate Law Institute (CLI) that will “use existing laws and work to establish new state and federal laws that will eliminate energy generation by the burning of fossil fuels — particularly coal and oil shale.” CBD says it has dedicated an “initial $17 million” to the project.
As I noted in a previous post, Kassie Siegel (who will direct the CLI) made clear two years ago that she viewed the polar bear listing as a regulatory stepping stone to “halting” greenhouse-gas emissions. Specifically, she argued that Section 7 of the ESA should require federal agencies to reject applications for “new coal-fired power plants, oil shale leasing programs, limestone mines for cement manufacturing, and dozens perhaps hundreds of other projects [that] are individually and cumulatively having an appreciable effect on the atmosphere.” She also hinted that Section 9 of the ESA could prohibit private entities from combusting fossil fuels.
Last November, the CBD filed a notice of intent to sue EPA to set tougher pH standards under the Clean Water Act (CWA) to combat ocean acidification due to industrial emissions of carbon dioxide (CO2). The accompanying press release makes no bones about the organization’s broader agenda: “stronger pH standards could translate into measures that regulate pollutants such as carbon dioxide.”
Although the ESA and CWA may become significant fronts in the carbon litigation wars, the Clean Air Act (CAA) is currently the central battleground. Climate Czarina Carol Browner announced yesterday that EPA will soon issue an endangerment finding for greenhouse gases — the prerequisite to regulating greehouse-gas emissions from new motor vehicles and stationary sources under various CAA provisions.
As explained here, here, and here, an endangerment finding for greenhouse gases would open a regulatory Pandora’s box. An estimated 1.2 million previously unregulated buildings and facilities would be vulnerable to new controls, paperwork, and penalties under the CAA’s Prevention of Significant Deterioration (PSD) pre-construction permitting program. Millions would be vulnerable to new paperwork and emissions fees under the Act’s Title V operating permits program. The endangerment finding could also set a precedent compelling EPA to establish national ambient air quality standards (NAAQS) for greenhouse gases — standards America would likely fail to meet even if we shut down all U.S. factories, power plants, and automobiles.
Through litigation under the CAA and other statutes, we could end up with Kyoto-on-Steroids without the people’s elected representatives ever voting on it — and with nobody accountable to the electorate for the compliance burdens and economic fallout.
As you’d expect, EPA, in its Advanced Notice of Proposed Rulemaking (ANPR), outlines several administrative remedies to limit the number of entities subject to regulation under PSD and Title V, and to avoid a NAAQS rulemaking for greenhouse gases. However, as explained in my ANPR comment, each of these devices involves a more or less brazen attempt by EPA to assume legislative power and amend the statute.
However you slice it, litigation-driven global-warming regulation threatens to short-circuit self-government and subvert the separation of powers. It is a constitutional crisis in the making.