Clean Air, Foul Decision


On Friday, the Environmental Protection Agency released a “staff draft” for public comment on possible ways to regulate greenhouse gases under the Clean Air Act. In the preface, EPA Administrator Stephen Johnson opines that the document, known as an advanced notice of proposed rulemaking (ANPR), “demonstrates that the Clean Air Act, an outmoded law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases [GHGs].”

Johnson warned that if EPA were to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, as sought by the plaintiffs in Mass. v. EPA (April 2007), “then regulation of smaller stationary sources that also emit GHGs — such as apartment buildings, large homes, schools, and hospitals, could also be triggered. One point is clear: the potential regulation of GHGs under any portion of the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household.”

Johnson not only affirmed that the regulatory alternatives discussed in the ANPR are not EPA decisions or policy recommendations, he also attached to his preface the reviews of several other agencies — all sharply critical of proposals to regulate GHG emissions under the Clean Air Act.

As my friend Ben Lieberman of the Heritage Foundation quipped, it’s not every day that an author publishes a negative review of his own book.

The ANPR, along with Johnson’s preface and the accompanying agency comments, all make one thing very clear — setting GHG emission standards for new motor vehicles under Section 202 of the Clean Air Act would open a regulatory Pandora’s Box. It would trigger a regulatory cascade through multiple Clean Air Act provisions that would dwarf in cost and intrusiveness every climate bill that Congress in its wisdom has so far declined to pass. The 5-4 Supreme Court majority in Mass. v. EPA that compelled EPA to engage in this exercise either did not understand how the Clean Air Act works, or they deliberately sought to legislate from the bench.


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