Congress is still debating whether to regulate carbon dioxide and other greenhouse gases to address global warming, but unelected bureaucrats at the Environmental Protection Agency have in essence declared that, as far as global warming is concerned, not only is the science settled, so is the politics. The EPA’s recent endangerment finding declaring greenhouse gases to be harmful to public health and welfare was the first major step toward the agency’s regulating them as it does smog and soot.
Some members of Congress reportedly are angry at the EPA’s attempt to preempt their authority. These members should stop blaming the EPA for its actions and instead start taking responsibility for the EPA’s having such extensive power in the first place. Congress authorized the EPA to regulate pollutants via the Clean Air Act — an authorization that, the Supreme Court has decided, applies to greenhouse gases — and Congress can rescind that power at any time. Congress could pass a law today that would prohibit the EPA from regulating greenhouse gases in general and carbon dioxide in particular. In fact, earlier this year, Rep. Marsha Blackburn (R., Tenn.) introduced a bill (H.R. 391) to do exactly that.
The bill currently has 101 sponsors. This means that at least 111 of the 212 representatives who voted against the Waxman-Markey cap-and-trade bill last spring have neglected to endorse a measure that would prevent the EPA from invoking similar restrictions through the regulatory process. When these 111 representatives complain about the EPA’s actions, they are being disingenuous.
Congress tells the agencies what to do — agencies are not supposed to tell Congress what to do. While there has been a great deal of talk about the White House using the EPA decision to “blackmail” Congress into enacting cap-and-trade legislation, the fact is that ultimately the president is powerless to pursue such a strategy without tacit approval from that same Congress.
This isn’t an environmental issue as much as it is a good-government issue. If Congress leaves the Clean Air Act as it now stands, it will be construed as granting the EPA authority to regulate almost every facet of our lives. Since greenhouse-gas emissions come from most uses of energy, the reach of such regulation could be endless and onerous. The EPA could tell us what cars to drive, where we can live, how our homes must be built, how spacious our homes can be, and how much we need to pay for energy.
This is the kind of power typically exercised by central planners. It can hardly be thought of as consistent with the principles of representative government for the legislative branch, the branch closest to the electorate, to cede this kind of power to an unelected body of technocrats. But that’s what happens when Congress delegates very broad powers to an agency without imposing any clear limits.
As the Wall Street Journal’s Kimberley Strassel recently observed, many members of Congress may be happy with the EPA’s decision. Cap-and-trade legislation is contentious. Any vote on such legislation, particularly in an election year, could be politically costly. The EPA’s decision appears to allow members of Congress to deflect blame toward the administration. But this is a charade. In fact, by not acting to rescind the EPA’s power to regulate greenhouse gases, Congress is completely responsible for whatever action EPA takes.
Congress needs to make it clear that the EPA has no authority to make climate-change policy. Legislators who oppose greenhouse-gas regulation should use every possible opportunity — they should add language to change the Clean Air Act to as many bills as possible.
If the current Democratic-controlled Congress is not willing to get behind such an effort, the Republicans need to bring the case to voters next fall. A promise to amend the Clean Air Act so that the EPA is stripped of all powers to regulate greenhouse gases should be a part of the GOP platform in the 2010 elections. Ultimately, without such legislation, Congress is implicitly granting the EPA central-planning authority over the entire American economy.
– Daren Bakst is a legal and regulatory analyst, and Roy Cordato is vice president for research, at the North Carolina–based John Locke Foundation.