The Corner

The Administration, Genies, and Bottles

There are signs that the administration might have realized what it has done with all its talk of regulating greenhouse gases. First, there was the surprising decision last Friday not to reverse the Bush administration’s rules surrounding its listing of the Polar Bear under the Endangered Species Act, causing the Center for Biological Diversity to call the rule an “extinction plan” which the administration had “made its own.”

Second, there surfaced an interagency memo circulated by OMB which said that the EPA’s finding that greenhouse gases endanger human health and welfare could inflict severe harm on the U.S. economy while itself being based on shaky grounds. The memo specifically says:

Making the decision to regulate CO2 under the CAA for the first time is likely to have serious economic consequences for regulated entities throughout the U.S. economy, including small businesses and small communities

and that there is

a concern that EPA is making a finding based on (1) ‘harm’ from substances that have no demonstrated direct health effects, such as respiratory or toxic effects, (2) available scientific data that purports to conclusively establish the nature and extent of the adverse public health and welfare impacts are almost exclusively from non-EPA sources, and (3) applying a dramatically expanded precautionary principle.

This is pretty strong stuff, but of course it’s exactly the same sort of warnings that were presented in the Bush administration, but were decried as part of a “war on science.”

Now, today, confronted with the memo by Senator Barroso, EPA administrator Lisa Jackson somehow managed to say that an endangerment finding “does not mean regulation.” The EPA was unable to clarify what that meant, probably because it is is nonsense under the clear meaning of the Clean Air Act and its interpretation by the Supreme Court in Mass. v EPA. A coalition of free-market groups pointed this all out in its submission to EPA on the finding.

What this all suggests is that sober voices somewhere in the administration have realized just what an economic disaster regulating greenhouse gases will be. The timing of these remarks also suggests that the White House is withdrawing cover from the extremists pushing the Waxman-Markey bill. It also means that the well-funded CBD’s $17 million* that they have for litigation is going to be well-used as they tie up the administration with legal challenges.

If Obama wants to get himself out of this mess, he should sponsor legislation expressly excluding greenhouse gases from the purview of the ESA and CAA.

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