The Corner

EPA Finding Gives It Effective Control of the Economy

The EPA is about to announce that greenhouse gases endanger public health and welfare, something that has in many ways been inevitable since the boneheaded SCOTUS ruling in Mass. vs EPA (which essentially found that the Clean Air Act was always intended to be Kyoto-on-steroids.) With thanks to my colleague Will Yeatman, here’s a brief summary of what this means, and why you should be appalled.

Under the Clean Air Act, an “endangerment” finding means that the EPA will have to grant a waiver to those states (such as California) that want to regulate greenhouse-gas emissions from automobiles. The EPA has already agreed to do so. When “pollutants” that “endanger” human health and welfare are regulated, the EPA must expand its regulatory program to include “stationary” sources. The EPA has already announced that it will do so.

This is where Obama wants to get off the “endangerment” train, with the ability to regulate stationary and mobile sources (i.e., industry and cars) with almost complete discretion. These “endangerment” powers give the president tremendous leverage in a number of complex negotiations.

For example, the Obama administration already has told Congress that it will regulate greenhouse gases unless lawmakers deliver a cap-and-trade bill to his desk. The “endangerment” prerogatives also are the president’s bargaining chip in Copenhagen, where he plans on scoring his first diplomatic victory since his election night.

The problem is that the president can’t get off the train where he wants. He simply can’t stop what he has started. Under the statutory language of the Clean Air Act, the regulation of mobile sources tripwires regulations for all stationary sources that emit more than 250 tons of a designated pollutant. For greenhouse gases, that’s pretty much everything larger than a Gore-sized mansion. These stationary sources would have to get a Prevention of Significant Deterioration permit for any significant modification, as would any new source. They would also have to get operating permits. The upshot is that millions of buildings would be subject to regulations. Small businesses will similarly be affected, as millions of businesses emit that amount of greenhouse gases. Fast-food franchises, apartment blocks, hospitals — you name it — will find themselves subject to EPA bureaucracy.

To get around this, Obama’s EPA proposed a “tailoring rule” that would change the language of the CAA so that the threshold would be 25,000 tons. The legality of this is very much in doubt, as it amounts to the executive branch legislating, and is therefore a violation of the separation of powers.

Also under the Clean Air Act, any “pollutant” that “endangers” human health and welfare, and which is regulated for stationary and mobile sources, becomes subject to National Ambient Air Quality Standards. As described above, the Obama administration is in the process of fulfilling all these NAAQS criteria.

Last week, two environmentalist groups petitioned the EPA to regulate greenhouse gases under NAAQS. Soon the EPA will have no choice. Once the NAAQS kicks in — and it will — the American economy is, not to put too fine a point on it, screwed. The government won’t be able to permit anything larger than a mansion. Taken to the extent mandated under the Clean Air Act, the EPA would probably have to order the shut-down of most industrial suppliers and users of conventional energy.

There’s only one remedy for this otherwise inevitable regulatory nightmare. The Congress must pass H. R. 391, legislation offered by Rep. Marsha Blackburn (R., Tenn.) that prohibits the EPA from using the Clean Air Act to regulate greenhouse-gas emissions.

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