REWRITING THE CLEAN AIR ACT OF 1970: A BACK DOOR TO SOARING ENERGY PRICES
Just to show you how unfazed the Obama administration was by the political defeat of cap-and-trade, consider what’s on page 146 of Obama’s 2012 budget: ‘The administration continues to support greenhouse gas emissions reductions in the United States in the range of 17 percent below 2005 levels by 2020 and 83 percent by 2050 .”10 Those just happen to be the same levels required by the failed Waxman Markey cap-and-trade bill . Obama is telling the EPA to just pretend the bill passed and regulate away. In fact, Obama’.s EPA was already moving full-steam ahead to implement a global warming regulatory scheme that could be even more costly than cap-and-trade-without the approval of the American people and without so much as a vote in Congress. On December 7, 2009-right in the middle of the media firestorm over the Climategate scandal, which leaked e-mails from leading global warming alarmists that called some of the basic science into question-the EPA issued a so called “endangerment finding” for greenhouse gases, paving the way for onerous greenhouse gas regulations to be shoehorned into the 1970 Clean Air Act, despite the fact that Congress had considered and decisively rejected-adding such regulations in 1990, when the Clean Air Act was amended .11 It is such an ill-fitting vehicle to ad dress greenhouse gases that in order for this strategy to succeed, the EPA must, illegally, rewrite the law to suit its purposes.
The EPA wants to handpick which industries and carbon emitters it will regulate, because applying the law as written to greenhouse gases would by the EPA’s own admission create “absurd results .”12 Not only is such a discriminatory approach patently illegal, but it will also fail to stop a regulatory cascade that will paralyze the American economy.
The Supreme Court opened the door for the misuse of the 1970 Clean Air Act with its decision in M assachusetts v. EPA in 2007 . That five-to-four decision instructed the EPA to decide whether or not to pursue global warming regulation based on the language of the statute.
Applying the Clean Air Act to carbon dioxide means regulating millions and millions of facilities across the United States never be fore subject to federal permitting, all the way down to some single family homes. Even the EPA isn’t that crazy, but instead of simply responding to the Supreme Court by concluding the Clean Air Act cannot be used for this purpose, the EPA has promoted itself to super-legislature of the United States, attempting to arbitrarily re write the law to apply only to larger facilities and moving forward .
The organization is doing this despite the fact that one of the 1970 Clean Air Act’s original authors, U.S. Rep. john Dingell (D-Mich .), who supports cap-and-trade, by the way, admitted that the Obama administration’s move is a recipe for disaster. He said:
We are also looking at the possibility of a glorious mess being visited upon this country . . .
In last year’s Supreme Court decision in Massachusetts v. EPA, the court stated that it believed that greenhouse gases are air pollutants under the Clean Air Act. This is not what was intended by the Congress and by those of who wrote that legislation . . .
So we are beginning to look at a wonderfully complex world which has the potential for shutting down or slowing down virtually all industry and all economic activity and growth .. .
Now, I am certain that the legal profession will enjoy this mightily and I am satisfied that this will be a full employment situation for lawyers, of whom I happen to be one, and maybe if I leave the Congress I will return to the practice of law so that I can enjoy this kind of luxurious emolument for creating complexity for our society and a significant downturn in economic activity 13
Through his mandate to the EPA, Obama himself has confirmed that, from his perspective, the resounding wishes of the American people on this issue are irrelevant. Furthermore, in the president ‘s postelection press conference, he hid behind the Supreme Court decision, misinterpreting it as a “court order” (a legal term of art that as a former law school instructor Obama surely understands) for regulation. This is what he said about the EPA, underscoring that he still very much intends to make energy prices skyrocket, if not by cap-and-trade then by other means :
The EPA is under a court order that says greenhouse gases are a pollutant that fall under their [sic] jurisdiction … Cap-and-trade was just one way of skinning the cat; it was not the only way. It was a means, not an end. And I’m going to be looking for other means to address this problem. 14
The following day, former White House green jobs czar Van Jones let the plan slip in even franker terms, saying:
Those are your only three options. Regulate them hard. Tax them hard. Make them buy permits. Make ’em buy permits, that’s called cap-and trade. Unfortunately, the minute we did that, the cap and-trade proposal got called “cap and tax” and everything else and “socialism,” and now we are without an option . . . So the only thing left for you, young folks, next year is to go back to the EPA and say, “Listen, we tried to pretend that what was going on was a market failure, i.e., we had the price wrong for carbon. The price being zero. And that didn’t work, so now we’re going to have to pretend it is a regulatory failure.”15
Jones often says openly what his friends and allies on the left believe but are usually more guarded about.
Phil Kerpen is head of American Commitment and a leading free-market policy analyst and advocate in Washington. Kerpen was the principal policy and legislative strategist at Americans for Prosperity for over five years. He previously worked at the Free Enterprise Fund, the Club for Growth, and the Cato Institute. Kerpen is also a nationally syndicated columnist, chairman of the Internet Freedom Coalition, and author of the 2011 book “Democracy Denied.
Excerpt provided by BenBella Books.
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