VIEW FROM COPENHAGEN
The full scope of what Obama, Browner, and the EPA intend to do without any congressional authorization was on display at the United Nations climate conference I attended in Copenhagen in December 2009.
At a side event hosted by Greenpeace called “Yes, he can! How Obama can deliver stronger emissions reductions,” the Center for Biological Diversity presented a paper titled : “Yes, He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress.”45 The center laid out a frightening blueprint for precisely how the president could negotiate and enforce an agreement with just a simple majority of Congress instead of the 67 Senate votes our founding fathers required for treaty ratification, or, if he so chooses, he can instead bypass Congress and the Constitution entirely and simply rely on EPA action under the Clean Air Act for enforcement. If the administration is allowed to get away with this reprehensible tactic, it would set an ominous precedent for international promises and bypassing Congress to enforce them in other policy areas.
The remarkable disrespect for our democratic system was driven by a sense that Obama really worked for a global society, rather than for the American people. This was made especially clear by Marcelo Furtado, the executive director of Greenpeace Brazil, who said:
I know the U.S. public elected Obama, but as you know he was voted around the world as a leader. He was elected as a moral leader from the global society. It was not a U.S. election only. It was a global leadership election.46
He got an enthusiastic reaction from the room, and his sentiments were echoed by others. Clearly, Obama was the great hope for the Copenhagen crowd, though these fans were disappointed at his inability to force an intransigent Senate to accept cap-and-trade. They held out hope, however, that Obama would disregard the American people and instead serve the global society that had, in their view, elected him. That meant moving forward with unilateral executive action on the EPA track.
During the question-and-answer session I asked Kassie Siegel, one of the authors of the “Yes, He Can!” report, about the apparent illegality of the EPAS sleight of hand in the so-called Tailoring Rule, which requires permitting only for sources emitting more than 25,000 tons (the EPA would later raise this threshold to 75,000 tons), even though the Clean Air Act-which was written for toxic air pollution, not carbon dioxide (which, as one of the normal components of air is much more abundant)-sets the threshold at 100 or 250 tons, depending on the type of facility As I noted earlier, the EPA did this because applying the law as it is actually written would create “absurd results .” Instead of using that absurdity to conclude the Clean Air Act shouldn’t be used for greenhouse gases, the EPA is attempting to arbitrarily rewrite the law.
Siegel’s response? She made it clear that at least one environmental group with a history of aggressive litigation is unconcerned about (or perhaps supportive of the bureaucratic nightmare of mil lions of homes and business ultimately being subject to EPA permitting requirements. She said:
The political argument that’s been made by the Chamber of Commerce and many polluters is that, “Hey, we couldn’t do this. It would be unworkable because so many things emit carbon dioxide that if you went all the way down to the 250-ton threshold you would have to issue thousands and thousands of permits a year. And it would be a big problem and it would be a big mess, so let’s not do it.”
I think that’s wrong …
I don’t think it would actually be such a big problem. We need to reduce emissions. I think way too much is being made of having to issue these permits. I think it’s completely workable … It is reasonable proposal to start with big sources first and get to the smaller ones later.47
Siegel’s group, the Center for Biological Diversity, has a multimillion-dollar litigation war chest to find judges sympathetic to their views, which means-despite the EPA’s efforts to rewrite the law-judges may eventually apply the full force of the Clean Air Act to greenhouse gases. You might need a federal permit if you have too many fireplaces.
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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