In America, as our founders intended, the states are where the rubber meets the road.


Unfortunately, the strategy of bypassing Congress is not simply a pipe dream of groups like Greenpeace and the Center for Biological Diversity. As the secret Browner/Nichols deal on automobile emissions made clear, this way of thinking is now driving administration policy. That was confirmed by a pamphlet from the EPA given out at the United States pavilion in Copenhagen titled: “Working Domestically to Drive Innovation and Greenhouse Gas Reductions.”

It outlined many of the EPA actions covered in this chapter, promising the “EPA will continue to work with international partners, states, and localities, as well as Congress, to put climate solutions into action” (emphasis added). It appears that Congress, and the American people who elect them, are an afterthought, and the bureaucrats are committed to moving forward with or without them.

That was confirmed by another briefing I attended in Copenhagen by Jackson, where she promised the EPA was moving forward with or without Congress. When she was asked whether cap-and-trade legislation would be helpful to avoid lawsuits slowing down the EPA, she responded that lawsuits were inevitable. Then she volunteered something surprisingly frank:

The main reason for legislation is that it’s economy­ wide and that it’s a very clear signal and that it allows for the give-and-take that happens in the legislative process so that people buy in and really buy in.48

That’s the real reason for the big push for cap-and-trade legislation-for broader political buy-in – not because she needs, in her view, any new statutory authority to pursue sweeping regulations of the whole U.S. economy.


While the Obama administration is eagerly trying to use the EPA to disregard the wishes of American voters to please its friends in the “global society,” one solution to the globally driven EPA attack on American democracy is local: state governments can and must fight back.

In order to implement its vision of regulating the U.S. economy by shoehorning greenhouse gases into the Clean Air Act, the EPA must coerce state legislatures to amend their state laws to conform to the new definitions the EPA has created. It takes executive power to new and unprecedented levels, because we now have unelected, unaccountable federal bureaucrats dictating to the elected legislatures of the states that they must change state laws to conform to the new bureaucratic paradigm . Moreover, if they can get away with it now, the next step will be to force states to adopt cap-and-trade programs.

But the good news is that the states are fighting back. At least 15 states have filed federal lawsuits challenging the EPA’s greenhouse gas regulations. 49 The lawsuits challenge such issues as the basic science of global warming, whether warming would on balance endanger human health, the way the EPA handled proprietary data, and the EPA’s failure to conduct the appropriate economic analysis required by law. Unfortunately, most of the states are also bringing their laws into compliance at great human and economic cost in case they lose in court.

The exception is Texas, which is taking a defiant stand with the commonsense position that federal bureaucrats, acting contrary to Congress’s wishes, do not have the right to demand changes to state laws. Texas Attorney General Greg Abbott and Texas Commission on Environmental Quality Chairman Bryan W Shaw sent a letter to the EPA explaining their decision not to comply. They said:

In order to deter challenges to your plan for centralized control of industrial development through the issuance of permits for greenhouse gases, you have called upon each state to declare its allegiance to the Environmental Protection Agency’s recently enacted greenhouse gas regulations-regulations that are plainly contrary to U.S. laws . . . To encourage acquiescence with your unsupported findings you threaten to usurp state enforcement  authority and to federalize the permitting program of any state that fails to pledge their fealty to the Environmental Protection Agency. On behalf of the State of Texas, we write to inform you that Texas has neither the authority nor the intention of interpreting, ignoring or amending its laws in order to compel the permitting of greenhouse gas emissions.50

With this bold statement, Texas has made clear that it will not proceed with the new EPA greenhouse gas rules pending litigation over their legality. Other states would be wise to follow Texas’s lead, because the administrative burden on state permitting agencies will be crippling.

The backlogs created by the flood of new permit applications will not only shut down economic activity, most notably new construction, but will also cripple state environmental agencies, which will be unable to deal with the crush of new paperwork. Thus the EPA’s global warming power grab may actually undermine environmental enforcement at the state and local levels. (That’s okay, evidently, since it will increase the power of the Obama   administration   and   people like Zichal and Jackson.)

In America, as our founders intended, the states are where the rubber meets the road, and at least one big state is simply refusing to go along with what the EPA is doing. It’s a fight worth having, even if the courts ultimately do not agree, because in the meantime it will protect Texans and help educate the rest of the country about what the EPA is trying to do and the need for Congress to step in and stand up for itself and the American people.

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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