by Daren Bakst
Senior Research Fellow in Agricultural Policy, Heritage Foundation
The Environmental Protection Agency (EPA) is trying to force businesses to get permits to emit carbon dioxide and other greenhouse gases.
The problem for the EPA, however, is it can’t mandate these permits under the federal Clean Air Act without creating a situation where virtually every business, such as farms and restaurants, would need to get a permit.
By its own admission, the EPA has recognized that mandating permits for greenhouse gases would lead to "absurd results." Instead of properly acknowledging that it shouldn’t require permits because of the absurdities, the EPA decided to ignore federal law and proceed with regulations.
Under federal law, any stationary source that emits a pollutant at certain threshold levels must secure a permit. Since the threshold levels for emissions are very low, applying them to greenhouse gas emissions would have led to absurd results. The EPA simply developed regulations making up their own threshold levels so they could more easily justify regulating greenhouse gases.
Once again, the EPA bureaucrats are doing whatever they want in order to achieve their own goals. These federal regulations, referred to as the Tailoring Rule, are an attempt to ignore the will of Congress.
Because states play the primary role in the permitting process, however, the EPA needs states to partner with them in ignoring federal law. North Carolina can tell the EPA that it won’t comply with what are clearly illegal regulations.
Texas is one state that has told the EPA that it won’t comply with their power grab. In a letter to the EPA, Texas officials wrote:
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 United States law ….
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.
Even North Carolina’s Department of Environment and Natural Resources told the EPA that the Tailoring Rule has significant problems: "[W]e are concerned that the legal arguments used by EPA to tailor the GHG threshold have the potential to be rejected."
Despite all of these problems, North Carolina’s Environmental Management Commission approved state regulations to implement the EPA’s illegal regulations. Instead of doing what is legally right, North Carolina is trying to regulate greenhouse gases for the first time based on flimsy legal arguments.
Fortunately, there’s a process in our state that allows citizens to object to state regulations and defer the effective date of those regulations, giving the state legislature a chance to decide whether it wants the regulations to move forward. This process at least ensures that elected representatives make this critical decision instead of unaccountable state bureaucrats.
The state has received numerous objections, but there still is a way that Governor Perdue could ignore the will of the people and put the regulations in place through an executive order. She would have to claim, however, that the regulations must go in effect immediately because they are necessary for the public health, safety, or welfare.
This is broad language, but it would be a stretch to argue that the regulations must go in effect without the legislature having had a chance to consider them. There’s no way the governor could show that such regulations would impact anyone’s health or have any impact on climate. The one thing she could show is that by pushing these regulations, she would be doing one more unnecessary thing to hurt North Carolina’s economy and kill jobs.
Regardless of her actions, the legislature will still get its chance to block these regulations. It should reject any attempt by the EPA to force the state into taking action that is contrary to federal law. The legislature should reject any regulations implementing the EPA’s Tailoring Rule.
Further, the legislature should pass legislation that clarifies that no state agency can regulate greenhouse gases unless it is complying with an express mandate by Congress.
While some may think this issue is about environmental concerns, that would be misleading. This is primarily a question of whether an out-of-control federal agency should illegally dictate what North Carolina should do, or whether the state will decide to fight back and follow the law instead of following the wishes of a bunch of DC bureaucrats.
Perdue outlined three calls to action. The first is to limit the length of time that the General Assembly can remain in session to 90 days in a long session and 45 days in a short session. The press release said this would "provide millions in cost savings for taxpayers."
Hudson, who is a District Judge based in Alexandria, VA, ruled in favor of the Attorney General of Virginia in a lawsuit against the new health care law, stating that Obamacare’s "individual mandate" – the requirement that citizens obtain health insurance or pay a penalty – exceeds Congress’s constitutional authority under the interstate commerce clause of the Constitution.