by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Bad as new federal rules for carbon dioxide emissions might be, Ramesh Ponnuru devotes a Bloomberg View column to the even more troubling details of the way in which those rules have been promulgated.
Republicans are calling President Barack Obama’s new coal-plant regulations a “power grab.” The truth is more complicated, and ominous, than that.
This isn’t a case where the executive branch has simply gone beyond its authority. It’s a case where officials in all three branches of government have found a way to achieve their policy goals while shielding themselves from accountability.
Congress sends bills to the president and the president signs them: That’s how major policy changes are supposed to work. But Congress has never passed large-scale regulations to combat global warming. It has never even voted to authorize such regulations.
In 2007, though, the Supreme Court pretended that Congress had done so. Lawmakers had voted to fight climate change without realizing it, when they enacted the Clean Air Act. So ruled the four liberal justices on the bench at the time, plus Justice Anthony Kennedy.
The Clean Air Act, initially written in 1970 and last significantly amended in 1990, was intended to deal with traditional air pollution, the kind that clogs your lungs and clouds your view — not with the possibility that chemicals emitted into the air might affect the entire globe through their effect on the upper reaches of the atmosphere. Justice John Paul Stevens, writing for the court, got around that problem by holding that Congress had “carefully” declined to define “air” to exclude those upper reaches.
A vast regulatory apparatus is now being built on Stevens’s inference. One set of regulations is before the Supreme Court, and it shows how hard it is to fight climate change through the Clean Air Act. To treat greenhouse gases as a conventional air pollutant, the Environmental Protection Agency was required to impose stringent rules on anything that emitted more than 100 to 250 tons of it a year. The EPA decided that this wouldn’t be “feasible” and set new thresholds at 100,000 tons a year instead.
In other words, the EPA can’t apply the Clean Air Act to climate change without rewriting it. So the justices will have to decide how much rewriting they’ll let the EPA do.