RALEIGH — North Carolina’s Environmental Management Commission should reject plans to regulate carbon dioxide emissions. It’s the wrong governing body, both legally and practically, to make “critical” decisions about regulating CO2, according to a new John Locke Foundation Spotlight report.
Click here to listen to Daren Bakst discussing this Spotlight report.
“CO2 regulation is not just an ordinary policy question — to make that argument would be like arguing that global warming is just another environmental issue,” said report author Daren Bakst, JLF Legal and Regulatory Policy Analyst. “There are significant and unprecedented implications linked to regulating CO2.”
That’s why any decision about regulating CO2 emissions for the first time in state history belongs in the hands of the General Assembly, Bakst said. “The legislature is an elected, accountable body that is expected to make critical policy decisions,” he said. “The EMC is neither elected nor directly accountable to the public.”
Bakst is issuing his findings one day before the Environmental Management Commission meets again in Raleigh. The 19-member appointed commission is considering regulations that would mandate that “certain facilities” report CO2 emissions, Bakst said. “These regulations would lay the groundwork for far costlier CO2 regulations.”
CO2 emission regulations would affect everybody, Bakst said. “CO2 emissions are prevalent in almost every sector of the economy and in many personal actions we take — including the CO2 we exhale as we breathe,” he said. “Broad-based CO2 regulation, such as a cap-and-trade program, could have devastating impacts on the economy.”
Despite the potential impact of new regulations, the EMC is acting without input from the people’s elected leaders, Bakst said. Its actions are based only on a request from bureaucrats at the N.C. Department of Environment and Natural Resources. “If it approves regulations, the EMC would be doing so without proper statutory authority,” Bakst said. “It also would be ignoring the legislature. Basically, the commission would be taking unilateral action.”
Unilateral action from the Environmental Management Commission would stand squarely against decisions made in the General Assembly, Bakst said. “The legislature already is addressing questions about CO2 through a special study commission,” he said. “The EMC should not pre-empt the legislature on the question of regulating CO2. The EMC should take no action on regulating CO2 unless clear legislation is enacted authorizing the regulation.”
Bakst’s report dissects two possible statutory sections that have been used to justify the EMC’s actions. In both cases, the existing laws do not apply to CO2, he said.
“One key question is whether CO2 is ‘air pollution’ as defined in the statute,” Bakst said. “For CO2 to be ‘air pollution,’ there must be a clear determination made that it is injurious to human health, among other things. DENR has not made this determination, nor had it even attempted to make this determination prior to hearings on the proposed regulations.”
“Only after being called out for simply ignoring the ‘air pollution’ issue did DENR throw together some research citations to support a claim that CO2 is injurious to human health,” he added. “DENR has done no analysis of any kind on this issue. Further, even the federal government, and specifically the Environmental Protection Agency, has not made this type of determination.”
“There is simply no support, at least as of now, that CO2 would meet the definition of ‘air pollution’ under existing state statutes,” Bakst said. “This lack of support may offer the explanation for why DENR simply decided to ignore the issue of whether CO2 was ‘air pollution’ under the law. DENR simply wanted to jump past this critical analysis and instead go straight to regulating CO2. They apparently hoped that nobody was paying attention, but fortunately some of us were paying attention.”
Regardless of the legal case, it is also inappropriate for the EMC to be the governing body that decides whether the government should regulate CO2 for the first time, Bakst said. “North Carolinians elect legislators to make tough policy choices,” he said. “They don’t expect unelected commissions they never heard of to develop policies that could devastate the economy.”
“Further, the legislature has taken proactive steps to address CO2 regulation,” Bakst added. “They have chosen to study CO2 issues, including whether there should be mandated reporting of CO2. DENR, though, wants the EMC to get around the will of the legislature and regulate CO2 despite the legislature’s desire not to regulate at this time.”
“By rejecting these unauthorized regulations, the EMC can show that it recognizes that good government is far more important than the political motivations of some individuals in an out-of-control agency,” Bakst said.
Daren Bakst’s Spotlight report “CO2 Regulation: Will the EMC Ignore the Legislature?” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].