By Adler, Jonathan H.
Reason , Vol. 41, No. 10
ON DECEMBER 7, as delegates from around the world gathered in Copenhagen for the United Nations climate conference, Environmental Protection Agency Administrator Lisa Jackson announced that her bureaucracy would begin to regulate the emission of carbon dioxide and other gases deemed to be warming the planet. "Today, I'm proud to announce that EPA has finalized its endangerment finding on greenhouse gas pollution" Jackson proclaimed. As a consequence, the agency "is now authorized and obligated to take reasonable efforts to reduce greenhouse pollutants under the Clean Air Act"
"Reasonable" here is in the eye of the beholder. The 1990 Clean Air Act was designed for conventional air pollutants such as particulates and ozone smog, not for carbon dioxide. Applying those rules to C[O.sub.2] will mean imposing costly regulations not just on cars and factories but on commercial buildings, churches, and even residences. All told, more than I million entities could become subject to new federal controls on greenhouse emissions.
The EPA power grab was no surprise; indeed, it was inevitable. The regulatory train was set in motion in 2007, when the Supreme Court ruled by a 5-4 vote in Massacbusetts v. EPA that the Clean Air Act applied to greenhouse gases. The EPA probably would have made the same move had John McCain been president, by court order if not voluntarily.
Now that the train is picking up speed, it will be almost impossible to stop and difficult to control. If you think federal environmental regulation is costly and inefficient, you ain't seen nothing yet.
Orders From the Court
The push to extend the Clean Air Act began late in the Clinton administration. In 1998, during a House Appropriations Committee hearing, EPA Administrator Carol Browner told Congress that existing law provided enough authority for the agency to begin regulating the greenhouse gases that environmentalists fear are warming the planet past the point of no return. An EPA legal memorandum on this point soon followed. Environmental groups then tried to force the agency's hand by filing a petition demanding regulation, but the Clinton White House, still smarting over a failed 1993 attempt to impose a nationwide energy tax, was in no rush to adopt such far-reaching regulations.
By the time the Bush administration took over, the greens were tired of waiting for an answer. In 2002, the petitioners sued the EPA for failing to act. The Bush EVA formally denied the petition in 2003, on grounds that it lacked the authority to regulate greenhouse gases because the Clean Air Act was written to address localized air pollutants, not globally dispersed emissions such as carbon dioxide. If Washington wanted to fight climate change, the administration argued, coordinated international efforts made more sense than haphazard regulation via a law written in a different time for a different purpose.
The petitioners, now joined by several northeastern states and others, promptly sued. They prevailed in 2007, when the Supreme Court's narrow majority concluded that the EVA had power to regulate greenhouse gas emissions and had acted arbitrarily in declining to exercise the Clean Air Act's underlying authority.
Under the original law, the EPA is required to regulate any emissions that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare" According to the five-justice majority, the six greenhouse gases cited by the petitioners--carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, per-fluorocarbons, and sulfur hexafluoride--"fit well within the Clean Air Act's capacious definition of 'air pollutant,'" as they contribute to the accumulation of greenhouse gases in the atmosphere, which in turn contribute to a gradual warming that could "threaten the public health and welfare of current and future generations" Writing for the majority, Justice John Paul Stevens brushed aside concerns that a complex regulatory statute designed to combat local pollution problems was a poor fit for global climate control. …