July 7, 2008 | Commentary on Energy and Environment

Rise of the unelected

America's future prosperity may hinge on who wins an internal fight within the Bush administration.

On the one side are the bureaucrats of the Environmental Protection Agency. In the name of combating global warming, they are gearing up to regulate carbon dioxide emissions. It's not just the carbon dioxide from auto tailpipes. It's emissions from all sources: factories, schools, restaurant kitchens, heating and cooling systems, power plants, farm equipment and businesses of all types. In a nutshell: everything. Because almost everything that uses energy produces CO2.

But media reports reveal EPA is in conflict with the White House Office of Management and Budget, which answers more directly to the president. Their job is to ride herd on other bureaucrats so our economy isn't stifled by excessive red tape.

The immediate fight is over an unreleased (but leaked to the press) 250-page proposal from the EPA, announcing its intent to adopt rules that expand the 1970 Clean Air Act by designating carbon dioxide as a pollutant that endangers us.

Who gave EPA such power despite no clear language in U.S. law? Congress never agreed. As noted by Ben Lieberman of The Heritage Foundation, "Legislatively, Congress has rejected every attempt to control carbon dioxide emissions."

But another unelected body, the U.S. Supreme Court, in last year's 5-4 decision in Massachusetts v. EPA, embraced the United Nations' philosophy that global warming is an imminent danger. The justices decreed that EPA must therefore possess power to address it by regulating CO2.

This is not about particles of carbon soot. It's not about noxious fumes. The subject is the invisible, odorless, colorless carbon dioxide gas that we emit when we exhale, and which motors emit also.

The EPA suggests it would create a "cap-and-trade" rationing system to limit carbon dioxide emissions - the very proposal that sank in the U.S. Senate recently when it was exposed as a major new tax on energy. The Heritage Foundation projected such a Rube Goldberg approach would cost America almost a million jobs a year, raise average home utility costs by $50 to $100 per month and send gasoline prices soaring even higher. Furthermore, these extreme limits on energy use would cause a new job exodus from the U.S. to overseas.

When the exorbitant costs of that plan were revealed, the U.S. Senate promptly dropped it just a few weeks ago. Now the burrowed-in bureaucrats of the EPA are eager to jump in where senators fear to tread, happy to exert new powers to regulate and control our lives.

Trying to put a smiling face on their power grab, the EPA asserts that America would somehow reap $2 trillion in unsubstantiated "benefits" by adopting more restrictions on energy. It's a variation of the old commercial come-on: "The more you spend, the more you'll save." Anyone who believes EPA's claim should steer clear of car lots and the Home Shopping Network.

Like those from other agencies, the EPA's proposed CO2 regulations are subject to review by the White House's Office of Management and Budget, which is trying to dramatically shrink and de-fang the proposal. But OMB's effort to inject common sense is drawing the ire of liberals who never met a regulation they didn't like.

The New York Times has condemned OMB's efforts as a sinister example of President Bush trying to "silence" the EPA. Rep. Ed Markey, D-Mass., calls it "blatant denial of the overwhelming scientific evidence." Rep. Henry Waxman, D-Calif., threatens contempt of Congress charges if EPA doesn't turn over its original, unedited work, to be trumpeted as the "correct" way to govern society.

The left finds it outrageous that a president should ride herd over bureaucrats who are supposed to be part of the executive branch. If he won't, then who will?

As Heritage's James Gattuso recently testified to Congress, every president since Richard Nixon in 1971 has used a formal procedure to review proposals from bureaucrats, seeking what is called a unitary executive branch.

Such control is a good thing. It stymies the ability of unelected and unaccountable persons in any administration to use their position to push goals not shared by their elected bosses.

The current battle involving the EPA isn't over. Even if the most draconian proposals are avoided, those same bureaucrats will still be in place - protected by Civil Service laws - when a new president moves into the White House in January.

The fight against bureaucracy will continue until Congress changes the system. Once issued by an agency, regulations go into force unless Congress passes a law expressly disapproving them - a process so cumbersome that it rarely happens.

A different approach would be to require Congress to vote on proposed regulations. Only if a majority approves do they go into force. Then we could place the blame (or credit) where it belongs. You can't vote out a bureaucrat, but you can vote out a politician.

Ernest Istook is recovering from serving 14 years in Congress and is now a distinguished fellow at The Heritage Foundation.

About the Author

Ernest Istook Distinguished Fellow
Government Studies

Related Issues: Energy and Environment

First appeared in WorldNet Daily