May 24, 2010
By Robert Gordon and Hans A. von Spakovsky
Small businesses and the American economy, beware: Once again Washington politicians are conspiring to help you out. Apparently, Sens. Robert Casey (D., Pa.) and Thomas Carper (D., Del.) are planning to “save” you from the onerous rules regulating greenhouse gases being hatched at the EPA.
The basis of the EPA’s regulatory efforts is the agency’s finding that carbon dioxide is a “pollutant” that supposedly “endangers” us by causing global warming. Once the EPA made this unprecedented and unsupported endangerment finding under the Clean Air Act, it put the enormous regulatory machinery of the federal government in gear to generate rules regulating CO2, rules that will damage every aspect of the U.S. economy. Thankfully, substantive legal challenges to the endangerment finding and the rules the EPA is generating have been filed.
One rule the agency has already issued, something known as the tailoring rule, seems, at first glance, different than its economy-stifling kin. The tailoring rule was supposedly designed to exempt smaller CO2 emitters from the new regulations until 2016. While the Clean Air Act itself states that pollutant emissions of 250 tons or more must be regulated, EPA’s tailoring regulation simply contradicts the law, stating that for now the agency will only regulate CO2 sources emitting 50,000 tons or more.
How, you may ask, can a federal agency just overturn a law by regulation? Good question. The reality is that the EPA is well aware that the tailoring regulation contradicts black-letter law; consequently, it knows legal challenges have high prospects for success. So why would an agency like the EPA that has no trouble flexing its regulatory muscles exempt tens of thousands of potential regulatory targets with such a rule? Quite simply, in addition to recognizing the regulation’s tenuous legal grounds, the EPA realizes that as the number of individuals aware of the pending regulatory burden grows, the stronger the backlash against its CO2 rules will be. Crafty bureaucrats also know that the biggest hurdle they now face is beginning the process of regulating CO2 — striking out against our national economy from the regulatory beachhead of the EPA’s very questionable endangerment finding.
The reality is that with or without the tailoring exemption, the Clean Air Act is already festooned with complex and expansive regulatory mechanisms. The EPA’s extension of its grip to CO2 will be another unparalleled regulatory bonanza for this government agency. Once done — like virtually every other federal regulatory effort — the scope of the agency’s CO2 powers will only continue to expand. While a small business, family farm, or ranch might escape the EPA’s direct regulatory burden and a particular permitting process with the tailoring rule (perhaps only temporarily), they will still suffer from this unlawful aggregation of power by a federal agency. At the end of the day, the enormous economic costs of job losses, reduced GDP, and dramatically higher energy prices from the impact of the EPA’s rules will punish all of us.
Enter Senators Carper and Casey. The word is that they will be introducing legislation to codify the EPA’s tailoring rule — that is, make it law. Their likely public spin will be that they “saved” small businesses — read voters — by cementing the 50,000-tons tailoring rule. But that’s not all they would cement. By legally carving out an exemption for smaller CO2 emission sources, such a law could be legally interpreted as Congress’s implicit stamp of approval of all of the EPA’s other CO2 regulatory efforts and specifically the endangerment finding itself, which means that we would all end up paying more. Sen. Lisa Murkowski (R., Ala.) has a different resolution (S.J. Res. 26), introduced on January 21, which would simply (but effectively) disapprove and void the EPA’s endangerment finding. The danger is that if her resolution, which may be considered early next week, fails to pass, some supporters of vitiating the EPA’s regulatory aggrandizement may be tempted to support legislating the EPA’s tailoring rule.
As of now, there are numerous legal challenges to the endangerment finding and CO2 regulations that have reasonable prospects of prevailing. Senators Casey and Carper’s effort could be seen as a self-interested effort to politically insulate themselves from economically destructive CO2 regulations, and Majority Leader Harry Reid has signaled that he intends to take up their effort. If successful, they may effectively kill legal challenges to the endangerment finding, handing radical greens inside and outside the administration something that otherwise would have likely eluded them, Majority Leader Reid, and even Speaker Pelosi — their biggest global “warming” regulatory win ever, to the detriment of the entire American economy, including small businesses.
First appeared in National Review Online's "The Corner."
Senior Advisor for Strategic Outreach
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Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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