The Wall Street Journal and Fox News are suggesting that President Barack Obama's nomination of Gina McCarthy as head of the Environmental Protection Agency is a sign that he is acting like a "dictator," using an "end-around" to regulate carbon emissions that drive climate change. But they failed to mention that efforts to curb this greenhouse gas through the EPA are not an invention of the Obama administration -- they were given the go-ahead by a George W. Bush-era Supreme Court decision.
Earlier this week, the president nominated McCarthy, a former official for then-Massachusetts Governor Mitt Romney, to succeed Lisa Jackson as EPA administrator. McCarthy is likely to play a major role in the administration's presumptive plans to regulate carbon emissions from existing power plants.
But News Corporation's Fox News and Wall Street Journal are launching a preemptive attack on these efforts, claiming they are "antidemocratic" by once again ignoring a Supreme Court decision that all but required action. Monday, Fox News anchor Megyn Kelly incorrectly suggested that action through the EPA is unprecedented, saying "It used to be that if you wanted to make a major change or have a major impact on climate change or green energy regulations in this country, you went through Congress" but the president "has found an end-around, and as a result this EPA is extremely powerful right now." The next day, a Wall Street Journal editorial smeared McCarthy as "antidemocratic," adding, "Mr. Obama has been going around saying that the problem is that he's a President, not an 'emperor' or 'dictator,' but on carbon regulation this is a distinction without much difference."
Both failed to note that a 2007 Supreme Court ruling found that greenhouse gases fit the definition of an "air pollutant" and could be regulated under the Clean Air Act if they were determined to be harmful. A subsequent "Endangerment Finding," privately authored during the Bush administration but suppressed until 2009, stated that this was the case due to their contribution to climate change. Stephen Johnson, then the EPA Administrator, told President Bush in early 2008 that the Supreme Court decision "combined with the latest science of climate change requires the Agency to propose a positive endangerment finding," adding "the state of the latest climate change science does not permit a negative finding, nor does it permit a credible finding that we need to wait for more research." The Bush administration reportedly refused to open the email containing the Endangerment Finding, leaving it to the next president to take action. As noted by Legal Planet, the environmental law and policy blog of the University of California Berkeley and UCLA law schools, regulation of carbon emissions under the Clean Air Act is not undemocratic. In fact, "[T]here's nothing here that's an end-run around Congress. EPA is (as bureaucracies should do) implementing the orders of the legislature through duly enacted laws." If the president has "given up getting Congress to agree" to regulate emissions by other means, as the Journal argued, it is only because Congress has repeatedly failed to pass legislation doing so, thus compelling the executive branch to act.