Wash. Times op-ed ignores Supreme Court ruling to call EPA regulating carbon a "power grab"

››› ››› CHELSEA RUDMAN

A Washington Times op-ed claimed that the Environmental Protection Agency's (EPA) "designation of 'greenhouse gases'...as pollutants subject to EPA regulation" is "a naked power grab" because the term "does not appear anywhere in the Clean Air Act." But the Supreme Court has ruled that greenhouse gases that contribute to climate change are air pollutants subject to EPA authority under the Act.

Wash. Times op-ed pushes false claim that EPA has no authority to regulate greenhouse gases

Wash. Times piece calls the EPA's regulation of greenhouse gases a "ploy" and "a naked power grab." In an October 8 Washington Times op-ed, National Review Online contributor Mackrubin Thomas Owens calls the EPA's "designation of 'greenhouse gases'...as pollutants subject to EPA regulation" an "EPA ploy" and "a naked power grab" by the agency. He writes that Congress should "resist this abomination," in part because "the term 'greenhouse gases' does not appear anywhere in the Clean Air Act, confirming that Congress never intended this legislation to be used to regulate carbon dioxide emissions and the like." From the op-ed:

At issue is the EPA's designation of "greenhouse gases," e.g., carbon dioxide, as pollutants subject to EPA regulation in accordance with the Clean Air Act. The EPA ploy is the Obama administration's response to Congress' failure to pass a broad climate bill that would include provisions such as "cap-and-trade" to reduce carbon-dioxide emissions.

In fact, such an interpretation is a naked power grab by the EPA that has the potential to damage the U.S. economy badly. Job loss will be just one consequence of this ill-advised scheme.

There are many reasons for Congress to resist this abomination. For one thing, the term "greenhouse gases" does not appear anywhere in the Clean Air Act, confirming that Congress never intended this legislation to be used to regulate carbon dioxide emissions and the like. Certainly, no previous administration has interpreted the Clean Air Act as a mandate to regulate such emissions. In any event, a constitutional perspective suggests that Congress, not unelected bureaucrats, should be setting U.S. policy.

In fact, the Supreme Court held that greenhouse gases that contribute to climate change are "air pollutants" as defined by the Clean Air Act and fall under the EPA's regulatory authority. In Massachusetts vs. EPA, 12 states, four local governments, and 13 private organizations sued the EPA for failing to regulate greenhouse gases, including carbon dioxide, that are emitted by motor vehicles, citing their role in causing global warming. The Bush administration's EPA argued that it lacked authority under the Clean Air Act to regulate those gases. The Supreme Court, in a 5-4 opinion authored by then-Justice John Paul Stevens, stated on April 2, 2007, that "greenhouse gases fit well within the [Clean Air] Act's capacious definition of 'air pollutant,'" and thus "EPA has statutory authority to regulate emission of such gases from new motor vehicles":

Because greenhouse gases fit well within the Act's capacious definition of "air pollutant," EPA has statutory authority to regulate emission of such gases from new motor vehicles. That definition -- which includes "any air pollution agent ... , including any physical, chemical, ... substance ... emitted into ... the ambient air ... ," §7602(g) (emphasis added) -- embraces all airborne compounds of whatever stripe. Moreover, carbon dioxide and other greenhouse gases are undoubtedly "physical [and] chemical ... substance[s]." Ibid.

The court explained that it had "little trouble concluding" that "the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change":

On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA "shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an "air pollutant" within the meaning of the provision.

The statutory text forecloses EPA's reading. The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . ." §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any." Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical . . . substance[s] which [are] emitted into . . . the ambient air." The statute is unambiguous.

Rather than relying on statutory text, EPA invokes post enactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977. And unlike EPA, we have no difficulty reconciling Congress' various efforts to promote interagency collaboration and research to better understand climate change with the agency's pre-existing mandate to regulate "any air pollutant" that may endanger the public welfare.

[...]

While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) ("[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth" (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act's capacious definition of "air pollutant," we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.

The Supreme Court ruled that the Clean Air Act required the EPA to examine greenhouse gases. The court further stated that the "EPA identifies nothing suggesting that Congress meant to curtail EPA's power to treat greenhouse gases as air pollutants." The Court ruled:

Under the Act's clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the President's ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore "arbitrary, capricious, or otherwise not in accordance with law," §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. Pp. 30-32.

EPA: Supreme Court "interprets the statute to allow for the consideration only of science." The EPA finding stated of the 2007 Supreme Court decision: "[I]n Massachusetts v. EPA, the court clearly indicated that the Administrator's decision must be a 'scientific judgment.' 549 U.S. at 534. She must base her decision about endangerment on the science, and not on policy considerations about the repercussions or impact of such a finding."

Wash. Times op-ed latest in series of right-wing media distortions about EPA regulation

NY Post: EPA regulation of carbon emissions "an egregious theft of power." In December 2009, a New York Post editorial claimed that the EPA's power to regulate carbon emissions was "an egregious theft of power" undermining "the separation of powers."

Fox's Bolling on EPA regulation: "Will this administration do nothing to get their agenda through?" In February 2010, guest-hosting Fox News' Your World, Eric Bolling asserted that "a couple months ago, the Obama administration empowered the EPA to declare five gases as dangerous gases" and asked, "Will this administration do nothing to get their agenda through?"

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