TERM OF "ENDANGERMENT" / THE WALL STREET JOURNAL REVIEW & OUTLOOK ( HIGHLY RECOMMENDED READING )

REVIEW & OUTLOOK

SEPTEMBER 3, 2009

Terms of 'Endangerment'
The EPA's anti-carbon rule is an admission that CO2 limits hurt the economy


Cap and trade may be flopping around like a dying fish in Congress, but the Obama Administration isn't about to let the annoyance of democratic consent interfere with its climate ambitions. Almost as bad is the new evidence that it understands how damaging its carbon regulations and taxes will be and is pressing ahead anyway.
The White House is currently reviewing the Environmental Protection Agency's April "endangerment finding" that as a matter of law CO2 is a pollutant that threatens the public's health and must therefore be subject to regulation under the Clean Air Act. Such a rulemaking would let the EPA impose the ossified command-and-control regulatory approach of the 1970s across the entire economy, even if Democrats never get around to passing a cap-and-tax bill.
Yet a curious twist is buried in the EPA's draft rule. The trade press is reporting that the agency thinks it enjoys the discretion to target the new rules only to major industrial sources of carbon emissions, such as power plants, refineries, factories and the like. This so-called "tailoring rule" essentially rewrites clear statutory language of the Clean Air Act by bureaucratic decree.
Because the act was never written to apply to today's climate neuroses, clean-air regulation is based on an extremely low threshold for CO2 emissions that will automatically transfer hundreds of thousands of businesses into the EPA's ambit. The agency is required to regulate sources that emit more than 250 tons of a given air pollutant annually, which may be reasonable for conventional pollutants like NOX or SOX.
But this is a very low limit for ubiquitous CO2, and so would capture schools, hospitals, farms, malls, restaurants, large office buildings and many others. To exempt these sources, the tailoring rule unilaterally boosts the rule for greenhouse gases from 250 tons to 25,000 tons, an increase of two orders of magnitude.
Well, well. In a speech in February, Obama EPA Administrator Lisa Jackson ridiculed those of us who warned about these consequences, saying that it was "a myth" that "EPA will regulate cows, Dunkin' Donuts, Pizza Hut, your lawnmower and baby bottles. . . . Somebody said to me today, 'kittens,' I like that one." Her routine got a big laugh from the like-minded Georgetown audience, but the new draft rule is a flat-out admission that the critics are right.
The endangerment finding was prompted by the 5-4 2006 Supreme Court Mass. v. EPA decision, which relied on an extremely literal interpretation of the Clean Air Act to crowbar CO2 into the law. That decision has been a political windfall for cap-and-tax advocates because it has driven utilities and other businesses to the bargaining table as they've concluded that some carbon limits are inevitable.
Yet the Supreme Court said nothing that would let the EPA simply decide on its own to apply the law to some unfavored business while giving others a pass. And the Clean Air Act is explicit about the 250-ton threshold. Team Obama's real motive in "tailoring" this rule is to limit the immediate economic impact of carbon limits to head off a political backlash.
But even businesses that do get a pass shouldn't rest too easily. The green lobby will quickly sue to force the EPA to enforce fully its own rules and go after all carbon sources. And why not? The Obama Administration is deliberately flouting its own legal claims for political reasons. Its cynical political hope is that if Congress won't impose cap and tax, the courts will do it anyway.
President Obama claims that his "new energy economy" will jump start growth and jobs. The EPA endangerment rule repudiates that claim once and for all. If the green future is going to be so bright, why does the White House want to exempt so many businesses from its glories?

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