EPA Overreach: Tailoring Themselves into a Corner

President Obama has promised the world the United States will take definitive action on carbon emissions and he needs to have something to show for this promise at the looming global climate conference in Copenhagen. One problem, the American people hate greenhouse gas regulations and they’ve been talking to their representatives in Congress—that’s why cap-and-trade is stalled in the Senate. That’s where the Environmental Protection Agency comes in. The Obama administration is so desperate to regulate greenhouse gas emissions that they are willing to illegally rewrite statutes without authorization from Congress.

In an obvious administrative overreach, EPA wants to rewrite the 1970 Clean Air Act to regulate greenhouse gases. The agency just released a proposed rule that would allow them to “tailor” the Act to regulate greenhouse gases from stationary sources that have the potential to emit more than 25,000 tons per year. This rule is a clear violation of the black letter law of the Act, which states that major stationary emitters are classified as “stationary sources with the potential to emit 250 tons or more of any pollutant.”

EPA is in a bind because if they enact their long-sought greenhouse gases regulations as the Clean Air Act actually instructs, they will have to regulate 1.2 million businesses, manufactures and farms, this according to a study by the U.S. Chamber of Commerce. This regulation would place a crippling burden on the country and tie the EPA in knots trying to administrate the avalanche of new permits. This result would also raise a political firestorm that would force the Obama administration and/or Congress to step in and stop the runaway regulators.

EPA is well aware of the statutory language and is trying to sidestep its responsibility in the proposed rule by claiming that “absurd results” and “administrative necessity” require it to rewrite the law on the back of a napkin, absurd indeed. The proposal suggests a “phased approach” that would cover emitters at 25,000 tons now and give the agency six years to strangle emitters all the way down to the legally-mandated 250 tons.

Ever since the Supreme Court ruled in Massachusetts v. EPA that the agency had to make a greenhouse gas determination based on the language in the Clean Air Act, EPA has been trying to find a way to bend over backwards to shoehorn it in. But what Massachusetts v. EPA and today’s EPA backflips really show is that the Act is poorly suited for greenhouse gases regulation. EPA should have responded to the Court by determining that, due to “absurd results” and “administrative necessity,” the Clean Air Act is the wrong vehicle for the task. This would leave Congress to decide what, if anything, to do about global warming.

Rep. John Dingell (D-Mich.), the author of the original Act, has been clear that he never envisioned it being used for greenhouse gases. The fact that EPA has to illegally ignore the plain language of the Act to avoid regulating churches, schools, farms and warehouses all across the country is evidence to this point.

Congress is engaged in a healthy and heated debate over the proper role of the federal government in regulating greenhouse gases. The House has already passed a cap-and-trade scheme and Senators Boxer and Kerry released their version of the bill this week. It is an unthinkable administrative overreach for EPA to issue new regulations that are in clear violation of their statutory authority while Congress is in the midst of addressing the issue. Members of Congress need to step in and stop the EPA, the sooner the better.

All this so the president can wave a piece of paper in his hand when he goes to Copenhagen.

Mr. Valvo is government affairs manager at Americans for Prosperity and just released a study: Exposing the Special Interest Behind Waxman-Markey.