Libertarian on EPA's Greenhouse Gases Endangerment Finding

Endangerment Finding: Legislative Hammer or Suicide Note?, by Marlo Lewis
Master Resource, April 17, 2009

EPA’s soon-to-be-published endangerment finding definitely puts a swagger in the step of energy-rationing advocates in the Administration, Congress, and environmental groups. They believe it gives them the whip hand in Congress–a hammer with which to beat opponents into supporting cap-and-tax legislation. This is too clever by half.

Yes, as explained previously, the endangerment finding will trigger a regulatory cascade through multiple provisions of the Clean Air Act (CAA). A strict, letter-of-the-law application of those provisions to carbon dioxide (CO2) and other greenhouse gases would not only raise consumer energy prices. It could also freeze economic development, even shut down much of the economy.

So, it’s not surprising that Team Obama and others think they can frighten opponents into supporting, for example, the Markey-Waxman cap-and-tax bill, which specifically precludes CAA regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program, the New Source Review (NSR) preconstruction permitting programs, the Title V operating permits program, and the Hazardous Air Pollutant (HAP) program.

But the cap-and-tax faction miscalculate, because the rest of us are not caught between a rock and a hard place. We have a third option: Just say no to cap-and-tax, and then let the Administration take ownership of the rising energy costs, job losses, and GDP impacts that Obama’s EPA inflicts on the country by regulating CO2 under the CAA.

Roger Pielke Jr. concisely explains why the CO2 litigation campaign that begat Massachusetts v. EPA could and should be a political boon to Republicans:

Republicans must be drooling over the possibility that EPA will take extensive regulatory action on climate change. Why? Because the resulting political fallout associated with any actual or perceived downsides (e.g., higher energy prices) will fall entirely on Democrats and the Obama Administration. Far from being an incentive for Congress to act on its own, the looming possibility that EPA will take regulatory action is a strong incentive for Republicans to stalemate Congressional action and a nightmare scenario for Democrats.

Michael Shellenberger of the Breakthrough Institute agrees, pointing out that the Administration’s threat to regulate CO2 under the CAA unless cap-and-tax opponents come along quietly is tantamount to a promise to commit political suicide:

In other words, the White House “threat” to Republicans and moderate Democrats to regulate carbon is the equivalent of threatening your enemy with suicide. (”Don’t make me raise energy prices! You’ll really be in trouble with your voters when I raise their energy prices!”)

The CO2 litigation campaign bespeaks a fundamental contempt for the democratic process. Applying the CAA to CO2 could easily produce a regulatory regime far more costly than the Kyoto Protocol, yet without the people’s elected representatives ever voting on it. Those who instigated the Mass v. EPA case sought to substitute their will for that of Congress. They also sought to create a regulatory nightmare that Congress could fix only by adopting legislation that lawmakers would not otherwise support on the merits.

And now, this litigation strategy could blow up in their faces. ‘Tis a consummation devoutly to be wished. Republicans do have a knack for snatching defeat from the jaws of victory. But with a little coaching from energy realists (okay, a lot of coaching), we may yet protect the economy and the Constitution from Mass v. EPA.