Rockefeller is wrong: Delay is denial

But this delay does not solve the problem or address the constitutional questions raised by the EPA’s actions. The correct solution to this bureaucratic power grab is the Upton-Inhofe legislation, which would make clear that the EPA does not have the authority to regulation greenhouse gas emissions under the Clean Air Act.

The current debate arises out of a series of actions taken by the EPA to force Congress’s hand on climate change. The last Congress remained gridlocked on the question of greenhouse gas regulations as efforts to pass a cap-and-trade program ground to a halt in the Senate. 

The House had passed its version of the program, but only by granting generous allowances to interest groups to ease the costs of a cap and trade program for their industries. By the time the legislation moved to the Senate, the costs of the program were becoming apparent, along with the fact that the burdensome new regulations would have virtually no effect on global temperatures when nations like China, Russia, Brazil, and India have opted not to participate in similar programs. 

Elections were also drawing near, and the emerging Tea Party message against excessive and burdensome government led many in the Senate to tread lightly with respect to costly new greenhouse gas rules.

With legislation all but dead in Senate, the EPA took the initiative. Despite the fact that Congress never enacted greenhouse gas legislation, and despite the fact that the Clean Air Act does not list carbon dioxide as a criteria pollutant, the EPA used a lawsuit to issue an “endangerment” finding that would allow the agency to craft new restrictions on the emissions of greenhouse gases. 

At the time the agency said the finding did not impose significant costs on the economy—even though the agency was now free to move forward with a host of regulations that do, in fact, impose substantial new economic burdens. Mobile source rules—those affecting transportation—are already moving forward, and the agency is in the process of drafting rules for stationary sources, such as power plants and refineries. 

One of the problems is that the scope of the stationary source rules reaches well beyond power plants, with businesses such as small local bakeries potentially required to meet costly new standards. In fact, the number of entities potentially affected would increase by orders of magnitude. 

The EPA realized this, and has arbitrarily released a dubious “tailoring rule” in an attempt to limit the new regulations to large facilities estimated to be responsible for 70 percent of greenhouse gas emissions—at least in the beginning.  Rules in the pipeline are slated to address smaller entities.

Ironically, the EPA’s tailoring rule shows just how far the agency has strayed from its statutory authority. The Clean Air Act was written to allow the EPA to set standards to uniformly reduce levels of criteria pollutants such as particulate matter, ground level ozone, and carbon monoxide. 

In all there are standards set for six criteria pollutants. The Clean Air Act was never designed to address something as ubiquitous as carbon dioxide, which is a byproduct of a lot of economic activity, not just smokestack industries. Designing a program on such a large scope would be costly and complex, as demonstrated by the cap-and-trade bill that floundered in Congress. 

Nonetheless, the EPA has leapfrogged Congress, asserting authority over greenhouse gases and implementing a series of costly rules affecting both mobile and stationary sources of greenhouse gases while arbitrarily defining who is and who is not covered by the regulations.

With the potential burdens of these rules becoming apparent, many in Congress are questioning the EPA’s actions, with calls to examine whether the independent agency is exceeding the authority it was granted by Congress. In the House, Rep. Upton’s version of the Energy Tax Prevention Act has passed out of committee and will most likely be approved on the House floor in the coming weeks. 

Sen. Inhofe has introduced the Senate companion bill and it also has been offered as an amendment to small business legislation. Senate Majority Leader Harry Reid has slowed deliberations on the bill, fearing he may not have the votes to stop it. The Energy Tax Prevention Act is important, because it makes clear, once and for all, that the Clean Air Act cannot be used to regulate greenhouse gases, obviating the agency’s efforts to shoehorn its regulations into a statute that was not designed for such purposes.

Sen. Rockefeller has introduced legislation that would impose a two-year moratorium on new greenhouse gas regulations by the EPA. Unfortunately, this is simply a subterfuge to allow skittish Democrats an opportunity to oppose the EPA without really opposing the EPA. 

The bill simply pushes the problem two years down the road; it does nothing to address EPA’s constitutionally questionable power grab from Congress, nor does it quell the uncertainty and potential costs that hang over the American economy. 

Members of Congress should not fall for this ruse; instead, they need to assert their authority and let the EPA know that until Congress addresses the issue, the agency cannot move forward on its own. The Inhofe-Upton Energy Tax Prevention Act does just that, and members of Congress would do well to support this important legislation.

Wayne T. Brough is the Chief Economist for FreedomWorks.