Congress can, and should, check the EPA’s power grab
It’s expensive, making good on former Energy Secretary Steven Chu’s promise that electricity prices would “necessarily skyrocket.”
It requires emissions reductions quickly from an industry that’s used to moving slowly, presenting a serious challenge to maintain reliability.
It doesn’t move aggressively enough to satisfy the president’s commitments to the international community.
And as more than 200 senators and members of Congress pointed out in an amicus brief filed this week, it goes well beyond the boundaries of the law.
Fortunately, the Supreme Court granted a regulatory stay, so it will not go into effect as the challenges work their way through the courts. The first stop is the D.C. Circuit Court of Appeals, which will hear arguments against the Clean Power Plan this June. The rule undoubtedly is vulnerable, proposing a regulatory paradigm without precedent to reshape entirely the way we produce and consume electricity.
The stay buys time, though eventual regulation by the Environmental Protection Agency is inevitable without congressional action to limit the agency. Judicial precedent requires the EPA administrator to use the tools at her disposal to implement, “standards applicable to the emission of any air pollutant…which in [her] judgment cause, or contribute to, air pollution which may reasonable be anticipated to endanger public health or welfare.” Because science demonstrates that climate change presents a risk to the public welfare, the anthropogenic emissions that contribute to climate change must be regulated.
When Congress passed and amended laws to improve air quality in 1963, 1970, 1977 and 1990, it was to attack emissions that had acute impacts on public health. As such, lawmakers afforded the EPA the tools necessary to measure and regulate emissions like lead, ozone, particulate matter and sulfur dioxide, with specific stipulations for the types of interventions allowed for different sources and pollutants. This law, the Clean Air Act, created guidelines that have led to dramatic, least-cost improvements in air quality.
For the pollutants it was designed to address, the Clean Air Act did its job. It’s now a bit outdated. We’re seeing regulations follow incremental improvements in measurement technology, compounding interstate conflicts and, as is the case with the Clean Power Plan, dramatic reevaluations of agency authority to suit an ever-expanding agenda.
That’s what congressional conservatives get at in their amicus brief with the DC Circuit:
Congress has not authorized EPA to make the central policy choices in the [Clean Power Plan] and, in many respects, has affirmatively rejected those policies.
The EPA bases this transformative regulation on a faulty interpretation of amendment language that doesn’t stand as law. Their amicus brief provides substantial weight to the argument that the administration’s greenhouse-gas regulation falls well beyond the intent of Congress.
Dealing with carbon emissions is an inherently political process. Every decision along the chain involves weighing trade-offs. How much warming is acceptable? What emissions trajectory is necessary to hit that target? What contribution should the United States make to global emissions goals? How fast should we reduce our emissions and at what cost? What technologies are needed to achieve these reductions and what role should government play in deploying those technologies?
Should some states reduce emissions more dramatically or quickly than others? What investments in innovation are necessary and how much should we count on emerging technologies to provide inexpensive emissions pathways? How should we prepare for adaptation to inevitable warming and will those preparations limit the resources available for mitigation?
We need Congress to weigh these political choices and give us a set of solutions that reflect consensus. That’s something the EPA can never achieve, especially while trying to shoehorn a regulatory model into legislation clearly unsuitable to attack this kind of problem.
Legislation on carbon emissions is unavoidable. It’s needed to reel in the EPA and prevent decisions over climate change from being made outside the political process.
But it’s also necessary to affirm the role of Congress in this process. The language of the Clean Air Act and its amendments is sufficiently arbitrary that the executive branch found the room necessary to justify this regulation. Agencies have every incentive to increase their mission and budget, until checked by legislation or the courts.
For too long, the courts have been fighting Congress’ battles on energy and climate change. It’s time for the first branch to step up.