The Magazine

The EPA's Power Grab

The climate campaigners play their trump card, but it may turn out to be a joker.

Dec 28, 2009, Vol. 15, No. 15 • By STEVEN F. HAYWARD
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The Clean Air Act also includes an element of federalism that will either be swept away or made incoherent by CO2 regulation. Under the act, each state is charged with developing its own State Implementation Plan (SIP), subject to EPA supervision and approval, for reducing air pollution, tailored to local conditions. Some states--California in particular--have extensive experience at this, while other states (Wyoming and Idaho, for example) have done little of this, and may now have to create new bureaucracies to comply. On the other hand, with the entire country designated as a CO2 non-attainment zone, the EPA may decide to regulate directly and skip over the SIP process. But this will require a vast expansion of the EPA (not that the agency itself will be complaining).

Next, because there are so many more sources of CO2 emissions than there are of conventional air pollution, the EPA's regulatory reach is certain to be much greater. There is already some funny business going on. The Clean Air Act authorizes the EPA to regulate stationary sources (buildings, factories, power plants, etc.) that generate as little as 250 tons of pollution per year. Two hundred and fifty tons is a lot if we are talking about emissions that cause ozone, but it is a tiny amount for carbon dioxide. A 70,000 square foot office building (the size of most small office buildings in Washington, D.C., for example) will meet that threshold, as will most fast-food restaurants and virtually all manufacturing facilities. Is such micromanagement of the U.S. economy by the EPA farfetched? Twenty years ago regulators in Los Angeles, facing the nation's worst ozone problem and looking to squeeze every possible emissions source no matter how small, considered a rule banning construction of drive-through windows at fast-food outlets on the theory that cars idling at the pickup windows emitted high amounts of ozone-forming chemicals. Improved auto technology made this rule unnecessary. The L.A. air district also considered banning barbecue lighter fluid, but manufacturers reformulated it to make it less volatile. These are the kinds of measures we can expect to make their appearance nationwide under an EPA regulatory regime for greenhouse gases; worse, it is easy to imagine the EPA mandating lighting fixtures, insulation retrofits, and thermostat controls on most buildings and small businesses.

The EPA is hip to this problem, and has announced that it would impose its new regulatory regime at a threshold of 25,000 tons of greenhouse emissions per year. This restraint will not survive the first lawsuit from the Sierra Club, since the Clean Air Act statute specifies the 250-ton threshold; eventually a federal judge will compel the EPA to enforce the law to the maximum extent allowed. But this raises another irony in this whole mess--the very litigation machine that has so far been the bread-and-butter of environmentalists could now throw lots of sand into the EPA's gears.

The Clean Air Act has always been a very slow-moving administrative process. Each step in this process--from the choice of the ambient air standard for CO2, to each state's SIP, to the individual regulations the EPA promulgates--will be susceptible to legal challenge by industry (for being too harsh) or environmentalists (for being too lenient), followed by inevitable appeals by the losing side. For example, the Clinton EPA's proposal to make the ambient air standard for ozone and particle pollution much stricter in the late 1990s was held up in litigation for nearly a decade. Today's first graders may well be reading about the Copenhagen conference in the third edition of high school climate-history textbooks by the time EPA greenhouse gas regulations begin to take effect. But by then the "climate crisis," in the orthodox view, will be so far advanced that it will be too late.

At this point the transparent insincerity of the climate campaign becomes more obvious. The Waxman-Markey version of cap and trade includes a provision that would strip the EPA of authority to regulate greenhouse gases by means of the Clean Air Act--an obvious sop to the business community. Seldom do the greens give up a grant of power such as they were handed by the Supreme Court's Massachusetts v. EPA decision (it's the green version of the Brezhnev Doctrine). The Obama administration keeps insisting it doesn't want to regulate greenhouse gases through the cumbersome Clean Air Act, in hopes this will push cap and trade over the finish line as the "market-friendly" alternative. Business groups ought to take a "please don't throw me into that briar patch" attitude, however. The Clean Air Act method of regulating greenhouse gases has the political potential to turn every congressman into John Dingell--the fierce guardian of the auto industry against the EPA for the last 40 years. It is also possible that the EPA gambit may backfire in Congress in the short term. Many senators and House members may decide that it is preferable to let the EPA do the climate campaigners' dirty work, rather than cast another tough vote for cap and trade. This will be especially tempting, since many voters may not cotton on to the fact that Congress can easily remove the EPA's jurisdiction over greenhouse gases by amending the Clean Air Act--as that provision in the cap and trade bill shows. Indeed, House Republicans have already signaled their intention to turn up the heat on Democrats by introducing a "resolution of disapproval" of the endangerment finding, though they should go further and propose stripping the EPA entirely of its authority to regulate greenhouse gases under the Clean Air Act, perhaps saying that is the one part of the Waxman-Markey bill that merits support.

The greatest irony of the EPA's entry into the fray is that it may reopen the supposedly "settled" question of climate science itself, which has new salience because of the firestorm over the "climategate" scandal involving the leaked emails from the University of East Anglia. There is in addition a separate tale of leaked emails from the EPA itself that has received surprisingly little attention.

Designating carbon dioxide as a Clean Air Act "pollutant" involves a finding that CO2 is a hazard to human health. Common sense suggests this is a stretch. Unlike ozone, which burns lung tissue and harms plant growth, or airborne lead, which harms brain development in children, human beings exhale carbon dioxide--800 pounds per person per year according to the EPA--and CO2 is the primary nutrient for plant life on earth. Since the EPA can't make the case that CO2 is toxic like other air pollution, it based its endangerment finding entirely on indirect or secondary effects, specifically the possibility of more deaths from heat waves, higher ozone levels (ozone tends to rise with temperature), more insect-borne diseases and allergies, and higher vulnerability to extreme weather events such as hurricanes and tornadoes. Each of these claims rests on dubious or contested scientific findings. In general, human health in the United States keeps improving. Deaths from heat waves in this country have been steadily declining. The EPA's own models project falling ozone levels for the next generation. Vector-borne disease rates (think malaria) correlate much more closely with wealth and poverty than with temperature, and recent research casts doubt on the super-hurricane scenarios.

Numerous critics pointed out these and other defects in the EPA's first draft of its endangerment finding released last spring, most notably the Cato Institute's Pat Michaels, who filed a 186-page critique with the EPA during the public comment period. The EPA brushed most of these comments aside in its 11-volume response with a self-assured, not to say royal, "We disagree." But perhaps the most potentially damaging critique of the EPA's science came from within the EPA itself, in the form of an 81-page analysis from career EPA employees Alan Carlin and John Davidson. Carlin and Davidson work for the EPA's in-house research unit known as the National Center for Environmental Economics (NCEE). They argued straightforwardly that "the EPA and many other agencies and countries have paid too little attention to the science of global warming," and went on to cite peer-reviewed studies pointing out the deficiencies and anomalies of the conventional climate-catastrophe narrative.

The EPA didn't condescend to discuss the substance of its outside critics' comments. To insiders Carlin and Davidson, the response amounted to, "Shut up, if you know what's good for you." Carlin and Davidson wanted to submit their analysis as part of the EPA's public comment process in March. Their boss, Al McGartland, head of the NCEE, said no, telling Carlin and Davidson by email "please do not have any direct communication with anyone outside NCEE on endangerment. There should be no meetings, emails, written statements, phone calls, etc." A few days later McGartland told Carlin that he would not submit Carlin's analysis to the EPA public comment process: "The time for such discussion of fundamental issues has passed for this round. The administrator and the administration has decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision. .  .  . I can only see one impact of your comments given where we are in the process, and that would be a very negative impact on our office."

This is a deeply disingenuous response. The EPA never did engage in a fundamental internal discussion of fundamental issues. Ordinarily the EPA conducts its own scientific investigation to establish its endangerment findings, but in this case the EPA simply borrowed from the U.N.'s Intergovernmental Panel on Climate Change and the U.S. government's own Climate Change Science Program. Eight minutes after McGartland told Carlin that his analysis would have a "negative impact," he sent a followup email instructing Carlin, "I don't want you to spend any additional EPA time on climate change. No papers, no research etc., at least until we see what EPA is going to do with climate." McGartland then reminded Carlin that the budget for the NCEE had just been cut by 66 percent. There has been talk of eliminating the office altogether on account of the inconvenient economic truths it periodically generates from within the EPA citadel.

The Carlin/Davidson document and the emails were leaked to the Competitive Enterprise Institute in June, but attracted only scant media attention. In light of the scandal surrounding the East Anglia emails, however, the newly urgent demand for transparency in the climate science and policy process may shine unwelcome new light into the dark corners of EPA's politically driven agenda. There will certainly be new fodder for litigation challenging the EPA's endangerment finding, which will involve reopening basic questions of climate science to judicial review. What was "settled" is about to become unsettled. In other words, in hoping to use the EPA's Clean Air Act club to bully Congress into passing cap and trade, the -climate campaign may have made its biggest blunder yet.

Steven F. Hayward is the F.K. Weyerhaeuser fellow at the American Enterprise Institute, coauthor of AEI's Energy and Environment Outlook, and author of the forthcoming Almanac of Environmental Trends (Pacific Research Institute). His 'Scientists Behaving Badly' appeared in the December 14 issue.