EPA administrator Lisa Jackson was interviewed for a Time magazine piece, "The Republican War on EPA Begins--But Will They Overreach?" Earlier in the week, I ran my own piece on this topic, "EPA's War on American Industry." War analogies are common in political discourse, but I would argue that my analogy is more apt than Time's, because EPA is actually threatening to cause economic damage on the scale of a major war.
EPA is on defense now because a strong majority in both Houses of Congress wants to strip it of the power to regulate greenhouse gases. With possibly enough Democrats to defeat a filibuster, the Senate vote, which is likely to take place this week, will be very close. In what history will remember as one of her more embarrassing moments, Jackson criticized the congressional effort in the interview accompanying the Time story:
The biggest criticism that I've leveled – and I've done it in my hearing testimony – is that what the current efforts do is overrule scientists on a scientific finding. Congress is essentially passing a law that says, We, a bunch of lawmakers, have decided what the science is on this issue. And that to me is what this Congress could be remembered for, more than anything else. History will forget a lot of the day-to-day, inside the beltway discussions about riders and budget and trying to get rid of or defund the EPA, but I don't think that history will forget the first time that politicians made a law to overrule scientists.
The congressional effort has nothing to do with overruling scientists, and everything to do with reclaiming for Congress the enormous responsibility of balancing the interests at stake here. Scientists are in no position to balance the potential danger of climate change vs. the benefits of regulation vs. the costs to society of that regulation -- they have no constitutional power to do so and in fact they have made no attempt to do so. It is Lisa Jackson's EPA that has arrogated to itself the power to regulate virtually all economic activity in the name of preventing climate change. (This would be a tall order -- the seas have risen about 350 feet since the last ice age).
Lisa Jackson can derisively dismiss that "bunch of lawmakers" all she wants, but if the scientific consensus is that Congress should cede the power to regulate the American economy to the EPA, that's just too bad. The Clean Air Act was intended to regulate emissions of pollutants that pose a direct chemical danger to human health. It was not intended, and is not at all structured, to regulate all economic activity in order to manipulate the relative proportions of gases in the atmosphere we breathe, or to counteract cycles of climate change that are not principally the result of human activity. In another arrestingly unhinged comment, Jaskson told Time that the EPA actions are actually "deregulatory" because EPA is generously exempting (for the moment) medium- and small businesses from EPA's newfound power over America's economic activity. She's referring to the Tailoring Rule, in which EPA brazenly rewrites the Clean Air Act standards on emissions because of the "absurd results" (EPA's term) of regulating greenhouse gases according to the black-letter statutory standards. When an executive branch agency starts rewriting its own enabling statute at will, it can expect congressional opposition.
Suffice to say for now that Jackson is egregiously misleading the American public when describes the EPA actions as "deregulatory" and nothing more than a "scientific finding." EPA's bid to regulate greenhouse gases is one of the most audacious and dangerous power grabs in the history of administrative agency actions, and it is no wonder that Congress wants to stop it.
Mario Loyola is director of the Center for Tenth Amendment Studies, and an analyst for energy and environment, at the Texas Public Policy Foundation.