Commentary: Wake up! The EPA's dream is a regulatory nightmare

Long Island Business News, Jul 25, 2008 by Raymond Keating

A rogue federal government agency threatens the well-being of Americans, and must be stopped.

Is this a hot summer page turner, or perhaps the next challenge for Jack Bauer on "24?" No, it's your tax dollars at work.

It's a story of judicial activism, political infighting, environmentalism run amok and the distinct possibility of inflicting massive regulatory costs on consumers and businesses. The battle centers on so-called manmade global warming.

During the Clinton administration, various political appointees and government bureaucrats asserted that the Environmental Protection Agency had the power to regulate carbon dioxide emissions as air pollutants. However, the EPA never acted. Subsequently, the Bush administration subscribed to a different view, namely, that the EPA had no such powers under the Clean Air Act.

Some state-level politicians and green groups didn't like the Bush EPA assessment, so they, naturally, went to court. The Bush EPA position was upheld in a U.S. Court of Appeals decision. In a fit of judicial activism, however, a 5-4 Supreme Court majority decided last year to take on the roles of legislators and executive branch officials, not to mention climate experts, and ruled that the EPA did have such power. The Court effectively told the government to evaluate if carbon dioxide emissions were harmful.

The overreach by the Court's majority was pointed out in dissent. Chief Justice John Roberts wrote: "This Court's standing jurisprudence simply recognizes that redress of grievances of the sort at issue here 'is the function of Congress and the Chief Executive,' not the federal courts."

Justice Antonin Scalia added: "The Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative- law case, in which Congress has passed a malleable statute giving broad discretion, not to us, but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency."

Nonetheless, activism held the day.

According to various news reports, many in the Bush EPA subsequently embraced the ruling. The agency was ready to proclaim carbon dioxide emissions harmful and subject to regulation by the EPA under the Clean Air Act. (I guess no one should exhale.) But many others in the Bush administration were not so hot on the idea.

Eventually, on July 11, the Bush administration released an EPA advanced notice of proposed rulemaking, which actually made no finding on whether or not carbon dioxide emissions are harmful. But it did walk through a wide array of regulatory options to cut emissions, and provide a 120-day period for public comment.

At the same time, the Bush White House provided a weighty portfolio rebuking those EPA suggestions, including material from the secretaries of agriculture, commerce, transportation and energy; the chairman of the Council of Economic Advisers and the chief council for the Small Business Administration's office of advocacy. The Commerce Department, for example, noted that the suggested regulations "would impose significant costs on U.S. workers, consumers and producers, and harm U.S. competitiveness without necessarily producing meaningful reductions in global" greenhouse gas emissions.

In a letter to EPA Administrator Steve Johnson, Susan E. Dudley, administrator for the Office of Information and Regulatory Affairs, added: "Following such a regulatory roadmap could result in the piecemeal application of command-and-control regulation - based on EPA staff determinations of the availability and suitability of a wide range of technology - covering both U.S. manufacturing activity and a broad range of commercial and household activities to an extent well beyond the scope of current regulation."

Indeed, no individuals or businesses would escape large increases in costs, particularly on the energy front, if the scary regulations dreamed up by EPA staff went into effect. The economic damage would be deep and widespread. Meanwhile, the environmental movement, in its crusade against man-made global warming (which remains in dispute among scientists), does not care about the potential economic fallout of such a regulatory regime.

Beyond these major problems, this scenario highlights a serious shortcoming of the entire federal regulatory process. That is, a fundamental lack of accountability.

Congress too often writes vague legislation, leaving unaccountable government bureaucrats to hammer out and issue rules and regulations. Those regulations, however, often create unnecessary burdens and intrusions, and reach far beyond what members of Congress had in mind when initially legislating - as is now the case with carbon dioxide emissions and the Clean Air Act.

The solution is obvious - regulatory reform. Congress should have to vote on each rule and regulation issued by federal agencies. For good measure, regulations already in effect should be sunsetted, so that Congress is forced to evaluate if they still make sense.