The Heritage Foundation - Leadership for America

The Environmental Protection Agency (EPA) is moving forward with micromanaging regulations that would regulate greenhouse gases and slow economic growth. However, one judge is warning the EPA not to overstep its legal authority. Judge David Tatel of the U.S. Circuit Court of Appeals for the District of Columbia told a forum:

“[…] agencies choose their policy first and then later seek to defend its legality. This gets it entirely backwards. It’s backwards because whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles — whatever the president’s party, however popular the administration, and no matter how advisable the initiative.”

He reminded the forum that the courts will uphold the law as in the case of the 2006 ruling which overturned the EPA’s decision to regulate caps on pollution seasonally or annually rather than daily as was required by the Clean Water Act. Tatel said, “I hope that the EPA lawyers are participating in the policy process as legal advisers, not policy advocates. Above all, I hope EPA is listening to its lawyers, even when they offer unwelcome advice.”

The EPA already commenced with new regulations in September, first proposing new vehicle standards in coordination with the Department of Transportation and then proposing a rule that would require facilities that release more than 25,000 tons of greenhouse gases a year to take steps to curtail those emissions when obtaining clean air permits under the Clean Air Act. Administrator Lisa Jackson told the crowd at the Governors’ Climate Summit in Los Angeles:

“Today, I’m proud to announce the next major advance in this effort: today I signed a proposed rule to use the power and authority of the Clean Air Act to begin reducing emissions from the nation’s largest greenhouse gas emitting facilities. Under this new rule, large facilities would be required to adopt the best, most efficient technologies available when they are constructed or upgraded, helping us significantly reduce greenhouse gases from sectors that account for nearly 70 percent of non-vehicle emissions.”

Jackson also said that this rule would apply primarily to power plants, refineries and factories, or as she says “sectors responsible for nearly 70 percent of U.S. greenhouse gas emissions sources. This rule allows us to do what the Clean Air Act does best.” Or in other words the rule allows the EPA to substantially modify the Clean Air Act’s regulatory scope: currently the Clean Air Act thresholds are 100 or 250 tons per year for the regulation of harmful pollutants such as lead, sulfur dioxide and nitrogen dioxide. If the rule is not tailored, these lower thresholds would be implemented for greenhouse gas emissions and would entangle millions of smaller business in red tape. The rule then relies upon the premise that the courts, in response to inevitable legal challenges, will uphold the authority of the EPA to modify the Clean Air Act’s thresholds for permits in order to avoid the result of the EPA sweeping in too many businesses for it to regulate.

The agency’s attempt to regulate carbon dioxide will undoubtedly be complicated and time-consuming and, if implemented, very costly. New EPA regulations would essentially assure that a great deal of business activity would be held up for months, if not years, because of unprecedented red tape and litigation. And those costs businesses incur will inevitably be passed onto the consumer. Judge Tatel’s warning is a valid one and should be a concern for businesses of all shapes and sizes.

Katie Brown co-authored this post.