Endangerment of States' Rights:
EPA's Endangerment Rule Threatens States' Sovereignty
by Justin Danhof
In his post-midterm election press conference, President Barack Obama, with his tail firmly between his legs, admitted that he would scale back his unpopular domestic agenda. Obama acknowledged that the electorate has no interest in his cap-and-trade scheme, but warned that it's "just one way of skinning the cat."1
That's because the President has already dispatched his bureaucrats at the Environmental Protection Agency (EPA) to increase greenhouse gas regulations.
All across America, state officials are rising up against one of the Obama Administration's most intrusive power grabs. The EPA is set to seize regulatory control of the greenhouse gas emissions in the states. EPA's move, which will go into effect on January 2, 2011, targets emissions from power plants, large buildings, and other stationary sources.
The EPA, under its so-called "Endangerment Finding," will subject new buildings to strict permitting rules and will force some old buildings to undergo expensive renovations in order to satisfy the new guidelines. Just as ObamaCare promises to increase health care costs, this latest example of government meddling will greatly increase business and consumer prices. Additionally, it will slow economic growth and reduce job creation.
In the name of combating "global warming," "climate change," or "climate disruption" (pick your choice), Obama's EPA is determined to stretch its tentacles into every nook and cranny in the country. And if the states don't like it, that's too bad. Washington knows best.
Currently, states choose whether or not to regulate carbon dioxide and other greenhouse gases. Under the new rule, all states fall under EPA control since the rule gives the EPA unfettered discretion to determine emission levels.
Many states have laws that prevent carbon regulation, but President Obama and his team of self-anointed climate stewards are changing the rules. Indeed, their contempt for federalism, and for the whole notion of state primacy, has become a hallmark of this administration.
Texas Attorney General Greg Abbott is suing the EPA in the U.S. Court of Appeals to halt the federal takeover. According to Abbott, the EPA has no legal authority to regulate state GHG sources.
Abbot explains, "[b]ecause the Administration predicated its Endangerment Finding on the IPCC's (Intergovernmental Panel on Climate Change) questionable facts, the state is seeking to prevent the EPA's new rules, and the economic harm that will result from these regulations."2
Abbott is right. The Clean Air Act (CAA) – the vehicle for the new rules – was designed to regulate toxins. Carbon dioxide is not a toxin, and the EPA is standing on shaky legal ground to claim otherwise.
So what will the Obama scheme cost?
The EPA doesn't know. Howard J. Feldman of the American Petroleum Institute explains, "the EPA has carefully avoided providing a formal regulatory impact analysis on the costs of the regulation."3
Some states, such as Wyoming, even have laws preventing the regulation of carbon dioxide. Yet the EPA rule forces Wyoming to break its own laws or cede control to the feds.
Wyoming's Democrat governor, Dave Freudenthal, wrote a letter to the EPA detailing his concern. Freudenthal wrote, "I have serious concerns about EPA's implementation timelines… there is a high likelihood that any permitting strategy imposed on the states at this juncture is premature."4
Ohio's Governor, Democrat Ted Strickland, also thinks the EPA's effort is misguided. The EPA rule requires emission sources to use technologies that are not commercially available. Strickland explains, "stationary sources will be subject to best available control technology (BACT) requirements even though such technology is currently undetermined… it may take years before BACT for such sources can be efficiently and consistently identified."5
As a former Constitutional law professor, Obama should know that the Constitution is a limiting document that enumerates few federal powers; the remainder was purposefully left to the states and the people. If he forgot that, he could take a lesson from a man who endured greater national struggles than "climate disruption" – Abraham Lincoln.
The president who saved the nation said that "[n]o man is good enough to govern another man without that other's consent." But then again, Lincoln was a humble man.
Justin Danhof is general counsel at the National Center for Public Policy Research in Washington, D.C.
1 "EPA Turns 40," Big Government, November 30, 2010, available at http://biggovernment.com/capitolconfidential/2010/11/30/epa-turns-40/ as of December 22, 2010.
2 Greg Abbott, "Texas Files Legal Action To Block Imposition Of EPA Regulations That Threaten Texas Jobs," September 15, 2007, Texas Attorney General Press Release, available at http://www.oag.state.tx.us/oagNews/release.php?id=3484 as of September 17, 2010.
3 Howard J. Feldman, "GHG Permitting Federal Implementation Plan Hearing," American Petroleum Institute, September 14, 2010, available at http://www.api.org/Newsroom/upload/testimony_hearing_EPA_FIP_public_hearing_9_14_2010.pdf as of September 20, 2010.
4 Dave Freudenthal, September 9, 2010, letter to the Environmental Protection Agency, available at http://governor.wy.gov/Media.aspx?MediaId=1300 as of September 20, 2010.
5 Ted Strickland, March 15, 2010, letter to the Environmental Protection Agency, available at http://governor.ohio.gov/LinkClick.aspx?fileticket=wIRn_3KxLGc%3d&tabid=1787 as of September 20, 2010.