The EPA Power Grab

epa_logoMy thanks to Prof. Slavin for inviting me to serve as student blogger of the month.  I shall do my level best to maintain the high standards set by the MULS Faculty Blog.

Last month, the Environmental Protection Agency (EPA) issued a finding that greenhouse gases, including carbon dioxide, constitute a threat to human health and welfare as defined under the Clean Air Act (CAA).  This is significant because the CAA allows the EPA to regulate any pollutant that the EPA finds a danger to human health and welfare.  As EPA Administrator Lisa Jackson stated, “[i]f we don’t act to reduce greenhouse gas emissions, the planet we will leave to the future will be very different that then one we know today.”  If the EPA does decide to act, the same statement will apply to the U.S. economy.

The EPA’s announcement did not come as a surprise.  In fact, the litigation over this issue has been many years in the making.  Two years ago, in Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that the section of the CAA dealing with “air pollution” was broad enough that it included carbon dioxide.  However, that case centered on the regulation of carbon dioxide emitted from automobiles—the recent EPA finding would be radically more expansive.

Under Title V of the CAA, any entity that emits more than 100 tons per year of an EPA regulated pollutant must first obtain a permit, and then pay an emission fee of around $43 per ton of pollutant.  Because 100 tons is such a small amount of carbon dioxide, this proposed regulatory change would sweep most apartment complexes, commercial buildings, hospitals, and other large buildings under the EPA’s ambit.  The result would force companies to file copious amounts of paperwork and pay substantial fees to continue doing business as usual.

The EPA recognizes this problem, and concedes that this new requirement could increase the number of entities seeking Title V permits from 15,000 a year to six million a year.  That’s a lot of increased paper cuts for EPA bureaucrats, so the Agency has so graciously offered to give Congress a break and rewrite the Clean Air Act itself.  According to the EPA’s new “tailoring rule,” the EPA would only enforce Title V of the CAA for entities that emit more than 25,000 tons of carbon dioxide per year, instead of the 100 tons per year required under the CAA.  The EPA justifies this arrogation of legislative power on the grounds that absurd results would follow if it enforced the CAA literally.  This is ironic, given that the petitioners in Massachusetts v. EPA argued that a literal reading of the CAA required the EPA to regulate carbon dioxide.

It will be interesting to watch the response from Congress.  One interpretation of the EPA’s actions is that the announcement was merely a shot across the bow to the Senate to galvanize the upper-chamber to pass cap-and-trade legislation.  However, after the flap over the Climate Research Unit e-mails, cap-and-trade appears dead.  Thus, Congress could either rewrite the law itself, or call the EPA’s bluff.  Regardless, the decision will have significant consequences for both the economy and the notion of separation of powers.

This Post Has 2 Comments

  1. Sean Samis

    Interesting post; but is this a “power grab” or is the EPA just stepping up to do its duty?

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