WSJ Shifts EPA Attack To Accuse Supreme Court Of "Judicial Invention"

Blog ››› ››› JOCELYN FONG

In an editorial a couple of weeks ago, the Wall Street Journal accused the Environmental Protection Agency of subverting democracy in order to impose greenhouse gas controls. The editorial falsely claimed that "all of a sudden," the EPA declared that the term "pollutant" applied to carbon dioxide and argued that the agency was using "self-assigned powers" to regulate greenhouse gas emissions. We noted at the time that the editorial brazenly ignored the 2007 Supreme Court ruling (Massachusetts v. EPA) which concluded that the EPA had the authority to regulate GHGs as a pollutant under the Clean Air Act -- a fact that even the Bush administration privately conceded.

Now, as the Senate prepares to vote on a proposal that would repeal the EPA's scientific endangerment finding on greenhouse gases and prohibit the EPA from addressing GHG emissions, the Journal has produced another editorial bashing the agency's regulations. This time the Journal acknowledges the 2007 Supreme Court ruling, but claims that the Court "broadly rewrote the definition of 'pollutant'" to "create new powers via judicial invention":

The story of how we arrived at this pass begins in 1999, when Clinton EPA chief Carol Browner floated the idea that carbon dioxide could be regulated as a pollutant under the 1970 Clean Air Act and its later amendments. The Bush Administration rejected Ms. Browner's theory, in part because Congress kept rejecting statutory language to that effect.

Several states and green groups sued, and the question reached the Supreme Court in 2006. With Massachusetts v. EPA, a 5-4 majority broadly rewrote the definition of "pollutant," but it also narrowly held that "EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations" (our emphasis). In other words, the Court created new powers via judicial invention but left their use to the discretion of the executive branch.

Did the Court broadly rewrite the definition of pollutant? You be the judge. The Court's decision quotes the definition of pollutant provided by Congress in the Clean Air Act. From the ruling:

The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... ." §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any." Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air." The statute is unambiguous.

The Court concluded: "Because greenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant,' we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles." The majority further ruled that "Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."

In a letter to President Bush written in January 2008, Bush EPA Administrator Stephen Johnson stated that the Supreme Court's decision as well as recent scientific evidence compel EPA "to propose a positive endangerment finding":

[Y]our Administration is compelled to act on this issue under existing law given the many lawsuits and petitions before the Environmental Protection Agency (EPA). It is my intent to do so in a way that is responsible and that does not foreclose a superior legislative solution.

First, the Supreme Court's Massachusetts v EPA decision still requires a response. That case combined with the latest science of climate change requires the Agency to propose a positive endangerment finding, as was agreed to at the Cabinet-level meeting in November. Some have noted that the Energy Independence and Security Act (EISA) enables implementation of your 20-in-l0 plan without an endangerment finding. Even if that is true, a finding is still required by the Supreme Court case, and the state of the latest climate change science does not permit a negative finding, nor does it permit a credible finding that we need to wait for more research. EISA also did not change EPA's obligation regarding the regulation of vehicles although it did expand the Department of Transportation's authority in a way that will facilitate a joint rulemaking.

As the Wall Street Journal noted when the letter was uncovered earlier this year, the Johnson's private proposals contradicted his public pronouncements of support for Bush's policy of avoiding greenhouse gas regulations.

It's notable that today's Journal editorial favorably cites the Bush administration for rejecting the "theory" that GHGs could be regulated under the Clean Air Act while at the same time accusing the Obama administration of "abuses" for issuing a scientific endangerment finding (the Journal editorial doesn't attempt to refute the substance of the finding).

The Journal seems to think the Obama administration should behave more like Bush when it comes to greenhouse gases. But it's worth recalling that in 2007 the House Committee on Oversight and Government Reform released documents "that showed hundreds of instances in which a White House official who was previously an oil industry lobbyist edited government climate reports to play up uncertainty of a human role in global warming or play down evidence of such a role." The Christian Science Monitor also noted that the committee showed that the White House had edited scientists' testimony to obscure the evidence for anthropogenic global warming. And a 2006 Union of Concerned Scientists survey of government climate scientists found that 43 percent of respondents "perceived or personally experienced changes or edits to documents during review processes that changed the meaning of scientific findings."

Earlier this year, the Journal dismissed such incidents, attacking the House Oversight Committee's "frivolous" investigation into "the White House noninterference in climate science."

Today's Journal editorial goes on to claim -- with zero evidence -- that EPA greenhouse gas regulations "will appreciably lower the U.S. standard of living" and that the rules "won't merely apply to 'major' sources of emissions like power plants or factories. Its reach will include schools, farms, hospitals, restaurants, basically any large building."

In fact, as the Pew Center on Global Climate Change explains, the EPA has taken steps to ensure that "only the largest sources" are subject to the rules:

Is it true that EPA regulations would impact small sources, such as office buildings, small businesses, schools, churches, and similar structures?

EPA's GHG regulations of sources will not impact small stationary sources. To ensure it doesn't, EPA issued the "tailoring rule," which raised the emission thresholds for what would qualify as a major new source or modification and therefore be subject to regulation for greenhouse gases. Under the Clean Air Act, major new or modified stationary sources are required to get air permits if they emit more than 100-250 tons per year of a regulated pollutant. However applying such a threshold to greenhouse gases would greatly increase the number of facilities covered and the cost of these regulations. As a result, EPA's tailoring rule substantially increased the size of the thresholds in the Act for GHGs specifically, with the goal that only the largest sources would be subject to new source review requirements.

While the Journal asserts that the effort to block the EPA's greenhouse gas rules "is one of the best proposals for growth and job creation to make it onto the Senate docket in years," executives at some American power companies have a different take. As Politico reported earlier this month, Lewis Hay, CEO of NextEra Energy stated: "When I look at what EPA has done so far and the position they've taken on greenhouse gases, I think it's actually been pretty moderate." Likewise, other "top power company CEOs" reportedly said "to varying degrees that they support allowing the EPA to proceed on a 'reasonable' time frame on greenhouse gas rules for power plants, petroleum refiners and other major stationary sources."

Posted In
Environment & Science, Climate Change
Network/Outlet
Wall Street Journal
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