WSJ Badly Misrepresents EPA's Effort To Address Greenhouse Gas Emissions

››› ››› JOCELYN FONG

A Wall Street Journal editorial accused the EPA of subverting democracy to impose the greenhouse gas controls that Congress rejected. In fact, as the Bush administration's EPA privately acknowledged, a 2007 Supreme Court decision and the body of scientific evidence on climate change compel EPA to regulate GHG emissions as a pollutant under the Clean Air Act. Moreover, the EPA rules differ substantially from the comprehensive climate bills that Congress has repeatedly failed to pass.

Journal Falsely Claims "EPA Decided In 2009 That All Of A Sudden" CO2 Was A Pollutant

From the March 15 Wall Street Journal editorial:

The bill, which the committee will likely approve today and the House will likely pass later this spring, would restore the plain regulatory meaning that "pollutant" held for decades until the EPA decided in 2009 that all of a sudden it also applied to carbon. [Wall Street Journal, 3/15/11]

Supreme Court In 2007: "Greenhouse Gases Fit Well Within The Clean Air Act's Capacious Definition Of 'Air Pollutant.'" In Massachusetts vs. EPA, 12 states, four local governments, and 13 private organizations sued the EPA for failing to regulate greenhouse gases, including carbon dioxide, that are emitted by motor vehicles, citing their role in climate change. The Bush administration's EPA argued that it lacked authority under the Clean Air Act to regulate those gases. The Supreme Court, in a 5-4 opinion authored by then-Justice John Paul Stevens, stated on April 2, 2007: "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 opinion further stated that "EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants":

On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an "air pollutant" within the meaning of the provision.

The statutory text forecloses EPA's reading. 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.

Rather than relying on statutory text, EPA invokes postenactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. [Massachusetts v. EPA, 4/2/07, in-text citations deleted for clarity]

Bush-Era Endangerment Finding Defined Greenhouse Gases As A Pollutant In 2007. In 2009, EPA released a proposed endangerment finding created in 2007 that had been suppressed by the Bush administration. The document stated:

For purposes of the endangerment finding and this rulemaking, the Administrator has determined that the "air pollution" is the elevated combined or mixed atmospheric concentration of six GHGs: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).

a. Why elevated concentrations of these GHGs are the air pollution

Greenhouse gases trap in the Earth's heat that would otherwise escape to space. The additional heating effect caused by the buildup of GHGs in the atmosphere enhances the Earth's natural greenhouse effect and causes global temperatures to increase, with associated climatic changes (e.g., change in precipitation patterns, rise in sea levels, change in frequency and intensity of extreme weather events). It is the elevation in concentration and the resulting impact on climate and climate-sensitive systems that is the cause for concern.

These six GHGs can remain in the atmosphere for decades to centuries. Therefore, these GHGs once emitted, become well mixed in the global atmosphere regardless of their emission origin, such that their concentrations over the U.S. are, for all practical purposes, the same as the global average. This also means that current GHG concentrations are the cumulative result of both historic and current emissions, and that future concentrations will be the cumulative result of historic, current and future emissions.

As discussed further below, current atmospheric concentrations of all of these GHGs are significantly higher than pre-industrial (~1750) levels as a result of human activities. Future projections show that, for most scenarios assuming no additional GHG emission reduction policies, atmospheric concentrations of these GHGs are expected to continue climbing for most if not all of the remainder of this century. [Greenwire, 10/13/09; U.S. Environmental Protection Agency, 12/4/07]

EPA's 2009 Endangerment Finding Defines The "Pollutant" As The "Aggregate Group" Of Six Greenhouse Gases, Not Just CO2. Contrary to the Journal's claim that the EPA decided "carbon" is a pollutant, the 2009 endangerment finding identifies the pollutant as "the aggregate group" of six greenhouse gases:

[T]he Administrator is defining the air pollutant as the aggregate group of the same six long-lived and directly emitted greenhouse gases: Carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. As noted above, this definition of a single air pollutant made up of these well-mixed greenhouse gases is similar to definitions of other air pollutants that are comprised of substances that share common attributes with similar effects on public health or welfare (e.g., particulate matter and volatile organic compounds). [EPA, 12/15/09]

Journal Claims EPA Has "Self-Assigned" Its Power To Regulate Greenhouse Gases

From the March 15 Wall Street Journal editorial:

We'll spare you the rest, though Ms. Jackson mentioned "science" a few more times in case anyone didn't get the drift. But the real presumption is that an unaccountable bureaucracy should use its self-assigned powers to make inherently political choices that will be a colossal drag on economic growth. [Wall Street Journal, 3/15/11]

Supreme Court: Clean Air Act Gives EPA The "Authority To Regulate The Emission Of [Greenhouse] Gases From New Motor Vehicles." From the 2007 Massachusetts v. EPA decision:

On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change. We have little trouble concluding that it does.

[...]

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. [Massachusetts v. EPA, 4/2/07]

The Supreme Court Ruled That Clean Air Act Required EPA To Examine Greenhouse Gases. From the Court's ruling:

If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating that "[EPA] shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class of new motor vehicles"). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. 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. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, ... or otherwise not in accordance with law." 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984) . We hold only that EPA must ground its reasons for action or inaction in the statute. [Massachusetts v. EPA, 4/2/07, emphasis added]

Bush EPA Administrator: Supreme Court Case, Climate Science "Require The Agency To Propose A Positive Endangerment Finding" On Greenhouse Gases. According to a letter released in February, Stephen Johnson, EPA Administrator under President George W. Bush, told the president in January 2008 that the Supreme Court's 2007 decision "combined with the latest science of climate change requires the Agency to propose a positive endangerment finding." From the letter:

[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. [U.S. Environmental Protection Agency, Johnson Letter to President Bush, 1/31/08]

EPA: Endangerment Finding "Obligates The Agency" To "Issue Greenhouse-Gas Emissions Standards For Motor Vehicles." EPA administrator Lisa Jackson wrote in a February 2010 letter:

Three years ago, the Supreme Court held in Massachusetts v. EPA that the term "air pollutant" in the Clean Air Act includes greenhouse gases. The Court also held that the Act requires EPA to consider the science of climate change meaningfully in determining whether greenhouse-gas pollution endangers public health or welfare. As a result of the Court's decision, EPA became obligated to treat greenhouse-gas emissions as air pollution under the Clean Air Act and to engage with the best available science in determining whether those emissions endanger Americans' health or welfare. After EPA staff conducted a comprehensive survey of the soundest available science and carefully reviewed hundreds of thousands of public comments, I determined last December that greenhouse-gas emissions do endanger Americans' health and welfare.

[...]

EPA's endangerment finding obligates the agency, under Section202(a) of the Clean Air Act, to issue greenhouse-gas emissions standards for motor vehicles. EPA will begin to discharge that duty late next month, by issuing greenhouse-gas emissions standards for Model Year 2012-2016 light-duty motor vehicles. [U.S. Environmental Protection Agency, Jackson Letter To Sen. Rockefeller, 2/22/10, in-text citations deleted for clarity]

Journal Falsely Suggests EPA Regulations Are An Attempt To Impose Climate Measures Rejected By Congress

From the March 15 Wall Street Journal editorial:

Yesterday, the House Energy and Commerce Committee began debating a bill that would prohibit the EPA from abusing the clean air laws of the 1970s to impose the climate regulations that Congress has refused to pass despite President Obama's entreaties. [Wall Street Journal, 3/15/11]

Unlike Proposed Climate Legislation, EPA Regulations Do Not Establish Cap And Trade System. From a March 9 Environment and Energy Daily report:

Upton said that in his view, EPA's current and planned regulations for greenhouse gas emissions would be virtually identical to the Waxman-Markey bill.

"We are trying to stop a regulated cap-and-trade bill, of which we view this," Upton said.

But EPA's current and planned stationary source regulations do not cap industrial greenhouse gas emissions and allow them to be traded, as the Waxman-Markey bill would have done. They regulate individual sources of emissions under the Clean Air Act by requiring the use of best available control technologies now, and the agency is planning to set New Source Performance Standards for electric utilities and oil refineries. EPA Administrator Lisa Jackson has ruled out using cap and trade for any of these. [E&E Daily, 3/9/11]

Jackson: "EPA Has Taken No Steps To Establish A Cap And Trade Program And We Do Not Intend To Do So." From a March 3 House Appropriations Committee hearing:

REP. MORAN (D-VA): But there is another point of view from the one that has been expressed, particularly on the floor of the House when we were considering the CR. And during consideration of the CR, Mr. Poe from Texas, who was the author of the amendment to stop EPA's regulation of greenhouse gases said, and I quote, "this amendment will rein in EPA and prohibit them from implementing the so-called cap and trade philosophy on states such as Texas." Other members said the EPA was trying to implement cap and trade.

So I want to ask you, do the greenhouse gas regulations that EPA finalized in December actually institute cap and trade and do you intend to implement cap and trade at EPA in the future without congressional action?

MS. JACKSON: That's no and no. EPA has taken no steps to establish a cap and trade program and we do not intend to do so. I joined the president in calling for legislation in the absence of that. We did not --

REP. MORAN: So without congressional action, you're not going to be acting on that. So thank you, Ms. Jackson. [Hearing of the House Subcommittee on Interior, Environment, and Related Agencies, 3/3/11. Via Nexis]

David Roberts: EPA Regulations Are "Not An Attempt To Do By Regulation What Legislation Would Have Done." Grist writer David Roberts wrote:

There are different ways the EPA could have responded to its legal obligation to regulate greenhouse gases. (I wrote a backgrounder on the details of EPA powers.)

If it wanted to get really radical, it could have regulated them under National Ambient Air Quality Standards, per Section 108 of the Clean Air Act. The agency could have said that, say, 350 parts per million is the safe ambient level of CO2 in the air. That would have effectively put the entire country in noncompliance and triggered what really would have been a massive expansion of EPA's reach. The Center for Biological Diversity has been pushing for this approach for a while.

Or, some people argue, EPA could have done what most economists agree is the sensible thing and established a cap-and-trade program on its own. Think tanky groups like the Constitutional Accountability Center and the Institute for Policy Integrity argued that the Clean Air Act gives EPA that power. Of course, that would have been politically explosive too.

It did neither of those. Instead EPA is taking a cautious approach, getting at greenhouse gases largely through performance standards that, by the agency's own avowal, will mostly require upgrades in efficiency (which often as not will make money for participating facilities).

In short, given its legal mandate to address greenhouse gases, EPA is acting with about as much caution and restraint as it possibly can, short of doing what the Bush administration did, which was dissemble and delay.

This is not some sort of power grab by Obama. It is not an attempt to do by regulation what legislation would have done. Legislation would have substantially reduced greenhouse gases; EPA regulations will lower them modestly if at all.

This is just an executive branch agency charged with protecting public health doing what Congress told it to do. [Grist, 1/5/11, emphasis original]

Journal Accuses EPA Of Favoring A "Conception Of An Autonomous Regulatory State"

From the March 15 Wall Street Journal editorial:

Get a load of this. Some Members of Congress actually think that Congress should have a say in whether or not the government regulates carbon. Some of them even want to have a debate about it first. Don't these yahoos understand that democratic consent doesn't apply to the Environmental Protection Agency?

[...]

Whatever Ms. Jackson's appeals to "science," as if democracy doesn't matter, her conception of an autonomous regulatory state should offend any elected politician. The harm the EPA is inflicting is bad enough, but let's start with such basics as the rule of law and representative government. [Wall Street Journal, 3/15/11]

Time: Both Jackson And Obama Said They "Prefer Congress To Take The Lead On Greenhouse Gases." From a January 3 Time article;

[I]n the absence of congressional action, the White House and its environmental allies insist the EPA has no choice but to regulate greenhouse gases. In 2007, the Supreme Court ruled that the EPA was required to regulate greenhouse-gas emissions under the Clean Air Act if those gases threatened public health. The EPA -- and nearly all climate scientists -- have found that unchecked global warming does indeed pose a threat to public health, meaning that the agency would be breaking the law if it refused to act on those regulations. (This was the case even under former President George W. Bush, though his White House literally avoided the issue by refusing to open e-mails from EPA staff experts -- though several states and environmental organizations eventually sued the agency over the issue.) Both Jackson and Obama have said repeatedly that they would much prefer Congress to take the lead on greenhouse gases through regulation -- a carbon cap-and-trade program or tax -- but that no longer seems to be an option. [Time, 1/3/11]

Obama: "The EPA Wants Help From The Legislature On This." The Washington Post reported in November 2010:

Many lawmakers have raised the prospect of blocking unilateral regulatory action by the Environmental Protection Agency to limit carbon dioxide emissions, a power the Supreme Court said EPA has under the Clean Air Act.

"I would hope one of the things we'll see is Congress will assert primacy in this area of policymaking," said John Engler, president of the National Association of Manufacturers.

Obama struck a conciliatory note on the matter. "The EPA wants help from the legislature on this," he said. "I don't think that, you know, the desire is to somehow be protective of their powers here. I think what they want to do is make sure that the issue's being dealt with." [Washington Post, 11/4/11]

Congress Has Repeatedly Failed To Pass Legislation Controlling Greenhouse Gases.

  • 2003: McCain And Lieberman Tried To Pass A Cap And Trade Bill. From the Pew Center on Global Climate Change:

On October 30, 2003, Senators Joseph I. Lieberman (D-CT) and John McCain (R-AZ) brought a revised version of their Climate Stewardship Act of 2003 (S.139) to a vote in the United States Senate. While the measured failed by a vote of 43 to 55, the vote demonstrated growing bipartisan support for a genuine climate change policy.

The revised version of the bill would require the Administrator of the EPA to promulgate regulations to limit the greenhouse gas (GHG) emissions from the electricity generation, transportation, industrial, and commercial economic sectors (as defined by EPA's Inventory of U.S. Greenhouse Gas Emissions and Sinks). The affected sectors accounted for approximately 85% of the overall U.S. emissions in the year 2000. The bill also would provide for the trading of emissions allowances and reductions through a National Greenhouse Gas Database which would contain an inventory of emissions and registry of reductions. [Pew Center on Global Climate Change, accessed 3/16/11]

  • 2005: McCain-Lieberman Bill Fails A Second Time. From Mother Jones:

About a year after their bill was defeated, McCain and Lieberman began drafting a new version. It was close to the original, but with one significant addition: billions of dollars in tax subsidies for the nuclear energy industry.

[...]

His friends were not persuaded. While the Environmental Defense Fund and the National Wildlife Federation continued to support McCain, the Natural Resource Defense Council, the Sierra Club, the U.S. Public Interest Research Group, and others mounted a fierce campaign against the new bill. On June 22, 2005, it came up for a vote and was defeated 60 to 38. [Mother Jones, 3/4/08]

  • 2008: Lieberman-Warner Climate Bill Defeated. The cap and trade bill introduced in 2007 by Lieberman and Virginia Republican John Warner failed to pass a cloture vote in June 2008. The Washington Post reported:

Senate leaders yesterday abruptly pulled back legislation that would have mandated major cuts in U.S. greenhouse-gas emissions after they came a dozen votes shy of ending a GOP filibuster.

Although the bill -- sponsored by Sens. Joseph I. Lieberman (I-Conn.) and John W. Warner (R-Va.) -- enjoyed bipartisan support, the week-long floor debate devolved into partisan bickering over which party was most responsive to the plight of Americans trying to cope with rising gas prices.

In a statement after the 48 to 36 vote, Senate Majority Leader Harry M. Reid (Nev.) charged that Republicans were "refusing to address one of the most important issues of our time." [Washington Post, 6/7/08]

  • 2009: House Passes Clean Energy And Security Act. From the Pew Center on Global Climate Change:

The U.S. House of Representatives passed the American Clean Energy and Security Act of 2009 (ACES Act), H.R. 2454, on June 26 by a vote of 219 to 212. This comprehensive national climate and energy legislation would establish an economy-wide, greenhouse gas (GHG) cap-and-trade system and critical complementary measures to help address climate change and build a clean energy economy. [Pew Center on Global Climate Change, accessed 3/16/11]

  • 2010: Senate Abandons Effort To Pass Comprehensive Energy And Climate Bill. From the Pew Center on Global Climate Change:

Once the House passed the Waxman-Markey bill, the next step would have been for the Senate to have passed its own comprehensive climate and energy bill. Unfortunately, the Senate was unable to do so, despite much work by key committees and Senators. The Senate Energy and Natural Resources Committee passed the American Clean Energy Leadership Act of 2009 (S.1462) in June 2009 on a bipartisan vote of 15 to 8, amending it by unanimous consent in May 2010. This bill would have established a renewable energy standard and addressed several other energy-related issues. In November 2009, the Senate Environmental and Public Works Committee passed the Clean Energy Jobs and American Power Act of 2009 (S.1733), drawing heavily from the Waxman-Markey bill in establishing a GHG cap-and-trade system. S.1733 passed the committee by a vote of 11-1, with all seven Republican members boycotting the final vote to protest the process by which the bill had been managed in committee.

With four other Senate committees hold jurisdiction over the legislation - Agriculture, Commerce, Finance, and Foreign Affairs - the timing of the climate change debate within the broader Senate agenda remained unclear. Sens. John Kerry (D-MA), Joseph Lieberman (I-CT), and, for a time, Lindsey Graham (R-SC), worked outside of the committee process in an attempt to broaden the base of support for the legislation within the Senate. Kerry and Lieberman released a draft discussion of their American Power Act in May 2010. The American Power Act would have established a GHG cap and trade system for utilities and industry while establishing a fee for transportation fuels.

Several other Senators offered their vision of climate legislation, as well. Sens. Maria Cantwell (D-WA) and Susan Collins (R-ME) introduced a Carbon Limits and Energy for America's Renewal Act (S.2877), which would have capped carbon dioxide emissions, while allowing only very limited emissions trading, and rebating the revenue from this system directly back to the public on a per capita basis. Sens. Richard Lugar (R-IN) and Lisa Murkowski (R-AK) introduced the Practical Energy and Climate Plan (S.3464), intended to reduce oil imports, improve and create new efficiency standards, and establish a clean energy standard.

Senate Majority Leader Harry Reid (D-NV) was expected to combine the various elements of the climate and energy legislative proposals into a comprehensive climate bill that he would bring to Senate floor. Citing a lack of bipartisan support in the Senate, however, Reid announced in July 2010 that upcoming energy legislation would not include a cap on GHG emissions. This effectively ended action on climate legislation for the 111th Congress. [Pew Center on Global Climate Change, accessed 3/16/11]

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