Last week, the senate refused to take true responsibility for climate change legislation by letting the Environmental Protection Agency essentially usurp that authority. In a 53-47 vote, senators struck down Alaska Sen. Lisa Murkowski’s resolution of disapproval to overturn the EPA’s power grab to set climate policy.
In a controversial move known as the endangerment finding, the EPA declared that greenhouse gas emissions are a danger to public health and welfare, and thus subject to regulation by the EPA under the Clean Air Act. Because greenhouse gas emissions come from a huge variety of sources and sectors, this represents an enormous shift of regulatory power to the EPA on the climate issue. In an open letter to senators last month, a coalition of policy think tanks and energy interests noted that “at a minimum, the endangerment finding will allow EPA to deal itself into a position to determine fuel economy standards for the auto industry, control CO2 emissions from stationary sources, and, more broadly, set climate policy for the nation – powers never delegated to the agency by Congress.”
The EPA itself recognizes that the wide reach of the endangerment finding, and the enormous administrative overhead required leads to “absurd results.” To avoid some of the problems their endangerment finding would cause, the EPA proposes to “tailor” the Clean Air Act so that firms emitting relatively low amounts of CO2-equivalent greenhouse gas emissions (less than 50,000 tons per year) would be exempt from the permitting programs for six years. Clearly, the EPA is planning to amend the Clean Air Act to lessen the burden of the endangerment finding. This may seem practical at first glance, but the EPA is not a legislative body and has no authority to amend legislation. That they in fact seek to do so would seem to be a case for limiting their regulatory scope, not making it larger.
In their letter to senators, the coalition members note that the Murkowski resolution was “a referendum not on climate science but on who should make the big decisions affecting America’s economic future. Is climate policy to be made by the people’s representatives or by politically unaccountable bureaucrats, trial lawyers, and activist judges? Only one answer to that question passes constitutional muster. EPA has no authority to do an end-run around the democratic process. Climate policy is too important to be made by an administrative agency without new and specific statutory guidance from Congress.”
Key senators themselves, despite their nay vote on the resolution last week, seem to recognize this reality. Unfortunately, they just don’t want it to be so because it’s easier to have somebody else do it. Sen. Barbara Boxer, California Democrat, has said that if the public has to wait for Congress to pass legislation to control greenhouse gas emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Perhaps that is the case, but that is how legislation works in a representative democracy.
Indeed, the closeness of the vote on the Murkowski resolution suggests that passing (with 60 votes) any comprehensive climate legislation will be no easy task. But that is the job of legislators, elected by the people. When those legislators cede that task to powerful but unelected regulators, they abdicate their leadership responsibilities and cheat the democratic process.
