This commentary originally appeared in The Hill on June 17, 2016.
The growing power of the administrative state is the defining feature of this era. Federal regulations now touch almost every area of American life, and almost all economic activity. Aggressive regulatory bodies like the Environment Protection Agency (EPA) increasingly impose these mandates by seizing what is the exclusive legislative power of Congress.
If Americans care about restraining this lawless assertion of federal regulatory power, the most important bill in Congress right now is H.R. 3880, introduced late last year by Rep. Gary Palmer (R-Ala.). The Stopping the EPA Overreach Act now has 147 co-sponsors. Through clear language and only four pages, the bill would deny the EPA the authority to regulate carbon dioxide, methane and three other greenhouse gases The EPA now treats carbon dioxide — a ubiquitous byproduct of almost all human activity — as a dangerous pollutant controlled under the authority of the 40-year-old Clean Air Act. This regulatory overreach is the root of the energy policy morass in which our country is now mired.
The EPA again and again relies on the "Endangerment Finding" to force President Obama's Climate Action Plan among new mandates, which includes the methane rule and a moratorium of coal development on federal lands. Yet the EPA's expanding climate crusade is bereft of legally meaningful justification. The agency merely asserts that the unequivocal "dictates of science" and the social cost of carbon to legitimize new rules without further explanation. Neither current findings on what is regarded as the official climate science of the U.N. nor the social benefits of atmospheric carbon dioxide are mentioned. Our president and his functionaries across the federal government, however, persist in trumpeting the view of more radical climate alarmists who declare that man-made global warming of apocalyptic proportion is upon on right now. When questioned about justification, the EPA typically defaults to a moral imperative to supplant fossil fuels regardless of costs or futility. And zap goes the rule of law.
The Supreme Court has recently rebuked the EPA for several overreaching air quality rules such as the "tailoring," mercury and Clean Power Plan rules. Yet meaningful judicial restraint remains rare and mild when it occurs. Only Congress can effectively reclaim the broad, lawmaking authority that the EPA has seized over carbon dioxide. Policies of such national consequence must remain the prerogative of our elected representatives, not Washington bureaucrats, and Palmer's bill is on point.
Such a bill is necessary because although Congress has consistently rejected delegating to EPA authority to regulate carbon dioxide, the agency now exercises that authority in a host of federal actions. When the massive Waxman-Markey bill to curb greenhouse gases failed Senate passage in 2009, the EPA went ahead and made the Endangerment Finding that carbon dioxide is a pollutant endangering human health and welfare — and thus subject to regulatory control under the Clean Air Act. What Congress refused to do, the EPA did on its own.
Seven years later, most people are inured to the EPA's expanding carbon agenda. But it's worth considering the unchecked authority the EPA now wields. In one of its first carbon rule-makings, the agency admitted that the Endangerment Finding would expand its regulatory universe from 14,700 to more than 6.1 million entities. Hospitals, schools, hotels, apartment complexes, office buildings and small business would now be subject to the Clean Air Act's top-down, inflexible dictates. In a later carbon rule known as the Clean Power Plan rule, the EPA arrogates the authority to re-engineer the nation's entire electric system. Under the agency’s centralized plan, cost, safety and reliability would take a back seat to reducing carbon.
It's hard to overstate the consequences of regulatory scope of this magnitude. As a result of the EPA's legal censure of carbon dioxide, major U.S. coal companies have declared bankruptcy, thousands have lost their jobs, the Keystone XL pipeline was nixed, natural gas is under assault, energy assets once valued in the trillions are now stranded and the middle class is shrinking.
Obama and his lieutenants, such as Secretary of State John Kerry, now demonize carbon as "perhaps the world's most fearsome weapon of mass destruction." The truth is that our bodies, blood and bones are built of carbon! Carbon dioxide is a necessary nutrient for plant life, acting as the catalyst for the most essential energy conversion process on planet earth: photosynthesis.
Carbon dioxide is an odorless, invisible, harmless and completely natural gas lacking any characteristic of a pollutant. It doesn't contaminate or defile the air, as actual pollutants do. Ambient levels of carbon dioxide in the air we breathe have zero adverse health effects, in contrast to high levels of genuine pollutants listed in the Clean Air Act like lead and mercury. With good reason, the EPA has not set health-based limits on the ambient concentration of carbon dioxide. The Occupational Safety and Health Administration (OSHA) does set some advisory levels for prolonged exposure to carbon dioxide in tightly enclosed spaces, but they are set at more than 10 times the current level to which humans are routinely exposed.
Carbon dioxide is also a key ingredient in our food supply, about 60 percent of which depends upon fossil fuel-based fertilizers. How do our national leaders square their public vilification of carbon dioxide with fundamental scientific and economic realities? Such political propaganda has now educated at least two generations of Americans who think carbon is a killer instead of the stuff of life on the earth.
In the second decade of the 21st century, humanity sits atop two centuries of major advances in physics, biology and chemistry that have applied hydrocarbon compounds for mankind's benefit. Yet the climate doomsayers of our age employ the term "carbon" as if it were a poison threatening the survival of civilization.
In one of the late Supreme Court Justice Antonin Scalia's last majority opinions, he articulated a constitutional limit to regulatory overreach: "When as Agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the economy, we expect Congress to speak clearly if it wished to assign to agencies decisions of such vast economic and political significance." The EPA's expanding regulatory scheme to decarbonize our country, unquestionably, has such vast economic significance. Rep. Palmer's legislation to nullify the EPA's Endangerment Finding provides the "clarity" Scalia said would be needed when unelected bureaucrats usurp the lawmaking power held by Congress alone.
White is the distinguished senior fellow-in-residence and director of the Armstrong Center for Energy and the Environment at the Texas Public Policy Foundation. She is the co-author of "Fueling Freedom" (Regnery Publishing, May 2016) along with Steve Moore.