This commentary was originally featured in The Hill on January 25, 2018.
If you are breathing as you read this, you are emitting an officially designated dangerous pollutant, subject to federal regulation. At least that was the position of the Environmental Protection Agency under the past administration. In 2009, the EPA issued an “endangerment finding” concluding that carbon dioxide, the same gas that we exhale, poses a danger to human health and welfare akin to lead, sulfur dioxide, or mercury, and therefore must be regulated under the Clean Air Act. Because carbon dioxide is ubiquitous and emitted by every living creature on this planet, this finding gives EPA discretionary authority to regulate virtually every industry and aspect of daily life.
This endangerment finding may soon get another look by the EPA, however, due to the fact that EPA during the past administration skipped steps during its original adoption. The Texas Public Policy Foundation filed an administrative petition to reconsider the endangerment finding on behalf of Liberty Packing Company — a tomato processing company in California subject to EPA regulation because boiling tomatoes generates carbon dioxide.
The petition states that EPA failed to submit the endangerment finding for peer review from the Science Advisory Board, a blue-ribbon panel of experts established by Congress to ensure that EPA regulations are based on accurate data and credible scientific analyses before publication. This peer review is statutorily required for all EPA regulations to ensure the EPA does not impose unnecessary restrictions on economic and personal liberty by unintelligently pursuing regulatory goals. In a rush to get the endangerment finding published before the 2009 Copenhagen Climate Change Conference, EPA skipped this important and legally required step, among others.
As one would expect, the response from some to Liberty Packing Company’s petition has been to dismiss it as an “attack on climate science” or global warming, generally. But the Liberty petition itself does not address if man-made carbon dioxide emissions affect worldwide temperatures, or what the effects of that might be. Instead, the petition is about defending the rule of law as set by Congress in terms of who gets to decide how we regulate carbon dioxide and what procedural steps the government must go through before making that decision. In our constitutional system of checks and balances, those questions have far-reaching implications well beyond the environment. They cut to the very heart of if we intend to be governed by laws written by our elected representatives or by the fiat of administrative agencies.
When the Clean Air Act was enacted, global warming theories were in their infancy. That carbon dioxide, something we all exhale, would one day be considered harmful was not contemplated by those who crafted the bill. The fact that EPA has authority to regulate CO2 at all, is a creation of the bureaucracy.
That should be troubling to anyone who claims to fear overreach by the executive branch. When government decides to regulate something and creates broad ranging economic and social costs, like carbon dioxide, there is a presumption the decision will come from our elected officials in Congress, not unelected bureaucrats.
In this sense, liberty’s petition to the EPA is fairly modest. It doesn’t claim the EPA lacks authority to regulate pollutants or that government can never address carbon emissions. It simply asks the EPA to follow federal law enacted by Congress by obtaining peer review of its scientific and technical conclusions before it exercises a constitutionally suspect power with broad ranging implications over the entire U.S. economy. That such a request is controversial says a great deal about how cynical and polarized we have become as a nation.
At the end of the day, what we decide to do as a country regarding carbon emissions will have profound effects on our economy and standard of living. But those decisions must be made by the proper parties, under the proper rules, and by looking at objective, non-politicized evidence. Doing so will determine whether we remain a republic governed by the rule of law or by unelected bureaucrats within the Washington, D.C. administrative state.