The EPA's Carbon Bomb Fizzles

The administration has given a skittish Congress another reason not to pass cap and trade.

By Kim Strassel
WSJ.com

In the high-stakes game of chicken the Obama White House has been playing with Congress over who will regulate the earth's climate, the president's team just motored into a ditch. So much for threats.

The threat the White House has been leveling at Congress is the Environmental Protection Agency's "endangerment finding," which EPA Administrator Lisa Jackson finally issued this week. The finding lays the groundwork for the EPA to regulate greenhouse gas emissions across the entire economy, on the grounds that global warming is hazardous to human health.

Getty Images
EPA Administrator Lisa Jackson, Dec. 7.

From the start, the Obama team has wielded the EPA action as a club, warning Congress that if it did not come up with cap-and-trade legislation the EPA would act on its own—and in a far more blunt fashion than Congress preferred. As one anonymous administration official menaced again this week: "If [Congress doesn't] pass this legislation," the EPA is going to have to "regulate in a command-and-control way, which will probably generate even more uncertainty."

The thing about threats, though, is that at some point you have to act on them. The EPA has been sitting on its finding for months, much to the agitation of environmental groups that have been upping the pressure for action.

President Obama, having failed to get climate legislation, didn't want to show up to the Copenhagen climate talks with a big, fat nothing. So the EPA pulled the pin. In doing so, it exploded its own threat.

Far from alarm, the feeling sweeping through many quarters of the Democratic Congress is relief. Voters know cap-and-trade is Washington code for painful new energy taxes. With a recession on, the subject has become poisonous in congressional districts. Blue Dogs and swing-state senators watched in alarm as local Democrats in the recent Virginia and New Jersey elections were pounded on the issue, and lost their seats.

But now? Hurrah! It's the administration's problem! No one can say Washington isn't doing something; the EPA has it under control. The agency's move gives Congress a further excuse not to act.

"The Obama administration now owns this political hot potato," says one industry source. "If I'm [Nebraska Senator] Ben Nelson or [North Dakota Senator] Kent Conrad, why would I ever want to take it back?"

All the more so, in Congress's view, because the EPA "command and control" threat may yet prove hollow. Now that the endangerment finding has become reality, the litigation is also about to become real. Green groups pioneered the art of environmental lawsuits. It turns out the business community took careful notes.

Industry groups are gearing up for a legal onslaught; and don't underestimate their prospects. The leaked emails from the Climatic Research Unit in England alone are a gold mine for those who want to challenge the science underlying the theory of manmade global warming.

But the EPA's legal vulnerabilities go beyond that. The agency derives its authority to regulate pollutants from the Clean Air Act. To use that law to regulate greenhouse gases, the EPA has to prove those gases are harmful to human health (thus, the endangerment finding). Put another way, it must provide "science" showing that a slightly warmer earth will cause Americans injury or death. Given that most climate scientists admit that a warmer earth could provide "net benefits" to the West, this is a tall order.

Then there are the rules stemming from the finding. Not wanting to take on the political nightmare of regulating every American lawn mower, the EPA has produced a "tailoring rule" that it says allows it to focus solely on large greenhouse gas emitters. Yet the Clean Air Act—authored by Congress—clearly directs the EPA to also regulate small emitters.

This is where green groups come in. The tailoring rule "invites suits," says Sen. John Barrasso (R., Wyo.), who has emerged as a top Senate watchdog of EPA actions. Talk of business litigation aside, Mr. Barrasso sees "most of the lawsuits coming from the environmental groups" who want to force the EPA to regulate everything. The agency is going to get hit from all directions. Even if these outsiders don't win their suits, they have the ability to twist up the regulations for a while.

Bottom line: At least some congressional Democrats view this as breathing room, a further reason to not tackle a killer issue in the run-up to next year's election. Mr. Obama may emerge from Copehagen with some sort of "deal." But his real problem is getting Congress to act, and his EPA move may have just made that job harder.

Write to kim@wsj.com
 

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