Why the EPA Did an End-Run on Climate Change

The Environmental Protection Agency declares greenhouse gas a health hazard, preparing the way for emissions cuts

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On Monday, the Environmental Protection Agency declared greenhouse gases a danger to human health, giving the agency power to cut emissions without Congressional approval. The move sends a bold signal before Obama's trip to Copenhagen, frustrating conservatives and business leaders. What is the strategy behind the announcement, and will it work?

Why They Did It

  • Because It's What the EPA Is There For Progressives at Think Progress Brad Johnson and Matthew Yglesias say that this is about the EPA "recognizing" and "meeting its legal obligations" to restrict threats to the environment under the Clean Air Act.
  • Because It Will Force a Cap-and-Trade Bill Liberal Mother Jones blogger Kevin Drum outlines the carrot-and-stick proposition: "the longer that congressional Republican dawdle and obstruct, the more likely it is that the EPA will end up doing something by default. So here's some advice for corporate America: if you don't like this, then get off your asses and start pressuring your friends in the GOP to support a cap-and-trade bill that would preempt the EPA and put in place more predictable rules."
  • Because It Will Help at Copenhagen The Washington Independent's Aaron Wiener acknowledges the EPA's traditional role as a prod to Congress, but says that "the timing of today's announcement suggests another motivation." Namely, "international climate talks in Copenhagen kicked off this morning, and in the absence of a domestic climate bill, the EPA move gives American negotiators evidence of U.S. action on climate change as they seek commitments from other nations around the world." The New Republic's Bradford Plumer concurs.

Will It Work?

  • Will Probably Stand Up in Court The National Review's Jonathan Adler ponders the legality of the EPA move. Though the fact that "the EPA was not dissuaded in the least by the ClimateGate revelations" could theoretically open the door to a legal challenge--perhaps greenhouse gases are not in fact dangerous--Adler writes that "judicial review of the EPA's decision will be quite deferential, as required by the Clean Air Act, so the EPA does not have to 'prove' that its assessment is correct," but "rather ... show that its decision was reasonable." If the EPA lawyers "dotted their i's and crossed their t's," the decision will be fine, legally. Thus, "the only way to prevent regulation ... is to convince the EPA to change course (not gonna happen) or pass legislation denying the EPA such regulatory authority."
  • Not Going to Get Congress to Do Anything, Ed Morrissey suggests regarding the latter possibility:
The EPA process can be restrained by Congress, but it will take positive action for that to happen--and in most cases, would take the assent of Barack Obama. About the only way Congress could stop the EPA's effort to seize control of production without Obama would be to defund the agency, or at least its regulatory efforts. That certainly won't happen with the current Congress.
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