by Paul Heberling
In light of the recent midterm elections, it is clear that the next Congress will look very different and have very dissimilar goals than the current incarnation. It is worth exploring the origins of the EPA’s efforts to limit greenhouse gas (GHG) emissions, a favorite target for GOP derision, as well as the regulations’ potential fate after taking effect in January–mere weeks before the new Congress sits in Washington.
Absent any legislative action to curb CO2 and other GHGs, environmental advocates have looked to agency action as the best alternative. Following President Obama’s inauguration, the EPA officially found in 2009 that GHGs can be harmful to public welfare. The agency conducted rulemaking procedures before proposing regulations set to take effect in January 2011. Among other things, the rules would require states to design permitting systems for large stationary GHG sources or allow the EPA to do so.
Not surprisingly the proposed rules, including potentially costly “best available control technology” requirements, received strong backlash. Numerous business groups decried the measures, claiming they will burden affected industries and raise energy prices, causing widespread economic harm. Additionally, Republican representatives have asserted that such efforts should not be taken during the current economic downturn. However, it is unclear how the GOP can prevent the rules’ implementation in January. The 2007 Supreme Court ruling on Massachusetts v. Environmental Protection Agency confirmed that Congress had delegated authority under the Clean Air Act for the EPA to classify GHGs as pollutants, unless Congress explicitly removes this authority. Subsequent senatorial efforts to forbid agency regulation of GHGs failed this summer, and it remains to be seen whether similar legislation would face a Democratic filibuster, or even the President’s veto pen.
The question then becomes if the EPA came to its conclusions properly and accurately. Unless courts find that agency actions were arbitrary and capricious or agency findings were unreasonable, they will be afforded deference. However, the GOP can attack the EPA’s decision-making by exercising investigatory powers through committee. Although it appears the EPA followed established guidelines through notice, deliberations, hearings and public input, the process may still be open to challenge. Given widespread Republican skepticism of scientific evidence that climate change is attributable to human action, the EPA’s data will be heavily scrutinized. In fact, the Los Angeles Times reports that GOP representatives have indicated their desire to refute or discredit both the science and subsequent conclusions.
The state of Texas, on the other hand, has challenged not just the EPA’s rulemaking process and results, but also their authority. Concerned with impending economic hardship and a potential federal power grab, Texas Attorney General Greg Abbot informed the EPA in August that the state had no intention of complying with the new regulations. The Dallas Morning News notes that, although forty-nine other states have complied, Texas has proclaimed that it prefers to risk sanctions. Texas contends that neither the state nor the federal government can legally require such regulations – and that the new rules amount to a demand that the states “pledge allegiance” to the agency and its rules. It remains to be seen how potential legal challenges will proceed in light of legal precedence for relatively high deference to agencies.
It is uncertain how these strategies will impact the EPA’s GHG regulations, but opponents do not necessarily need to overturn them to achieve their goal. Simply responding to repeated subpoenas and hearings would occupy EPA resources, even if rules are issued. Such bureaucratic obstruction may prevent effective regulation, staving off the looming economic disaster the GOP and business groups fear. Though this same contingent made similar dire economic predictions about previous Clean Air Act regulations (as when the EPA regulated lead in the 1970s and addressed acid rain in the 1980s), such catastrophes have failed to materialize. However, as long as the GOP and business groups see attacks on GHG regulations as politically and financially profitable, respectively, both groups will likely continue to pursue every available avenue to do so.