NCPA - National Center for Policy Analysis


November 29, 2006

If global warming requires regulation, that is a decision for our elected representatives to make, says Jonathan Adler, a professor of environmental and constitutional law at Case Western Reserve University School of Law.  Yet several states and environmentalist groups are asking the Supreme Court to force the Environmental Protection Agency (EPA) to impose nationwide regulations on greenhouse gases, the most ubiquitous byproducts of modern industrial society. 

But the EPA only has the authority it has been delegated by Congress, and -- as of yet -- Congress has never given the EPA regulatory authority over greenhouse gases, says Adler.  Congress has not been silent on the matter of global warming, however: 

  • Since 1978, it has repeatedly addressed global climate concerns without once giving any indication that it sought to authorize federal regulation.
  • To the contrary Congress has rejected specific regulatory proposals, endorsing non-regulatory measures in their stead. 
  • The Bush administration has also been reticent, but it should not be criticized for failing to exert regulatory authority it does not have. 

If current climate policies are inadequate and unwise, the place to seek redress is back in Congress, not the courts, says Adler:

  • The petitioners argue that the Clean Air Act requires the EPA to regulate greenhouse gas emissions from new-vehicle tailpipes -- and a superficial reading of the statutory text could suggest as much.
  • Yet it is clear to all involved that the relevant statutory provisions were enacted to address local and regional pollution problems -- such as soot, smog and acid rain -- not global concerns such as climate change.

Source: Jonathan Adler, "It's not up to the EPA; If global warming requires regulation, that is a decision for Congress to make," USA Today, November 29, 2006.


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