NCPA - National Center for Policy Analysis


September 8, 2009

The White House is currently reviewing the Environmental Protection Agency's (EPA) "endangerment finding" that as a matter of law CO2 is a pollutant that threatens the public's health and must therefore be subject to regulation under the Clean Air Act.  Such a rulemaking would let the EPA impose the ossified command-and-control regulatory approach of the 1970s, even if Democrats never get around to passing a cap-and-tax bill, says the Wall Street Journal.

Yet a curious twist is buried in the EPA's draft rule.  The agency thinks it enjoys the discretion to target the new rules only to major industrial sources of carbon emissions, such as power plants, refineries, factories and the like.  This so-called "tailoring rule" essentially rewrites clear statutory language of the Clean Air Act by bureaucratic decree:

  • Because the act was never written to apply to today's climate neuroses, clean-air regulation is based on an extremely low threshold for CO2 emissions that will automatically transfer hundreds of thousands of businesses into the EPA's ambit.
  • The agency is required to regulate sources that emit more than 250 tons of a given air pollutant annually, which may be reasonable for conventional pollutants like NOX or SOX.
  • But this is a very low limit for ubiquitous CO2, and so would capture schools, hospitals, farms, malls, restaurants, large office buildings and many others.
  • To exempt these sources, the tailoring rule unilaterally boosts the rule for greenhouse gases from 250 tons to 25,000 tons, an increase of two orders of magnitude.

Yet the Supreme Court said nothing that would let the EPA simply decide on its own to apply the law to some un-favored business while giving others a pass.  But even businesses that do get a pass shouldn't rest too easily.  The green lobby will quickly sue to force the EPA to enforce fully its own rules and go after all carbon sources, says the Journal.

Source: Editorial, "Terms of 'Endangerment'," Wall Street Journal, September 3, 2009.


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