Illegal EPA Green Rule
by Marlo Lewis
Issue 140 - September 30, 2009

The Environmental Protection Agency has sent a proposed rule to the White House that would allow regulation of greenhouse gas emissions, but restrict the scope to only very large industrial sources. This proposal, issued under the Clean Air Act, violates the language of the statute and effectively amounts to the EPA usurping the role of Congress.

EPA is simply proposing an illegal rule. They are presuming – on their own authority – to amend the Clean Air Act. It turns out that the Competitive Enterprise Institute was correct all along – that EPA cannot regulate carbon dioxide without grave risks to the U.S. economy unless it plays lawmaker and amends the Clean Air Act, which is a clear violation of the separation of powers.

EPA’s potentially vast role in regulating carbon dioxide stems from the U.S. Supreme Court’s decision in the case of Massachusetts v. EPA, which held that the Clean Air Act does allow the agency to regulate carbon dioxide emissions, but did not – contrary to widespread misreporting at the time – require EPA to do so.

This move by EPA confirms CEI’s argument that Massachusetts v. EPA was incorrectly decided. Of course, the larger constitutional crisis spawned by the Supreme Court’s decision is that we could get an energy suppression regime far more costly and intrusive than either the Kyoto Protocol or Waxman-Markey without the people's elected representatives ever voting on it.

Marlo Lewis is a Senior Fellow at the Competitive Enterprise Institute. Lewis’ more detailed comments on the EPA’s endangerment proposal regarding carbon dioxide may be found here. CEI is a non-profit, non-partisan public interest group that studies the intersection of regulation, risk, and markets.

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