Legal Commentary

?The EPA?s Carbon Footprint?

By Jonathan H. Adler

My article from the March 2010 Reason on the Environmental Protection Agency?s ?endangerment finding? that triggers the regulation of greenhouse gases under the Clean Air Act is now available online.  It begins:

On December 7, as delegates from around the world gathered in Copenhagen for the United Nations climate conference, Environmental Protection Agency Administrator Lisa Jackson announced that her bureaucracy would begin to regulate the emission of carbon dioxide and other gases deemed to be warming the planet. ?Today, I?m proud to announce that EPA has finalized its endangerment finding on greenhouse gas pollution,? Jackson proclaimed. As a consequence, the agency ?is now authorized and obligated to take reasonable efforts to reduce greenhouse pollutants under the Clean Air Act.?

?Reasonable? here is in the eye of the beholder. The 1990 Clean Air Act was designed for conventional air pollutants such as particulates and ozone smog, not for carbon dioxide. Applying those rules to CO2 will mean imposing costly regulations not just on cars and factories but on commercial buildings, churches, and even residences. All told, more than 1 million entities could become subject to new federal controls on greenhouse emissions.

The EPA power grab was no surprise; indeed, it was inevitable. The regulatory train was set in motion in 2007, when the Supreme Court ruled by a 5?4 vote in Massachusetts v. EPA that the Clean Air Act applied to greenhouse gases. The EPA probably would have made the same move had John McCain been president, by court order if not voluntarily. Now that the train is picking up speed, it will be almost impossible to stop and difficult to control. If you think federal environmental regulation is costly and inefficient, you ain?t seen nothing yet.

You can read the whole thing here.

It?s worth noting that while I am very critical of plans to regulate greenhouse gases under the Clean Air Act, I believe such regulation is effectively compelled by the Supreme Court?s Massachusetts v. EPA decsion, and (as I note briefly at the end of the article) legal challenges to the EPA?s endangerment finding ? such as that filed by Texas and others ? are almost certain to fail.  I?ll post more on this latter point in the next few days.

Full post as published by The Volokh Conspiracy on February 17, 2010 (boomark / email).