Senate to Vote on EPA’s Power Grab: Does the Rule of Law Still Matter?

The Senate will, one presumes, finally vote either this week or next to block EPA from imposing President Obama’s ‘other way to skin the cat’ of Kyoto-style energy rationing, by using the Clean Air Act – a law that EPA’s own public filings inescapably acknowledge was never intended for such purpose. What will be at stake is little less than the rule of law itself.


Policy sanity also stands to take a beating, or else gain a new lease on life. The United States derives over 80% of its total energy from the three fossil fuels now being regulated by the Clean Air Act on the basis of EPA’s Endangerment Finding, which by design strangles our ability to use them. Further, the Obama Administration has in effect decided that the EPA knows how to run the U. S. economy.

With über-green Germany, even nuke-happy France, appearing set to ramp up their coal use in the wake of Japan’s nuclear incident, the first rational response would be to call off EPA’s war on coal. Not to fight like mad to preserve and advance it.

But fight like mad to preserve and advance this war on coal is what the administration and its Senate enablers are doing.

And as George Mason University professor of science and public policy Thomas Lovejoy said in an astonishing admission to the Washington Post not long ago, in the context of this very Obama Power Grab:
“When Congress resists action on pressing environmental issues, regulation provides a way forward”.

Actually, no. Our Constitution – so quaint and outdated according to certain quarters though it may be (it’s still better than whatever it is we have today) – makes it quite plain that it is only when Congress decides to act that agencies have a way forward.



It is untrue that, in our system, elected representatives act on major policy issues only unless and until the unelected regulators decide they have waited long enough. If they act lawfully, they act only when granted authority by the legislative branch. The ‘executive’ branch is called that for a reason. They are to execute laws. Not make them.

Argue all you want that EPA is doing so, but the fact that EPA tries the patently untrue line that the supreme Court made them do this shows you how weak the argument for the action is. EPA’s power grab is nothing but an admission that they think they’ve waited long enough. They also know they would wait forever if they waited on the democratic process to work.

In June 2007 the House barely passed legislation authorizing this move. If the Senate followed suit, it would have expressly provided EPA authority to regulate greenhouse gases for the very first time. As my CEI colleague Marlo Lewis details, the Clean Air Act as written and amended surely never did. And every other time Congress considered doing so it decided against it.

Senators, seeing the public outrage over the House’s move, proved to be too worried about jobs to pass the measure as well – their own jobs. The bill never saw the light of day.

So, now, EPA is seeking to impose regulations it acknowledges in public filings lead to ‘absurd results’; to accommodate this it also seeks to actually rewrite the statute even more expressly.

Remember this when the Senate votes on EPA’s power grab, an indirect if powerful tax on energy, with zero chance of doing that which it is ostensibly being pushed to do (impact the climate); amid standard-fare, mindless hysteria from usual suspects, but now trotting out children in oxygen masks (seriously) to preserve a scheme that the same senators – particularly Barbara Boxer (D-CA) – previously acknowledged would be devastating, in courting the few holdouts to come to the table and agree to legislate something less egregious if only by a matter of (pardon the pun) degree.

Two wrongs, by the math of people who think the Constitution is a mere impediment to be circumvented, actually make a right. They don’t of course. But it’s up to those who feel strongly enough about Big Government, regulatory overreach, separation of powers, economic recovery, and other mundane affairs whether those who vote know how the people they represent feel. Here’s to hoping the people make their voice heard.

In refusing to vote to authorize EPA’s stunt, the Senate listened once before. They’ll listen again if you make them.

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