Good Question on EPA Regulation of CO2, but President’s Answer…

The Wall Street Journal’s Laura Meckler’s posed an excellent question at Wednesday’s news conference by President Obama. From the transcript

You said earlier that it was clear that Congress was rejecting the idea of a cap-and-trade program, and that you wouldn’t be able to move forward with that. Looking ahead, do you feel the same way about EPA regulating carbon emissions?  Would you be open to them doing essentially the same thing through an administrative action, or is that off the table, as well?   

The President’s answer included a claim that is just not true

The EPA is under a court order that says greenhouse gases are a pollutant that fall under their jurisdiction. And I think one of the things that’s very important for me is not to have us ignore the science, but rather to find ways that we can solve these problems that don’t hurt the economy, that encourage the development of clean energy in this country, that, in fact, may give us opportunities to create entire new industries and create jobs that — and that put us in a competitive posture around the world. 

Chris Horner of the Competitive Enterprise Institute refutes the President’s contention in a post at the American Spectator’s blog:

The 5-4 majority in Massachusetts v. EPA — and we know how the Left feel about 5-4 majorities effectively making decisions assigned to the political branches or process (coughBushvGorecough) — held that EPA could determine greenhouse gases are ‘pollutants’ if it chooses to but must ground any such decision in the statute. 

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984) . We hold only that EPA must ground its reasons for action or inaction in the statute. (Justice Stevens writing for the majority).

This plainly exposes the president’s claim today as factually incorrect.

The majority made this decision by determining that “all airborne compounds of any stripe” that are ’emitted’ can be called a pollutant under the Clean Air Act. To which Justice Scalia replied in his dissent in a footnote “It follows that everything  airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant’. This reading of the statute defies common sense.” (emphasis in original but, give them no ideas, please!).

As John Engler, President of the National Association of Manufacturers, told reporters in a post-election conference call Wednesday, the new Congress is likely to reclaim its primacy in setting environmental, reclaiming it from the EPA.

[Part] of what many of the business organizations have been arguing from the beginning is that the EPA is getting way outside its authority from the Congress as it seeks to go through the regulatory process to regulate that which cannot pass in the congressional legislative process.

Horner, by the way, has been on a roll of acerbic astuteness in his recent, pre-election blog posts.

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