Which Law Allows to EPA to Single Out Some Industries for Greenhouse Gas Regulation?

The 112th Congress better not try to block the Environmental Protection Agency’s regulation of greenhouse gases, The New York Times warns not so subtly in its news pages, “E.P.A. Limit on Gases to Pose Risk to Obama and Congress“:

[The] newly muscular Republicans in Congress could also stumble by moving too aggressively to handcuff the Environmental Protection Agency, provoking a popular outcry that they are endangering public health in the service of their well-heeled patrons in industry.

“These are hand grenades, and the pins have been pulled,” said William K. Reilly, administrator of the environmental agency under the first President George Bush.

He said that the agency was wedged between a hostile Congress and the mandates of the law, with little room to maneuver. But he also said that anti-E.P.A. zealots in Congress should realize that the agency was acting on laws that Congress itself passed, many of them by overwhelming bipartisan margins.

The final paragraph is a paraphrase of Reilly’s comments, so who knows if he actually used the invidious word “zealots,” but we’ll assume that he did argue that the EPA is acting on a Congressionally passed law.

That’s just not so. The 111th Congress failed to pass the Waxman-Markey bill or any legislation to regulate greenhouse gases. The Clean Air Act, which the U.S. Supreme Court in Massachusetts v. EPA expanded far beyond its original legislative intent, contained no authority for the EPA to single out specific emitters like refineries and power plants for regulatory limits. The EPA’s “tailoring rule” that does so is an obvious tactic meant to ease the adoption of an economy-controlling regulatory regime for which there is neither constitutional nor statutory authority.

If the Times — and the Obama Administration — were so confident of the story’s thesis, the paper wouldn’t have had to grant anonymity* to a senior official on the weakest of grounds: He, or more likely she, feared being criticized. To wit:

“If the administration gets it wrong, we’re looking at years of litigation, legislation and public and business outcry,” said a senior administration official who asked not to be identified so as not to provide an easy target for the incoming Republicans. “If we get it right, we’re facing the same thing.”

“Can we get it right?” this official continued. “Or is this just too big a challenge, too complex a legal, scientific, political and regulatory puzzle?”

It’s only a challenge if an unprecedented expansion of the regulatory state trumps the will of the people and the policymaking branch of government. Otherwise, it’s a transgression.

* One finds it hard to believe that the attribution — “a senior administration official who asked not to be identified so as not to provide an easy target for the incoming Republicans” — is OK under The New York Times’ standards on the use of anonymous sources. The paper’s former “public editor,” Clark Hoyt, repeatedly took editors to task for their gratuitous granting of anonymity, warning the practice represented a “squandered trust.” The St. Louis Post-Dispatch’s version of the EPA story omitted those paragraphs.

(Hat tip: Glenn Reynolds, Instapundit)

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