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.  (continue reading…)

Earlier this year, the EPA proposed air emission standards on industrial boilers in yet another example of the Agency’s overreach and its regulatory agenda that will raise costs for manufacturers.

The EPA’s proposal would impose stricter emission requirements on industrial boilers through imposition of “Maximum Achievable Control Technology” (Boiler MACT standards) to reduce mercury emissions, among other pollutants. It will cut across all sectors of the manufacturing economy and could have a damaging economic impact. Compliance costs associated with these harsh and inflexible regulations will cost U.S. manufacturing jobs and hurt manufacturers’ ability to compete.

An industrial boiler is a closed vessel found in a factory, refinery, or other large institution that is fired to generate steam and usually expedites a manufacturing process. Industrial boilers are found in all industrial sectors, and most operators fire their boilers using natural gas, coal, or biomass.

This afternoon, the NAM filed comments with the EPA to outline manufacturers’ concerns with the regulations. Though the NAM supports certain aspects of the proposed rules, manufacturers are fundamentally concerned that the EPA has proposed standards that are not actually “achievable” or “achieved in practice” by existing or new “sources,” as expressly required by the Clean Air Act.

To read the NAM’s comments on the EPA’s proposal, click here.

Washington Post columnist Charles Krauthamer cites the Department of Homeland Security’s draft memo proposing adminisrative measures to allow illegal aliens to remain in the country to explore the “Annals of Executive Overreach,” that is, the Obama Adminstration’s circumvention of Congress in writing law.

Krauthammer’s most powerful example is the EPA’s plans to misuse the Clean Air Act to control greenhouse gas emissions, achieving through regulation the policies — the laws — that Congress has explicitly rejected. He concludes:

Everyone wants energy in the executive (as Alexander Hamilton called it). But not lawlessness. In the modern welfare state, government has the power to regulate your life. That’s bad enough. But at least there is one restraint on this bloated power: the separation of powers. Such constraints on your life must first be approved by both houses of Congress.

That’s called the consent of the governed. The constitutional order is meant to subject you to the will of the people’s representatives, not to the whim of a chief executive or the imagination of a loophole-seeking bureaucrat.

The Washington Examiner editorialized Thursday, also pointing to the immigration memo as another example of the Obama Administration’s power grabs. From “Administrative alternatives = stealth amnesty“:

[The] leaked internal memo has struck a nerve in the body politic precisely because it is only the latest of a growing list of examples of the Obama White House seeking to circumvent the popular will.

For example, while hiding behind a misguided Supreme Court decision that gave it the power to declare carbon dioxide a “pollutant,” the Environmental Protection Agency has started what amounts to an end run around Congress with a major revision of the 1970 Clean Air Act. Millions of previously unregulated commercial facilities, including small office buildings, stores and commercial kitchens, will soon be ensnared in stifling regulations that Congress never authorized or approved.

Another recent example of this willingness to ignore Congress is the U.S. Treasury’s apparent consideration of the $1.6 billion tax break for trial lawyers – allowing deductions for expenses from contingency lawsuits — that Congress has declined to act on.

At Shopfloor, our immediate concern is the Imperial EPA’s scheme to impose an unprecedented regulatory regime on greenhouse gas emissions — never authorized by Congress — that would wreck U.S. competitiveness. But as Krauthammer and the Examiner argue, what’s at stake is the separation of powers, America’s constitutional order and respect for the will of the people.

First, Senate Majority Leader Harry Reid (D-NV) abandoned plans for Senate action on a major “climate bill” that would restrict the emissions of greenhouse gases. Then, this week he decided against bringing a scaled-back (but still huge) “energy bill” to the floor before the August recess.

For all the accusations about base political motives killing the bills, the reality is that grand and not-so-grand schemes to remake the U.S. economy by raising energy costs are unpopular. Policymakers proved incapable of making all political calculations and compromises needed to pass the legislation.

The Washington Post today considers what’s next in a story, “EPA left to pick up climate change where Congress dropped the debate“:

The Environmental Protection Agency will soon begin regulating greenhouse gases factory by factory, power plant by power plant. That could be unwieldy, expensive and unpopular — even President Obama has said it’s not his preferred solution.

But for now, it’s his only option.

His only option? That’s obviously not true.

The President is in charge of the Executive Branch, and the EPA is part of the Executive Branch. His many options include telling Administrator Lisa Jackson to back off and start over on greenhouse gas regulation. Or, to belatedly recognize that the Executive Branch does not make policy and to defer to the constitutional authority of Congress. The President could decide to redouble his persuading and politicking in an effort to win passage of a good “climate bill” he could sign into law.

But for now, the Administration is relying on the EPA to rewrite the law to apply greenhouse gas regulations only to larger industrial emitters — a discretion that the law, the Clean Air Act, does not allow. The regulatory approach is a disaster, imposing costs, uncertainty and unprecedented federal control over economic activity in this country.
(continue reading…)

By a vote of 47 yeas to 53 nays, the Senate voted against the motion to proceed to a vote on S.J.Res. 26, the resolution to disapprove the Environmental Protection Agency’s authority to regulate greenhouse gas emissions under the Clean Air Act.

It used to be that Congress jealously protected its rights and prerogatives against the encroachment of the Executive Branch.

Sen. Roland Burris (D-IL) is now on the Senate floor praising the Chicago Blackhawks.

UPDATE (5 p.m.): Here’s the roll call vote. Puzzling to see the Senators from coal and lignite states, especially, vote to let the EPA determine the fate of all of these energy-related jobs.

The Hill reports that some Senate Democrats may attempt to have it both ways on whether the Executive Branch should set climate and energy policy  by supporting a resolution by Sen. Jay Rockefeller that would put a two-year moratorium on EPA regulation of greenhouse gases.

What message does that send? 

• With this vote, we affirm Congress’ policymaking role in the American system of government. Well, at least for two years .
• EPA regulation would be disastrous for the economy. Therefore we stand strongly against its destruction of jobs and prosperity. Well, at least for two years.
• We recognize that EPA regulation is wrong, but important political constituencies demand some sort of action — even if it is EPA command-and-control. We believe this resolution represents a reasonable compromise. Well, at least for two years.

Do they not recognize that uncertainty is the enemy of investment, jobs and economic recovery?

George Will’s column today is timely and on point, “Jobs report a nightmare for Obama progressivism.”

Today investors and employers are certain that uncertainties are multiplying.

They are uncertain about when interest rates will rise, and by how much. They do not know how badly the economy will be burdened by the expiration, approximately 200 days from now, of the Bush tax cuts on high earners — aka investors and employers.

They know the costs of ObamaCare will be higher than was advertised, but not how much higher. They do not know the potential costs of cap-and-trade and other energy policies.

They do not know if “card check” — abolition of the right of secret ballot elections in unionization decisions — will pass, or how much the economy will be injured by making unions more muscular.

They do not know how the functioning of the financial sector will be altered and impeded by the many new regulatory rules and agencies created by the financial reform legislation.

Let uncertainty multiply. The recovery is not a priority. Jobs can come later.  The economy will not get well, at least for two years.

The National Association of Manufacturers today sent a “Key Vote” letter to U.S. Senators expressing manufacturers’ support for S.J.Res. 26, the resolution of disapproval to prevent the Environmental Protection Agency from regulating greenhouse gas emissions without Congressional approval. From the letter:

Manufacturers support a comprehensive, federal climate policy within a framework that will cause no economic harm while granting sufficient time to deploy low-carbon technologies, such as carbon capture and sequestration, renewable energy and a renewed commitment to nuclear energy.

Prior to the onset of the financial crisis in 2008, energy inflation and price volatility were major contributors to the loss of approximately 3.7 million high-wage manufacturing jobs. Manufacturers use one-third of our nation’s energy. Because of the impact a federal climate policy will have on the nation’s energy future, this is an issue that must be debated by Congress without pre-emption from a federal agency.

EPA regulations, with no guidance from Congress, could establish disincentives for the long-term investments needed to grow jobs and expedite economic recovery. The Murkowski resolution seeks to ensure a healthy and productive discussion in Congress on harmonizing our nation’s energy, environmental and economic needs. That discussion must take place before the EPA starts regulating GHG emissions from stationary sources, including manufacturing facilities.

EPA lacks the authority to write its own law, its own version of the Clean Air Act, to control greenhouse gas emissions, which by extension controls economic activity. You could be a believer in stringent controls but still recognize that the American system of representative democracy does not grant the power to issue such controls to an executive branch agency. S.J.Res. 26 serves as a clear test for Senators whether they really believe that Congress is the policymaking branch of government.

Senate debate is expected Thursday. Key Vote letters are used by the NAM in ranking the members of Congress on their support for manufacturing.

The National Association of Manufacturers and 19 other business groups filed a petition in federal appeals court Tuesday challenging the U.S. Environmental Protection Agency’s latest interpretation of the “Johnson Memo,” in which the agency declared its plans to regulate greenhouse gas emissions from industrial and other stationary sources. The EPA intends to impose its mandates by Jan. 2, 2011.

As NAM President John Engler said in the news release:

Today’s challenge is yet another step we are taking to stop EPA from its overreach in regulating greenhouse gas emissions under the Clean Air Act. We believe this issue deserves transparency and debate that should be handled by Congress, not by a bureaucratic agency that has no accountability to the American people.

EPA’s power grab creates uncertainty and adds costly new burdens on manufacturers while further complicating a permitting process the EPA and state environmental enforcement agencies are not equipped to handle. Further, these actions will stifle job creation and harm our competiveness in a global economy by adding compliance, administrative and legal costs.

The trade association petition filed in the U.S. Court of Appeals for the District of Columbia Circuit is available here. The NAM’s Manufacturing Law Center has additional background and filings.

Others filing their own litigation include the American Iron and Steel Institute and Gerdau Amersteel Corp., Inc.  From E&E News: (continue reading…)

The Environmental Protection Agency has decided that Texas is failing to crack down on refineries and other energy producers to the agency’s satisfaction, so the EPA is taking over permitting in the state. As The Houston Chronicle reported on May 25:

“I think the writing will be on the wall — unless we start seeing better permits that address our objections, we are very likely to begin federalizing others,” EPA Regional Administrator Al Armendariz said in a telephone interview. “The state is not following federal Clean Air Act requirements.”

In The Forth Worth Business Press Alex Mills, president of the Texas Alliance of Energy Producers, reacts to the EPA’s regulatory march in an op-ed, “Texas vs. EPA war becomes an air battle impacting jobs“:

EPA Region 6 Administrator Al Armendariz threw more gasoline on the fire when he directed EPA to rescind a permit issued by the State of Texas, because Texas “is not following the Clean Air Act requirements.”

EPA’s unprecedented action impacts the Flint Hills Resources refinery in Corpus Christi, which has been operating under permits issued by the Texas Commission on Environmental Quality (TCEQ) since 1952. Now, the 300,000-barrel-per-day refinery, which has spent more than $2.8 billion since 1981 on “significant environmental upgrades,” must try to get a federal permit for the first time in Texas history to stay in business.

Armendariz indicated that his EPA enforcers also could be requiring federal permits of the remainder of refineries, chemical plants and other industrial facilities in Texas and the other states in Region 6.

About half of the nation’s refinery capacity is in Region 6. Without refineries, crude oil producers will not have a market for their crude oil. More refined products will need to be imported. Jobs will be lost. Energy prices will soar. The economy of Texas and the nation will be damaged severely.

Armendariz was after the productive sectors of the Texas economy as a professor at SMU before his appointment to the EPA job.

The Environmental Protection Agency has now posted its latest version of greenhouse gas emission regulations on its website, with background and supplementary materials.

Final GHG Tailoring Rule
May 13, 2010 – EPA sets greenhouse gas (GHG) emissions thresholds to define when permits under the New Source Review Prevention Significant Deterioration (PSD) and title V Operating Permit programs are required for new and existing industrial facilities.

• Fact Sheet (PDF) (6pp, 33k)
• Final Rule (PDF) (515pp, 688k)
• Timeline Outlining Permitting Steps under the Tailoring Rule (PDF) (1pg, 79k)
• Summary of Clean Air Act Permitting Burdens With and Without the Tailoring Rule (PDF) (2pp, 445k)

“Tailoring” in this case means the setting of specific emission limits to stationary sites, primarily industrial and energy facilities, thus requiring their adherance to the permitting process. The EPA claims it has the authority to set its own limits under the Clean Air Act, a dubious assertion.

According to the EPA’s fact sheet:

• This final rule “tailors” the requirements of these CAA permitting programs to limit which
  facilities will be required to obtain PSD and title V permits. Facilities responsible for nearly
  70 percent of the national GHG emissions from stationary sources will be subject to
  permitting requirements under this rule. This includes the nation’s largest GHG emitters-
  power plants, refineries, and cement production facilities.
• Emissions from small farms, restaurants, and all but the very largest commercial facilities
  will not be covered by these programs at this time. 

You have to love that “at this time.” They’ll get to you soon enough.