The Wall Street Journal spazzes out about Obama adviser Jason Grumet’s assertion that a President Obama would fight climate change under the Clean Air Act if Congress doesn’t move to address the issue within 18 months.
In what may be a historical first, I actually think the WSJ editorial board is right about this. Not that it’s bad, but that it’s a Very Big Deal. It really hasn’t gotten the attention it deserves.
WSJ says: "That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress."
They’re right, it is the purview of Congress. Thing is, Congress has already spoken. When it passed the Clean Air Act of 1990, it authorized the EPA to regulate as an air pollutant "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air."
Does that include CO2 and other greenhouse gases?
Yes. Not maybe, yes. That’s what the Supreme Court determined in Mass v. EPA. It is no longer an open question of statutory interpretation. SCOTUS said that EPA would have to produce justification if it did not regulate CO2, because Congress had, in effect, already told it to do so.
So this is very much a live weapon in the next president’s arsenal, and I’ve been wondering if it would be used. I’ve talked to a few people behind the scenes who are big fans of this approach. One of its primary virtues is that it allows the EPA to build on all the great work that states have done, knitting together and rationalizing their various efforts. Another is that it can be done quickly, without a Congressional battle, enabling the U.S. to go into the 2009 Copenhagen climate talks with a good-faith effort in hand.
Obviously the devil would be in the details, but in broad outline, building a federal carbon scheme on a regulatory rather than a legislative foundation would mark a radical departure from the heretofore dominant strategy of the green groups. I wouldn’t have trusted Bush’s EPA to do it. But Obama’s? Remains to be seen.
For an insightful look into this question, see "Clean Air Jump-Start," by Michael Northrop and David Sassoon.