TheDC analysis: EPA global warming regulations no ‘end run’ around Congress

The Environmental Protection Agency’s pending global warming regulations are no “end run” around Congress, as many conservatives are charging. This time, Congress is being held hostage by its own laws.

The real story is the decades-long campaign by environmentalists to weave a legal web all but compelling the government to enact strict new climate change rules.

In 1970, before global warming was even on the radar map, Congress in the Clean Air Act gave the EPA the power to regulate air pollutants that damage “weather” and “climate” from automobiles and other moving pollution sources.

Members of Congress debating the law barely mentioned this language, according to a book about the law by environmental law professor Arnold Reitze. Meanwhile, a government report discussed the possibility that pollution could lead to another ice age.

It wasn’t until 1990 that the issue came to the forefront again, this time when Congress enacted a major update to the Clean Air Act. Then, some liberals in the Senate fought to require controls under the law on “greenhouse gases” thought to cause global warming. The provision was stripped from the bill in Conference Committee.

But in the last few years of the Clinton administration, the Carol Browner-led EPA issued a legal memo laying the groundwork for regulating global warming under the Clean Air Act’s existing language.

Years later, completely stymied by the Bush administration and Republicans in Congress, environmentalists took the memo and ran with it – in court.

In 2007, the Supreme Court sided with them, 5-4, in Massachusetts v. EPA. “Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases,” the court ruled.

That court battle was the real fight, and environmentalists already won, three years ago.

But the problem for the environmental community, President Obama, and, most importantly, the economy is this: using the Clean Air Act was only supposed to be a threat. The idea was, using the Clean Air Act for climate change was so heinously bad it would force industry and Republicans to come to the negotiating table.

“I’m the first person to say this is not a very effective means of addressing the problem,” said the Sierra Club’s David Bookbinder, a leading environmental strategist, in 2007, according to Environmental Health Perspectives.

“Our larger strategy is, we want legislation to curb emissions. No one is hiding the ball here,” said the Natural Resource Defense Council’s David Doniger, another top enviro lawyer, according to Inside EPA.

Well, that didn’t work. Obama tanked on a cap-and-trade climate change bill, and now the regulations are actually going forward.

The change in plans has environmentalists changing their tune. They launched a major campaign in past months to defend EPA regulations of global warming.

“Every line of evidence points to the same conclusion. Allowing EPA to do what it is legally required to do,” regulate climate change under the Clean Air Act, “will not cost us jobs or damage the economy. In fact, there’s every reason to believe the opposite,” said the NRDC’s Laurie Johnson in a blog post.

“Fears of agency ‘overreach’ are misplaced,” said the World Resources Institute in a report detailing how harmless the Clean Air Act regulations will be.