EPA to regulate pollutant without seeking congressional approval

Matt Purple Fellow, Defense Priorities
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The Environmental Protection Agency announced plans to regulate another pollutant without congressional approval last week.

The agency established new standards for nitrogen dioxide, a red gas identifiable by a strong odor. It’s an extremely common pollutant expelled by cars and burning fossil fuels such as coal and oil. Nitrogen dioxide is a weak greenhouse gas, but notable for its effect on the human respiratory system. Its emissions have been tied to breathing problems in children, especially those with asthma.

“Improving air quality is a top priority for this EPA,” said EPA Administrator Lisa Jackson. “We’re moving into the clean, sustainable economy of the 21st century, defined by expanded innovation, stronger pollution standards and healthier communities.”

The EPA has been flexing its muscles following a 2007 Supreme Court ruling that chided the agency for failing to regulate greenhouse gases directly. Last year the EPA declared carbon dioxide a health hazard, opening the door for increased regulations on businesses.

The Supreme Court case, Massachusetts v. Environmental Protection Agency, found that the EPA had the power to bypass Congress and regulate greenhouse gases. The authority comes from the Clean Air Act, which gives the EPA authority to regulate “any air pollutant” that “may reasonably be anticipated to endanger public health or welfare.”

Jackson, brought in to head the EPA by Barack Obama, has indicated she intends to exercise that power.

The latest decision establishes a new standard for the amount of nitrogen dioxide that can be in the air for an hour. Previously the EPA had only regulated the average amount of nitrogen dioxide over the course of a year.

EPA spokesman Dave Ryan told The Daily Caller that the regulation was needed because scientific studies had shown that the previous nitrogen dioxide standard wasn’t enough, though he didn’t point to any specific studies. Long-term exposure to nitrogen dioxide is widely believed to exacerbate respiratory problems.

Ryan said the EPA plans to send more than 200 monitors to measure nitrogen dioxide levels on major roadways and in urban areas. By 2016 they will say whether each area is in excess of the new regulation or not, though it’s not clear what will happen to areas that are.

Ken Green, a scholar at the American Enterprise Institute, told The Daily Caller that the government is using EPA regulations to interfere with the economy.

“The mentality is they want to tighten all the controls, the ozone standards, the NO2 [nitrogen dioxide] standards, all the controls. When you tighten the controls, you get more control over all the industries,” he said.

Green pointed to California which has been trying to tighten its greenhouse gas emission standards for years. He said the standards there are so punitive that they effectively “pick winners and losers” in the economy, particularly the car industry.

“You can force vehicles to be hybrids,” he said.

Ryan said the EPA hasn’t determined the economic costs and benefits of the new rule yet. He denied that the agency was using regulations to influence the economy.

“By using the power and authority of the Clean Air Act, we can begin reducing emissions from the nation’s largest greenhouse gas emitting sources without placing an undue burden on the businesses that make up the vast majority of our economy,” he said.

Some industry groups are worried new regulations could stunt economic growth. The American Petroleum Institute condemned the nitrogen dioxide decision, blasting the EPA for allegedly rushing to judgment.

“There is no significant evidence that the short-term NO2 standard established today by the Administrator [Lisa Jackson] is necessary to protect public health. EPA is over-regulating this air quality standard for political — not health — reasons,” it said in a statement.

Others, including the American Lung Association and Clean Air Watch, attacked the EPA for not going far enough.

Obama’s EPA has been far more proactive than that of his predecessor, George W. Bush. This has won it plaudits from many environmental groups and scorn from many conservatives in Congress. Sen. Lisa Murkowski, a Republican from Alaska, has said she will introduce an amendment blocking the EPA from regulating greenhouse gases.

Ken Green said the EPA’s more liberal approach originated with Carol Browner, the president’s energy czar. Browner previously headed up the EPA under Bill Clinton where she pushed tough air quality regulations through Congress.

In the meantime, the EPA says more new regulations will be coming down the pike in March, including a new greenhouse gas emission standard for so-called light duty vehicles such as sedans, sports cars and SUVs.