The Fight Over CO2

How Congress Can Stop the EPA's Power Grab

By Fred Upton and Tim Phillips

December 28, 2010 Wall Street Journal

On Jan. 2, the Environmental Protection Agency will officially begin regulating the emission of carbon dioxide and other greenhouse gases. This move represents an unconstitutional power grab that will kill millions of jobs—unless Congress steps in.

This mess began in April 2007, with the Supreme Court's decision in Massachusetts v. EPA. The court instructed the agency to determine whether greenhouse gases like carbon dioxide pose (or potentially pose) a danger to human health and safety under the Clean Air Act. In December 2009 the agency determined they were a danger—and gave itself the green light to issue rules cutting CO2 emissions on a wide range of enterprises from coal plants to paper mills to foundries.

In response, states including Texas and Virginia, as well as dozens of companies and business associations, are challenging the EPA's endangerment finding and proposed rules in court. The U.S. Court of Appeals for the D.C. Circuit is currently considering a partial stay of the EPA's rules and is expected to begin issuing decisions sometime in 2012.

The EPA, of course, is in a hurry to move ahead. It wants to begin regulating the largest emitters first. But it has the authority under its endangerment finding to regulate emissions by hospitals, small businesses, schools, churches and perhaps even single-family homes. As companies wait for definitive court rulings, the country could face a de facto construction moratorium on industrial facilities that could provide badly needed jobs. Moreover, the EPA has never completed an analysis of how many jobs might be lost in the process—although Section 321 of the Clean Air Act demands that it do so.

The best solution is for Congress to overturn the EPA's proposed greenhouse gas regulations outright. If Democrats refuse to join Republicans in doing so, then they should at least join a sensible bipartisan compromise to mandate that the EPA delay its regulations until the courts complete their examination of the agency's endangerment finding and proposed rules.

Like the plaintiffs, we have significant doubt that EPA regulations can survive judicial scrutiny. And the worst of all possible outcomes would be the EPA initiating a regulatory regime that is then struck down by the courts.

For the last year or so, some in Congress have considered mandating that the EPA delay its greenhouse-gas regulations by two years. But that delay is arbitrary—it was selected because a handful of Democrats needed political cover. There is no way to know whether two years will be sufficient time for the courts to complete their work.

Moreover, the principal argument for a two-year delay is that it will allow Congress time to create its own plan for regulating carbon. This presumes that carbon is a problem in need of regulation. We are not convinced.

Thus the minimally responsible approach—the one that will reduce the potential for confusion, uncertainty and regulatory mayhem—is to delay EPA action until the courts have had time to rule. This approach would ensure that small businesses, states and even the EPA itself have the certainty needed to proceed.

The day after the recent midterm elections, President Obama was asked about the voters' repudiation of cap and trade. He responded: "Cap and trade was just one way of skinning the cat; it was not the only way. It was a means, not an end."

Cuts in carbon emissions would mean significantly higher electricity prices. We think the American consumer would prefer not to be skinned by Obama's EPA.

Mr. Upton, a Republican from Michigan, is chairman-designate of the House Energy and Commerce Committee. Mr. Phillips is president of Americans for Prosperity.

Environmental groups step up opposition to U.S. Rep. Fred Upton's proposal to stop greenhouse-gas regulation

U.S. Rep. Fred Upton is coming under fire from environmental groups over a proposal to prevent the U.S. Environmental Protection Agency from limiting emissions of carbon dioxide from power plants and refineries. A poll released this week found that a majority of Michigan voters believe the EPA should be allowed to regulate carbon dioxide emissions — a contributor to climate change. “Michigan voters understand the very serious implications of preventing the EPA from doing its job,” said Al Quinlan, of Greenberg Quinlan Rosner Research, which conducted the poll for the Energy Foundation. The Energy Foundation The poll — conducted in January with 500 Michigan voters responding — found 68 percent supported the EPA in its effort to regulate greenhouse gas emissions, while 27 opposed. The survey had a margin of error of 4.4 percent. Upton, Republican of St. Joseph, took over as chairman of the House Committee on Energy and Commerce this year. He has circulated a draft bill that would strip the EPA of its ability to regulate carbon dioxide under the Clean Air Act. The Greenberg Quinlan Rosner poll follows another poll, released last week by the National Resources Defense Council, that found 67 percent of Upton’s constituents agreed that Congress should let the EPA place limits on carbon dioxide pollution. The poll was conducted earlier this month by Public Policy Polling and surveyed 595 registered voters in Upton’s Sixth Congressional District, which includes portions of seven counties in the southwestern corner of Michigan. is a San Francisco-based partnership of more than a dozen national foundations that is pushing energy efficiency and renewable energy.

“The bottom line is now clearer than ever: Democrats, Republicans and Independents across America want politicians to protect the health of America’s children rather than the profit-driven agenda of big polluters” Cyndi Roper, Michigan director of Clean Water Action, said in a press release that accompanied the poll results.

“Chairman Upton and other members of the House Energy and Commerce Committee will now be hard-pressed to ignore the fact that their constituents want Congress to let the EPA do its job of safeguarding the health of American families.”

Upton was unavailable for comment Tuesday. But the congressman has argued that EPA regulation of carbon dioxide — a gas produced in the burning of fossil fuels such as coal and natural gas — would raise electricity prices and cost American jobs.

And in an opinion piece published in December in the Wall Street Journal, Upton and Tim Phillips, the president of a free-market advocacy group, wrote that calls for Congress to write its own regulation of carbon dioxide, “presumes that carbon is a problem in need of regulation. We are not convinced.”

Contact Alex Nixon at anixon@kalamazoogazette.com or 269-388-2783 begin_of_the_skype_highlighting 269-388-2783 end_of_the_skype_highlighting.

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