The EPA Is Everywhere
Starting in 2009, the Obama administration began regulating greenhouse gas emissions through a so-called “endangerment finding” by which the Environmental Protection Agency (EPA) determined greenhouse gases pose an unacceptable risk to human health and welfare. The most prevalent greenhouse gas, carbon dioxide, is a natural substance that it is virtually everywhere and in everything. As a result, the endangerment finding provided the federal government with a springboard to arrogate to itself authority to regulate practically every nook and cranny of our nation’s economy.
The administration lost no time in using it. Starting with the transportation and electricity sectors, Obama’s EPA made plans to regulate carbon dioxide emissions from mining, manufacturing, construction, and farming operations, at the risk of displacing not only millions of American workers but also severely fettering the nation’s vibrant marketplace.
California provides a cautionary tale of central planning scenarios likely to arise from an unchecked endangerment finding. Under recently enacted state laws aimed a regulating greenhouse gases, Sacramento is on a path to dictating the fate of energy, transportation, agriculture, water, waste management, land use, and “green buildings” throughout the Golden State. Known as the Scoping Plan, these authoritarian economic controls are redolent of Soviet efforts at central planning.
An echo of California’s approach is found at the federal level in the EPA’s Clean Power Plan, a regulatory behemoth wholly dependent on the endangerment finding. The Clean Power Plan imposes unprecedented burdens on electricity generation, distribution, and retail sales, requiring a wholesale shift from fossil fuels to renewables and risking soaring electricity costs along with brownouts and blackouts. The Supreme Court stayed the Clean Power Plan pending legal challenges, and President Trump also issued an executive order instructing the EPA to reconsider the plan. But as long as the endangerment finding remains on the books, the energy sector is not safe from the EPA’s assumption of centralized controls based on regulating carbon dioxide emissions.
However, the EPA missed an important step in making the endangerment finding. Specifically, the EPA was required by statute to seek peer review from the Science Advisory Board, a blue-ribbon panel of experts established by Congress to ensure that EPA’s regulations are based on accurate data and sound science. For more than 40 years, the EPA routinely sought peer review from the board for its regulatory proposals. But it refused to do so when the time came for the endangerment finding. Why?
By rushing to judgment, the EPA was able to circumvent the Science Advisory Board and advance the Obama administration’s ideological assumption that the endangerment finding was needed to protect human health and welfare. Despite the EPA’s acknowledgement that there are “varying degrees of uncertainty across many of these scientific issues,” it nevertheless concluded that the excessive rule was necessary with a 90–99 percent degree of certainty — a level of certainty that should give even the most fervent supporters of greenhouse gas emissions controls pause.
On May 1, the Texas Public Policy Foundation filed an administrative petition with the EPA on behalf of a number of businesses, trade associations, and individuals. The petition, which asks the agency to reconsider the endangerment finding by seeking input from the Science Advisory Board, gives the new EPA administrator the opportunity to correct the Obama administration’s failure to obtain peer review. The EPA must comply with the law, just like the rest of us. Moreover, only with the open and studied process mandated by Congress for reviewing the scientific adequacy of regulatory action can the EPA make a sound decision on this economically fraught issue.
Ted Hadzi-Antich, senior attorney, and Ryan D. Walters, attorney, are with the Texas Public Policy Foundation and represent the parties asking EPA to reconsider the Endangerment Finding.