Tuesday, June 10, 2014
Writing at Bloomberg View, Ramesh Ponnuru takes
issue with Republicans who are calling Barack Obama's draconian new regulations
on coal a "power
grab". He holds that something "more complicated, and ominous," than that is
going on: "[O]fficials in all three branches of government have found a way to
achieve their policy goals while shielding themselves from accountability."
The Clean Air Act, initially written in 1970 and last significantly amended in 1990, was intended to deal with traditional air pollution, the kind that clogs your lungs and clouds your view -- not with the possibility that chemicals emitted into the air might affect the entire globe through their effect on the upper reaches of the atmosphere. Justice John Paul Stevens, writing for the court, got around that problem by holding that Congress had "carefully" declined to define "air" to exclude those upper reaches.Past precedent tells me that the sky is the limit regarding how much rewriting the EPA can do. Ponnuru goes on to explain how government officials in all three branches can hide from accountability as the scope of this law is relentlessly expanded.
A vast regulatory apparatus is now being built on Stevens's inference. One set of regulations is before the Supreme Court, and it shows how hard it is to fight climate change through the Clean Air Act. To treat greenhouse gases as a conventional air pollutant, the Environmental Protection Agency was required to impose stringent rules on anything that emitted more than 100 to 250 tons of it a year. The EPA decided that this wouldn't be "feasible" and set new thresholds at 100,000 tons a year instead.
In other words, the EPA can't apply the Clean Air Act to climate change without rewriting it. So the justices will have to decide how much rewriting they'll let the EPA do. [link in original]
This piece is a wake-up call, for it brings into focus a couple of significant problems facing everyone concerned with correcting our country's political trajectory. First, certain legislation that is bad enough to begin with is both being opened to arbitrary interpretation and will be very hard to repeal. Second, some laws are so bad that their effects could so quickly erode our standard of living (e.g., from skyrocketing power costs) that it could affect the time horizon for affecting the cultural change needed to turn the tide back in favor of greater government protection of individual rights. Aside from laws that blatantly or more immediately threaten freedom of speech, laws like this would seem deserving of a high place on the list of laws that should be repealed. (A Forbes columnist offers a somewhat less pessimistic view of the effects of the latest proposed rules, but this is not the first time a proposed rule under the Clean Air Act has caused alarm.)