- The Washington Times - Tuesday, December 8, 2009

Hey, you over there, stop breathing so much. You’re endangering the rest of us.

Or at least that’s what the Environmental Protection Agency would have you believe. The EPA officially ruled yesterday that carbon dioxide (CO2) is a dangerous pollutant subject to government regulation even without benefit of new legislation. CO2 is, of course, what animals and people exhale with every breath, after inhaling oxygen.

The EPA hastens to add that its CO2 “endangerment” ruling is aimed only at organizations that emit more than 250 tons of CO2 a year, not at ordinary people. But that’s cold comfort. Common-sense limitations on regulations have a way of evaporating into thin air when the bureaucratic state starts ruling by administrative fiat. The EPA in recent years has become known for sending armed SWAT-type teams into small businesses for relatively minor enforcement actions. Indeed, businesses, both large and small, are likely to suffer drastically from the EPA’s decision.

The U.S. Chamber of Commerce warned that the ruling “could result in a top-down command-and-control regime that will choke off growth by adding new mandates to virtually every major construction and renovation project.” The National Association of Manufacturers likewise blasted the decision, and political and think-tank leaders warned of massive job losses because of it.

What might be even worse is what trial lawyers make of the ruling. As explained a year ago by California superlawyer Joanne Lichtman, writing on the respected, bipartisan Global Climate Law Blog, “Regulatory determinations that carry a government seal of approval … can be very persuasive and influential for jurors asked to resolve complex questions of science.” In other words, aggressive plaintiffs’ attorneys could use the endangerment ruling as a pretext for all sorts of suits concerning purported lung or respiratory problems.

The timing of the EPA’s ruling is manifestly a political play meant to coincide with the Copenhagen climate conference, which begins this week. Already, though, even Democratic members of Congress are warning President Obama not to use Copenhagen negotiations as an end-run around Congress - as Sen. Jim Webb, Virginia Democrat, did in a late November letter to the president. The same warning against foreign negotiations ought to apply to bureaucratic fiats within this country.

Congress, not the EPA, should decide whether to impose such drastic new rules on the struggling U.S. economy. The economy, too, needs room to breathe.