The Senate undermined its constitutional role last week with a vote that allows the Environmental Protection Agency (EPA) to regulate greenhouse gases under the Clean Air Act. The 53 senators favoring this huge delegation of authority to the executive branch disregarded the principle of separation of powers. The low quality of the debate that preceded the vote, as well as its result, should put an end to the Senate’s reputation as the world’s greatest deliberative body.
The motion being debated and voted on was simple. It was to disapprove the ruling by the EPA, known as the endangerment finding, that greenhouse gases endanger human health and welfare. According to the terms of the Congressional Review Act, under which Sen. Lisa Murkowski, Alaska Republican, brought the motion, the resolution would have terminated the legal force and effect of the finding. It was most assuredly not a vote on the science upon which the EPA based its decision.
Yet this was the prime argument used by the resolution’s opponents. Sen. Barbara Boxer, California Democrat, for example, compared the motion to a vote to repeal the law of gravity. This was possibly the most embarrassing Senate argument since former Sen. Ted Stevens, Alaska Republican, insisted that the Internet was “a series of tubes.” It also set up a straw man. Nothing in the resolution sought to overturn one word of the scientific case for global warming - or even mentioned it.
Another straw-man argument raised to help defeat the motion was that the resolution was a reward to BP and “Big Oil.” But, as with the science, the resolution said nothing about oil companies. If there was a collateral benefit to the oil industry in the form of cost increases avoided, that benefit also would have accrued to soybean farmers, livestock feed producers, mushroom growers, rice farmers, dairymen, sorghum producers, builders, contractors, carpet and rug producers, natural-gas producers, metalworkers and the steel industry. Those are just a few of the trade groups that expressed concern at provisions of the EPA’s rule.
There are two ironies in all this. The first is that most of the people who used this argument actually support another bill, the American Power Act, that literally was drafted in part by BP. Mrs. Boxer ended her speech with a picture of a bird covered in oil - sophistry of which Gorgias would be proud.
Then there was the absurd suggestion, put forth by Sen. Jim Webb, Virginia Democrat, among others, that a vote against the motion was necessary to allow continued progress on fuel economy standards. Yet EPA has had no historical or statutory role in setting CAFE standards, so giving it that authority would usurp the role of the National Highway Transportation Safety Administration (NHTSA). In fact, NHTSA’s general counsel had confirmed before the vote that his agency would continue to set CAFE standards if the resolution passed.
What few of the opposing senators actually addressed, save Mr. Webb, was the constitutional outrage perpetrated by the unelected bureaucrats at the EPA. The agency’s endangerment rule is a textbook example of regulatory overreach. Not only does it impose massive costs on the economy, but it also amounts to the EPA unilaterally rewriting legislation - a power the Constitution reserves to Congress. The EPA’s regulations include a “tailoring rule” that redefines the plain language of the Clean Air Act, an admission that this law serves as an inappropriate basis for regulating carbon-dioxide emissions.
The EPA is now clearly the mightiest agency in government. It has overstepped its bounds to impose its control over the economy - and the Senate has been too craven, feckless, partisan and ideologically blinded to stop it.
Yet all is not lost. The EPA’s power grab still can be stopped. Responsible lawmakers must draw concrete plans now to rein in this rogue agency under a future administration. So, the second irony is that those senators who abrogated their constitutional responsibility by giving more power to the EPA may ultimately be responsible for the agency’s future breakup.
Iain Murray is vice president for strategy at the Competitive Enterprise Institute.