The Volokh Conspiracy - A Carbon Ultimatum?

An editorial in today's WSJ suggests that an Obama Administration will "greenmail" Congress into enacting stringent climate change policies by threatening the imposition of draconian greenhouse controls by the Environmental Protection Agency.

As Barack Obama's energy adviser has now made clear, the would-be President intends to blackmail — or rather, greenmail — Congress into falling in line with his climate agenda.

Jason Grumet is currently executive director of an outfit called the National Commission on Energy Policy and one of Mr. Obama's key policy aides. In an interview last week with Bloomberg, Mr. Grumet said that come January the Environmental Protection Agency "would initiate those rulemakings" that classify carbon as a dangerous pollutant under current clean air laws. That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress. Mr. Grumet warned that "in the absence of Congressional action" 18 months after Mr. Obama's inauguration, the EPA would move ahead with its own unilateral carbon crackdown anyway.

The problem with the WSJ's narrative is that Grumet is describing nothing more than what is legally required as a consequence of the Supreme Court's decision in Massachusetts v. EPA. Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand — and win. The legal argument that the EPA is obligated to control greenhouse gas emissions from new motor vehicles, power plants, and other sources is, at this point, a slam dunk. It does not matter that the existing Act is a particularly poor vehicle for greenhouse gas control, or even (as I believe) that the Supreme Court misread the Act. Those arguments are moot. So, whoever occupies the White House come January, if Congress does not reform the Clean Air Act to address greenhouse gases in a more sensible manner, EPA regulations will follow.

	[Jonathan Adler, October 20, 2008 at 11:10am] Trackbacks A Carbon Ultimatum? An editorial in today's WSJ suggests that an Obama Administration will "greenmail" Congress into enacting stringent climate change policies by threatening the imposition of draconian greenhouse controls by the Environmental Protection Agency. As Barack Obama's energy adviser has now made clear, the would-be President intends to blackmail — or rather, greenmail — Congress into falling in line with his climate agenda. Jason Grumet is currently executive director of an outfit called the National Commission on Energy Policy and one of Mr. Obama's key policy aides. In an interview last week with Bloomberg, Mr. Grumet said that come January the Environmental Protection Agency "would initiate those rulemakings" that classify carbon as a dangerous pollutant under current clean air laws. That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress. Mr. Grumet warned that "in the absence of Congressional action" 18 months after Mr. Obama's inauguration, the EPA would move ahead with its own unilateral carbon crackdown anyway. The problem with the WSJ's narrative is that Grumet is describing nothing more than what is legally required as a consequence of the Supreme Court's decision in Massachusetts v. EPA. Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand — and win. The legal argument that the EPA is obligated to control greenhouse gas emissions from new motor vehicles, power plants, and other sources is, at this point, a slam dunk. It does not matter that the existing Act is a particularly poor vehicle for greenhouse gas control, or even (as I believe) that the Supreme Court misread the Act. Those arguments are moot. So, whoever occupies the White House come January, if Congress does not reform the Clean Air Act to address greenhouse gases in a more sensible manner, EPA regulations will follow.