Halt­ing the EPA’s power grab

Amer­ica’s en­ergy fu­ture is threat­ened by out-of-con­trol bu­reau­crats

The Washington Times Weekly - - Editorials -

Amer­ica is the land of the free, but en­vi­ron­men­tal­ists are determined to rule the air. The En­vi­ron­men­tal Pro­tec­tion Agency per­sists with ex­pen­sive and un­nec­es­sary schemes to reg­u­late harm­less car­bon diox­ide — the stuff we and the plants breathe — and sev­eral en­ergy com­pa­nies and coal-pro­duc­ing states are mak­ing a fi­nal ap­peal to the courts to halt a de­lib­er­ate at­tempt to seize author­ity the EPA was never meant to have.

A three-judge panel of the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit will hear a pe­ti­tion Thurs­day from 15 states, mostly in the Mid­west and the East, that would feel the im­pact of the EPA’s pro­posed Clean Power Plan to re­duce car­bon diox­ide emis­sions 30 per­cent be­low 2005 lev­els by 2030 as a fa­vor to the global “green” lobby. (Plants, which must have th­ese “harm­ful” emis­sions to sur­vive, would not be pleased).

The plain­tiffs are ask­ing the court to is­sue an “ex­tra­or­di­nary writ” to halt the agency’s im­ple­men­ta­tion of the new air-qual­ity stan­dards, which would force the shut­ter­ing of coal-fired power plants un­able af­ford the nec­es­sary tech­no­log­i­cal up­grades. The EPA scheme would pave the way for a ma­jor con­ver­sion to un­re­li­able wind, so­lar and other forms of re­new­able en­ergy so beloved by the en­vi­ron­men­tal left. The Amer­i­can con­sumer would pay bil­lions of dol­lars more for the elec­tric­ity.

If the court rules for the EPA, the Con­sti­tu­tion gets fur­ther shred­ding. “It is a re­mark­able ex­am­ple of ex­ec­u­tive over­reach and an ad­min­is­tra­tive agency’s as­ser­tion of power be­yond its statu­tory author­ity,” says Lau­rence Tribe, the lawyer for the plain­tiffs. “In­deed, the Pro­posed Rule raises se­ri­ous con­sti­tu­tional ques­tions.” Th­ese are the words of the man who tried to teach con­sti­tu­tional law to Barack Obama at Har­vard. He is the lawyer in this case for the Pe­abody En­ergy Corp.

Mr. Tribe ob­serves that by the agency’s own reckoning, the rule would elim­i­nate the burning of coal for elec­tric­ity gen­er­a­tion in 12 states. Such dras­tic mea­sures are the re­sult of the agency seiz­ing author­ity based on an ob­scure sec­tion of the 1990 Clean Air Act. The plain­tiffs say the act al­lows the EPA to reg­u­late sta­tion­ary sources of car­bon diox­ide; the EPA ar­gues it is au­tho­rized to reg­u­late both source and emis­sion, adding mus­cle to schemes to dras­ti­cally cut car­bon diox­ide na­tion­wide. That, Mr. Tribe says, is over­reach — ap­pro­pri­at­ing power and author­ity rightly be­long­ing to Congress.

The pres­i­dent’s knowl­edge of con­sti­tu­tional law sug­gests he stud­ied the found­ing doc­u­ment only to learn how to sub­vert it. He might flunk Mr. Tribe’s course now.

The En­vi­ron­men­tal Pro­tec­tion Agency was cre­ated to pro­tect hu­man health by pre­serv­ing or restor­ing the nat­u­ral en­vi­ron­ment. It was never meant to metas­ta­size into a po­lice force of 16,000 agents to peer into ev­ery home and shop in search of crimes against na­ture. Global en­vi­ron­men­tal­ists in­tent on re­plant­ing the Gar­den of Eden, free of the mod­ern, will ap­plaud the EPA — un­til they get a painful re­minder that life in a state of na­ture, as Thomas Hobbes de­scribed it, is “nasty, brutish and short.”

As overzeal­ous reg­u­la­tors build legal ed­i­fices to reach for the heav­ens, the ju­di­ciary must bring them back to earth. The court should still the EPA’s over­reach­ing hand and en­able the states to de­cide how best to bal­ance the need for a clean en­vi­ron­ment with the ne­ces­sity of pro­vid­ing elec­tric­ity for homes and busi­nesses. That would be the needed breath of fresh air.

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