Bully Boys Waxman and Markey Promote ‘Endangerment’ of Economy, Democracy

by Marlo Lewis, Jr.

This week (March 3, 2010) was the deadline Reps. Henry Waxman (D-CA) and Ed Markey (D-MA) set for Mark Crisson, President and CEO of the American Public Power Association (APPA), to explain why APPA is urging Senators to support Sen. Lisa Murkowski’s Congressional Review Act resolution to veto the EPA’s finding that greenhouse gas emissions endanger public health and welfare. The Senate may vote on the Murkowski resolution as soon as next week.

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Now, aside from the merits of the issue, which I’ll get into in a moment, Waxman and Markey’s behavior is out of line. Waxman and Markey (W/M) are Members of the House of Representatives. What business is it of theirs if the APPA lobbies Senators about a bill pending in the Senate? Senators can conduct their own inquiries without any assistance from W/M. And why didn’t W/M copy Sen. Murkowski or at least Senate Energy Chairman Jeff Bingaman (D-NM) on their Feb. 25 letter to Mr. Crisson? Failure to “cc” any of the principals in the Senate flouts one of the most basic rules of legislative courtesy.

Besides being busybodies, Waxman and Markey are bullies.

In their letter to Crisson, Waxman and Markey demand that he “clarify exactly APPA’s position on EPA’s scientific finding,” and either “provide the scientific basis” for disputing it, or explain why APPA is urging Senators to disapprove the finding if it has no scientific “bases” for disputing it.

There is in fact a strong scientific basis for disputing EPA’s endangerment finding. Peabody Energy presents the evidence in exquisite detail in their petition for a reconsideration of the endangerment finding. The basis that eludes Waxman and Markey may be summarized in one word: Climategate.

EPA’s endangerment finding relies heavily on the UN Intergovernmental Panel on Climate Change (IPCC) reports. Scientists at the heart of the Climategate scandal include several lead authors and contributors to the IPCC reports. They massaged data to produce pre-determined conclusions, ignored data that did not fit into a “nice tidy story line,” conspired to bias the peer-reviewed literature by preventing “skeptics” from publishing, and violated freedom of information laws to prevent critics from checking their data and methods.

These behaviors produced a secretive, agenda-driven process that flouts EPA’s own standards of “transparency and openness,” making the IPCC reports unsuitable as a basis for EPA policy decisions.

However, although the scientific shortcomings of EPA’s endangerment finding are serious, Mr. Crisson need not engage in this debate, because the Murkowski resolution does not take a stand on EPA’s “science” one way or the other.

W/M would like nothing better than to spin the Murkowski resolution as a benighted attempt to determine scientific truth by voting. Ironically, W/M do much the same by continually invoking the alleged “consensus of scientists,” as if a head count could settle scientific controversies. But that’s a topic for another day.

My free (and unsolicited) advice to Mr. Crisson – and anyone else debating opponents of the Murkowski resolution – is to clarify what the resolution is and isn’t. It is not a referendum on EPA’s “science.” Rather, it is a referendum on whether bureaucrats with a vested interest in expanding their power, aided and abetted by trial lawyers and eco-pressure groups with no political accountability to the American people, should make climate and energy policy for the nation. It is a referendum on the constitutional propriety of EPA dealing itself into a position to implement regulatory policies Congress never approved when it enacted and amended the Clean Air Act.

A bit of background is in order here. If allowed to stand, the endangerment finding will compel EPA to establish greenhouse gas (GHG) emission standards for new motor vehicles. That, in turn, will automatically make carbon dioxide (CO2) “subject to regulation” under the Clean Air Act’s pre-construction and operating permit programs. As even EPA acknowledges, stretching those programs to include CO2 would lead to “absurd results” manifestly contrary to congressional intent.

For example, EPA would have to apply pre-construction permitting requirements to tens of thousands of previously non-regulated small business, and operating permit requirements to millions. The permitting programs would crash under the own weight, freezing construction activity and thrusting countless businesses into legal limbo during the worst recession in 50 years.

The endangerment finding is also precedent for economy-wide regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program. Logically, EPA would have to set the NAAQS for CO2 below current atmospheric levels. Even a global depression lasting several decades would not be enough to bring America (and the world) into attainment with such a standard, yet the Clean Air Act obligates states to attain “primary” (health-based) NAAQS within five or at most 10 years.

To have its cake and eat it (regulate CO2 without hammering small business and igniting a political backlash), EPA proposes in its Tailoring Rule to exempt small sources of CO2 from the permitting programs. This breach of the separation of powers may or may not survive judicial scrutiny. But even if it does, EPA’s proposed small business protections would terminate in six years. Moreover, the Tailoring Rule in no way reduces the threat of NAAQS regulation. The Murkowski resolution, on the other hand, would nip all this mischief in the bud.

How? The Murkowski resolution would veto the endangerment finding’s “legal force and effect.” And that is all it would do. It takes absolutely no position on the scientific validity of EPA’s reasoning or conclusions, as anyone can see who actually takes the trouble to read the text, which is only one sentence long.

And, just in case you’re wondering, Sen. Murkowski is not a global warming skeptic, nor is she opposed in principle to greenhouse gas regulation. She simply believes that climate policy is too important to be made by anyone except the people’s elected representatives.

It is thus a complete misunderstanding to claim, as Sen. Barbara Boxer (D-CA) and others do, that the Murkowski amendment is equivalent to Congress voting to overturn the Surgeon General’s report in 1964 finding that cigarette smoking causes cancer. The Surgeon General’s report was simply that – an assessment of the scientific literature. It had zero legal force or effect. In fact, the Surgeon General proposed no remedies at all. It was Congress, not the Surgeon General or any executive agency that, in 1965, required cigarette packages to carry a health warning, and that later prohibited cigarette advertising on television and radio.

If the endangerment finding were simply an assessment of the scientific literature, the Senate would have no business voting on it. But it is much more than that. It is the setup for EPA to take control of vast portions of the economy. It is the trigger for a cascade of regulations potentially more costly than any climate bill or treaty Congress has considered and either rejected or declined to enact or ratify.

W/M need to chill. Whether anyone – the APPA, other trade associations, or Members of Congress – agrees or disagrees with EPA’s “science” is irrelevant. Do W/M support politically accountable policymaking or bureaucratic end runs around the democratic process? Do they think EPA should be allowed to amend the Clean Air Act and violate the separation of powers to avoid the political fallout from regulatory excesses (“absurd results”) that the agency’s “science” would unleash on the American economy?

Finally, do W/M favor establishing NAAQS for CO2?  If not, just how do they propose to avoid this “absurd result” if the endangerment finding is allowed to stand?

Too bad W/M get to ask all the questions and don’t have to answer any. Their questions are designed to bully and intimidate – and distract public attention from serious threats to our economy and our democracy, threats the Murkowski resolution would remove.


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Posted Mar 5th 2010 at 9:51 am in Congress, Environment, News, Politics | 147 Comments