More on Global Warming: What’s Law Got To Do With It?

Just out from the Brookings Institution: Philip Wallach’s white paper on the past, present, and future of global warming regulation. My earlier account of pending litigation appears here; Philip Wallach (disclosure: a former research assistant to your truly) describes how it came to pass that the EPA regulates greenhouse gases (GHGs) purportedly under but actually in the teeth of the Clean Air Act.

“The administrative state” used  to mean a form of government that features constitutionally unprovided-for agencies with regulatory (i.e. rulemaking) authority. Now, it appears that those agencies govern us with essentially no statutory authority and effectively no supervision. The Supreme Court and the D.C. Circuit have been in partners in, not checks on, the EPA’s greenhouse campaign. And Congress, after the failure of cap-and-trade legislation, has gone AWOL.

Mr. Wallach shows that the EPA’s program is carefully crafted to keep it that way, by steering clear of consequences and constituencies that might awaken the legislature.  For example, the EPA’s rules for new stationary sources effectively prohibit the construction of coal-fired power plants. The agency can afford to do this because cheap natural gas would beat out coal even without CO2 regulation.  Similarly, the EPA has refrained from taking steps that would compel it to set national air quality standards for CO2, which in turn would compel state implementation plans for a global pollutant. It is not at all clear that the Clean Air actually grants EPA the discretion to avoid these absurd steps, but the notion that law has anything to do with environmental regulation has long become quaint.

Philip Wallach contemplates (unlikely but conceivable) scenarios that might prompt Congress to replace the EPA’s rickety regime with a more efficient and legislatively sanctioned carbon tax, perhaps as a part of a comprehensive deficit reduction plan. I shudder at the thought. Congress will never displace the EPA’s rickety scheme and expropriate the multiple rent-seekers that have already locked themselves into it; it would simply pile a tax on top of that scheme. Nor would the tax look anything like the elegant lines economists draw on their blackboards; it would look like the actual tax code, with exemptions and favors and penalties as far as the eye can see.

Yes, the EPA’s GHG program is lawless; and yes, it is a colossal waste of money, for no discernible environmental benefit. Compared to the alternative, it’s still a bargain.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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  1. Bill Westmiller says

    The GHG program isn’t lawless, since Congress passed the law authorizing their “mission” and extreme discretion. They will not eliminate it, simply because they could never hope to seriously consider the merits of all the relevant regulations to impliment the policy they adopted. It is an unmanageable law, no matter who tries to execute it.
    However, the EPA itself is “lawless” in the sense that it is unconstitutional: it isn’t among the enumerated powers of Congress to create such an entity. However, even more important, nothing in the Constitution allows Congress to delegate its law-making powers to any other entity or branch.

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