Congress should finish what the Environmental Protection Agency has begun by proposing repeal of the US Clean Power Plan.
EPA Administrator Scott Pruitt on Oct. 10 issued a notice of proposed rulemaking asserting that the crackdown on greenhouse-gas emissions by power plants exceeds the agency's authority and costs too much. On the first point, he's probably right. In February 2016, the US Supreme Court suspended implementation of the program until it could rule on a legal challenge. Its unusual move hinted strongly toward doubt about the CPP's legality.
Right on cost
Concerning cost, Pruitt is certainly right. An agency press statement says CPP repeal "saves up to $33 billion in avoided costs in 2030." Supporters of the program will dispute that figure, of course. But the dollar amount is less important than inescapable logic: A government cannot force expensive energy to replace the affordable kind without raising costs. And with the CPP, the administration of former President Barack Obama wanted the replacement energy to come from the sun and wind, the intermittency of which complicates grid management. Under the CPP, individual and business consumers would experience rising rates for electricity of diminishing reliability.
Worse, they had almost no role in the decision-making. The CPP set greenhouse-gas emission targets for states that generally required the replacement of coal by natural gas and, eventually, renewable sources in power generation. The federal government thus intruded into regulatory matters hitherto handled by state and municipal governments and substituted itself for individuals in choices about energy. The CPP represented a federal grab for control over an important part of the economy that was certain to create hardship for energy users. And no one voted about it-until last November.
The EPA under Pruitt acted properly in redressing an expansionist mistake with ominous implications for oil and gas. Congress now should ensure it never happens again.
The Obama EPA claimed authority to regulate GHGs nationwide under a section of the Clean Air Act limited, until then, to individual projects. The new EPA cites that departure from traditional interpretation of the law as the legal basis for repeal. It also notes ways the Obama team skewed CPP cost-benefit estimates, such as by comparing US costs of GHG mitigation to supposed global benefits, inflating benefits by including estimated cuts in non-GHG emissions, and treating energy efficiency as an avoided cost.
That's not the full extent of the watery legal cement in which Obama's EPA founded the CPP. The question whether the Clean Air Act even applies to GHGs required a Supreme Court case to answer. The affirmative decision, rendered in 2007, classically illustrates why science and jurisprudence make clumsy partners. It had the effect of declaring carbon dioxide, a trace gas essential to life, to be an air pollutant because it contributes to warming of the atmosphere. Legally, equating CO2 with ozone or sulfur dioxide might make sense; scientifically, it does not. But the ruling compelled Clean Air Act regulation of GHGs if EPA found the gases endangered public health, which it did soon after Obama took office.
Polarized debate
Congress needs to fix this. Lawmakers won't want to reopen the fiercely polarized debate over the extent and nature of the global-warming hazard-especially those doubting that the threat is dire but knowing their morals will be challenged if they raise questions. But the discussion, scandalously repressed so far, has to happen. And it should occur among representatives elected by Americans whose liberty and economic interests are in play. The appropriate venue is neither the courts nor the EPA. It's Congress.
The question isn't difficult. Is it the wish of the Legislative Branch that the Clean Air Act enable the Executive Branch to control electricity regulation and energy choice and to burden energy users with costs and service disruptions in the uncertain hope that the sacrifices meaningfully can abate atmospheric warming? Answers would reveal how lawmakers view the institution they serve.
