The Supreme Court this week admonished the Environmental Protection Agency for overreaching in regulating greenhouse gases. The Clean Air Act covers polluters that emit 250 tons per year (or in some cases, 100 tons). This standard makes no sense if applied to greenhouse gases. Thousands of establishments from elementary schools to grocery stores would be, absurdly, covered. So the EPA arbitrarily chose 100,000 tons as the carbon dioxide threshold.
Thatís not ďtailoring,Ē ruled the Supreme Court. Thatís rewriting. Under our Constitution, ďan agency has no power to Ďtailorí legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.Ē
It was a welcome constitutional lesson in restraint, noted The Wall Street Journal. One would think that an administration so chastened might reconsider its determination to shift regulation of the nationís power generation to Washington through new CO2 rules under the Clean Air Act.
But this administration does not learn constitutional lessons. It continues marching until it meets resistance. It hasnít met nearly enough.
The root problem is that the Clean Air Act, passed in 1970, was never intended for greenhouse gases. You can see it in its regulatory thresholds which, if applied to CO2, are ridiculously low. Moreover, when the law was written, we hadnít yet even had the global cooling agitation of the 1970s, let alone the global warming panic of today.
But with only two of nine justices prepared to overturn the courtís 2007 ruling that shoehorns greenhouse gases into the Clean Air Act, the remedy falls to Congress. It could easily put an end to all this judicial parsing and bureaucratic mischief with a one-line statute saying that the Clean Air Act does not apply to CO2 emissions.
Congress can then set about regulating greenhouse gases as it wishes, rather than leaving it to the tender arbitrary mercies of judges and bureaucrats. Otherwise, we will soon have the EPA unilaterally creating a cap-and-trade regime that will make its administrator czar of all power regulation in every state.
Of course, a similar scheme failed to pass a Democratic Congress in 2010. Our president doesnít let such niceties stand in his way, however. He has an agenda to enact, boldly enunciated in his Feb. 24, 2009 address to Congress promising to transform America in three areas: health care, education and energy. Education lags, but heís now on the verge of centralizing energy regulation in Washington through naked executive action, having already succeeded in centralizing health care in Washington through the Affordable Care Act.
Charles Krauthammer writes for The Washington Post.