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ABSURD RESULTS
October 5, 2009

Posted by David Lungren David_Lungren@epw.senate.gov

EPW POLICY BEAT: ABSURD RESULTS

In EPA's proposal to "tailor" greenhouse gas regulation under the Clean Air Act, one senses real panic over a perplexing and overwhelming post-Massachusetts world.  "In short, without this tailoring rule," EPA warns, "the administrative burdens would be immense, and [the Title V and PSD programs] would immediately and completely overwhelm the permitting authorities."  As it turns out, regulating greenhouse gases under the Clean Air Act isn't so easy.  This is not the fault of Justice Kennedy and the liberal bloc of the Supreme Court.  EPA has chosen its path.  Now EPA is looking for a way out.  Its solution is to evade the law.

The Act's pre-construction program for stationary sources covers major sources that emit 100 or 250 tons (depending on who's emitting) of regulated pollutants.  That limit was designed for conventional pollutants (sulfur dioxide, nitrogen oxides).  But applying it to CO2 means even the local mom and pop operation could be covered.  So EPA now says that anyone emitting less than 25,000 tons of GHG annually is exempt, for a time.  This is due, EPA pleads, to administrative necessity-again, because of permit pandemonium. 

EPA also invokes the legal doctrine of "absurd results," which, as the agency explains, "authorizes departure from a literal application of statutory provisions if it would produce a result that is inconsistent with other statutory provisions or congressional intent."  But the "absurd results" justification won't hold.  In Crooks v. Harrelson, the Supreme Court articulated the standard for deviating from the law. "To justify departure from the letter of an Act of Congress as leading to absurd results," the Court ruled, "the absurdity must be so gross as to shock the general moral or common sense; there must be something to make plain the intent of Congress that the letter shall not prevail; it is not enough merely that hard and objectionable or absurd consequences, which probably were not in the contemplation of the framers, are produced by the act of legislation."

This is a high bar.  Of course Congress never intended to regulate carbon in the first place.  But the Supreme Court declared CO2 a pollutant, and EPA plans to say CO2 emissions from cars endanger public health and welfare.  This will make greenhouse gases pollutants "subject to regulation under the Act," a legal term of art meaning millions of small sources will be required to obtain pre-construction permits for new projects (try building that Big Box store now) or modifications at existing sites (schools, hospitals, mid-size apartment buildings), as well as new operating permits.  EPA writes that, "state permitting authorities would be paralyzed by enormous numbers of these permit applications; the numbers are orders of magnitude greater than the current inventory of permits and would vastly exceed the current administrative resources of the permitting authorities." 

It gets worse.  "Without this tailoring rule," EPA warns, "permitting authorities would receive approximately 40,000 PSD permit applications each year-currently, they receive approximately 300-and they would be required to issue title V permits for approximately some six million sources-currently, their title V inventory is some 15,000 sources."

Certainly this "absurdity" won't "shock" the "common sense" of some environmental groups, who have vowed to sue.  They think it makes perfect sense.  And the DC Circuit will likely agree.  And when they win, the impact of the Administration's backdoor energy tax will be felt widely. 

Again, this mess was caused by the Administration.  It could have been avoided.  So now the Administration is intimidating Congress to pass cap-and-trade legislation-or else.  Yet the Waxman-Markey and Kerry-Boxer bills would do little to stop this "glorious mess." The solution to this glorious mess is not cap-and-trade legislation, especially not of the Massachusetts-California variety.  If someone is drowning, you don't throw them into the fire.  The only solution is for Congress to stop it. 

Related:

Wall Street Journal: The 'Absurd Results' Doctrine

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