Posted by: bmeverett | April 15, 2010

The Danger of Endangerment


On December 7, 2009 (rather ironically Pearl Harbor Day), EPA Administrator Lisa Jackson issued a formal “endangerment finding” regarding greenhouse gas emissions from motor vehicles. This finding gives the EPA almost unlimited powers to regulate automobiles. It also gives us good reason to worry about the danger of irresponsible politicians and the importance of restoring the concept of limited government.

Ms. Jackson’s finding was made under Section 202 Part A of the Clean Air Act. The specific language of the law reads as follows:

(1) The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.

The finding follows an April 2, 2007 Supreme Court decision (Massachusetts v. EPA, 549 U.S. 497 (2007)) that greenhouse gases are covered by the Clean Air Act. The Supremes’ decision in no way implies that greenhouse gases must be regulated, only that they can be regulated if the Administrator makes an endangerment finding.

The text of the Clean Air Act says the Administrate should regulate emissions which endanger the public “in his judgment”. Granting such discretion to an appointed official is fraught with peril. The Clean Air Act has been quite effective in improving air quality in the United States over the past few decades. Its success, however, has depended critically on one other critical word in the text: reasonably. EPA Administrators have applied the law when the public health impacts were clear, the cost-benefit calculation clearly positive and the public supportive. That’s what “reasonable” means to most of us. What happens, however, when the Administrator’s judgment does not meet the test of reasonability? The answer is that we have a big problem.

Let’s take as an analogy speed limits. In Massachusetts, for example, the law is clear that speed limits on roads are upper limits to how fast you can drive. The Massachusetts State Police advises drivers that:

The fundamental speed law for motor vehicles is that you must never travel faster than is reasonable and proper for the current conditions and public safety. Regardless of what a posted speed limit sign says, how fast you ride must depend on several factors:
• Traffic conditions
• Road conditions
• Weather conditions and visibility
• Pedestrians or bicyclists

The state police have considerable discretion in applying this law. If you are driving 65 miles an hour on the Massachusetts Turnpike on an icy road in the middle of a blizzard, a state trooper can give you a speeding ticket, and the court will uphold it. People generally understand this situation, and there isn’t much controversy around it.

What would happen if a radical Massachusetts Governor appointed the head of Greenpeace as Commander of the State Police, and the new Commander decided that all highway driving is inherently dangerous and instructed state troopers to ticket any car driving more than 20 mph on the turnpike or traveling closer than 20 car lengths behind the car in front? The Massachusetts transportation system would come to a screeching halt.

It would be interesting to see what the courts would do with this situation. If the courts upheld the Commander’s actions, it’s pretty clear that the people of Massachusetts would be up in arms (again) and would have one of two choices. The first would be to demand that legislators rewrite the law to limit the Commander’s discretion or to specify how speed limits are to be set in more detail. It would be hard to accomplish this, however, in the face of an official who was bound and determined to shut down the transportation system and would look diligently for any loophole in the law. The second approach would be to vote out the Governor who appointed this individual and try to restore more reasonable people to positions of public trust.

Administrator Jackson’s endangerment finding isn’t quite this radical, but it’s a troubling step in that direction. Her support for the endangerment finding (which you can find at http://www.epa.gov/climatechange/endangerment/downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf) was accompanied by a technical support document ( http://www.epa.gov/climatechange/endangerment/downloads/Endangerment%20TSD.pdf) explaining her rationale. The arguments are nearly verbatim quotes from the 2007 Assessment Report by the UN Intergovernmental Panel on Climate Change. The IPCC work is, to say the very least, controversial. To see why, please review my many past postings on this issue. Ms. Jackson is using an unscientific advocacy document as justification for a massive expansion of bureaucratic power by the federal government. This finding is not only a potentially serious blow to the economy, but a major step backward in the proper use of science in government policy-making. I have no idea how the courts will respond to the lawsuits against the endangerment finding, but Ms. Jackson’s action won’t meet any test of “reasonableness” that I can craft.

If this decision is allowed to stand, we will move one major step closer to the unlimited power that many people (including President Obama and our dear friend Tom Friedman) seem to think is necessary to solve the problems of the 21st century. Limited government was a good idea when the Founding Fathers articulated it over 200 years ago. It’s still a good idea. Perhaps we should ask students to read The Federalist Papers. We might rescue the situation yet.

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