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Cuccinelli's lawsuit takes on Obama, the EPA

March 1, 2010 12:36 am

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WASHINGTON

--The Environmental Protection Agency's mission is to protect humans and the environment. But who protects humans from the EPA?

The answer, in part, is Virginia Attorney General Ken Cuccinelli, who filed a lawsuit recently to block an unprecedented power grab by President Barack Obama's EPA. He wasn't the only one to challenge the EPA. Texas, Alabama, and a number of other organizations in the private and nonprofit sectors of the economy, including my think tank, the Competitive Enterprise Institute, filed similar suits last week.

The subject of all this litigation is the EPA's economically disastrous decision to use the Clean Air Act to regulate greenhouse gases thought to cause climate change. The Clean Air Act was written 40 years ago in order to fight smog, not global warming, so it is wholly unsuitable as a climate policy. While an industrial smog polluter emits hundreds of tons in a year, even a moderately sized building can emit an equivalent quantity of greenhouse gases. If the Clean Air Act were to apply literally to greenhouse gases, then virtually every mansion, apartment, and office would become subject to Environmental Protection Agency inspectors.

It would be a nightmare, which helps explain why members of Congress never have voted to subject greenhouse gases to the Clean Air Act. The Supreme Court, however, narrowly determined in 2007 (Massachusetts v. EPA) that the Clean Air Act could be used to regulate greenhouse gases, even though Michigan Rep. John Dingell, an author of the Clean Air Act, said that, "This [regulating greenhouse gases] is not what was intended by the Congress."

The Supreme Court ruled that the EPA could regulate greenhouse gases, not that the EPA must regulate, and the distinction is important. Former President George W. Bush's administration had the good sense to let sleeping dogs lie. President Obama, on the other hand, thought he could leverage the Supreme Court's decision. He had campaigned on a promise to deliver a "cap-and-trade" program to reduce greenhouse gas emissions, but he is having trouble getting it through Congress.

So the president devised a high-stakes game of chicken: He is threatening to unleash the EPA in order to coerce climate legislation out of Congress.

Obama is playing brinksmanship with the American economy, and Virginia Attorney General Ken Cuccinelli is suing the EPA to disarm the president's weapon of mass-economic destruction. Among other things, the lawsuit alleges that the EPA acted illegally by relying on shoddy science.

In determining that greenhouse gases are subject to the Clean Air Act, the EPA borrowed much of its reasoning from science assessment reports produced by the United Nations Intergovernmental Panel on Climate Change, aka, the scientific consensus. Recent events, however, cast suspicion on science as practiced by the IPCC.

About a month ago, it was revealed that the IPCC grossly overestimated the rate of glacier melt in the Himalayas. Other exaggerations soon were found in the IPCC's work, including alarmist claims about the North African food production, sea level rise, and hurricane activity. Then it came to light that IPCC regularly used press releases from environmentalist advocacy organizations as source material, which is scientifically dubious.

The IPCC has been further tainted by the so-called Climategate scandal, the public disclosure of thousands of e-mails from several high-profile climate scientists, many of whom authored IPCC reports. The correspondence shed an unseemly light on the "scientific consensus" on global warming. In the e-mails, the climate scientists colluded to keep skeptical viewpoints out of peer-reviewed literature and they maneuvered to avoid freedom of information laws in the United Kingdom.

The scandal continues to metastasize. A few weeks ago, Phil Jones, formerly the chief of the Climate Research Unit at the University of East Anglia and a central player in the Climategate imbroglio, admitted that there hasn't been a statistically significant increase in global temperatures since 1995. That's an important concession, and the EPA should take note before it tries to shackle the American economy in order to stop a nonexistent planetary warming.

In the near future, a three-judge panel will order the consolidation of the separate but similar lawsuits against the EPA brought by Virginia, Texas, Alabama, and others. Then the cases will proceed. The stakes could not be higher--an unprecedented regulatory assault by the EPA hangs in the balance.

William Yeatman is an energy policy analyst at the Competitive Enterprise Institute.





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