For years Congress has struggled to pass legislation to regulate carbon dioxide emissions because Americans know that the regulation of carbon dioxide emission is a tax on energy. Today, the Obama Administration is pushing a new scheme that would create regulations so burdensome that Congress is forced to pass a cap-and-trade bill to reduce the economic pain caused by the regulations. The Administration admits their plan will harm the economy, but they are using it as a threat in order to urge Congress to pass their proposal to tax and regulate energy use.

The Administration’s Plan to Coerce Congress to Pass Cap-and-Trade—Force Congress to Rescue the Economy from the Administration’s Heavy-Handed, Command-and-Control Regulations

During the Presidential campaign Obama’s advisors promised to have the Environmental Protection Agency (EPA) regulate carbon dioxide. Today, the President made good on that promise and EPA published a rule in the Federal Register regulating carbon dioxide and greenhouse gases by declaring that these gases “endanger public health or welfare.” (This is why it is called the “endangerment finding” because EPA is finding that greenhouse gases “endanger public health and welfare.”) This announcement was timed to coincide with the opening of the United Nations Climate Change Conference in Copenhagen.

Last week, a top White House economic official explained the Administration’s cynical strategy to reporters:

“If you don’t pass this legislation, then … the EPA is going to have to regulate in this area,” the official said. ”And it is not going to be able to regulate in a market-based way, so it’s going to have to regulate in a command-and-control way, which will probably generate even more uncertainty.”

In other words, the Administration realizes that these regulations will harm the economy, but is trying to push Congress to pass a law they say will reduce the harm. Amazingly, a week and a half after holding a summit to discuss how to create jobs, the Administration is promoting a policy that it admits will harm job prospects. As one news report stated, a White House “official warned that the kind of ‘uncertainty’ generated by unilateral EPA action would be a huge ‘deterrent to investment,’ in an economy already desperate for jobs.” The Administration was acting, in the words of another newspaper writer, like Tony Soprano saying essentially, “Nice economy you got there, Congress. Now either youze guys pass da capntrade deal or my associate here, Ms. Jackson, breaks its legs.”

EPA Was Not Forced to Regulate Greenhouse Gases

The endangerment finding is a response to the Supreme Court’s decision in Massachusetts v. EPA. That decision required EPA to make a finding, but it did not require EPA to find that greenhouse gases endanger human health and welfare. As the Supreme Court explained, “We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. We hold only that EPA must ground its reasons for action or inaction in the statute.”[1]

What’s really disingenuous about the Administration’s ploy is that even if the Senate had already passed the Kerry-Boxer cap and tax bill, the Supreme Court decision would still stand, meaning the EPA would still have to determine whether CO2 endangers public health and welfare

Thus the entire premise of the Administration’s claim that Congress must pass a bill because if they don’t “EPA is going to have to regulate in this area” is bogus. Whether or not Congress passed a cap-and-trade bill, the Supreme Court ruling required EPA to either reject or issue an endangerment finding.

Command-and-Control versus “Market-Based” Approach

EPA’s threat is misleading in yet another way. By contrasting a top-down regulatory approach with the ostensibly market-based approach of cap-and-trade, one is led to the assumption that the Waxman-Markey and Kerry-Boxer bills simply augment the market price of carbon to reflect the alleged “social cost of carbon” and then let the magic of the market take control.

This is nonsense. In the first place, IER has already demonstrated the tremendous thicket of command-and-control regulations in Waxman-Markey besides its cap-and-trade program. To contrast EPA’s admittedly top-down, command-and-control-style approach with the climate bills in Congress is a false dichotomy. They are both command-and-control.

Second, even the cap-and-trade programs in Waxman-Markey and Kerry-Boxer are not what environmental economists would have recommended to correct the “externality” of possible future climate damages. Many (perhaps most) economists who actually publish academic articles on the issue think that if the government is going to take “market-based” action, it should set a straightforward carbon tax and use the proceeds to reduce other taxes. Failing that, they would argue that the government should implement a cap-and-trade program with full auctioning of permits, and then use the receipts to reduce other taxes. No academic economist endorses the hodge-podge of allowance handouts, “offsets,” and subsidies to various “green” recipients contained in the two pending bills. The only way to justify them is to say “that’s how politics works.”

Follow the Money

So, if the Obama Administration wasn’t legally required to issue regulations but did so—knowing full well they would be harmful to jobs and the economy—why did they do it? The answer is simple—to force Congress to enact the policies the White House really wants: cap-and-trade—and the money that goes along with it. Regulation by EPA only gives the Administration regulatory authority over 85 percent of our energy use (energy from coal, oil, and natural gas) but there is no real revenue increase for the federal government. Cap-and-trade provides huge revenue increases to the federal government. The Administration’s proposed budget called for raising $646 billion in new fees from cap-and-trade between 2012 and 2019. A senior aide later admitted the number could be 2 to 3 times that much, or $1.3 to $1.9 trillion. That makes it the largest tax increase in world history. And this tax will only go up over time as emissions prices go up.

Legislative proposals such as the Waxman-Markey bill and the Kerry-Boxer bill do not raise as much revenue for the federal government as Obama’s budget proposal, but instead the bills redistribute trillions of dollars to preferred interest groups. Under EPA regulation, the government cannot collect taxes or sell credits for carbon dioxide. Under the cap-and-trade plan, it makes out like a bandit and gets to choose economic winners and losers. Government power and money would increase, paid for with the people’s economic liberties.

< p>Conclusion

The Supreme Court did not require EPA to find that greenhouse gases endanger public health and welfare. The Obama Administration chose to make that finding, even though it understands that EPA regulations would be very harmful to a struggling economy. Now the Administration is trying to leverage the harm they have created to force Congress to pass the largest tax increase in the history. We should reject this cynical strategy. Instead of passing legislation to regulate greenhouse gases, Congress could restore the original intent of the Clean Air Act by removing EPA’s ability to regulate greenhouse gases under the Clean Air Act. Those actions would protect the American people from the Administration’s economically harmful regulations.



[1] 549 U.S. 497, 533–34 (2007).

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