EPA's Legislative End-run Strategy

Michael Sykuta —  7 December 2009

Apparently the Obama administration is not very confident about getting its environmental climate change agenda passed through Congress. Given a legislative “solution” is off the table, at least for the foreseeable future, perhaps it is not surprising that today the EPA announced it’s ruling that greenhouse gases are “a danger to public health and welfare“.

By making it’s declaration, the EPA has unilaterally claimed authority over regulating greenhouse gas emissions (under the auspices of the Clean Air Act) without worrying about legislative approval. After all, why bother waiting for the elected representatives of the citizenry to grant authority that can be obtained by administrative fiat? Instead, claim the authority and risk Congress being able to muster enough votes to overturn the decision.  The checks-and-balances version of the old adage: better to ask forgiveness than permission.

To be fair, the US Supreme Court opened the door for the EPA to make this move in its decision in Massachusetts v. EPA (549 U.S. 497 (2007)), a door the Obama administration was all to happy to run through. There is no little irony in the fact that the Court’s majority relied heavily on a report by the UN’s Intergovernmental Panel on Climate Change (IPCC); a report that has been criticized by the scientific community (for example, see here or here–referred by my Nobel-winning atmospheric science colleague Tony Lupo ), and a report which, according to recently-revealed emails between IPCC proponents, intentionally squelched opposing voices.

Although the EPA’s ruling is immediately aimed at increasing fuel economy standards for new cars and light-weight trucks, the broad-sweeping pronouncement that greenhouse gases (presumably of all sorts and from all sources) are a “danger to public health and welfare” portends a much more expansive role for EPA to regulate virtually any greenhouse gas-producing activity…a regulatory reach that would seem unprecedented, and all without so much as a debate in Congress.

But breathe easy…the EPA has already stated it is not concerned about the greenhouse gases produced simply by humans breathing.

2 responses to EPA's Legislative End-run Strategy


    I don’t know that it’s really an alternate perspective so much as an affirmation. By threatening the use (abuse?) of its newly claimed power to unilaterally impose regulations, the administration gains a strong political club to beat Congress into submission, or at least to prod Congress to pass something they would not otherwise pass.

    Such use of the ‘bully pulpit’ of the White House is nothing new…but there is a huge difference between appealing to the electorate to force Congressional action on their behalf and extorting action by unilaterally claiming expansive powers to impose onerous regulations on the electorate and the economy.


    Check out this alternative perspective. Maybe is Obama is crafty (and legislative) like a fox.