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Senate showdown over EPA power grab; Update: Murkowski resolution fails, 47-53

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By Michelle Malkin  •  June 10, 2010 09:54 AM

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I’m still on my family vacation, but wanted to pop in to spotlight today’s important Senate battle over the EPA war on carbon. It’s a subject we’ve covered here over the past year (reminders here and here that opposition to the Obama regulatory power grab is crossing party lines).

The Hill reports on Senate Democrats scrambling to control the damage:

Democratic leaders are scrambling to prevent the Senate from delivering a stinging slap to President Barack Obama on climate change.

They have offered a vote on a bill they dislike in the hopes of avoiding a loss on legislation Obama hates.

The president is threatening to veto a resolution from Sen. Lisa Murkowski (R-Alaska) that would ban the Environmental Protection Agency (EPA) from regulating carbon emissions.

But if the president were forced to use his veto to prevent legislation emerging from a Congress in which his own party enjoys substantial majorities, it would be a humiliation for him and for Democrats on Capitol Hill.

The Senate GOP conference blasted the economic impact of the EPA overreach:

More info and ways to get involved at Freedom Action.

Freedom Action urges Senators to vote Yes on Thursday on S.J. Res. 26, Senator Lisa Murkowski’s Resolution of Disapproval of the Environmental Protection Agency’s Endangerment Finding. Senate passage of the Murkowski Resolution will be the first step in stopping EPA from using the Clean Air Act to regulate the economy into stagnation. This is a key vote that will have a major impact on Americans’ future living standards.

Senators who vote No on the Murkowski Resolution are voting for a regulatory train wreck that will result in much higher energy prices, less money in consumers’ pockets to spend on other things, and lost jobs in manufacturing industries that will lose competitiveness from higher energy costs. It is therefore critically important for the Senate to pass the Murkowski Resolution on Thursday and begin the process of taking back Congress’s authority from an out-of-control EPA.

As I’ve noted before, it’s the Obama eco-appartchiks who are the real public danger and whose regulatory emissions must be contained.

***

Flashback: EPA plays hide and seek; suppressed report revealed
Related: EPA lawyers: Cap-and-trade bill is “fatally flawed”

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GOP Sen. James Inhofe:

The debate over the Murkowski resolution began even before the resolution was introduced in January. It really began 11 years ago, when the International Center for Technology Assessment, along with 18 other organizations, petitioned EPA to regulate greenhouse gases from cars and trucks under the Clean Air Act.

That petition went to then-EPA Administrator Carol Browner, but she never acted on it. And that was really no surprise, considering the US Senate, just two years earlier, voted 95 to 0 against the ruinous Kyoto Protocol.

So the decision on the petition carried over into the Bush Administration. In 2003, the Bush EPA denied the petition, which prompted a predictable raft of lawsuits by some states and environmental groups.

The case-called Massachusetts v. EPA-made its way to the Supreme Court, which in 2007 ruled that CO2 is a pollutant under the Clean Air Act, and that EPA must make a fundamental decision: either greenhouse gases from cars and trucks “endanger” public health and welfare or they don’t; or the science is so uncertain that it can’t make a decision either way.

The clock ran out on the Bush Administration, so this critical question of “endangerment” under the Clean Air Act carried over into the Obama Administration. In December last year, to no one’s surprise, the Obama EPA decreed that there is in fact endangerment.

This decision has far-reaching implications for how we use energy, how this country is governed, how businesses are regulated and controlled, and how we conduct our daily lives.

Make no mistake: despite testimony to the contrary by senior officials, the Obama Administration was not forced by the Supreme Court to choose endangerment. As I noted, they had a choice, and they made the wrong choice. They chose to make an endangerment finding based on the flawed scientific conclusions of the UN’s Intergovernmental Panel on Climate Change, or IPCC.

By now everyone in this body is familiar with the work of the IPCC. This is the UN body that represents-at least according to some-the so-called “scientific consensus” that anthropogenic greenhouse gases are causing catastrophic climate change. But the Climategate scandal shattered the consensus once and for all.

I won’t delve into great detail about this episode. In a report released earlier this year, the Minority Staff of the Senate EPW Committee found that Climategate scientists tried to manipulate key temperature datasets to predetermined conclusions about climate change.

Climategate scientists-again, these are no ordinary scientists; they are supposedly the best and brightest of the climate community-refused to share their work with those who disagreed with it; they undermined peer-review by blocking publication of legitimate work by skeptics; and they trashed the reputations of anyone who dared question their findings.

An independent inquiry conducted by the UK’s Information Commissioner concluded that the scientists employed by the University of East Anglia, and who were at the center of the Climategate controversy, violated the UK’s Freedom of Information Act.

The Climategate scandal forced open the inner sanctums of the IPCC, and the public finally saw the political science the body had produced. I could go on for hours on the embarrassing litany of errors and mistakes, but I won’t; it’s not necessary. We don’t need to debate science on the floor today. There are varying opinions about what the science is telling us even in the Republican Conference. I accept that and respect my colleagues who differ with me.

What’s important today is focusing on where we agree. And we agree that EPA regulation of greenhouse gases under the Clean Air Act is a monumental mistake that will shackle the American economy with job-killing regulations and higher energy taxes.

Let me be blunt: EPA’s growing regulatory regime will lead to one of the greatest bureaucratic intrusions into the lives of the American people. Peter Glaser, an attorney with Troutman Sanders, and one of the foremost Clean Air Act attorneys in the country, said that EPA’s endangerment finding will lead to federal regulation of schools, hospitals, nursing homes, commercial buildings, churches, restaurants, hotels, malls, colleges and universities, food processing facilities, farms, sports arenas, soda manufacturers, bakers, brewers, wineries, and many others.

Imagine heading to church on Sunday to find the doors locked because it couldn’t afford to install Best Available Control Technology on its boiler. Of course EPA dismisses this and similar examples as nothing more than empty scare tactics. Besides, they contend, we exempted those facilities in our tailoring rule-that’s right, they’re out, so don’t worry.

EPA fails to mention that the Clean Air Act contains very specific emissions thresholds for regulated pollutants, and CO2 will be “subject to regulation” starting January 2, 2011. Under a program to maintain air quality, facilities that emit more than 250 tons per year of a given pollutant must obtain a Prevention of Significant Deterioration, or PSD, permit before they can build or make major modifications to existing facilities.

As I noted, 250 tons is a big number for traditional pollutants such as SO2 or NOx. But not for CO2. A large commercial building, for example, emits about 100,000 tons of CO2 a year. We’re talking about 6 million sources potentially subject to EPA regulation.

To get around this unmitigated administrative and economic disaster, EPA just changes the rules. That’s right: it merely decreed that regulations would apply only to facilities that emit more than 100,000 tons starting next year. That threshold would be tweaked over time and apply to sources at differing stages. But the point is clear: EPA can’t just change the unambiguous intent of Congress. 250 tons is 250 tons.

So don’t be fooled: EPA can’t wave away inconvenient provisions in the Clean Air Act with a regulatory wand. EPA’s so-called tailoring rule is now the focus of 14 lawsuits. It seems almost certain that the DC Circuit will overturn it and force EPA to grapple with the regulatory nightmare of its own creation.

Again, I warn those who take comfort in the exemptions provided in the tailoring rule. Those exemptions will be short-lived, for the simple reason that the courts will strike it down. And even if they don’t, EPA has committed to eventually lower the thresholds to capture small sources. So one way or another, if you think you’re out, it’s likely at some point you’ll be in.

What are the economic impacts? We’re just getting a handle on them. According to EPA’s own documents, PSD permits cost an average of $125,120 and impose a burden of 866 hours on the applicant. In addition, the nation largest employers, such as refineries, electric utilities and industrial manufacturing facilities, will be forced to install (currently undefined) best available control technology (BACT) at their plants to reduce CO2.

This requirement is creating uncertainty, and employers are reluctant to hire and expand, until this mess is sorted out. And don’t forget about the prospect of lawsuits. I’ll bet the farm environmental groups fan out across the country and sue facilities they don’t like. None of this can be good for those out of work and looking for a job.

The tailoring rule is one reason some may choose to vote against the Murkowski resolution. There are other stated reasons for opposition that I want to address, because I believe they are pretexts that can’t justify opposition to this resolution.

I mentioned the science supporting the endangerment finding-some will argue today that overturning the finding through the Congressional Review Act amounts to an indictment of the IPCC- backed scientific consensus. But let’s understand what’s at issue here: we are stopping EPA from undertaking the most unprecedented bureaucratic intrusion into the lives of the American people.

Frankly, one’s view of the science here is irrelevant. As Marlo Lewis of the Competitive Enterprise Institute has noted, Congress is removing the legal force and effect of the endangerment finding. The resolution says nothing about the reasoning EPA employed, or the substance of that reasoning, to reach the scientific conclusions supporting the endangerment finding. So opposing the Murkowski resolution because you oppose overturning science is not a legitimate basis of opposition.

Another excuse for voting against the resolution is that overturning endangerment will mean removing the authority of the National Highway Traffic Safety Administration (NHTSA) to set Corporate Average Fuel Economy Standards (CAFE). More specifically, some argue, it would undo the historic auto deal reached last May between the auto companies, the White House, EPA, DOT, and California. The only problem with this argument is that it’s wrong.

Just ask the Obama Administration. “As a strictly legal matter,” according to a February 19 letter by Kevin Vincent, NHTSA’s general counsel, “the Murkowski resolution does not directly impact NHTSA’s statutory authority to set fuel economy standards under the Energy Policy and Conservation Act (EPCA), as amended by the Energy Independence and Security Act of 2007(EISA).”

So we’re hearing that this resolution will revoke the new CAFE standards and increase the amount of oil we consume. It’s patently false to assert NHTSA can’t continue to work on, and then implement, the CAFE standards Congress passed in 2007. That’s what it’s doing now, and will continue to do regardless of what happens here today.

I hope that what happens here is that we vote to overturn EPA’s endangerment finding. If we don’t, that doesn’t mean we stop here. We will continue to pursue all of our options to stop, delay, and obstruct EPA from overtaking our nation’s energy sector and directing and controlling the minutiae of our daily lives.

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Update 4:30pm Eastern. The Murkowski resolution to stop the EPA power grab failed on a 47-53 vote.

The 6 Dems who voted with Rs to try and head off the eco-usurpation…

Landrieu, Lincoln, B. Nelson, M. Pryor, Bayh, Rockefeller.

Remember in November.

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