Rule of Law

David Roberts:

Is Obama’s EPA trying to implement ‘backdoor cap-and-trade’? Um, no: One conservative talking point that crops up with increasing frequency is that by using EPA to regulate greenhouse gases, Obama is effectively short-circuiting democracy, doing via regulatory fiat what Democrats could not accomplish via legislation. The Tea Party right is calling it "backdoor cap-and-trade." Similar sentiment is reaching even the more reasonable quarters of conservative thought -- James Joyner says it's a "unilateral decision arguably outside the scope of [the president's] Constitutional power" and Conor Friedersdorf cast it as "disregarding separation of powers."...

Just for the record, then, let's put the "backdoor cap-and-trade" myth to rest.

The EPA is under legal obligation to act

The Clean Air Act was passed in 1963. Here's what Section 202(a)(1) says:

[EPA] Administrator shall by regulation prescribe (and from time to time revise) ... 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.

As you can see, the language of the statute is both broad ("any air pollutant") and unambiguous ("shall"). The EPA administrator is given broad latitude to make a judgment on whether a particular motor vehicle pollutant threatens public health; if it does, the administrator must "prescribe standards."... The law is intended... to apply to air pollutants that scientists in 1963 might not yet have been aware of. That is the law of the land. Yet it raises a question: Do greenhouse gases qualify as air pollutants under the Clean Air Act?...

This question was litigated all the way to the Supreme Court, which decided, in 2007's Massachusetts v. EPA, that yes, greenhouse gases qualify as air pollutants under the Clean Air Act....

If greenhouse gases are pollutants, the court said, then the EPA administrator must determine whether they endanger public health. In the case of greenhouse gases, conservative conspiracy theories aside, the only responsible answer to that question is in the affirmative, and that is what EPA scientists concluded in the agency's March 2009 "endangerment finding"... that means the EPA administrator "shall by regulation prescribe (and from time to time revise) ... standards" for them. She is bound to do so by law, and that is what Lisa Jackson is doing. Far from making a "unilateral" decision, she is acting in response to legal obligations imposed by Congress and the courts...