By Michael Bashtach
Environmentalist lawyers have been pushing a legal theory that would give the Environmental Protection Agency cover to regulate every facet of state energy policy — effectively eliminating states’ authority to craft their own regulations.
“Buried in the Clean Air Act is an extremely powerful mechanism that effectively gives EPA carte blanche to tell states to make drastic cuts to their emissions,” Brian Potts, a partner at the law firm Foley & Lardner wrote in Politico Monday.
“This provision, which can now be used thanks to the completion of the Paris climate deal, raises important questions about national sovereignty and states’ rights — questions that Republicans would undoubtedly use to try and kill such a proposal,” Potts wrote. “But the benefits of using this mechanism dwarf those concerns.”
Potts is referring to Section 115 of the Clean Air Act. Liberal legal scholars argue the Paris global warming treaty has triggered this little-known provision of federal law, and now the EPA can launch a full takeover of states’ environmental regulatory agendas.
Section 115 of the Clean Air Act provides an untapped but potent opportunity for achieving many of the United States’ long-term climate change goals,” 13 liberal legal experts wrote in a January brief published by the Institute for Policy Integrity.
Several lawyers working for various environmental law groups want the EPA to use this provision to implement a nationwide cap-and-trade system. Ever since the defeat of cap-and-trade in Congress in 2010, environmentalists have been looking for legal loopholes for the EPA to use to unilaterally impose cap-and-trade on the U.S.economy.
“EPA and the states could implement a Section 115 regime with less difficulty than the current … approach,” the lawyers wrote, “and could instead combine multiple sectors and source types in a single rulemaking that could establish a nationwide, market-based emissions reduction program.”
‘We Saw This Coming’
Attorney Chris Horner isn’t surprised by the arguments coming from these environmental law groups. Horner says President Barack Obama has always sought to use the United Nations agreement in Paris to further his regulatory agenda.
“As we have made plain all along to any who cared to listen, the administration’s intention behind agreeing to the Paris deal was quite transparently to create an argument and a trap for successive congresses and administrations to impose ever-tighter EPA energy rationing rules in the name of catastrophic man-made global warming,” Horner, an attorney with the Energy & Environmental Legal Institute, told The Daily Caller News Foundation.
Horner has led the charge against the EPA’s so-called Clean Power Plan, filing lawsuits and uncovering emails showing the agency’s cozy relationship with environmental activists hoping to push more regulations on businesses. Now, Horner has turned his attention to uncovering the legal implications of Obama’s agreeing to cut U.S. emissions.
“Unlike previous global warming treaties like Kyoto, which had a finite life, Paris — which obviously a treaty on its face — includes an evergreen provision promising new rules every five years,” Horner said, adding the Obama administration is already using the Paris agreement as legal precedent to block challenges by states to EPA rules.
“Going forward, expect those arguments in court and in the media echo chamber to help shield EPA’s rules, and to compel more rules every five years,” Horner said. “‘We’ve promised the world!’ Except, only Obama promised them.”
The Path To EPA Rule
Legal scholars say there are two conditions that need to be satisfied before the EPA can take over state regulatory decisions.
First, EPA needs findings from an international agency showing American pollution is harming public health in other countries. Carbon dioxide, the main greenhouse gas blamed for global warming, has been listed as a pollutant by the EPA.
“The many reports put out by the United Nations’ Intergovernmental Panel on Climate Change over the past few decades meet this requirement,” Potts argued. “The U.S. is one of the top greenhouse gas emitters in the world, and its pollution undoubtedly endangers public health and welfare in many other countries.”
Next, EPA must show a foreign country that’s harmed by U.S. emissions has given America “essentially the same rights with respect to the prevention … of air pollution occurring in that country,” according to Potts. This is where the recent United Nations agreement comes into play.
“The Paris agreement satisfies this reciprocity requirement because there are now nearly 190 countries planning to reduce their emissions, at least in part, to protect one another’s health and welfare,” Potts wrote.
Potts even argued the fact that the Paris agreement isn’t legally-binding doesn’t matter. In his words, “nothing in Section 115 requires such enforceability.”
But the Paris agreement can still be derailed by the Senate, even though it’s not seen as a traditional treaty. The Senate can still assert its constitutional power over treaties to derail the agreement before Obama signs it.
“It is the complete failure by the Senate Committee on Foreign Relations to do its job, choosing instead by inaction to cede its shared constitutional role in the treaty process to be one that exists at the pleasure of the president,” Horner said. “Now it is time for others to take over.”
“If the Senate as a whole does not provide its Art. II ‘advice’ — that Paris requires ‘consent’ to mean anything to anyone — prior to the president’s planned “Mother Earth Day” signature, we might as well disband the committee and agree with Sec. Kerry that the treaty process is dead, that binding us into perpetual, unpopular schemes is now a unilateral function of the executive,” he added.