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WALL STREET JOURNAL: How Congress Can Stop the EPA's Power Grab

Courts have yet to decide if the agency's proposed controls on carbon emissions are even legal.

By Rep. Fred Upton and Tim Phillips -

On Jan. 2, the Environmental Protection Agency will officially begin regulating the emission of carbon dioxide and other greenhouse gases. This move represents an unconstitutional power grab that will kill millions of jobs -- unless Congress steps in.

This mess began in April 2007, with the Supreme Court's decision in Massachusetts v. EPA. The court instructed the agency to determine whether greenhouse gases like carbon dioxide pose (or potentially pose) a danger to human health and safety under the Clean Air Act. In December 2009 the agency determined they were a danger -- and gave itself the green light to issue rules cutting CO2 emissions on a wide range of enterprises from coal plants to paper mills to foundries.

In response, states including Texas and Virginia, as well as dozens of companies and business associations, are challenging the EPA's endangerment finding and proposed rules in court. The U.S. Court of Appeals for the D.C. Circuit is currently considering a partial stay of the EPA's rules and is expected to begin issuing decisions sometime in 2012.

The EPA, of course, is in a hurry to move ahead. It wants to begin regulating the largest emitters first. But it has the authority under its endangerment finding to regulate emissions by hospitals, small businesses, schools, churches and perhaps even single-family homes. As companies wait for definitive court rulings, the country could face a de facto construction moratorium on industrial facilities that could provide badly needed jobs. Moreover, the EPA has never completed an analysis of how many jobs might be lost in the process -- although Section 321 of the Clean Air Act demands that it do so.

The best solution is for Congress to overturn the EPA's proposed greenhouse gas regulations outright. If Democrats refuse to join Republicans in doing so, then they should at least join a sensible bipartisan compromise to mandate that the EPA delay its regulations until the courts complete their examination of the agency's endangerment finding and proposed rules.

Like the plaintiffs, we have significant doubt that EPA regulations can survive judicial scrutiny. And the worst of all possible outcomes would be the EPA initiating a regulatory regime that is then struck down by the courts.

For the last year or so, some in Congress have considered mandating that the EPA delay its greenhouse-gas regulations by two years. But that delay is arbitrary -- it was selected because a handful of Democrats needed political cover. There is no way to know whether two years will be sufficient time for the courts to complete their work.

Moreover, the principal argument for a two-year delay is that it will allow Congress time to create its own plan for regulating carbon. This presumes that carbon is a problem in need of regulation. We are not convinced.

Thus the minimally responsible approach -- the one that will reduce the potential for confusion, uncertainty and regulatory mayhem -- is to delay EPA action until the courts have had time to rule. This approach would ensure that small businesses, states and even the EPA itself have the certainty needed to proceed.

The day after the recent midterm elections, President Obama was asked about the voters' repudiation of cap and trade. He responded: "Cap and trade was just one way of skinning the cat; it was not the only way. It was a means, not an end."

Cuts in carbon emissions would mean significantly higher electricity prices. We think the American consumer would prefer not to be skinned by Obama's EPA.

Mr. Upton, a Republican from Michigan, is chairman-designate of the House Energy and Commerce Committee. Mr. Phillips is president of Americans for Prosperity.


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