EPA Advance Notice of Proposed Rulemaking (ANPR): Alert 1

Published July 9, 2008

This is the first in a series of Environment Alerts from Sandy Liddy Bourne, Heartland’s national legislation manager, about an issue that could profoundly affect virtually every aspect of American life. The issue centers on the attempt to regulate all carbon emissions–from the air you breathe to emissions from factories and powerplants–through the U.S. Environmental Protection Agency.

Because of the profound impact this regulatory power-grab could cause if successful, The Heartland Institute will send further updates as warranted by action in Washington, D.C.

Two weeks ago, EPA staff leaked a draft of the Advance Notice of Proposed Rulemaking (ANPR) on “Regulating Greenhouse Gas Emissions under the Clean Air Act,” which was published in Energy Washington. This document and the policy direction it takes pose a major concern for consumers.

The White House deserves credit for recognizing and opposing the huge economic costs and proposed government restructuring of the recently defeated Boxer-Lieberman-Warner global warming bill, but this draft ANPR is even worse policy than that flawed and rejected bill.

1. The leaked ANPR provides a roadmap to economy-wide regulation of greenhouse gases; it is not a solicitation of comments for a proposed rule.

Normally, federal agencies release Advance Notices of Proposed Rulemaking to obtain preliminary information prior to issuing a proposed rule or to decide whether to propose a rule. This document goes far beyond that first step. EPA is not requesting preliminary information, but instead is providing a roadmap to economy-wide greenhouse gas regulation.

Consider this: The June 11, 2008 draft ANPR is a 250-page document with at least 800 pages of appendices. It does not take 1,000 pages to solicit comments. When the Clinton Administration requested information on the original auto CO2 issue in January 2001, it took only five pages.

2. EPA’s ANPR supports “all pain, no gain” regulation.

Reducing emissions is painful. An analysis of a carbon “cap-and-trade” proposal considered by the U.S. Senate in 2008 — the Lieberman-Warner Act — found it would destroy between 1.2 and 1.8 million jobs in 2020 and between 3 and 4 million jobs in 2030; impose a financial cost of $739 to $2,927 per year by 2020 on national households, rising to $4,022 to $6,752 by 2030; and would increase the price of gasoline between 60 percent and 144 percent by 2030 and the price of electricity by 77 percent to 129 percent. (National Association of Manufacturers / American Council for Capital Formation, “Study of the Economic Impact from the Lieberman-Warner Climate Security Act,” 2008.)

The Bush Administration has been steadfast in opposing binding greenhouse gas caps on the United States unless other major emitters, such as China, are included. The Administration recognizes that hobbling our economy through expensive regulation will send more jobs offshore to China, India, and the rest of the developing world. This job and manufacturing exodus might slow the increase of greenhouse gas emissions in the United States, but it would increase greenhouse gas emissions worldwide because economies in developing countries do not possess the same technologies available for energy efficiency as our economy. This is why there are no benefits to unilateral climate action as this ANPR proposes.

It is worrisome that EPA, under this Administration, is considering a plan that will be very costly in the United States, send American jobs overseas, and not reduce worldwide levels of greenhouse gases. If EPA continues forward, this plan will be all economic pain and no environmental gain.

3. The science underpinning ANPR is lacking.

Policymakers should be appalled by the lack of sound scientific analysis in the leaked ANPR. The science is important because the point of the document is to help the EPA Administrator determine whether greenhouse gases “may reasonably be anticipated to endanger public health or welfare or to explain why the scientific uncertainty is so profound that it prevents making a reasoned judgment on such a determination.” This is the entire point of the recent U.S. Supreme Court ruling.

In a stunning lack of deference to the request of the nation’s highest court, only 12 pages of the 250-page document discuss the science with respect to a potential endangerment finding. EPA seems to consider the endangerment finding a foregone conclusion without the supporting evidence of rigorous, peer-reviewed, scientific laboratory or field research.

4. Apparently EPA has not independently assessed the science; it defers to the United Nations.

EPA apparently has not independently assessed the science of global warming. Instead it seems to rely exclusively on the global warming reports from the United Nations’ Intergovernmental Panel on Climate Change (IPCC). This is disturbing because the IPCC’s reports are not peer-reviewed and they do not include the latest science. The IPCC cut-off for science papers was May 2006. (For a critique of the IPCC’s latest report, along with more recent research and data on issues ignored by the IPCC, see Singer, S. Fred, ed., Nature, Not Human Activity, Rules the Climate, Summary for Policymakers of the Nongovernmental International Panel on Climate Change, Science and Environmental Policy Project, April 2008; http://www.heartland.org/Article.cfm?artId=22835)

For example, how does EPA explain why the IPCC’s forecasts of global temperatures consistently over-estimate observed temperature trends? Where is there any recognition that growing numbers of prominent scientists now dissent from the conventional wisdom as set forth by the IPCC? Where is the rigorous scientific debate normally found in a scientific review of environmental or public health policy? Where are the current U.S. data (which show no warming since 1998) and analysis of new research on possible causes of global warming and global cooling? We should not rely solely on out-of-date information from a document written by governments flying under the UN flag in dealing with an issue of this importance.

5. Congress, not EPA, should be the principal in developing energy and climate change policy.

The proposed ANPR is an attempt by a rogue agency within the executive branch of government to establish new regulation under the Clean Air Act without the consent of Congress. This type of regulation is the prerogative of elected officials, who are accountable to the electorate and must authorize such activity, not unelected bureaucrats.

The regulatory changes envisioned in the ANPR are sweeping, even breath-taking. If such a vast expansion of the regulatory state is to be brought about, it must be a legislative effort, not a purely regulatory effort. This effort by EPA appears to be designed to force Congress to enact greenhouse gas regulations that would redistribute wealth rather than address climate change or energy policy. Congress should not be forced to act at regulatory gunpoint.

The Boxer-Lieberman-Warner bill was an attempt by members of Congress to address the issue of climate change. The bill failed because constituents, labor unions, and special-interest groups contacted their representatives — elected officials — and indicated their strong displeasure with the economic costs, the reorganization of government, and the impact on domestic energy supplies. Because it is accountable to voters, Congress defeated the bill. EPA must not be allowed to circumvent this democratic procedure.