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Ken Cuccinelli's lawsuit against the EPA, challenging its economically dangerous decision to use the Clean Air Act to regulate greenhouse gases Date published: 3/2/2010
WASHINGTON --The Environmental Protection Agency's mission is to protect humans and the environment. But who protects humans from the EPA?The answer, in part, is Virginia Attorney General Ken Cuccinelli, who filed a lawsuit recently to block an unprecedented power grab by President Barack Obama's EPA. He wasn't the only one to challenge the EPA. Texas, Alabama, and a number of other organizations in the private and nonprofit sectors of the economy, including my think tank, the Competitive Enterprise Institute, filed similar suits last week. The subject of all this litigation is the EPA's economically disastrous decision to use the Clean Air Act to regulate greenhouse gases thought to cause climate change. The Clean Air Act was written 40 years ago in order to fight smog, not global warming, so it is wholly unsuitable as a climate policy. While an industrial smog polluter emits hundreds of tons in a year, even a moderately sized building can emit an equivalent quantity of greenhouse gases. If the Clean Air Act were to apply literally to greenhouse gases, then virtually every mansion, apartment, and office would become subject to Environmental Protection Agency inspectors. It would be a nightmare, which helps explain why members of Congress never have voted to subject greenhouse gases to the Clean Air Act. The Supreme Court, however, narrowly determined in 2007 (Massachusetts v. EPA) that the Clean Air Act could be used to regulate greenhouse gases, even though Michigan Rep. John Dingell, an author of the Clean Air Act, said that, "This [regulating greenhouse gases] is not what was intended by the Congress." The Supreme Court ruled that the EPA could regulate greenhouse gases, not that the EPA must regulate, and the distinction is important. Former President George W. Bush's administration had the good sense to let sleeping dogs lie. President Obama, on the other hand, thought he could leverage the Supreme Court's decision. He had campaigned on a promise to deliver a "cap-and-trade" program to reduce greenhouse gas emissions, but he is having trouble getting it through Congress. So the president devised a high-stakes game of chicken: He is threatening to unleash the EPA in order to coerce climate legislation out of Congress.
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