The U.S. Environmental Protection Agency is seeking to force numerous businesses that emit greenhouse gases to obtain permits to do so. Daren Bakst, Director of Legal and Regulatory Studies for the John Locke Foundation, says the EPA is getting creative with federal law, based on nothing more than an extreme global warming agenda. Bakst discussed the issue with Donna Martinez for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Martinez: Exactly what is the EPA trying to do?
Bakst: Well, they’re trying to force businesses that make greenhouse gases to get permits to do so. And what happened — if they comply with what’s called the Clean Air Act, and they actually follow the law, it would have led to absurd results to require businesses to get permits, because if you follow the law, it would require basically almost anybody — maybe even you, Donna — to get a permit …
Martinez: Uh-oh.
Bakst: …to actually emit CO2. That’s right — that’s how extreme it is.
Martinez: Because I do emit CO2. Every one of us does.
Bakst: That’s right. And so what the EPA did was, instead of looking at the law and saying it’s so extreme, so absurd — and they use the term “absurd result” if we did this — instead of saying, therefore, as a result, we can regulate CO2 and require permits, which they should have done, they said, “You know what? What we’re going to do is we’re going to just make up the law. We’re going to pretend that certain provisions of the Clean Air Act don’t exist, and we’re going to create our own provisions. That way, we can regulate a lot of businesses and force them to get permits, but we can get around having to regulate the really small businesses from getting their permits.” So they’re just making up law.
Martinez: So how can an agency — and the EPA is a federal agency — simply pick and choose which pieces of the federal Clean Air Act they want to enforce and which provisions they don’t?
Bakst: Well, that’s the question, and it’s being challenged in court. There are certain standards established in the Clean Air Act — and we won’t get into the details of that — but they’ve basically crossed out these very concrete, expressed standards and then just changed the numbers. And that’s what they’ve done. They just can’t do that. And, as a result, these regulations that they’re forcing onto states, including North Carolina, are going to become illegal, in my opinion.
Martinez: Let’s get at the issue of why you believe the EPA would be going through these machinations to try to regulate businesses. Exactly what is the problem, in the EPA’s view, with greenhouse gases?
Bakst: Well, the problem all comes down to their — certain bureaucrats’ — view of global warming and the desire to address global warming. At least on its face, that would be kind of their concern. Unfortunately, it’s not the business of bureaucrats to come up and create law. It’s the business of Congress to decide what and who should — if EPA should regulate CO2 and greenhouse gases. And the EPA has decided to simply, like I said, make up law. And the problem, where it comes in for the states like North Carolina, is that in the permitting process, states play a very important part of issuing permits to businesses that emit greenhouse gases — any pollutant. In fact, they play a primary role.
Martinez: And is that through the Department of Environment and Natural Resources, known as DENR?
Bakst: That’s right — DENR. And so states are in the position of, OK, first of all, do we want to be complicit in implementing these illegal regulations? Do we want to be involved in this federal power grab, this agency power grab by EPA? Do we want to fight back? Texas is fighting back and saying, “We’re not going to be a part of this.” Other states are — what you have to do is you have to actually change state law. This gets a little technical, but you have to change state law to allow the state to actually comply with the federal rule. So it gets complicated. But the moral of the story is, to what extent does North Carolina actually want to help the EPA achieve their objectives? The problem is that there are certain risks involved if North Carolina doesn’t get involved and require some of these permits.
Martinez: What do the folks over at North Carolina’s Department of Environment and Natural Resources say about this? I mean, do they agree that this is a federal power grab? Are they concerned at all, or are they willing to go along with this?
Bakst: Well, over a year ago, they sent in comments to the EPA explaining their concern about this rule, and saying that it is very likely to be illegal [and to be] rejected by the courts, the letter said. So it’s not like this argument I’m making is some groundbreaking argument as relates to EPA’s interpretation of the law. Even our state agency, DENR, has said the same exact thing. And what we want to do, and what I’ve been involved in, is we want the legislature, the North Carolina legislature, to decide what role North Carolina should have in terms of permitting.
Martinez: And in fact, you and folks around North Carolina actually got involved in what is the official EPA process to have the public comment on things like this, correct?
Bakst: Well, I wrote a comment to EPA, but then there is the state rule as well, where the state issues regulations implementing the federal rule. I know it gets confusing. But citizens across the state can object to the state rule, and what objecting means is that the rule then goes to the legislature, and it just gets delayed.
Martinez: So citizens have objected. What’s the upshot of that? What will happen now?
Bakst: Well, the upshot is, look, do we want bureaucrats making law — unelected, unaccountable bureaucrats — or do we want the legislature to make these major decisions? This is the first time that North Carolina has ever regulated greenhouse gases. Let the legislature decide that that’s what we want to do, and that we need to comply with this EPA regulation, if in fact we want to.
Martinez: Now that you have commented on this, and other citizens across the state have commented, where does the process stand now? Will it indeed go before the North Carolina General Assembly to take up the issue?
Bakst: Yes, automatically, by objecting to the rule, the rule is delayed. And if the legislature doesn’t do anything, it will go into effect. For the legislature to kind of block the regulations that would basically allow the permitting to go forward, the legislature would have to pass a rule, a bill that would disapprove of the environmental regulations. Now there’s an alternative, which I think is fairly legitimate. And that is, we’d like to see the legislature clarify that, if North Carolina does, in fact, comply with this EPA regulation, that we’re only going to comply to the extent that we have to, so that if, for example, I told you that the federal regulation might get shot down in court. If at any time the regulations get shot down, we don’t want to be in a situation where North Carolina is regulating greenhouse gases but the EPA and the federal government isn’t. Then, all of a sudden, we’re like, “What did we just do to ourselves?”
Martinez: Daren, let’s talk about the economics of this. If this is implemented, if the challenge is not successful in court, economically, what happens to businesses if they have to comply in this way?
Bakst: Well currently, the EPA — I don’t have the analysis of that at this point — but currently the regulations are set so that it’s a limited number of businesses that have to get the permits. The problem, though, with EPA regulations that all businesses should be aware of is [that] with any EPA regulations, the standards get tougher and tougher. So while it may not be a lot of businesses that have to get permits now, in a matter of years the number is going to increase and increase and increase. So the costs are going to dramatically rise.