Forbes – by Richard Faulk A funny thing happened on the way to regulating America’s carbon dioxide emissions. The Environmental Protection Agency discovered that it couldn’t comply with the Clean Air Act as it was written. Because carbon dioxide is emitted and consumed everywhere as an essential part of Earth’s ecosystem – it seems clear that it is not a “pollutant” within the meaning of the Act. Otherwise, in EPA’s own words, regulating carbon dioxide will result in an “unprecedented expansion” of EPA authority that will have a “profound effect on virtually every sector of the economy and touch every household in the land.” The regulations could “trigger” regulation of smaller sources such as “apartment buildings, large homes, schools, and hospitals.”
Rational minds, of course, object to such an “absurd” conclusion. And the EPA literally agrees – but not for the reasons you expect. The exponential expansion of the Agency’s authority isn’t what EPA deems to be “absurd.” According to the Agency, the “absurdity” is the incredible administrative burden that EPA will suffer if all sources are concurrently regulated. EPA insists that it cannot presently handle the overwhelming numbers of permitting actions needed for small sources. It needs time – literally years – to secure resources, hire and train staff, and gain experience with permitting for new types of sources and technologies.
Of course, an alternative interpretation was also available. EPA could have decided that the Clean Air Act was never intended to regulate natural components of the Earth’s environment. Indeed, EPA admits that, when Congress deliberated the Clean Air Act, it focused on “conventional pollutants” – not greenhouse gases. It also admits that applying the Clean Air Act “literally” to greenhouse gases would “bring in tens of thousands” of smaller sources—which is “contrary to what Congress had in mind.”
But instead of following Congress’ plain intent, EPA unilaterally amended the Act so that it could develop “streamlined” procedures to “reduce the permitting burden.” EPA’s amendment was cleverly entitled the “Tailoring Rule” – which deferred permitting for small sources until at least 2016. EPA’s invention is an imaginative “solution” for its self-imposed administrative dilemma, but it flatly conflicts with the Clean Air Act’s plain language.
EPA somehow believes that this plan provides small business with “regulatory relief,” The agency assumes that, by regulating large emitters, and by delaying regulation of smaller sources, its regulations will not “result in any increases in expenditures by any small entity.” For sound reasons, however, many of America’s small enterprises are neither relieved nor comforted by the EPA’s decision to temporarily delay regulation of their operations. The basis for their apprehension is painfully clear:
- First, instead of rationally deciding that the Clean Air Act was never intended to regulate emissions of universal and ubiquitous substances, EPA decided to pursue an “unprecedented expansion” of its authority. This power grab is sufficiently threatening in itself to discourage economic growth.
- Second, the Agency did not exempt small businesses from regulation – it merely decided to regulate emitters in phases, literally “one step at a time.” Small businesses remain subject to regulation – only later, rather than sooner.
- Third, and most importantly for small business, EPA only delayed permittingfor small emitters – it did not defer regulation entirely. The Agency intends to require emission reductions by other regulatory means during the years when permitting is deferred, and plans to consider permitting regulations for small emitters when the deferment expires.
The Agency’s definition of “relief” merely masks and delays the inevitable onslaught of regulations – it does not preclude them. EPA’s plans naturally produce a “chilling effect” on plans for expanding operations, entering into new markets, and developing new products. Both large and small enterprises will reasonably hesitate if growth entails the complexities and costs of regulatory compliance. Those which move forward will surely pass their increased costs, including higher energy expenses, on to their customers.
Unfortunately, small businesses are disproportionately affected by these burdens. The regulation of large businesses – which produce goods and services consumed by smaller businesses – results in higher prices that small enterprises must absorb and cannot easily pass on to their customers. Those higher prices inevitably include increased energy costs from the closure of coal-fired power plants and substitution of alternative energy sources. Businesses that absorb these costs will suffer decreased profits – or losses – a setback that ultimately threatens their survival.
The only “relief” achieved by EPA’s “Tailoring Rule” was administrative relief for the agency itself, not regulatory relief for American small business. Like a pain pill, the Rule does nothing to avoid the economic adversities or reduce their ultimate impact – it merely postpones the eventual reckoning.
To America’s small enterprises, the question is not whether this nightmare will affect them – but when. As prudent businesses, they rightly foresee risks for which they must prepare and burdens for which they must account. Although EPA has disregarded those risks and burdens, America’s small enterprises do not share that luxury.
In our free enterprise system, law and economics are inextricably intertwined. This is especially true when regulatory policy is concerned. Here, EPA has not only disregarded the intent of Congress, but has also promulgated new laws without adequately considering their economic effects. EPA’s legal decisions should not be evaluated in an economic vacuum. The Supreme Court should return the Agency’s exercises “back to the drawing board”—with instructions to consider the practical economic effect of its policies before endangering our nation’s economic health and welfare.
The day the E.P.A “GENUINELY STARTS CARING” about the environment, and the poisoning of, such as Geo Engineering (chemtrails) , Fracking, GMO’s, is the day i start Genuinely caring about the epa and their bullshit regulations. Until then they can suck it.
I care about all of us, including small businesses.
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