About two weeks ago, the EPA issued an "endangerment finding" that CO2 is
a dangerous pollutant. Yes, this is the same substance that mammal exhale
and that all plants depend on for survival. But based on nebulous claims
by climate change proponents that CO2, which makes up only 0.00039 of our
atmosphere, is causing the Earth to warm, the EPA has determined that CO2
So far, the reporting on EPA’s declaration has largely focused on how it is
being used by the Obama administration to pressure congressional action on
Obama’s “cap or tax” CO2 proposal; a breathtaking tax increase that even
many hard core liberal politicians are having trouble supporting. Career
survival always trumps everything else for the unprincipled. So Obama
offers congress a choice: pass my “cap or tax” proposal or I will achieve
the same results through the backdoor using EPA’s regulatory powers. Is
this how democracy is supposed to work?
But there is a far more important and frightening aspect of the EPA
declaration that has been largely ignored; a facet that sadly demonstrates
how tyrannical our government has become. As discussed in the following
lead editorial from last Friday’s Wall Street Journal, the EPA’s empowering
legislation (the Clean Air Act and its revisions) does not authorize the
EPA to regulate carbon. Nevertheless, the United States Supreme Court in
2007 ordered the EPA to determine whether CO2 was a pollutant. So we have
unelected Supreme Court judges ordering unelected EPA bureaucrats to take
action that one of the most liberal members of Congress says is not
authorized by the legislation empowering the EPA! And on the basis of this
chain of authority and command, the unelected may end up imposing on WE THE
PEOPLE the largest tax increase ever imposed on Americans! At tax that
will likely cripple our economy!
The mainstream media and the left have gone out of their way to belittle
the Tea Party movement. According to them, Tea Party supporters have no
legitimate complaints, so they must be sore losers, racists or worse. But
the fact is that over the last 60 years or more, the left has been using
calculated unconstitutional methods to effect changes that would never have
been possible by adhering to the Constitution. The vehicles for effecting
these changes have been unelected officials; essentially the backdoor.
This, I believe, is the essence of the anger of the Tea Party. The sense
that “government of the people, by the people and for the people” has been
stolen from WE THE PEOPLE. The sense that our elected representatives no
longer control our government, that they have been rendered irrelevant by
the tyranny of the unelected. The growing apprehension that the
Constitution has been effectively nullified by tyranny.
The framers of our Constitution provided a means to amend the Constitution
through an amendment process that is quite arduous and time consuming.
This was intentional; since they believed amendments should be made only
after serious deliberation and with the support of three forth’s of the
states (i.e. the support of the overwhelming majority of WE THE PEOPLE).
However, for decades the left in this country, led by radical groups like
the ACLU, has successfully circumvented the Constitutional amendment
process, using judicial fiat to invent all sorts of rights, laws and
restrictions clearly not sanctioned by the Constitution. This strategy was
described as follows on National Public Radio in February 2005 by Ned
Aaron, President of the ultra-liberal Alliance for Justice:
“There is obviously no way we are going to get new rights created by
Congress. So we now have to look to the Courts to create new rights
that we won’t be able to get from the Legislature.”
This strategy of amending of the Constitution, often using convoluted and
absurd “interpretations” as opposed to following the constitutionally
provided amendment process, amounts to judicial tyranny. And our elected
representatives, who WE THE PEOPLE assumed would protect and uphold the
Constitution, have essentially sat by and allowed this to happen.
There are countless examples of this tyranny; examples of the courts
amending the Constitution by creating previously unknown rights or
restrictions that are clearly were not contemplated by the framers of the
Constitution. The most recent occurred last year and is typical of what
has been happening. The Supreme Court declared unconstitutional a
Louisiana statute that provided the death penalty for the offense of child
rape. The Court found the death penalty for such a crime was “not in
keeping with the national consensus”, even though a few years previous,
Congress, which presumably reflects the “national consensus”, passed a law
providing for the death penalty for child rape by military personnel.
Incredible! But the key issue should be the question of where in the
Constitution the judiciary obtains the power to strike down a state’s law
on the basis of “national consensus” or to create new rights not enumerated
in the Constitution? If the “national consensus” wants to limit the death
penalty or create new rights, they should have no problem (since
“consensus” implies general and widespread agreement) doing so through an
amendment to the Constitution. But, as we all know, the truth is that these
rights and limitations being imposed by the courts do not reflect the will
of WE THE PEOPLE. Otherwise they would be addressed through the amendment
Examples of this kind of judicial tyranny are frequent and numerous. What
they amount to is unconstitutional usurpation of power by the unelected
judiciary. But what is so disturbing about the EPA CO2 ruling is that,
with the support of the Supreme Court, the tyranny has now spread to the
bureaucracy. And the liberals can’t understand why the Tea Party
supporters are so angry? Are they really that out of touch with reality?
The Woodlands, TX
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REVIEW & OUTLOOK
APRIL 24, 2009
The Obama EPA plays 'Dirty Harry' on cap and trade.
President Obama's global warming agenda has been losing support in
Congress, but why let an irritant like democratic consent interfere with
saving the world? So last Friday the Environmental Protection Agency
decided to put a gun to the head of Congress and play cap-and-trade
roulette with the U.S. economy.
The pistol comes in the form of a ruling that carbon dioxide is a dangerous
pollutant that threatens the public and therefore must be regulated under
the 1970 Clean Air Act. This so-called "endangerment finding" sets the
clock ticking on a vast array of taxes and regulation that EPA will have
the power to impose across the economy, and all with little or no political
This is a momentous decision that has the potential to affect the daily
life of every American, yet most of the media barely noticed, and those
that did largely applauded. When America's Founders revolted against
"taxation without representation," this is precisely the kind of kingly
diktat they had in mind.
Michigan Democrat John Dingell helped to write the Clean Air Act, as well
as its 1990 revision, and he says neither was meant to apply to carbon. But
in 2007 five members of the Supreme Court followed the environmental polls
and ordered the EPA to determine if CO2 qualified as a "pollutant." The
Bush Administration prudently slow-walked the decision. As Peter Glaser, an
environmental lawyer at Troutman Sanders, told Congress in 2008, "The
country will experience years, if not decades, of regulatory agony, as EPA
will be required to undertake numerous, controversial, time-consuming,
expensive and difficult regulatory proceedings, all of which ultimately
will be litigated."
The Obama EPA has now opened this Pandora's box. The centerpiece of the
Clean Air Act is something called the National Ambient Air Quality
Standards, or NAAQS, under which the EPA decides the appropriate
atmospheric concentration of a given air pollutant. Under this law the
states must adopt measures to meet a NAAQS goal, and the costs cannot be
considered. For global warming, this is going to be a hugely expensive
Greenhouse gases mix in the atmosphere, and it doesn't matter where they
come from. A ton of emissions from Ohio has the same effect on global CO2
as a ton emitted in China; and even if Ohio figured out a way to reduce its
emissions to zero, it would still have no control over the carbon content
in its ambient air. But under the law, EPA would be required to severely
punish Ohio -- and every state -- for not complying with NAAQS.
Under the Clean Air Act, the EPA also must regulate all "major" sources of
emissions that emit more than 250 tons of an air pollutant in a year. That
includes "any building, structure, facility or installation." This might be
a reasonable threshold for conventional pollutants such as SOX or NOX, but
it's extremely low for carbon. Hundreds of thousands of currently
unregulated sources will suddenly be subject to the EPA's preconstruction
permitting and review, including schools, hospitals, malls, restaurants,
farms and colleges. According to EPA, the average permit today takes 866
hours for a source to prepare, and 301 hours for EPA to process. So this
regulatory burden will increase by several orders of magnitude.
The EPA took the highly unusual step of not accompanying its endangerment
finding with actual proposed regulations. For now, EPA Administrator Lisa
Jackson claims her agency will only target cars and trucks. That is bad
enough. It probably means, for example, that California's mileage fleet
burdens will seep out to every other state. So even as taxpayers are now
paying tens of billions of dollars to prop up GM and Chrysler, Ms. Jackson
will be able to tell the entire auto industry it must make even more small
cars that consumers don't want to buy.
Still, why confine the rule only to cars and trucks? By the EPA's own
logic, it shouldn't matter where carbon emissions come from. Carbon from a
car's tailpipe is the same as carbon from a coal-fired power plant. And
transportation is responsible for only 28% of U.S. emissions, versus 34%
for electricity generation. Ms. Jackson is clearly trying to limit the
immediate economic impact of her ruling, so as not to ignite too great a
business or consumer backlash.
But her half-measure is also too clever by half. By finding carbon a public
danger, she is inviting lawsuits from environmental lobbies demanding that
EPA regulate all carbon sources. Massachusetts and two other states have
already sued in federal court to force the EPA to create a NAAQS for CO2.
Which brings us back to the Obama Administration's political roulette.
Democrats know that their cap-and-tax agenda is losing ground, notably
among Midwestern Senators. The EPA "endangerment" is intended to threaten
businesses and state and local governments until they surrender and support
the Obama agenda. The car industry is merely the first target, meant to be
the object lesson.
Massachusetts Democrat Ed Markey put it this way at MIT recently: "Do you
want the EPA to make the decision or would you like your Congressman or
Senator to be in the room and drafting legislation? . . . Industries across
the country will just have to gauge for themselves how lucky they feel if
they kill legislation in terms of how the EPA process will include them."
This "Dirty Harry" theory of governance -- Do you feel lucky? -- is as
cynical as it is destructive. And contra Mr. Markey, if cap and tax is
killed this year, it will be done in by Democrats, many of whom are
starting to realize the economic harm it would inflict. In March, the
Senate voted 89 to 8 on a resolution vowing to pass a climate bill only if
"such legislation does not increase electricity or gasoline prices."
That's called democracy, but for the Obama Administration such debate is an
inconvenient truth. If they can't get Congress to pass their agenda,
they'll use EPA and the courts to impose it. How lucky do you feel?
About two weeks ago, the EPA issued an "endangerment finding" that CO2 is
5/01/2009 07:07:00 AM
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This entry was posted on 5/01/2009 07:07:00 AM and is filed under BARACK OBAMA , DEMOCRATS , GLOBAL WARMING . You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.