Almost everyone agrees that legislative climate action is preferred over regulation—it is the simpler, more democratic and longer lasting way to bring down our carbon emissions. But the congressional process has stalled out and Senator Murkowski’s attempt to shut down EPA’s ability to regulate is not helping. Procedurally, a disapproval resolution is destined to fail—at best it is a waste of time, but more likely a political move designed to slow down progress on climate legislation.

First, it should be noted that the form of legislative action Senator Murkowski is suggesting has only been used successfully one time—to strike down a Clinton-era regulation requiring more ergonomic workplaces. It is so rare, in part, because it asks a President to sign a bill that reverses the actions of an administrative agency—something this is unlikely to happen absent a change in administrations. If the effort is vetoed, the House and Senate would each require a two-thirds supermajority vote to override it.

Even before these hurdles, this measure would have to get out of Congress. The likelihood of Murkowski’s resolution reaching the floor and passing the Senate is small; even smaller is its likelihood of passing the House. So we can assume Murkowski’s goal is not actually to stop the endangerment finding—her measure simply will not be successful in today’s political climate.

If actually stopping the endangerment finding is not the end-game, other political considerations must be at play: forcing a vote that can be used in the mid-term elections, throwing a bone to climate change deniers, or simply muddying the waters and distracting from making progress. But in any case, the tactic is not a way to move forward at a time when scientists worry that climate change is occurring faster than expected.

EPA’s current move to regulate greenhouse gases stems in part from the Supreme Court’s ruling in Massachusetts v. EPA that the agency either had to show that greenhouse gases were not a hazard or regulate them. Unable to do the former, and unwilling to do the later, the Bush Administration stalled for two years and then punted to the Obama Administration, leaving yet another difficult issue for the new president to deal with.

Under President Obama, the EPA recognized the urgency of the threat posed by climate change, and has acted quickly to start addressing the problem, beginning with the endangerment finding that has drawn the ire of Senator Murkowski. In this document, EPA recognizes the serious threats posed by climate change, and sets the stage for agency action.

By attempting to block this move by the EPA, Senator Murkowski and her cosponsors are not simply saying that action in Congress would be better than EPA regulation (everyone, including President Obama, agrees with that). Instead, they are trying to block the mere recognition by the EPA that climate change poses genuine environmental risks—in essence, they want to return to the bad old days of delay and denial rather than face this global problem head on.

With each passing day, the possibility of rapid action on climate change by Congress becomes more remote; there is no reason EPA should hold up its plans to regulate to wait for action from the Hill. However, the agency should be sure to avoid too many of the kind of command-and-control regulations that could interfere and overlap with future congressional measures.

As described in the report The Road Ahead from the Institute for Policy Integrity, the EPA has the option of avoiding an ineffective tangle of duplicative rules and policies by moving towards a market-based approach to reining in greenhouse gases. Several sections of the Clean Air Act could serve as the legal basis for a cap-and-trade, similar to the systems envisioned in the main bills in Congress.

By erring on the side of the most market-friendly course of action—where businesses and industry could decide on the lowest cost ways to reduce their emissions—EPA would make sure that their actions would not interfere with whatever legislation Congress does eventually pass. And in the meantime, the agency would be using the most efficient means to achieve reductions in greenhouse gas emissions.

Rather than attempting to shut down EPA’s recognition that climate change is a threat, or try to force a vote by Democratic Senators that can be used in the mid-term elections, the Senate cosponsors of this resolution should be working together to find consensus to pass a bill. We’ve been hiding our head in the sand for too long on climate change—we now need to start acting before it gets too late.

EPA can promote both environmental improvement and economic recovery by postponing regulation of greenhouse gas emissions from stationary sources. With Congress and the Administration hard at work on job creation and a national climate and energy policy, premature stationary source regulation could throw both efforts off course.

The economic recovery package and new Administration proposals contain important investments in clean energy development that can reduce greenhouse gas emissions and speed job creation. Yet these investments would be delayed, scaled back or cancelled if EPA moves ahead with stationary source regulation early this year as planned. Facilities that want to implement energy efficiency and other clean energy technologies would be among the millions of sources required to get permits. They will be stymied by the confusion surrounding the absence of permitting requirements and the flood of applications to EPA and state agencies. Even if EPA’s “tailoring rule” (raising the threshold for GHG emission from 250 to 25,000 tons per year) succeeds in the courts – a questionable outcome – most states will need state legislative action to adopt the same change. This process would take at least a year or two, and in the meantime, virtually all new and modified industrial and commercial facilities in a state would require permits.

California regulators offer a compelling example of the potential harmful consequences of premature stationary source regulation: The California Air Resources Board and California Energy Commission recently expressed significant concerns about the potential impacts of the GHG stationary source rules on clean, renewable energy production in California. California officials are urging EPA to slow down its proposal to regulate large stationary sources of GHGs, arguing that such action threatens to block the expansion of renewable energy in the state by holding up approvals for natural gas-fired power plants considered essential for new wind and solar power projects. According to California officials, increasing the amount of wind and solar power in the state depends on having more natural gas-fired generation that provides backup reliability.

Meanwhile, in the absence of “Best Available Control Technology (BACT)” standards for controlling GHG emissions from stationary sources, EPA is considering defining natural gas as BACT for new construction or major modifications of facilities – a step that would have far-reaching consequences for utilities forced to “fuel switch” from coal to natural gas. Mandating fuel switching also has important implications for U.S. manufacturers that rely on available, affordable natural gas for production. Premature EPA regulation would make it difficult to attract new manufacturing capacity to the United States and calls into question the viability of existing U.S. facilities and jobs. And in the chemistry industry, the step would affect new or modernized facilities that produce chemistry products for energy efficiency and renewable energy applications, from solar panels and wind turbines to building insulation, lightweight vehicle parts and compact fluorescent light bulbs.

Lawmakers should lead the development of America’s energy and climate policies. These important national policies will involve multiple interrelated elements to diversify the energy mix, expand low-emission energy sources, boost energy efficiency and conservation, and increase supplies of natural gas and other domestic energy sources. Both President Obama and EPA Administrator Lisa Jackson have indicated their preference for legislation to create the framework for a clean energy economy. Even EPA has expressed concerns that the scope and cost of regulating GHGs at vast numbers of stationary sources create an “absurd result.” The best solution is to postpone the stationary source rule until Congress acts on a broader climate policy. More important, postponing the stationary source regulation does not require any delay in regulating carbon emissions from motor vehicles, and we can realize the environmental value of that regulation while Congress considers policy approaches appropriate for stationary sources.

The following comments are from Marlo Lewis, a senior fellow at the Competitive Enterprise Institute:

Sen. Murkowski’s resolution of disapproval is a gutsy action intended to safeguard the U.S. economy, government’s accountability to the people, and the separation of powers under the Constitution.

Critics claim that the resolution attempts, in King Canute fashion, to repeal physics. They say it is equivalent to Congress voting to overturn the Surgeon General’s 1964 finding that cigarette smoking causes cancer. Rubbish!

A strong case can be made that the endangerment finding is scientifically-challenged. But that’s not what the Murkowski resolution is about.

As the Senator made clear in her floor statement, and as anyone can see from the text, the resolution would veto the endangerment finding’s regulatory force and legal effect, not its intellectual content. The resolution is not a referendum on climate science. It is a referendum on the propriety of EPA taking control of the economy without so much as a by-your-leave from the people’s elected representatives.

There is no valid analogy to the Surgeon General’s finding about smoking and cancer. The Surgeon General’s finding was purely that – an assessment of the medical literature. It had no regulatory force or legal effect. In fact, it proposed no remedies at all. It was Congress, not the Surgeon General or any executive agency that, in 1965, required all cigarette packages to carry a health warning, and that later banned cigarette advertizing on television and radio.

What Sen. Murkowski opposes is not EPA’s assessment of climate science but EPA dealing itself into a position to control the U.S. economy without “any input” from Congress.

As even EPA acknowledges, applying the Clean Air Act to carbon dioxide (CO2) leads to several “absurd results” that are manifestly contrary to congressional intent. For example, the endangerment finding will compel EPA to regulate greenhouse gas emissions from new motor vehicles, which will then obligate EPA to apply Clean Air Act pre-construction permitting requirements to tens of thousands and operating permit requirements to millions of small businesses. The permitting programs would crash under the own weight, freezing construction activity and putting millions of firms in legal limbo during the worst economic downturn since the Great Depression.

The endangerment finding is also a precedent for economy-wide regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program. Logically, EPA would have to set the NAAQS for CO2 below current atmospheric levels. Even a global depression lasting several decades would not be enough to bring America (and the world) into attainment with such a standard, yet the Clean Air Act obligates states to attain “primary” (health-based) NAAQS within five or at most 10 years.

EPA’s Tailoring Rule proposes to limit the endangerment finding’s economic fallout by amending the Clean Air Act’s pre-construction and operating permit programs. This breach of the separation of powers may or may not survive judicial scrutiny. But even if it does, the small business protections EPA proposes would terminate in six years. Moreover, the Tailoring Rule in no way reduces the threat of NAAQS regulation. The Murkowski resolution, on the other hand, would nip all this mischief in the bud.

According to the Washington Post, Sen. Barbara Boxer (D-CA), criticizing the Murkowski resolution, objected that if the public has to wait for Congress to pass legislation to control greenhouse gas emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Yes, but that’s democracy. And the democratic process is more valuable than any result that EPA might obtain by doing an end run around it.

Since the Progressive Era, our country has increasingly lived under a constitutionally dubious regime of regulation without representation. Regulations have the force and effect of law, and many function as implicit taxes. Article I of the Constitution vests all legislative powers, such as the power to tax, in Congress. For decades, however, Congress has enacted statutes that delegate legislative power to agencies that are not accountable to the people at the ballot box. Constitutionally, the only saving grace is that the regulations implement policies clearly authorized in the controlling statutes.

But the regulatory cascade that will ensue from EPA’s endangerment finding has no congressional authorization. Indeed, regulations emanating from the endangerment finding are potentially more costly and intrusive than any climate bill Congress has considered and either rejected or failed to pass.

We are on the brink of an era of runaway regulation without representation. Sen. Boxer says that the Murkowski resolution is “unprecedented.” It is. But that is only fitting, because the resolution addresses an unprecedented threat to our system of self-government.

The following comments are from Frank M. Stewart, President and COO, American Association of Blacks in Energy

The answer to questions regarding any EPA greenhouse gas regulation hinges on the answer to a broader question regarding national policy: are US legislators (and the voters who elected them) right to be skeptical of proposals that are not the product of a very broad, participatory process? The answer, in most cases, is “yes.”

One can understand that members of the United States Senate are more than a bit frustrated by the difficulty and the complexity of crafting a policy to guide this nation’s efforts in addressing climate change. After all, the Congress has been working at this for only a little over 300 days and nights.

However, the issue -- not so much with EPA specifically, as with any process that would purport to move to action without the guidance of the people’s representatives -- is of concern. Senator Murkowski is correct to be wary of any proposal that hasn’t had to withstand a broad, participatory process. And, even though that process might not be the most efficient or the most effective; efficiency and effectiveness are, at this point, less important than the fact that a broad spectrum of the American public needs to have ownership of the process and the product. The only way that we, as a nation, get that chance is if the Congress sets aside its “Business As Usual” approach and steps up to its responsibility to work openly and aggressively to fashion the path forward. And that is going to take collaboration and cooperation, not threats and recalcitrance.

Energy policies and energy technologies are rather complicated. But one thing is quite clear. America and other countries around the globe will need to drive more capital into a diverse array of fuels for the next many decades if the essential needs of people are going to be met. I am sure that both the Congress and the EPA would agree that it would be imprudent to implement any regulation that directly discourages investment in environmentally and economically responsible energy technologies.

My hope is that our legislative branch will work with all stakeholders to craft a climate policy that will guide this nation’s efforts in managing the emission of greenhouse gases and in mitigating the affects of the climate change phenomena

Kathleen Sgamma, Director of Government Affairs for the Independent Petroleum Association of Mountain States (IPAMS), submitted the following response:

No, the EPA should not regulate greenhouse gas emissions under the Clean Air Act (CAA). Regulation under CAA would be be intrusive, inefficient, and excessively costly. The CAA was meant to control traditional air pollution, not greenhouse gases that come from every home and commercial facility in America. Congressional action utilizing a market system that does not disadvantage natural gas is preferrable to an all-encompassing command-and-control approach.

Natural gas is a clean energy source that offers significant greenhouse gas reductions compared to other conventional fuels. By increasing utilization of natural gas for base load power generation to 50%, the US could experience a 40% reduction in emissions from the electricity sector. Natural gas enables renewable energy such as wind and solar by providing a back up. However, EPA regulation of greenhouse gases under the CAA would make it more difficult and costly to produce American natural gas. EPA regulation focused solely on emissions from production would ignore the full lifecycle benefits of natural gas, and could lead to a perverse situation whereby America is able to produce less natural gas at a time when demand should increase to enable the significant carbon reduction that natural gas offers.

Sens. Lisa Murkowski (R-Alaska) and Blanche Lincoln’s (D-Ark.) bipartisan disapproval resolution gives a legislative voice to all those who have been wringing their hands over the prospects of what Rep. John Dingell candidly assessed as a “glorious mess” if Congress left the regulation of greenhouse gas emissions to the Environmental Protection Agency (EPA) under the Clean Air Act.

President Obama, EPA Administrator Jackson and various members of Congress have expressed the same concern in somewhat less-colorful language. They have all said regulation under the Clean Air Act is not the best option, and the regulatory pathway is fraught with peril. Yet, here it comes.

Murkowski and Lincoln, instead of throwing up their hands and saying the ensuing regulatory train wreck is inevitable, have instead said, “Wait a minute.” In their view, Congress should not abdicate its policy responsibilities simply because it has been unable to rally round either the House-passed bill or the Boxer-Kerry proposal in the Senate. In effect, they have refused to be bullied into accepting a force-fed regulatory construct or flawed legislative proposals. What could be wrong with that?

Climate policy, whether it comes via regulation or legislation, will have profound effects throughout our economy. Hundreds of thousands of jobs are at stake, America’s ability to compete in the global economy is in question and households across the country will bear increased costs for energy, food, transportation and a host of life’s basics. Congress, not EPA, is the rightful decision-maker on questions of this breadth and consequence, and Murkowski and Lincoln are simply refusing to allow Congress to shirk that responsibility.

The Consumer Energy Alliance is concerned that using the EPA’s Clean Air Act as a vehicle to control greenhouse gas emissions could effectively bar Americans from being a part of this very important national climate change debate. Consumer Energy Alliance member companies are taking a hard look at EPA’s proposed action.

While CEA has not taken a formal position on current climate change proposals, the climate change issues and potential legislative changes should be debated openly and should ensure that all consumers of energy, effectively all Americans, have a chance for their voices to be heard. After all, this is an issue that will affect everyone, and has the potential to affect people in a dramatic way. During this time of economic downturn when so many Americans are already struggling with energy prices, further changes to US energy policy should be fully vetted with the American consumer. We look forward to a transparent climate change process led by the US Congress.

No, the Environmental Protection Agency should not regulate greenhouse gas (GHG) emissions under the Clean Air Act. The Chamber’s been very clear that the CAA wasn’t designed for-- and is ill suited to address-- the complexities of reducing GHG emissions. Does anyone really believe, for example, that EPA can set a National Ambient Air Quality Standard for greenhouse gases when the U.S. accounts for, on net, only about a 15% (and shrinking) share of global emissions? How can EPA set what it can’t control?

One of the major selling points of a comprehensive energy and climate change bill is that it would establish a single set of rules for controlling GHGs. It isn’t working out that way, however. The Waxman-Markey bill, for example, doesn’t bar EPA from regulating businesses that don’t fall under the rubric of the cap and trade scheme the bill would set up. The Kerry-Boxer bill goes even further and leaves the door open to EPA regulation of “capped” and “uncapped” facilities. And EPA Administrator Lisa Jackson said recently that she sees legislation complementing, not replacing, EPA regulation.

Our concerns go well beyond the threat of EPA regulation. There are many other administrative processes using other statutes and authorities as equally ill-suited to the task as the CAA—such as the National Environmental Policy Act and Clean Water Act—that are being stretched beyond recognition to regulate GHGs through the back door. Many states and localities have implemented or are considering programs to limit greenhouse gases. Trial lawyers and state attorneys general are using litigation to win awards against industries, primarily power generators, to reduce emissions through the courts. The findings language in both the House and Senate bills stating that greenhouse gases cause injury to persons, property, and the environment is an open invitation for trial lawyers to sue. Adding layers of complexity atop an already complex situation is hardly the way to provide business the predictability it needs.

I think one of the ironies in the whole climate change debate is that the threat of EPA regulation may actually be holding back sensible climate legislation. To say that the current bills are not as bad as the EPA alternative, which most everyone agrees is pretty bad, isn’t saying much. Who wants to make such a Hobson’s choice? Taking the regulatory threat off the table could free the discussion and lead it in a more constructive and less partisan direction. We’ve seen in the most recent Pew survey that climate change still remains dead last in the public’s consciousness, and while energy has dropped down the list, it’s still a much more important concern to the American public. There’s an opportunity here to get off the climate change merry-go-round with energy and climate legislation that focuses on efficiency, developing advanced new technologies, commercializing existing technologies, and cutting the “green tape” that stymies energy projects from going forward—all without throwing the economy into a tail-spin. That’s a much more compelling path forward.

AISI strongly opposes any greenhouse gas regulation by the EPA. We agree with President Obama and his comments throughout the past year that a legislative approach is the right mechanism for pursuing the reduction of greenhouse gases. Regulation under the Clean Air Act would require new facilities and facilities undergoing major modifications to obtain permits covering their emissions. Without certainty on the availability and timing of permits and other issues affecting the cost of compliance with greenhouse gas regulation, the very investments that are needed to create jobs and further the nation’s economic recovery will be delayed, cancelled, or exported.

The claim that the Clean Air Act can't work effectively to clean up carbon dioxide pollution is nonsense. Carbon dioxide is largely emitted from exactly those kinds of emission sources which the Clean Air Act has already cleaned up with great success; power plants, refineries, factories, vehicles. There is nothing new or unprecedented here. Yes, there are small sources that shouldn's be required to clean up, but that's true for pollutants like nitrogen oxides and particulates as well. (They come out of your fireplace, and you don't need a permit to light the yule log.)

And the Clean Air Act specifically envisaged that science would discover new pollutants that would need regulation, and provided that EPA would add to the list of regulated substances. It even envisaged pollutants whose main harm would be to the climate, listing damage to climate as one of the criteria which would require EPA to require a clean up.

Nor is there a conflict between Congressional action and EPA regulation. Congress has on a number of occasions stepped in to tell EPA what level of clean-up to require for both cars and power plants -- but it has never shredded the fabric of clean air law by saying that a particular pollutant was immune from clean up requirements under the law.

Those who argue that EPA should not act have had their day in court; and they lost. They are now just forum shopping, hoping to get Congress to ignore the law and the science. Congress should ignore their whining.

The EPA should regulate carbon emissions because that is what the Clean Air Act requires it to do. We can’t ignore a 40-year-old law simply because some polluters would prefer it. And we certainly can’t gut a bedrock law because the polluters’ political allies make erroneous claims about how that law works.

Senator Murkowski asserts, for instance, that “the Clean Air Act was written by Congress to regulate criteria pollutants, not greenhouse gases.” That is incorrect. The Supreme Court held in Massachusetts v. EPA that the Clean Air Act unambiguously covers all kinds of air pollutants, including greenhouse gases. Indeed, the court noted that the law has a “sweeping definition” of air pollutants.

Senator Murkowski also claims that her disapproval resolution “has nothing to do with the science of climate change.” Yet this too is incorrect. The resolution explicitly overturns the EPA’s science-based finding that global warming pollution is dangerous to Americans’ health and environment. This is the equivalent of Congress vetoing the Surgeon-General’s report that smoking causes lung cancer.

Murkowski and others also claim that the EPA’s rules would cover hospitals, hotels, and other small sources. This also is mistaken. Last September the EPA proposed to tailor its existing rules to make sure that only the biggest pollution sources such as power plants, oil refineries, and cement kilns have to install the “best available control technology” for carbon dioxide and the other global warming pollutants. This is nothing fancy. It's what they've done for years for other dangerous pollutants like sulfur dioxide.

EPA Administrator Lisa Jackson explained the extent of the regulations this way: “We can begin reducing emissions from the nation's largest greenhouse gas emitting facilities without placing an undue burden on the businesses that make up the vast majority of our economy.” She added: “The corner coffee shop is not a meaningful place to look for carbon reductions.”

The rules Jackson described will help America begin to confront the crisis of climate change, but I believe that a comprehensive clean energy and climate law would do a better job of unleashing innovation, generating jobs, and reducing our carbon pollution.

But even if comprehensive legislation is ultimately the most effective approach, the EPA must retain its authority to implement the Clean Air Act. Remember, this law has allowed us to breathe safer air, reduce the number of children rushing to the ER with asthma attacks, and prevent hundreds of thousands of people from dying of respiratory and cardiovascular illnesses.

A law that has protected Americans from dangerous pollutants should be honored, not gutted in order to let polluters off the hook.

If the EPA wanted to push the legal envelope to limit large-source co2 emissions (without the inefficiency of command & control) an annual abatement obligation with debiting or crediting of abatement accounts (amongst regulated facilities) seems to have merit. This approach, call it baseline or abatement trading (or my www.justcapit.org name) doesn't distribute or even create permit assets - though it does create a "rent" if new sources are simply barred. While it seems entirely clear that EPA can't implement cap and trade on its own - and they are restricted in creating trading markets - could facility-level debiting and crediting fall into some kind of safe harbor as a way to act on their own endangerment finding?

Just last week, NASA announced 2009 was the 2nd-hottest year on record, with the 2000s being the hottest decade on record. That leaves Sen. Murkowski and her supporters in a delicate position. With climate science looking more dire by the day, why would they try to direct the Environmental Protection Agency to ignore scientific climate findings about global warming’s threat to human health?

Sen. Murkowski’s effort would allow unlimited emissions of carbon pollution from the biggest corporate polluters and could stall the growth in clean energy jobs by creating uncertainty about our government’s commitment to a cleaner energy future. Clean Energy Works has rightly called it a Dirty Air Act.

Sen. Murkowski says she prefers a legislative solution and we encourage her to focus on finding one. But in the meantime, we urge her to stop attacking the EPA and the Clean Air Act, which are the best tools we currently have to begin addressing climate change.

Since 1970, the Clean Air Act has a proven track record of protecting public health and the environment from harmful pollution while ensuring our economy is strengthened. Between 1970 and 1990 actions to reduce air pollution saved the nation an estimated $22 trillion in health costs and lost productivity, at a cost of $523 billion—a remarkable 40-1 benefit-cost ratio. In 1990, the Clean Air Act was revised with bipartisan support and signed into law by President George H.W. Bush – demonstrating that goals of clean air and less pollution are shared by Republicans and Democrats alike.

Now is the time to move forward as a country in confronting climate change and building a clean energy economy. This so-called Dirty Air Act would to takeaway a critical tool that can be used to stop the unlimited emissions of global warming pollution from the nation’s biggest polluters, and would stall growth of clean energy jobs by creating uncertainty about the America’s commitment to a cleaner energy future. It’s precisely the wrong approach to take in solving today’s most pressing environmental and economic problems.

It is sad that we are still debating some of these questions. There is no doubt that EPA must and will regulate carbon dioxide and other greenhouse pollutants. It is a result sanctioned by statute, regulation, Supreme Court precedent and common sense. It is already happening.

Still subject to debate, of course, are the additional rules or contingencies Congress will add to the equation of solving the climate crisis. The fact that Murkowski now doesn’t have the votes in the Senate to sever the Clean Air Act’s lifeline to greenhouse pollution reduction is testimony to American public sentiment in favor of environmental protection and combating global warming. The President knows this.

Let’s get to work on actually solving our very serious problem.

Steve Seidel, Vice President for Policy Analysis at the Pew Center, has written the below response in place of Eileen Claussen.

With Thursday’s floor statement by Senator Murkowski announcing her joint resolution to override EPA’s endangerment finding, we were introduced to a new term to add to our lexicon – a disapproval resolution. If like me, you only had a vague recollection that Congress had given itself the ability to override any new federal regulation, some quick research was in order.

This authority is contained in the Congressional Review Act of 1996 (CRA) and was passed as one element of the Contract with America. In the 13 years since enactment, it has been successfully used once. The 2001 Congress overturned an end-of-term rule issued by OSHA under the Clinton administration that would have imposed ergonomic requirements in certain workplaces. Two other resolutions have passed the Senate but not the House (in 2003, a FCC rule setting limits on broadcast media ownership and in 2005, a USDA rule setting minimum risk zones to protect against Mad Cow disease). Since the CRA was enacted, something like 731 major rules and 47,540 non-major rules (as of March 31, 2008) have been finalized, but only the ergonomics rule was overturned.

And what is the endangerment finding? After an exhaustive review of the science, EPA found what every other national and international assessment has concluded – that greenhouse gases contribute to global warming, and that global warming is harmful to public health and the environment. That finding is, in fact, unassailable. Any effort to reverse it will be read, both here and abroad, as Congress rejecting the fundamental science.

In introducing her proposal, Senator Murkowski said that her goal was to allow the Senate more time to complete its work on bi-partisan legislation and to take the worst of the options (EPA regulations) off the table. But the dire economic consequences that are feared by some simply don’t reflect EPA’s actions to date and, in any event, wouldn’t occur in the near-term, leaving Congress adequate time to develop a bi-partisan comprehensive clean energy bill.

EPA’s initial proposal sets efficiency standards for light duty vehicles. It has been widely supported by the auto industry, unions, environmentalists, and states. EPA’s next proposal, “the tailoring rule,” further demonstrates EPA’s commitment to taking a reasonable approach in using the Clean Air Act to control greenhouse gases. It would limit permitting requirements and new source review (for new and modified sources) only to the largest sources, dramatically reducing the number of entities subject to these requirements. A number of commenters have suggested ways to improve this proposal, for example, by delaying its implementation, and EPA must consider these comments before finalizing the rule.

Senator Murkowski is correct to raise concerns that EPA’s approach will be challenged in the courts and could be overturned. But any resolution in the courts will take time. Disapproving the endangerment finding would not only be wrong as a matter of fact, it is also unnecessary, if the goal is to buy time for Congress to act.

Recognizing that Congress is best positioned to craft a cost-effective comprehensive clean energy bill doesn’t guarantee that it will happen any time soon. At the same time, recognizing that the Clean Air Act isn’t ideally designed to control greenhouse gas emissions doesn’t mean that it can’t be used to positive effect. We need to begin shifting to clean energy now. It would be wrong to disarm EPA with no certainty of a legislative solution.

Congress would be better off spending its time and energy over the coming weeks doing the work necessary to bring about the bi-partisan agreement on a comprehensive clean energy bill that Senator Murkowski and many others have as their ultimate objective.

Greenhouse gas regulation under the Clean Air Act would command and control into uncharted waters and be very bad for jobs, bad for economic recovery, and devastating for American competitiveness. Carbon dioxide is such a naturally occurring and intricately interwoven part of our daily lives that attempting to manage it through sweeping, command-and-control regulations intended to mitigate adverse health affects would be akin to deploying a nuclear bomb to open a locked door. (Ineffective and messy.) By allowing EPA to unleash this blunt tool on Americans, Congress would be failing to protect their constituents.

This pending decision also underscores a broader issue. A failure to rein in EPA would signal that legislators still haven’t gotten the unmistakable message that Americans, and most recently Massachusetts voters, have been sending to Washington’s political elites. Here are four important reasons:

1. Science Trumped By Political Science

In May 2007, shortly after the Supreme Court decision, I published a Marshall Institute paper, “Assessing the Supreme Court’s CO2 Ruling,” which explained:

April 1, the day that the Supreme Court ruled that the Environmental Protection Agency (EPA) had authority to regulate carbon dioxide (CO2) emissions from automobiles, was a day of bitter triumph. A triumph of judicial activism over factual and dispassionate analysis, a triumph of ideology over objective analysis and legal precedent, a triumph of political science—the blend of science, hypothesis and orthodoxy—over science and facts, and a triumph of image over reality.

2. Congress Didn’t Intend For EPA to Regulate GHG

The Court’s ruling was as much an indictment of the Justice Department’s competence in making the Administration’s case as it was judicial overreach. Few who have been involved with the Clean Act for any period of time could accept that Congress implicitly granted such far-reaching authority to EPA. Indeed, the Act’s legislative history makes that clear. Case in point: a 1990 Conference Committee action that explicitly removed a provision that would have empowered EPA to regulate greenhouse gas emissions.

If Capitol Hill doesn’t stop the agency from going forward with its rule making, it will be condoning EPA’s right to regulate the economy. Once the agency issues a rule on mobile sources, there will be no logical stopping point. Environmental advocates will litigate, as they have done repeatedly, to force EPA to regulate every other source covered by the Clean Air Act. Since every single combustion process involving traditional fuels produces carbon emissions, the “sources” subject to regulation would go well beyond the artificial limits set in the agency’s tailoring rule.

3. EPA Regulation Won’t Matter for Global Temperatures

Congress, at least in theory, balances competing and conflicting issues in writing legislation, especially the economic impact of proposed actions. The Clean Air Act does not provide for such balance. Although EPA regulation of US greenhouse gas emissions will have a trivial effect, if any, on global temperatures, its economic impact would be anything but. Prior analyses have shown that the effect of meeting the Kyoto targets or those in various cap and trade proposals would be infinitesimal but the cost would be anything but.

4. Good Policy, Good Politics: Stop The EPA

The lessons from Massachusetts, Tea Parties, and Town Hall meetings are very clear: focus on the economy and jobs and use common sense, realistic action in addressing perceived problems.