Day: December 28, 2010

A key Republican is already laying the groundwork for the 112th Congress’ surrender on the EPA’s climate rules. More surprising is the complicity of a tea party group.

Rep. Fred Upton, the chairman-designate of the House Energy and Commerce Committee, co-authored an op-ed in today’s Wall Street Journal with the promising title, “How Congress Can Stop the EPA’s Power Grab.”

Now that we face the prospect of flagrantly illegal, arbitrary, expensive and pointless regulation of greenhouse gases by the EPA, I was eager to read how the new Congress was going to, say, slash the EPA’s budget to prevent it from implementing the climate rules or perhaps shutdown the federal government if the Obama administration proceeded with its plan to dictate energy policy in order to control the economy.

Instead, Upton offered a mere two sentences of action that are better described pusillanimity rather than pugnacity:

The best solution is for Congress to overturn the EPA’s proposed greenhouse gas regulations outright. If Democrats refuse to join Republicans in doing so, then they should at least join a sensible bipartisan compromise to mandate that the EPA delay its regulations until the courts complete their examination of the agency’s endangerment finding and proposed rules.

Earth to Upton, it will be impossible to overturn or delay the EPA rules because:

• There will likey be more than 40 Democrat senators to filibuster any effort to overturn or delay the rules. Likely filibuster-ers include Begich (AK), Feinstein (CA), Boxer (CA), Bennet (CO), Lieberman (CT), Blumenthal (CT), Carper (DE), Coons (DE), Nelson (FL), Akaka (HI), Inouye (HI), Durbin (IL), Harkin (IA), Cardin (MD), Mikulski (MD), Kerry (MA), Levin (MI), Stabenow (MI), Franken (MN), Klobuchar (MN), Tester (MT), Reid (NV), Shaheen (NH), Lautenberg (NJ), Menedenz (NJ), Bingman (NM), Udall (NM) ,Schumer (NY), Gillibrand (NY), Hagan (NC), Brown (OH), Merkley (OR), Wyden (OR), Casey (PA), Reed (RI), Whitehouse (RI), Johnson (SD), Leahy (VT), Warner (VA), Webb (VA), Cantwell (WA), Murray (WA), and Kohl (WI). Most of these senators already voted last June against the Murkowski amendment to rollback the EPA rules under the Congressional Review Act.
• Even if a bill to overturn/delay the rules managed to get out of Congress, President Obama would veto it — and it’s unlikely that Republicans could muster the two-thirds majorities needed to overturn the veto.

The wimpiness, here is breathtaking. Aside from the total ineffectiveness of the plan, Upton fails to support his preferred solution (overturning the rules) with a more aggressive, less-palatable-to-Democrats alternative (defunding the EPA or shutting down the government). Instead, Upton’s alternative course is weaker (delaying the rules) and is offered from the position of a supplicant (“at least” do the “sensible, bipartisan compromise” — pretty please?).

I hope EPA administrator Lisa Jackson doesn’t hurt herself rolling on the floor.

Upton expresses high hopes, if not expectations, that ongoing litigation will curb the EPA. But an appellate court recently held that the EPA can wreak its havoc on our economy while the litigation is ongoing. And who knows how long it will take to get a final ruling from the Supreme Court? Keep in mind that the current Court is philosophically unchanged from the one ruling in 2007 that EPA could regulate greenhouse gases.

Moreover, while the portion of the EPA’s climate rules that is flagrantly illegal is likely to be overturned (i.e., the so-called “tailoring rule” under which EPA unilaterally amended the Clean Air Act to  limit regulation of greenhouse gases from 100-ton emitters to 75,000-ton emitters), it is unlikely that the Court will overturn the EPA’s so-called “endangerment funding” (which declares that greenhouse gases are a threat to the public welfare). Under the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, it is extremely difficult to show that an agency has acted arbitrarily and capriciousily in violation of the Administrative Procedures Act.

No profile in courage, Upton is wishing for a litigation miracle so that he doesn’t have to get down in the mud and wrestle with the Obama administration.

Also of note is Upton’s co-author, Tim Phillips of Americans for Prosperity (AFP) — a nationwide conservative grassroots group that has tried to blend in with the tea party movement. But AFP may be risking its tea party credentials by signing on to Upton’s exercise in bipartisan futility  —  where liberal/socialist Democrats get what they want and the rest of us get the shaft. That may be standard Washington, DC fare, but it is not what tea partiers voted for in November.

I’m not surprised by Upton’s wimpiness — that’s why conservatives wanted Joe Barton (R-TX) to be chairman of Energy and Commerce, not the light-bulb-banning Upton — but I am surprised by AFP’s. Shame on them.

Here’s the bottom line. Since the new Congress will not rubber stamp Obama’s socialist legislative agenda, the President will seek to socialize us via regulation — regardless of legality. The EPA’s climate regulation plan is unconstitutional on its face (only Congress, not federal agencies, can change laws). Another example of the coming socialization-by-regulation is the Federal Communications Commission’s recent party-line vote to implement net neutrality rules despite the a federal appellate court ruling that it lacks the statutory authority to do so.

“Every battle is won before it is fought,” said Sun Tzu. Upton, according to his op-ed, has already surrendered to Obama. Oh well, at least election night was fun.