skip to main content

→ Top Stories:
Clean Power plan
Safe Chemicals

David Doniger’s Blog

Wall Street Journal Outfoxed

David Doniger

Posted September 4, 2009

, , , , , , , ,
Share | | |

Grrr... You can almost hear the teeth grinding in the editorial board room of the Wall Street Journal.  That pesky EPA Administrator Lisa Jackson has outfoxed us again! 

In an editorial called "Terms of 'Endangerment'" (hey, that was the title of my blog last April), the Journal inveighs once more against any action to stop global warming. 

The Journal editors have had their knickers in a twist ever since the Supreme Court rebuffed the Bush administration and ruled that the pollutants that cause global warming can be curbed under the Clean Air Act.  Carbon dioxide an air pollutant?  Impossible!  EPA regulations?  An outrage!  

Maybe just a hypothetical outrage during the foot-dragging final years of the last administration.  But what really got the Journal editors seeing red (so to speak) was the Obama team's odd commitment to follow the science and obey the law of the land. 

President Obama wants Congress to pass new energy and climate legislation to put America on a path to clean energy future, cut the pollution that drives global warming, create jobs and rebuild our economy, and improve our energy security.   

At the same time, the president and his administration are moving deliberately to use the laws we already have to cut heat-trapping pollutants, improve energy efficiency, and promote clean technologies.  

So now the EPA is taking the long-overdue first steps towards using the Clean Air Act.  Administrator Jackson has proposed to make the not very astounding scientific finding that carbon dioxide and other greenhouse gases "endanger" our health and environment.  Under the clean car peace treaty reached in May, the EPA is preparing emission standards for new cars.  And next up will be standards for power plants and other big industries. 

All the WSJ editors can see is economic ruin.  As their "proof," they've latched onto this clever argument from the whiz kids at the U.S. Chamber of Commerce:  If EPA uses the Clean Air Act to curb carbon dioxide from new cars, giant power plants, or other big factories, then the government's boot will inevitably fall on every new donut shop and hot dog stand in the land. 

Those are the same geniuses who called last month for a monkey trial on global warming.

To hear it from the Journal editors and the Chamber, EPA will not be able to stop with cars and power plants.  It will have no choice but to require every new small business that emits more than 250 tons per year of CO2 to get a permit demonstrating use of the "best available technology" (BACT).  And if the administrator doesn't do it, some darned environmental extremist will take her to court and force her to. 

But here's where the outfoxing comes in.  Administrator Jackson is about to propose a rule - called the "tailoring" rule - to limit the permitting and BACT requirements to really big sources - the power plants and big factories that have had to meet these same requirements for other pollutants for decades.  The new EPA rule reportedly will set the threshold for permitting and BACT at 25,000 tons of CO2 per year.   

Arrrgh!  She doesn't want to cover pizza parlors, nursing homes, and apartment buildings!   

And who is going to take her to court?  Damned if I know.  NRDC and other environmental groups support this new regulation.  Why?  Because we want EPA to focus on the big stuff.  Some 85 percent of U.S. global warming pollution is covered if you focus on some 13,000 power plants and big factories, as well as our cars and trucks. 

So the WSJ editors are left spluttering because the EPA intends to focus on the big sources that account for most of our carbon pollution and that can reduce it economically, becoming cleaner, more efficient, and more productive over the long haul. 

The president has got it just right:  "The choice we face is not between saving our environment and saving our economy.  The choice we face is between prosperity and decline."  

Share | | |


Bill S.Sep 4 2009 11:48 AM

Great post. I had similar thoughts as I read the WSJ OP-ED piece.

Isn't there legal precedence that confirms tailoring? If I recall correctly, something similar happened with the Clean Water Act and farm run-off (in the 70's ?). The still young EPA feared needing to regulate tens of thousands of small farms along with big-scale chemical plants and didn't include farms in the initial regulations. (Unfortunately the farm lobby was able to get Congress to write an exemption into law, preventing the EPA from adding regulations as they developed CWA sophistication.)

The courts agreed with the EPA and allowed them to focus first on the big polluters to maximize the benefits. Tailoring allowed the EPA to prioritize its efforts.

Bill WolfeSep 6 2009 11:48 AM

David - why would you support this kind of purely defensive political strategy before you saw the actual program contents in a rule proposal?

Does this regulatory approach narrow EPA regulatory authority needlessly? Is PSD Title V the best approach? A 25,000 ton threshold sounds like loopholes to me. How will small sources and building be incentivized?

Has there been a review and anlysis and disussion of this kind of strategy within the ENGO community? Or are you just reacting to the purely political move of EPA?

The endangerment finding schedule has slipped, and Lisa Jackson has said she prefers Congress to legislate a solution as preferably to EPA regulation. This finding is not a stick to motivate Congress to act (the narrative that is being spun), but rather is a big excuse not to regulate, which is consistent with her policy in NJ, where she failed to use existing regulatory authority and supported a GWRA bill that stripped regulatory authority in favor of market based RGGI cap/trade - and no ENGO's criticized that at the time).

Guess we'll see the Administration's cards on the table when EPA walks from mountaintop mining permits -

BTW, Reuters is reporting that "environmentalists" support legislation over regulation. Why would you do that?

Does anyone seriously believe that health care advocates would seek legislation if universal coverage and single payer could be imposed by federal regulation? Of course they would prefer regulation as a way to avoid the powerful special interests that control Congress. And they could focus accountability on 1 person (Obama) rather than 635 congresscritters.

SO why is EPA GHG regulation different?

Why would environmentalists WANT to give the game away in COngress and let big coal and oil determine outcomes? Don't ENGO's WANT to WIN?

David DonigerSep 6 2009 06:02 PM

Responding to Bill W. –

1. NRDC in fact is pushing hard for EPA to use its Clean Air Act authority to curb global warming pollution. We helped shape the clean car peace treaty under which EPA is set to regulate GHG emissions from cars by next March – watch for the proposal later this month.

2. The endangerment determination, proposed in April at rocket speed, is not “slipping;” the final is right on schedule and coming soon.

3. EPA has assessed the impact of different threshold levels. Take a look at (p.12), where EPA shows the percentage of US emissions covered at different threshold levels. At 25,000 tons, you cover about 55% of stationary source GHG emissions (plus another 30-35% of emission covered upstream (for example, refineries that have to account for the emissions when the fuels they produce are burned). If you lower the threshold to 10,000 tons, you pick up barely ½% more emissions, but you nearly double the number of sources subject to regulation. Lower it further to 1,000 tons, and you pick up only another ½%, but you triple again the number of regulated sources. In short, you can cover 85% of the US emissions by focusing on the biggest sources. Not bad.

4. NRDC also favors comprehensive new energy and climate legislation. We need both action under existing law and enactment of a new one too. We can take a big bite out of global warming pollution under the current Clean Air Act, and we need to do that. But we cannot to do our part in preventing the worst impacts of global warming without making steady, deep reductions over time, and that is best done under the declining emissions cap envisioned in the ACES bill passed by the House and now before the Senate.

Comments are closed for this post.


Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit

Feeds: David Doniger’s blog

Feeds: Stay Plugged In