Contrary to popular belief, the Supreme Court’s 5 to 4 decision in Massachusetts v. EPA did not require the EPA to issue rules regulating the emission of carbon dioxide. Instead it instructed the agency to ground its reason for action or inaction within the statutory requirements of the Clean Air Act. Carbon emissions are a ubiquitous and unavoidable byproduct of all fossil fuel combustion, which currently provides 85% of America’s energy. A finding that carbon emissions endanger the public health under the Clean Air Act would trigger a massively complex regulatory scheme that the creators of the Act could never have anticipated.
Under the Act, once carbon was regulated from motor vehicles it would also have to be controlled from all stationary sources under the New Source Review (NSR) program. This would force all but the smallest of businesses to comply with the industrial-strength EPA red tape that routinely costs large businesses hundreds of thousands of dollars. Restaurants with kitchens, apartment buildings with heating systems, and even farms would be forced into the costly regulatory framework.
An endangerment finding for carbon dioxide would require the EPA to design a regulatory scheme far more extensive than those that have since been rejected by Congress. Since the economic impacts, unintended consequences, and public anger would be unprecedented, the Administration would be wise to leave the issue to the legislative process. Global warming is far too complicated an issue to decide by administrative fiat. Instead, the administration should gather more information and wait for Congress to act on the issue.