A 1985 comedy/horror film called “Return of the Living Dead” became a cult classic, redefining zombies as brain-eating creatures who can run and talk, survive bullets, and terrorize the city of Louisville. That is, until they encounter a group of punk teenagers – always the heroes of such films. The movie was called a “mordant punk comedy” by the New York Times, though to me it seemed more mordant, and morbid, than comedic.
Horror films all have a common characteristic. Namely, however many times bad guys are killed, they keep coming back. In politics, the same is true of bad ideas, and we are about to experience the return of several ideological zombies. Think Waters of the U.S. (WOTUS), Paris climate treaty, clean power plan, or Grand Staircase-Escalante National Monument, for example. Perhaps the most brain-devouring concept among many is the idea of regulating that dangerous pollutant, carbon dioxide (CO2).
The idea was hatched by climate activists during the second Bush Administration, but the idea of treating a naturally occurring gas – one that is vital to life itself – as a pollutant seemed out of kilter with the Clean Air Act. So much so that a lawsuit filed by Massachusetts, of all places, went straight to the Supreme Court. Surprisingly, the Court ruled that the law’s definition of “pollutant” could include “greenhouse gases,” though it did not attempt to decide how EPA might regulate CO2.
That opened the door for the Obama Administration to publish its “endangerment finding,” an official regulatory determination that CO2 is a threat to public health and welfare. The next eight years of climate-based regulations all stemmed from that “endangerment finding.” While the Trump Administration rolled back several of those regulations, it made no attempt to repeal the “endangerment finding” itself, despite the strong advice of its own transition team. Among others, I said at the time that with that “finding” left in place, it was only a matter of time before courts would order regulations reinstated. After all, it strains credibility to name a dangerous pollutant but decline to regulate it.
The environmental industry has long called for EPA to list CO2 as a “criteria pollutant” and set legal standards for it. Here’s what that means. The law names six “criteria pollutants,” those determined to directly harm human health: Carbon monoxide, nitrogen dioxide, sulfur dioxide, lead, ozone and particulates. CO2 is not one of them, but EPA and its allies want to change that.
That has proven to be very difficult, for a simple reason: CO2 does not harm human health. Many argue that it affects climate change as a greenhouse gas, a debatable point upon which reasonable people may disagree. But CO2 does not cause asthma, lung cancer, or other respiratory diseases. Even more problematic for EPA, CO2 sources cannot be measured in specific locations, precisely because it is a naturally occurring gas that is, quite literally, everywhere. Thus, EPA can’t really provide legal standards for it, and if it did so, states would then have to meet 10-year deadlines, which cannot be measured.
So, what is a regulator to do? Resurrect a bad idea which many thought was dead. EPA wants to adopt rules Congress would never approve, so it will bypass the standard administrative processes, using a tool called “sue and settle.” The Wall Street Journal called it “Biden’s Backdoor Climate Plan,” saying the Administration is colluding on a plan to impose parts of the Green New Deal “through a regulatory backdoor… to hasten a replacement ozone rule that regulates CO2… because they know they can’t pass it through the front in Congress.”
The idea of “sue and settle” is simple. Environmental groups sue the EPA, demanding the agency impose rules the regulators wanted anyway, but could not get done through the regular process. As my friend Chris Horner of Government Accountability and Oversight explains, “Instead of fighting the lawsuit, the EPA would then almost immediately surrender, agreeing to settle… consenting to whatever outrageous demands were being made by the agency’s handpicked ‘adversary.’ [And] when citizens or business complained, EPA would claim its hands were tied by the settlement.”
Obama’s EPA tried the tactic with its ill-fated cap-and-trade plan, unsuccessfully. The Trump Administration ended “sue and settle,” but not forever. It now returns from the dead, like a nightmare on Pennsylvania Avenue. And if this latest attempt fails, don’t worry. Its advocates will be back with a different angle soon. Remember, even a movie as bad as “Return of the Living Dead” spawned four sequels.
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