Couldn't We Just Close Government Based on this Doctrine?

The WSJ on new EPA CO2 rules under the Clean Air Act:

Usually it takes an act of Congress to change an act of Congress, but Team Obama isn't about to let democratic"”or even Democratic"”consent interfere with its carbon extortion racket. To avoid the political firestorm of regulating the neighborhood coffee shop, the EPA is justifying its invented rule on the basis of what it calls the "absurd results" doctrine. That's not a bad moniker for this whole exercise.

The EPA admits that it is "departing from the literal application of statutory provisions." But it says the courts will accept its revision because literal application will produce results that are "so illogical or contrary to sensible policy as to be beyond anything that Congress could reasonably have intended."

Well, well. Shouldn't the same "absurd results" theory pertain to shoehorning carbon into rules that were written in the 1970s and whose primary drafter"”Michigan Democrat John Dingell"”says were never intended to apply?

It is interesting to see the Obama administration using the exact same logic to limit the reach of the Clean Air Act vis a vis Co2 emissions as the Bush Administration did to say the Clean Air Act should have not applicability to CO2 emissions.

Yet one not-so-minor legal problem is that the Clean Air Act's statutory language states unequivocally that the EPA must regulate any "major source" that emits more than 250 tons of a pollutant annually, not 25,000. The EPA's Ms. Jackson made up the higher number out of whole cloth because the lower legal threshold"”which was intended to cover traditional pollutants, not ubiquitous carbon"”would sweep up farms, restaurants, hospitals, schools, churches and other businesses. Sources that would be required to install pricey "best available control technology" would increase to 41,000 per year, up from 300 today, while those subject to the EPA's construction permitting would jump to 6.1 million from 14,000.

So the Bush Administration argues that the Clean Air Act applies to 0% of CO2 sources and they are accused of breaking the law.  But the Obama Administration argues the Clean Air Act applies to 0.2% - 0.7% of sources and this is somehow a vastly superior legal argument?  The courts rejected 0.0% as non-compliant but they will accept 0.2%?


  1. DKN:

    Why should this, umm, "creative" method of implementing law surprize? We've got SCOTUS judges who can find "penumbras" and "emanations" in the Constitution which just happen to coincide with their personal preferences. We've got a presidents who turn bankruptcy law on it's head, transfer billions of dollars to supporters (and appoints some to the administration), who appoint cabinet members and unaccountable Czars empowered to, in effect, legislate. We've got a Congress that passes whoppingly intrusive and expensive legislation without reading it, and are now attempting to pass another such monstrosity composed of mere conceptual language - the legal language will be added later.

  2. James H:

    I think someone once said something about the best way to fix a bad law is to enforce it. Let the lawsuits begin.

  3. Thom Moses:

    The major error with controlling Co2, is not conrtolling the H2O emmisions produced from burning of all fossil fuels. Water Vapor has a much greater effect in causing Global Warming than Co2. Whatever argument can be made of why we need to control Co2 can be made 10 fold for H2o. Afterall, the number one fear of global warming is sea level rise. Well, putting more water into the air will increase rainfall & raise the sea level MORE than Co2.
    The Co2 argument is rediculous. And by the way, burning Hydrogen makes pure H20 (the #1 greenhouse gas).

  4. Patrick M:

    CO2 is not a pollutant.

    As with environmental rules themselves, it does no good to deal with the issue downstream.
    You have to go to the source. And the source of the problem is calling a non-pollutant CO2 a 'pollutant'.
    No amount of CO2 in the biosphere is by itself of any harm to any living thing (unless you replaced
    all the oxygen in doing so). Alleging CO2 is a pollutant on the basis of its influence is another absurdity,
    as the demonstration above wrt H2O shows. H2O and CO2 are both greenhouse gases and naturally abundant
    and both have cycles. Man's interference in the CO2 cycle - EVEN IF IT HAS SOME NEGATIVE EFFECTS - does not
    in any way, shape or form make CO2 a 'pollutant'.