Have you heard about the “EPA Power Grab”? This one’s a whopper, a pernicious, flat out lie so big, so harmful, and so wrapped in hysteria it’s no wonder there are conservative heads exploding all over the right wing propaganda Wurlitzer.

Someone made me read the Washington Post’s Charles Krauthammer, who was lamenting the fact that administrative agencies created by Congress have the temerity to propose and adopt regulations that Congress empowered and directed them to enact, in EPA’s case after the Supreme Court told the reluctant agency heads they had that mandate, so get on with it.

In Krauthammer’s view, whenever an agency does what Congress and the Courts tell them to do, it’s called a “usurpation” and “power grab,” and when Democratic appointees are in charge, agencies do this in silence to conceal what government is doing:

Turns out ignorance is the Democrats’ best hope. And regulation is their perfect vehicle – so much quieter than legislation. Consider two other regulatory usurpations in just the past few days:

On Dec. 23, the Interior Department issued Secretarial Order 3310, reversing a 2003 decision and giving itself the authority to designate public lands as “Wild Lands.” . . .

The very same day, the Environmental Protection Agency declared that in 2011 it would begin drawing up anti-carbon regulations on oil refineries and power plants, another power grab effectively enacting what Congress had firmly rejected when presented as cap-and-trade legislation.

Lord a mercy, it’s a secret midnight coup!

Uh, no, it’s not. This sudden secret coup by the EPA is the result the Clean Air Act, which Congress passed in [1963]the early 1970s with socialist Richard Nixon’s signature. For years, climate scientists and others have urged EPA to include global greenhouse gas (GHG) emissions among those harmful to humans, and thus requiring emission reduction, but the Bush Administration refused until 2007, when five Justices of the Supreme Court looked at the arguments, read the Act and said, gosh, you’re right.

The Bush EPA continued to drag its feet, but Obama’s EPA began a process to comply with the Act and the Court decision. It conducted studies to document the potential public harm from GHG and after notice and months of public comment, issued an “endangerment finding” in December, 2009 as a legal prelude to the development of regulations. Proposed rules were published and more months of public comment followed.

Regulations for light-duty vehicles were issued in April, 2010, and rulemaking began for stationary sources. In May, EPA announced that initial rules, still to be adopted, would focus on new, large stationary sources like new power plants, and would not take effect until January 2011. Then in mid December, EPA announced a schedule for upcoming rulemaking for existing stationary sources that could carry through 2011 and into 2012.

An EPA website describes this lengthy process. Grist’s Dave Roberts has a helpful summary of where these pieces fit together. More from NRDC’s Laurie Johnson.

But the main points are that Congressional statutes and the Courts required the EPA to do what it’s doing, after it stalled and ignored the law for decades. It’s a familiar pattern for those of us who (long ago) have been involved in agency rulemaking for environmental and energy efficiency standards.

But never mind the facts and history. There must be a memo somewhere directing all the loudspeakers on the right wing propaganda Wurlitzer to describe this is as a sudden, naked “power grab” by EPA. A simple Google of “EPA, power grab” will fetch you dozens of columns (Wall Street Journal [GOP Chair], Weekly Standard), and right wing radio screeds (Hugh Hewitt), editorials, blog posts, op eds, etc. Every single one highlights the terms “power grab,” (the hysterical Hewitt uses it three times) just as Krauthammer does, to describe an agency merely doing the job Congress told it to do and common sense tells us needs to be done.

As I’ve written before, there are dozens of dirty, aging, inefficient coal plants in the US that are scheduled to retire and be replaced in the coming decade or two. Industry is already planning to spend billions replacing these plants no matter what, but with what? What utilities and independent developers and their investors need to know is what the rules will be.

Despite right wing efforts to sow misinformation and uncertainty, EPA is trying to tell industry that emission controls on GHG, based on the familiar Best Available Control Technology (BACT), must be part of their calculation for what investments make sense. Knowing that, the industry can and will meet the rules, and despite hysterics, the lights will stay on at reasonable rates. Everything else the right wing propagandists are saying about this is just gibberish.

John Chandley

[Update: CAA passage occurred in 1963, not 1970s as originally stated; it was extended in 1970. For more history on EPA's role on GHG, see Dave Roberts' excellent summary at Grist. ]