I spent the early part of last week following U.S. Representative Fred Upton around on his “listening tour” of Michigan’s sixth Congressional District. There weren’t any revelations that came out of the tour – he largely stuck to the talking points – but when you hear someone say the same misleading thing over and over, sometimes the urge to respond can become overwhelming.
The argument Fred Upton is making around climate change, the proper role of the Environmental Protection Agency (EPA) and the relationship between the branches of the federal government is tenuous. Upon closer inspection, it falls flat on its face.
At these events, Rep. Upton spent the first 15-20 minutes on introductory remarks, then 40-50 minutes taking notes on the questions asked, then the remaining time answering the questions (or not) in a block.
Many of the questions revolved around why Upton had introduced a bill – H.R. 910 – that would prevent EPA from protecting public health and enforcing the Clean Air Act (CAA). He wasn’t responding to questions as they were asked, so he could have just ignored those questions entirely. You have to imagine he would prefer not to talk about the relationship between EPA regulation and public health, so he probably deserves some credit for giving any answer here.
That answer fell along this basic narrative arc:
I voted with the overwhelming bipartisan majority in favor of the Clean Air Act revisions in 1990. At the time, we debated including a Senate amendment that would regulate greenhouse gases. That amendment failed. Now the EPA wants to regulate those same gases, which I don’t believe they have the authority to do. That’s why I introduced my bill – H.R. 910, the Energy Tax Prevention Act of 2011 – which would prevent EPA from regulating greenhouse gases. You can’t regulate what you can’t legislate. What H.R. 910 doesn’t do is change any of the current 188 pollutants that the Clean Air Act currently regulates.
To be clear, nothing here is an out-and-out lie. It’s all technically true, especially if you think adding “I don’t believe” inoculates you from factual inaccuracy. But it’s as misleading as it gets. I’ll start debunking from the top-down:
Upton Debunk #1:
Now the EPA wants to regulate those same gases, which I don’t believe they have the authority to do.
This might be semantic, but the phrase “the EPA wants” implies that they’re acting of their own volition; it connotes an image of EPA Administrator Lisa Jackson running around the country, wantonly fining cows and power plants alike for emitting greenhouse gases. This, I’m sure, is entirely the point. If that were actually happening, we’d all agree that EPA was out of control and needed to be reined in. Unfortunately for Upton, the truth of the matter is that EPA was ordered to regulate greenhouse gases by the conservative-leaning U.S. Supreme Court in the 2007 case, Massachusetts v. EPA.
The decision gets pretty technical, and it’d be tough to summarize without doing pages of background on the CAA. The relevant provisions regulate air pollution in two ways: The first lists the chemical compounds known to negatively affect public health and sets emissions limits on them. The second directs Congress to regulate “any air pollutant [that can] reasonably be anticipated to endanger public health or welfare.”
The second regulation method was put into the Act with the understanding that no list of pollutants could ever be complete. Industrial processes – and the pollutants they emit – will change and evolve over time as new technology develops. To avoid that inevitable obsolescence, Congress added the above provision to allow the EPA to evaluate and regulate a given pollutant based not only on whether it’s on the list, but whether it might endanger the public.
Upton Debunk #2:
That’s why I introduced my bill – H.R. 910, the Energy Tax Prevention Act of 2011 – which would prevent EPA from regulating greenhouse gases. You can’t regulate what you can’t legislate.
The CAA is a federal law, and like all other federal laws, the Supreme Court is the final arbiter of what it says, what it means, and whether it’s constitutional. In Massachusetts v. EPA, the Court determined that greenhouse gases meet the public health endangerment criterion. This means that not only does EPA have the authority to regulate these emissions, they have the legal obligation to do so.
What H.R. 910 really does is nullify the Supreme Court decision in Massachusetts v. EPA.
Upton Debunk #3:
What H.R. 910 doesn’t do is change any of the current 188 pollutants that the Clean Air Act currently regulates.
For one sentence, there’s a lot wrong with this statement. First, there’s a big difference between how H.R. 910 changes EPA operations and how everything else Upton is doing affects the agency. So no, H.R. 910 doesn’t change the way that EPA regulates, say, ozone or lead emissions. Take a look at Upton’s votes on H.R. 1 – the continuing budget resolution and its amendments – and you get a starkly different picture. That bill saw Upton vote to cut EPA funding by $3 billion and denied funding to perform certain regulatory functions.
So sure, H.R. 910 doesn’t change how EPA regulates air emissions right now. Neither did his votes on repealing health care or “don’t ask, don’t tell,” or any other votes that aren’t germane to current EPA operations. It doesn’t mean that he isn’t taking every opportunity to eviscerate the agency with his votes that are.
There’s also a bit of sleight-of-hand going on with Upton’s meaning of the words “currently regulates”. When the Supreme Court said that greenhouse gases were covered under the CAA, that ruling had immediate effect, at least legally. In practice, the regulatory process for any class of new pollutants – especially one as ubiquitous as greenhouse gases – is extremely complicated and often takes years to finally put in place. So no, greenhouse gases are not included in that list of 188 pollutants, but legally, they should have been since 2007. The reason EPA hasn’t yet issued any regulatory rules is that they’ve been waiting for Congress to clarify the exact system by which these pollutants should be regulated.
This was the main impetus for the introduction of the cap-and-trade bills that passed the House but floundered in the Senate during the last Congress. Broadly speaking, there are two ways to regulate greenhouse gases: either Congress can do it, or they can defer to the EPA to do it for them. If you ask Fred Upton about cap-and-trade, he’ll proudly tell you that he led the fight against it in the House. There’s nothing per se wrong with that viewpoint, provided the other side of that coin is a willingness to let the EPA make the rules instead. When the law gives you a choice between A or B, you don’t get to say “C.”
“C” might be the preferred option of John Boehner or the Koch brothers – maybe even Upton himself – but the law dictates otherwise. The Supreme Court ruled that greenhouse gases must be regulated under the Clean Air Act.
If Upton has a problem with that, I would refer him to this statement from a Congressman asked about his stance on campaign finance reform:
I voted for McCain-Feingold. I thought it was a good law. But the Citizens United decision said that corporations can spend what they want on elections. However you might feel about that, that’s what the Supreme Court said and that’s the law.
That Congressman was Fred Upton. It’s disappointing that Rep. Upton seems all too eager to defer to the Supreme Court when its rulings are politically advantageous to him, but fights them tooth-and-nail – literally attempting to nullify them – when they aren’t. That protecting public health and welfare is deemed a political disadvantage for anyone is disappointing for a whole different set of reasons.
Alex Yerkey is a Campaign Organizer with Clean Water Action, based in Ann Arbor Michigan.