Is It Antiscience to Limit EPA's Authority on Greenhouse Emissions?

Regardless of its fate, a proposal before the U.S. Senate to bar the Environmental Protection Agency (EPA) from regulating greenhouse gases (GHGs) has raised important questions about the role of science in setting policy.

Tomorrow's vote on a measure introduced by Senator Lisa Murkowski (R–AK) would throw out a determination by EPA in December that greenhouse gases "endanger" health and "welfare" and therefore should be regulated under the Clean Air Act. It has 40 co-sponsors and needs only 51 votes to pass. The controversial measure faces longer odds in the House, and President Barack Obama yesterday promised to veto it if it reached his desk. The Senate vote will likely set the tone for the coming fight on the so-called American Power Act, which would limit greenhouse gas emissions. One enviro calls that debate, which Democrats hope to have in the coming weeks, "the battle for our future."

In the meantime, however, two letters signed by a total of nearly 2000 scientists and academics attack Murkowski's resolution as a "rejection" of science. "The supporters of this amendment do not have a great respect for science," says Kirsten Engel, a law professor at the University of Arizona, Tucson.

Senator Debbie Stabenow (D–MI) says she'll oppose the Murkowski resolution because "it's wrong to challenge a scientific finding about whether or not climate change exists." And the White House opposes the measure because it "is contrary to the widely-accepted scientific consensus that GHGs are at increasingly dangerous concentrations ... [and] would strip EPA of its authority to protect the public from GHG pollution."

But Murkowski's supporters question whether the amendment is actually about Congress meddling in a scientific decision.

Murkowski's bill makes use of the Congressional Review Act, which allows Congress to review and reject rules that agencies propose. The "rule" that Murkowski's measure would strike down was the endangerment finding proposed officially in December—which EPA called a rule because it was released in the rulemaking process with public comments and reviews. (Not all such determinations get that treatment.) Murkowski's one-page bill doesn't get into the scientific finding, points out the Competitive Enterprise Institute, which supports Murkowski's approach:

Because the endangerment finding dramatically expands EPA's power, the agency fiercely opposes S.J.Res.26, depicting it as an attack on science. That is nonsense. Although a strong case can be made that the endangerment finding is scientifically flawed, the Murkowski resolution neither takes nor implies a position on climate science. The resolution would overturn the "legal force and effect" of the endangerment finding, not its reasoning or conclusions. It is a referendum not on climate science but on who should make climate policy.

There's some debate over whether the December determination should be considered a "rule" because that word usually means a new regulation, explains law professor Robert McKinstry of Pennsylvania State University, University Park. The December announcement was not a regulation but rather a scientific determination needed to decide to do that. But he says that EPA, by putting it through the rule-making process, left itself open to Murkowski's maneuver.

Still, McKinstry argues that Congress is wading into a scientific argument by debating whether to reject EPA's view that greenhouse gases are a threat. Better to amend the Clean Air Act to disqualify greenhouse gases from regulation under that statute, he says.