‘Climate change’ lawyers quietly lay groundwork for EPA takeover of U.S. energy

By |2016-02-04T21:19:31+00:00February 4th, 2016|Guest Insights|38 Comments

Environmentalist lawyers have been pushing a legal theory that would give the Environmental Protection Agency cover to regulate every facet of state energy policy — effectively eliminating states’ authority to craft their own regulations.

“Buried in the Clean Air Act is an extremely powerful mechanism that Daily Caller  New Foundationeffectively gives EPA carte blanche to tell states to make drastic cuts to their emissions,” Brian Potts, a partner at the law firm Foley & Lardner wrote in Politico Monday.

“This provision, which can now be used thanks to the completion of the Paris climate deal, raises important questions about national sovereignty and states’ rights — questions that Republicans would undoubtedly use to try and kill such a proposal,” Potts wrote. “But the benefits of using this mechanism dwarf those concerns.”

Potts is referring to Section 115 of the Clean Air Act. Liberal legal scholars argue the Paris global warming treaty has triggered this little-known provision of federal law, and now the EPA can launch a full takeover of states’ environmental regulatory agendas.

“Section 115 of the Clean Air Act provides an untapped but potent opportunity for achieving many of the United States’ long-term climate change goals,” 13 liberal legal experts wrote in a January brief published by the Institute for Policy Integrity.

Several lawyers working for various environmental law groups want the EPA to use this provision to implement a nationwide cap-and-trade system. Ever since the defeat of cap-and-trade in Congress in 2010, environmentalists have been looking for legal loopholes for the EPA to use to unilaterally impose cap-and-trade on the U.S.economy.

“EPA and the states could implement a Section 115 regime with less difficulty than the current … approach,” the lawyers wrote, “and could instead combine multiple sectors and source types in a single rulemaking that could establish a nationwide, market-based emissions reduction program.”

‘We Saw This Coming’

Attorney Chris Horner isn’t surprised by the arguments coming from these environmental law groups. Horner says President Barack Obama has always sought to use the United Nations agreement in Paris to further his regulatory agenda.

“As we have made plain all along to any who cared to listen, the administration’s intention behind agreeing to the Paris deal was quite transparently to create an argument and a trap for successive congresses and administrations to impose ever-tighter EPA energy rationing rules in the name of catastrophic man-made global warming,” Horner, an attorney with the Energy & Environmental Legal Institute, told The Daily Caller News Foundation.

Horner has led the charge against the EPA’s so-called Clean Power Plan, filing lawsuits and uncovering emails showing the agency’s cozy relationship with environmental activists hoping to push more regulations on businesses. Now, Horner has turned his attention to uncovering the legal implications of Obama’s agreeing to cut U.S. emissions.

“Unlike previous global warming treaties like Kyoto, which had a finite life, Paris — which obviously a treaty on its face — includes an evergreen provision promising new rules every five years,” Horner said, adding the Obama administration is already using the Paris agreement as legal precedent to block challenges by states to EPA rules.

“Going forward, expect those arguments in court and in the media echo chamber to help shield EPA’s rules, and to compel more rules every five years,” Horner said. “‘We’ve promised the world!’ Except, only Obama promised them.”

The Path To EPA Rule

Legal scholars say there are two conditions that need to be satisfied before the EPA can take over state regulatory decisions.

First, EPA needs findings from an international agency showing American pollution is harming public health in other countries. Carbon dioxide, the main greenhouse gas blamed for global warming, has been listed as a pollutant by the EPA.

“The many reports put out by the United Nations’ Intergovernmental Panel on Climate Change over the past few decades meet this requirement,” Potts argued. “The U.S. is one of the top greenhouse gas emitters in the world, and its pollution undoubtedly endangers public health and welfare in many other countries.”

Next, EPA must show a foreign country that’s harmed by U.S. emissions has given America “essentially the same rights with respect to the prevention … of air pollution occurring in that country,” according to Potts. This is where the recent United Nations agreement comes into play.

“The Paris agreement satisfies this reciprocity requirement because there are now nearly 190 countries planning to reduce their emissions, at least in part, to protect one another’s health and welfare,” Potts wrote.

Potts even argued the fact that the Paris agreement isn’t legally-binding doesn’t matter. In his words, “nothing in Section 115 requires such enforceability.”

But the Paris agreement can still be derailed by the Senate, even though it’s not seen as a traditional treaty. The Senate can still assert its constitutional power over treaties to derail the agreement before Obama signs it.

“It is the complete failure by the Senate Committee on Foreign Relations to do its job, choosing instead by inaction to cede its shared constitutional role in the treaty process to be one that exists at the pleasure of the president,” Horner said. “Now it is time for others to take over.”

“If the Senate as a whole does not provide its Art. II ‘advice’ — that Paris requires ‘consent’ to mean anything to anyone — prior to the president’s planned “Mother Earth Day” signature, we might as well disband the committee and agree with Sec. Kerry that the treaty process is dead, that binding us into perpetual, unpopular schemes is now a unilateral function of the executive,” he added.


This article originally appeared in The Daily Caller


  1. DangRight February 5, 2016 at 9:11 AM

    EPA and many other departments of federal government need to be eliminated.

    • CharlieM February 5, 2016 at 11:28 AM

      Obviously the EPA wants to get rid of the Department of Energy. I don’t want the EPA to get anymore power, but the DOE has done absolutely nothing to perform their originally chartered task (getting the US off foreign oil).

      Maybe the next Prez can cause all those Feral Government workers that threaten to quit do just that. Then it would be easier to get rid of all the idiotic alphabet agencies that only exist to further the Feral Government’s agenda for total control.

      Communists and socialists just won’t give up on controlling every aspect of life on this planet (even to the point of deciding how many and whom of us are allowed to live).

      • DangRight February 5, 2016 at 11:39 AM

        “It would be absurd to say, first, that Congress may do what they please and then that they may do this or that particular thing. After giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the “general welfare”, it would be absurd, to say the least, to supersede a power to raise armies, to provide fleets, etc. In fact, the meaning of the general terms in question must either be sought in the subsequent enumerations which limits and details them, or they convert the Government from one limited as heretofore supposed, to the enumerated powers, into a Government without any limits at all.” — James Madison, while in Congress 1792

        Federal government (and all levels) NEED to be reined in to constitutional bounds – NOW!

        • CharlieM February 5, 2016 at 12:37 PM

          That is why I refuse to call our present day government the “Federal Government”. Just like the domesticated pig that escapes the farm, it becomes feral, grows tusks and bristly hair and rampages throughout the countryside without boundaries, we have had a Feral government for far too many years.

          The only question for all the non-retarded, patriotic, Constitution supporting, legal American Citizens is what are we willing to do to restrain the Feral Government pigs and get them back on the Constitutional farm? The longer we wait, the harder and more painful it will be.

          • BigWaveDave February 6, 2016 at 3:47 PM

            It’s been getting harder for quite some time. I fear there are hoards of youthful enthusiasts with freshly washed, climatized, starched and pressed brains who are eager to be soldiers in the war on prosperity..

            • CharlieM February 6, 2016 at 4:02 PM

              Yup. We seem to be surrounded. But,,,,, they’ve never learned to never back an old cat into a corner. They’ll never know what the cat is willing to do to get out of that corner, until it has passed them.

  2. ROBERT WADDELL February 5, 2016 at 9:19 AM

    Al Gore needs to be eliminated!

    • Dano2 February 5, 2016 at 12:32 PM

      So do people making such statements!



    • reagangs February 5, 2016 at 12:35 PM

      If he gains any more weight, he may do it himself.

    • ninetyninepct March 11, 2016 at 9:23 PM

      Possibly impossible as we would need to know which seaside mansion he happens to be in at the moment.

  3. ROBERT WADDELL February 5, 2016 at 9:20 AM

    The Federal Government is the downfall of America!

    • Bob Armstrong February 5, 2016 at 10:34 AM

      The notion that the US is a federation of otherwise sovereign States needs to be restored .

  4. Burl Henry February 5, 2016 at 9:43 AM

    The EPA (and similar agencies abroad) are responsible for all of the global warming that has occurred. CO2 is harmless. The removal of dimming SO2 aerosols.due to Clean Air efforts is the real cause of the warming.

  5. ThomasJK February 5, 2016 at 9:48 AM

    We need a Congress whose members are willing to carry out their Constitutional duties and responsibilities. It is the Executive branch that is the decrepit and badly broken institution. It is several generations of Congresses who have been derelict in their responsibilities to the country who are at fault for the miserable mess that has metastasized in the Executive. And the Supreme Court is nine apparently Alzheimer’s afflicted, mentally disturbed elderly Citizens who cannot be relied upon.

  6. Frank W Brown February 5, 2016 at 10:52 AM

    A Country Founded by Geniuses but Run by Idiots! AND TYRANTS AND BUREAUCRAPS!!!

    If you can get arrested for hunting or fishing without a license, but 
not for entering and remaining in the country illegally — you might 
live in a nation that was founded by geniuses but is run by idiots.

    If you have to get your parents’ permission to go on a field trip or 
to take an aspirin in school, but not to get an abortion — you might 
live in a nation that was founded by geniuses but is run by idiots.

    If you MUST show your identification to board an airplane, cash a 
check, buy liquor, or check out a library book and rent a video, but not 
to vote for who runs the government — you might live in a nation that 
was founded by geniuses but is run by idiots.

    If the government wants to prevent stable, law-abiding citizens from 
owning gun magazines that hold more than ten rounds, but gives twenty 
F-16 fighter jets to the crazy new leaders in Egypt — you might live in a 
nation that was founded by geniuses but is run by idiots.

    If, in the nation’s largest city, you can buy two 16-ounce sodas, but 
not one 24-ounce soda, because 24-ounces of a sugary drink might make 
you fat — you might live in a nation that was founded by geniuses but is
 run by idiots.

    If an 80-year-old woman or a three-year-old girl who is confined to a 
wheelchair can be strip-searched by the TSA at the airport, but a woman 
in a burka or a hijab is only subject to having her neck and head 
searched — you might live in a nation that was founded by geniuses but 
is run by idiots.

    If your government believes that the best way to eradicate trillions 
of dollars of debt is to spend trillions more — you might live in a 
nation that was founded by geniuses but is run by idiots.

    If a seven-year-old boy can be thrown out of school for saying his 
teacher is “cute,” but hosting a sexual exploration or diversity class 
in grade school is perfectly acceptable — you might live in a nation 
that was founded by geniuses but is run by idiots.

    If hard work and success are met with higher taxes and more 
government regulation and intrusion, while not working is rewarded with 
Food Stamps, WIC checks, Medicaid benefits, subsidized housing, and free
 cell phones — you might live in a nation that was founded by geniuses 
but is run by idiots.

    If the government’s plan for getting people back to work is to 
provide incentives for not working, by granting 99 weeks of unemployment 
checks, without any requirement to prove that gainful employment was 
diligently sought, but couldn’t be found — you might live in a nation 
that was founded by geniuses but is run by idiots.

    If you pay your mortgage faithfully, denying yourself the newest 
big-screen TV, while your neighbor buys iPhones, time shares, a 
wall-sized do-it-all plasma screen TV and new cars, and the government 
forgives his debt when he defaults on his mortgage — you might live in a
 nation that was founded by geniuses but is run by idiots.

    If being stripped of your Constitutional right to defend yourself 
makes you more “safe” according to the government — you might live in a 
nation that was founded by geniuses but is run by idiots.

    If the media panders to your openly socialist leader while the IRS targets groups with dissenting views— you might live in a nation that was founded by geniuses but is run by idiots.

    If your government ‘cracks down’ on legal gun sales to law abiding citizens while secretly supplying illegal guns to Mexican drug cartels— you might live in a nation that was founded by geniuses but is run by idiots.

    If your local government (Chicago) outlawed gun ownership for ‘the safety of its citizens’ and now boasts the worst murder rate in the country — you might live in a nation that was founded by geniuses but is run by idiots.

    What a country!

    How about we give God a reason to continue blessing America?

    This was borrowed from another blog, authors unknown, please spread it far and wide!

    • ninetyninepct March 11, 2016 at 9:21 PM

      So many of these points could be applied to Canada. British Columbia now has a Muslim Hotline where Muslims can call to complain about imaginary or petty things that “offend” them. There is no hotline for Christians or Canadians or anyone else but Muslims and “people of color”.

  7. Tom Atoe February 5, 2016 at 11:09 AM

    why do these people want to destroy their own economy and their way of life? I don’t understand what the endgame is?

    • cc February 5, 2016 at 3:21 PM

      they don’t want to destroy their way of life, they want to keep it to themselves and force you and me and our ilk to be the serfs to their lordships, that is the endgame

    • ninetyninepct March 11, 2016 at 9:25 PM

      Sharia. is their endgame, Sharia and living in caves just like 1600 yrs ago.

  8. Tom Atoe February 5, 2016 at 11:10 AM

    All I can think is the world is being controlled by idiots. Just like wildlife, someday they will be culled from society.

  9. reagangs February 5, 2016 at 12:29 PM

    The Enemy Predicting Anarchist (EPA) are a lot of hot gas them selves. Predicting our future is like rolling the dice in Vegas …. the rollers odds are not good, i.e. Vegas has the edge. The UN and the EU elite are following in the footsteps of past socialist/ communist attempts at taking over the US of A. It started in the 1880s with their propaganda and take over of the elite US colleges. It was put on steroids with T Roosevelt, W Wilson and FDR. The commies within our fed bureaucracy reacted violently when JFK purged them, they had him murdered. More steroids were used when LBJ authorized his Great Society (proposed by Cloward and Piven, radical socialist) programs and the far left commies pushed their protest/riots in the late 1960s and early 1970s. Old JC added another shot of steroids, and today we have the puppet commies in the WH, DOJ, EPA, NLRB, DOE, ….. and many more over bloated and power hungry unelected bureaucratic agencies hell bent on the UNs Agenda21/Agenda2030/sustainability and social and economic justice. America … it’s time to wake up and smell the crap, and to toss the radical anti Americans running our country into the cess pool. No more Bushes (John Ellis Bush, a.k.a. JEB), no more RINOs, no more commies.

  10. Dano2 February 5, 2016 at 12:31 PM

    Sounds like a paranoid conspiracy theory from here outside the bubble.



    • CFACT Ed February 5, 2016 at 1:09 PM

      Do you have knowledge that these lawyers have dropped their plan to use Section 15 to implement nationwide cap and trade or that EPA has rejected the idea? That would be fine news indeed.

      • Dano2 February 5, 2016 at 1:30 PM

        Hardly a takeover of US energy. Maybe a recapture of US citizens’ health, sure.



        • Pam Dunn February 5, 2016 at 2:22 PM

          TOO BAD they haven’t captured you and locked you up for being a brainless moronic piece of excrement.

          • Dano2 February 5, 2016 at 2:33 PM

            Deep thoughts, thanks!



  11. Gene Syms February 5, 2016 at 2:01 PM

    Take the EPA and other nonsensical governmental agencies and let’s get congress to terminate their funding. SHUT the MORONS DOWN. Stuff section 115 were the sun doesn’t shine.

  12. Schur February 5, 2016 at 2:41 PM

    IF,the U.S is so bad ,WHY is Chinas people the one wearing mask walking down the street and not us ?

  13. MarcJ February 5, 2016 at 4:10 PM

    Have you observed how those government-paid drones changed the name of their Global Warming hoax into the new Climate Change scam after 20 consecutive years of GLOBAL COOLING?

  14. Ed Shick February 6, 2016 at 7:37 AM

    The first Thing we should do is get out of a mistake America made at the end of WW 2 , The UN has been nothing but a problem andd we should get out of it , then they can relocate in Kenya or ?

    • ninetyninepct March 11, 2016 at 9:23 PM


  15. Ed Shick February 6, 2016 at 7:45 AM

    We would have more Coal Miners working and cheaper Electricity if we got rid of EPA and the Dept of Energy , WE have wind Farms in our area but they are subsidied by our Tax Payers , Some of us are on a Fixed income and our costs have really risen , but pensions have gone down , and Medical goes up as you get older!

  16. george February 8, 2016 at 8:44 AM

    Obama and the EPA bed budies.

  17. toledofan February 8, 2016 at 8:59 AM

    The sleaze of government in action. This is simply pathetic and it shows why we need someone like Cruz in the White House to start decimating these unconstitutional mandates by the EPA. It is way past time for the EPA to be put on the pile heap of history.

  18. Informed Voter111 February 8, 2016 at 12:48 PM

    And this is EXACTLY why we need President Trump.

    • ninetyninepct March 11, 2016 at 9:28 PM

      These alphabet agencies should stop and think a minute. When President Trump is elected. they will have to answer to him and it had better be good. No deleted e-mails, no private servers and every penny accounted for. Be a good little girl Genie M.

  19. Bob February 8, 2016 at 1:36 PM

    Thats when the shooting starts.

Comments are closed.