Dear Senator Barrasso,

On behalf of more than 1.6 million Americans for Prosperity activists in all 50 states, I commend you for introducing a bill to fully preempt federal action to regulate greenhouse gases (GHG) and prohibiting judicial common law remedies as well.

The American Republic stands as an example in modern governance because our Constitution is designed so that the People make the laws, not the so-called educated elite that dominate the executive bureaucracy or the learned judges that adjudicate our disputes. Unfortunately, the environmental Left has grown increasingly combative to this constitutional design as Congress has repeatedly rejected one of their policy priorities: GHG regulation. Their recent turn to regulatory rulemakings and common law nuisance suits to accomplish indirectly what they could not accomplish directly risks upsetting not only our fragile economic recovery but also our carefully crafted balance of powers. The federal government should not undertake efforts to stem GHG emissions unless Congress instructs them to do so.

Your bill goes beyond the obvious threat of EPA action under the Clean Air Act and prohibits more clandestine—and thus more insidious—GHG regulations under the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. None of these statutes were intended to authorize GHG regulation and their distortion for that purpose does damage not only to our system of government but also to each of those acts’ original purposes. It is unfortunate that when Congress now considers delegating authority they must also contemplate how that authority will be distorted and abused in the future. Hopefully, your legislation will serve to remedy some of those concerns.

Of additional concern is the prospect of environmental lawyers turning to the judiciary to implement their policy preferences through common law tort actions, instead of the legitimate legislative process. While the higher courts will hopefully rule that GHG tort actions are inherently a political question—one properly decided in the legislature and not the courtroom—I commend you for preemptively asserting the legislature’s predominance on this question.

The issue of whether, who, and how GHGs are regulated is too important to be decided in the back halls of a bureaucracy or in a judge’s chamber. Thank you for offering legislation to fully preempt any such behavior unless and until Congress authorizes it. I urge your colleagues to support your legislation and I look forward to working with you in the future.

Sincerely,

James Valvo
Director of Government Affairs
Americans for Prosperity

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