Paul L. Caron
Dean


Monday, September 9, 2019

EPA Has The Authority To Impose A Carbon 'Tax'

E. Donald Elliott (Yale; Former EPA Assistant Administrator and General Counsel (1989-91), EPA Has Existing Authority to Impose a Carbon 'Tax':

A number of bills have been introduced in recent years to put a price on carbon via a federal carbon tax. These proposals generally proceed from the implicit assumption that the federal government in general, and the Environmental Protection Agency (EPA) in particular, does not already have such authority. That is incorrect. Under a federal statute that has been on the books since 1952,  EPA could impose a carbon “tax” any time an Administration in power was willing to do so. That is because a charge for using the public’s air to dispose of carbon dioxide and other wastes is not technically a “tax,” but rather a “user fee.” The confusion stems from a 1990 legal opinion written by the author when he was EPA General Counsel, which ironically was intended to increase EPA’s use of tradeable permits and other economic incentives to regulate pollution. It is time to set the record straight that EPA does have existing authority to impose a reasonable user fee on releases of carbon dioxide and other greenhouse gases (GHGs), as well as other pollutants, any time that it has the political will to do so. ...

It is long past time that emissions charges should take their rightful place in EPA’s toolbox of instruments available to regulate pollution, including greenhouse gas pollution.

https://taxprof.typepad.com/taxprof_blog/2019/09/epa-has-the-authority-to-impose-a-carbon-tax.html

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Comments

We've already been through contortions of calling a health-care penalty a tax except when it's not a tax. At least that was an act of Congress and required a twisted opinion by Justice Roberts. Now, we have a proposal for a federal department to create an obvious tax on its own but calling it a “user fee” for something that government does not actually maintain. The fee is considered to offset the (what?!) “social cost?” A professor called it a “burden offset charge,” but what burden of the government?

Rather than reimburse specific and related costs, it is suggested that this revenue could offset general government expenditures and decrease deficits and debt, but history shows that never to be the outcome with higher taxes. The money just gets wasted on more ineffective programs. However, it would increase deficits for families through higher energy costs passed on to them.

Do not even tax professors have the intelligence and honesty to admit that this doesn’t pass the smell test?

Of course, you also have to accept that a colorless, odorless gas that is a minor fraction of our atmosphere is also “pollution.” We might as well assess a user fee for air breathed by the public and exhaled as CO2. (Sorry for giving anyone the idea.)

I’m beginning to think that law professors, for the most part, live in fairy-tale lands where the Constitution and elected officials can be ignored for academic “enlightened wisdom” forced on the rest of us. If anything, proposals like this are what should be ignored.

Pardon me, but if we taxed insanity as a “social cost,” many law professors with crazy ideas would have to get second jobs to pay it.

Posted by: Woody | Sep 9, 2019 8:45:23 PM

"EPA does have existing authority to impose a reasonable user fee on releases of carbon dioxide and other greenhouse gases (GHGs), as well as other pollutants, any time that it has the political will to do so. ..."

Then let us hope it has the political good sense and scientific integrity to never do so.

Posted by: ruralcounsel | Sep 10, 2019 3:30:10 AM

When the EPA was created anyone in Congress would have ridiculed the idea that carbon dioxide, which plants need to survive, could be treated as a pollutant. What's next on that list, water? After all, water vapor is a more potent greenhouse gas than carbon dioxide.

Here's a novel idea. Rather than contort laws and our Constitution itself to fit situations never intended by the authors, how about writing new laws and/or amending the Constitution? That's what a true rule of law requires.

Posted by: AMTbuff | Sep 11, 2019 4:43:21 PM