The EPA action, taken Monday, distorts the purpose of the 1970 Clean Air Act by setting up the executive branch, rather than Congress, to decide which emitters of carbon dioxide should pay the price.
The EPA's move would be similar to Mr. Obama trying to mandate universal health insurance for all Americans without waiting for Congress to act. Such a huge decision that sweeps across the economy and demands a balancing of interests needs a legislative solution.
Even EPA administrator Lisa Jackson was reluctant to push her agency's powers too far, knowing the EPA is ill-equipped to equitably spread the burden of curbing global warming. The climate bill passed by the House in November would have barred the EPA from taking such a step; the Senate is weighing a similar measure.
The agency is also on weak legal ground in interpreting a four-decade-old law that was never intended to deal with global warming. And its efforts might be hung up in courts for years, providing yet another excuse for Congress not to act. (Both businesses and some eco-activists are expected to challenge the EPA move.)
Letting the agency take the initiative also makes the effort against global warming vulnerable to a new president reversing its action in future years.
Nonetheless, an impatient US president, frustrated at Senate inaction on a climate-change bill, thought he needed something to show when he goes to the Copenhagen conference next week in order to try to coax other big emitters like China and India into a deal.
Let's hope his unilateral action doesn't worsen a cause that is still in need of wider public support.
Obama has declared that he wants to commit the United States to reduce its emissions 17 percent by 2020 (from 2005 levels). But he now needs to tell the world how much EPA's action will meet that goal.
As it is, the EPA decided not to regulate millions of carbon emitters – those that emit less than 25,000 tons a year – choosing instead to go after the easy targets, big power plants. So it remains unclear how much carbon effluent will be curbed. Under the Clean Air Act, such discrimination may not be allowed – a likely source for lengthy lawsuits. As one Sierra Club lawyer told Congress last year, "CO2 is CO2."
In 1976, the EPA tried to avoid regulating diverse sources for lead emissions, focusing on major ones. But in a lawsuit brought by the Natural Resources Defense Council, it lost in court. It should not try such a move again.
Climate change is too important to be left solely to a Washington bureaucracy. And as a political move to pressure Congress, Obama's move will likely just backfire.
As he has lately started to do with healthcare, Obama needs to spend more time up on Capitol Hill to get the bill he wants. Trying to distort the American system of governance for the sake of a deal in Copenhagen will only heat up, not cool down, the rancor over passing a climate-change law.