The U.S. Environmental Protection Agency’s (EPA) Endangerment Finding that carbon dioxide (CO2) is a pollutant harmful to human health is a prime candidate for a rarely used authority in the U.S. Senate to overturn a regulatory decision. A shrewd plan to use this authority is under way. Alaska Sen. Lisa Murkowski, ranking member of the Energy and Natural Resources Committee, has scheduled a vote on a resolution of disapproval under the Congressional Review Act.

A resolution under this law is privileged, meaning that the Senate must vote on it. Passage needs only a simple majority of 51 senators. Before concluding this will never happen with the current makeup of the Senate, remember that 10 Democratic Senators recently wrote a letter to EPA Administrator Lisa Jackson requesting that she suspend implementation of the Endangerment Finding. An unavoidable vote to veto EPA’s finding will provide a record of votes on a key issue in this November’s elections.

The Endangerment Finding, broadly criticized by both parties, has been used by the Obama Administration as a political tool from the start. EPA coincidentally adopted the finding on the first day of the international conference in Copenhagen to finalize a binding international treaty on carbon caps. A final Endangerment Finding enabled President Obama to claim, at this meeting, that the U.S. had full legal authority to force reduction of CO2 even without new legislation.

By officially declaring that CO2 and other greenhouse gases (GHG) are harmful pollutants, EPA triggered the command and control authority to regulate under the existing Clean Air Act. Proponents and opponents of GHG reduction agree that the act is wholly unsuited to regulate a compound as ubiquitous as CO2. The cap and trade bills set a regulatory threshold at 25,000 tons of annual CO2 emissions, but the act sets this threshold at 250 tons. At this low level, churches, hotels, schools, and large homes would be subject to complex and costly EPA mandates.

Last February, the state of Texas legally challenged EPA’s Endangerment Finding in the D.C. Circuit Court. Sixteen other states have followed suit. This litigation challenges EPA’s reliance on flawed global warming science now discredited by the Climategate disclosures of data manipulation, error, subversion of basic peer review, and violation of Freedom of Information laws.

Sen. Murkowski’s resolution raises another fundamental question appropriate for elected representatives to answer. Should unelected agency staff make decisions as monumental as EPA’s Endangerment Finding? Has EPA usurped the prerogative of the U.S. Congress, acting a lawmaker instead of an implementer of those laws enacted by Congress?

The legal authority created by EPA’s Endangerment Finding is used as a cudgel to force passage of new cap and trade legislation, misleadingly pitched as a more market-friendly regulatory mechanism. That strategy is not working. Polls show increasing majorities of voters oppose carbon mandates. The same polls show voters want a genuine energy bill – to facilitate plentiful, affordable and reliable energy-not more taxpayer subsidized green gimmicks.

Sen. Murkowski’s resolution to disapprove (nullify) EPA’s Endangerment Finding is scheduled for the week of June 7. Sen. Lindsay Graham, a cap-and-trade supporter who has also co-sponsored Murkowski’s resolution, told the New York Times late last week he believes the resolution will pass.

– Kathleen Hartnett White