The top story in international climate news this week is the Margarita Declaration issued in the name of 130 ‘social’ (non-governmental) organizations participating in the July 15-18 Social Pre-COP meeting on Margarita Island, Venezuela. The groups don’t sign the document, so we don’t know which (or how many) of them actually endorse it. Basically it’s a rant demanding that ‘social’ organizations have more clout in climate treaty negotiations. Participants seek in particular to influence the UN-sponsored COP 20 negotiations in December, in Lima, Peru.

The Margarita Declaration is attracting media attention because it (1) blames the climate ‘crisis’ of the “current capitalist hegemonic system” (par. 46), and (2) rejects solutions “whereby wealthy industrialized countries and corporations ultimately seek to use climate change as a source of profit” (par. 19). The latter include such ‘green economy’ policies as carbon trading and restrictions on deforestation in developing countries.

Some commentaries have pounced on the Declaration as smoking-gun proof that climate activists are watermelons — green on the outside, red on the inside. The environmental movement has no lack of collectivist impulses. Consider the obsession with “consensus” (groupthink), the popularity of social cost of carbon analysis (a pseudo science reminiscent of Marx’s labor theory of value), the zeal for green energy mandates (Soviet-style production quota), and the relentless lobbying for political-pricing of energy (cap-and-trade, carbon taxes) to correct alleged “market failures.”

Nonetheless, there are important differences. [click to continue…]

In a recent post, I explained how the EPA and environmental special interests entered into a collusive consent decree that would effectively require States to use air quality models to demonstrate compliance with national ambient air quality standards. Thus, unelected bureaucrats and green special interests rendered policy, in a process known as “sue and settle.”

The underlying suit, Sierra Club, et al. v. McCarthy, was filed in the United States District Court for the Northern District of California, in Oakland. This is notable insofar as the court condoned a great deal of suspect behavior.

  • For example, in the course of the lawsuit, EPA and the environmental plaintiffs (Sierra Club & NRDC) litigated to oppose intervention in the legal proceedings by the States, even though the States are responsible for implementing the regulation in question. The Bay area court sided with EPA & the greens.
  • Moreover, EPA, Sierra Club, and NRDC pointedly refused to allow States to participate in settlement discussions. Despite this seeming affront to the Clean Air Act’s cooperative federalism structure, the Bay area court accepted the consent decree.
  • Finally, Clean Air Act “agency forcing” consent decrees are supposed to be limited solely to the establishment of agency deadlines,* as I explain in this article. The Sierra Club, et al. v. McCarthy consent decree, on the other hand, was naked policy: It mandated the use of a regulation that the agency has only proposed. In the face of this apparent procedural abuse, the Bay area court gave its imprimatur to the consent decree.

All of this brings me to the point of this post: I wonder how many courts would’ve objected to consent decree, either due to its non-participatory formulation or because of its inappropriate content?

After all, federal district court judges aren’t chosen based on merit; rather, they are nominated by the President, with consideration given to the recommendation by Senators from the State whose judicial district is at issue. They are political creatures. And, given California politics, it stands to reason that the Bay area court is one of the most “progressive” in the country.

So it makes sense that environmental special interests would want to get in this court. Alas, their primary legal tactic—the Clean Air Act deadline citizen suit (whence “sue and settle”)—allows green groups to file “agency forcing” suits in any federal district court in the country (42 U.S. Code §7604(a)). As a result, the opportunity presents itself for forum shopping, and that’s exactly what environmental litigants have done.

Recently, I crunched the numbers:

…[O]f all settlements pursuant to agency-forcing citizen suits from 1997 to 2013 affecting more than three states, 26 percent ( 12 of 46) were filed in the U.S. District Court, Northern California District, based in the Bay Area.

The U.S. Chamber of Commerce, in a wider sampling of “sue and settle” cases, found a similar bias towards the plaintiffs filing in this Bay area court:

sue and settle chart

This is something to which the Congress might direct its attention. For final EPA regulations, the Clean Air Act limits jurisdiction for judicial review to the D.C. Circuit Court of Appeals. There is, however, no such requirement for deadline citizen suits. As a result, green groups are piling into arguably the most progressive court in the country, where they are operating with EPA to push the boundaries of executive power. This is suboptimal, from a policy perspective.

*This “sue and settle” process affects policy, but it does so in an indirect fashion, by giving priority to the EPA’s limited resources.

EPA’s Clean Power Plan, its carbon “pollution” rule for existing power plants, proposes carbon dioxide (CO2) emission reduction targets that states can meet only by enacting (or tightening) three of the four main climate policies contained in H.R. 2454, the American Clean Energy and Security Act of 2009, popularly (or unpopularly) known as Waxman-Markey. Those policies are: cap-and-trade, renewable energy quota, and demand-reduction mandates.

The fourth Waxman-Markey policy, performance standards requiring new coal power plants to install carbon capture and storage (CCS) technology, is the centerpiece of EPA’s carbon “pollution” rule for new coal power plants.

Clean Power Rule & Waxman Markey Compared

Waxman-Markey narrowly passed in the House in June 2009, but once exposed as ‘cap-and-tax,’ it became a major political liability. Senate leaders tried to rebrand the proposal as “pollution limits” and “linked fee,” but that fooled no one, so eventually they pulled the plug on all companion bills. Cap-and-trade was a critical issue in the November 2010 elections. In the House, “virtually every close race was lost by a Democrat” who voted for Waxman-Markey, observes Cato Institute scientist Patrick Michaels. In contrast, “every close Senate race was won by a Democrat,” in no small part because they mothballed cap-and-trade.

In a democracy, policy is supposed to derive from statutes, which in turn are supposed to derive from elections. Cap-and-trade remains in such bad odor that neither President Obama nor other Democratic leaders campaigned for it in the 2012 election cycle. Indeed, President Obama ran to the right of Mitt Romney on energy issues, even accusing his rival of being anti-coal. Yet Obama’s EPA now acts as if it has a legislative and popular mandate to implement the old Waxman-Markey agenda.

A somewhat unique feature of American democracy is federalism. This allows each state to be a “laboratory of democracy,” empowering Americans to “vote with their feet” for and against state policy regimes they like or dislike. The Clean Power Plan would stifle such choice and competition. [click to continue…]

As discussed here last week, the Ivanpah Solar Electric Generating System, located about 40 miles southwest of Las Vegas in the Mojave Desert, kills butterflies, dragonflies, other insects, bats, and birds.

Tens of thousands of large mirrors (“heliostats”) focus sunlight on boilers (“receivers”) perched atop 459-foot towers. The “solar flux” field surrounding the boilers can reach temperatures of 800ºF — hot enough to melt, singe, and burn the feathers of birds that fly through it.

Ivanpah Solar Tower Glare All Three

The intense luminosity of the boilers attracts insects, which attract insect-eating birds, which in turn attract raptors. Fish & Wildlife Service (FWS) officials investigating the site observed “streamers” — trails of smoke from birds transiting the flux fields – about once every two minutes.

Ivanpah injured bird

Update: Environmental journalist Chris Clarke, who’s been reporting on avian mortality at Ivanpah since September 2013, reports that a federal study confirms that glare from Ivanpah’s heliostat arrays may create safety hazards for commercial and private aviation in the area.

Ivanpah Glare pilot hazard

In March, Ivanpah co-owner NRG Energy told Nevada aviation officials that potentially-hazardous glare was a temporary problem likely to abate once all heliostats were “calibrated” for commercial operation. But, reports Clarke, Sandia National Laboratories finds that the heliostats cause intense glare when they are in “standby position” — their default position when not aimed at the boilers. From the article: [click to continue…]

This week’s Platts Energy Week with Bill Loveless started with an interview with the co-chairman of the newly formed congressional refinery caucus, Rep. Pete Olson (R-TX). I’d never before heard Olson speak; he’s a peculiar monotone cadence that sounds sorta like Boomhauer from King of the Hill.

I’d like to draw attention in particular to Rep. Olson’s extremely impressive discourse on risk. About a third of the way through the interview, Host Bill Loveless referenced a couple recent refinery accidents, and questioned Rep. Olson about whether the industry should be subject to greater regulatory scrutiny.

Rep. Olson first executed some clever political jujit-su. He assured Loveless that the industry is safe, and then waxed lyrical about growing up near refineries along the Gulf Coast, even going so far as to recall how much enjoyed and appreciated as a child the refineries strewing Christmas lights during the holiday season.

The host pressed and then Rep. Olson got serious and delivered a great answer. He said, in effect, that refining entails the manipulation of volatile gases under high pressures at high temperatures and, as such, it cannot be risk-free. However—and this is his key insight—this state of risk is equally true for much of the advanced engineering on which modern society relies—from driving cars to building houses.  Humans make mistakes; ergo risk. The question then becomes: Is [further] federal regulation based on reasonable risk-management? Or is it championed by special interests for which fossil fuels are “dirty” and therefore evil, per se? Rep. Olson’s interview is posted below.

After Rep. Olson, Bill Loveless interviewed U.S. Department of State “energy envoy” Carlos Pascual. The segment was interesting insofar as it demonstrated how climate change policy is incompatible  with the art of diplomacy.

Ambassador Pascual is no doubt a brilliant mind. I suspect he learns languages as easily as I get sunburned. And whenever he discussed non-climate diplomacy, he demonstrated great agility of mind. But when he veered into environmental policy, he sounded loopy.

[click to continue…]

Listen here.

Last Friday morning, the Energy and the Economy subcommittee of the House Energy and Commerce Committee held a fascinating hearing aptly titled “Constitutional Considerations: States vs. Federal Environmental Policy Implementation.”

Witnesses included law professors Jonathan Adler (Case Western University School of Law), Rena Steinzor (University of Maryland School of Law), and Richard Revesz (New York University School of Law), as well as the Congressional Research Service’s Robert Meltz. (testimonies hyperlinked). Click here for a background memo. Subcommittee chairman John Shimkus’s opening statement is available here. I’ve reposted video of the hearing at the bottom of this post.

My purpose today is not to describe the entire hearing; rather, it’s to highlight one particular exchange, concerning a putative “race to the bottom” among States on environmental standards absent federal regulations.

According to the “race to the bottom” thesis, unless the federal government intervenes, States would compete with one another to lower environmental standards in order to better attract industry. This proposition took hold in the mid-1970s, and was a major intellectual influence of the 1977 and 1990 Clean Air Act Amendments.

Simply put: The presumed existence of a “race to the bottom” justifies a federal presence in state environmental policymaking.

Thus aware, now consider the following exchange between Ohio Representative Bob Latta and professor Jonathan Adler, which casts considerable doubt on the very existence of a “race to the bottom” (!!!):

Representative Bob Latta: Is there any empirical evidence to support the assertion that leaving environmental regulation to the States will precipitate a race to the bottom.

Professor Jonathan Adler: No there actually really isn’t such evidence.

There’s one study that relies upon survey data that shows state officials are responsive to competitive concern, but that’s not sufficient in terms of showing a race to the bottom.

Professor Revesz [N.B.: A fellow panelist; his testimony is linked to above] has written what is probably the seminal article on the theoretical arguments related to race to the bottom, showing quite compellingly that, as an analytical matter, the race to the bottom theory rests on a lot of assumptions that aren’t justified.

As an empirical matter, I’ve done work in the area of wetlands showing that the pattern of state wetland regulation prior to federal regulation is the exact opposite of what the race to the bottom theory would predict.

There is a significant amount of literature, in both the economic literature and the political science literature, looking empirically at patterns of state regulation, again, showing that the patterns of state regulation are not consistent with the idea of a race to the bottom.

In fact, there is some scholarship that suggests that states in fact learn from each other. When one state…regulates more stringently in order to enhance environmental protection, that neighboring states become more likely to follow suit…as they learn from the positive experience of their neighbor.

There is also some work…suggesting that even non-preemptive federal regulation alters the incentives that state regulators face, and, in some cases, will discourage states from being innovative and being more aggressive and more experimental to confront aggressive environmental problems because of the way it alters incentives.

To which I say: WOW! Very notably, Professor Steinzor, who was the minority witness, had no rebuttable when afforded the opportunity to speak, despite the fact that her written and oral testimony both cited the “race to the bottom” as a key justification for federal environmental regulation. [click to continue…]

So I’m headed back to California from Las Vegas on I-15 when my eyes are dazzled by the light. Immense rectangular objects on three gigantic towers shine brighter than the desert sky in the noonday Sun. I avert my gaze, finding the discomfort level about the same as staring at an oncoming car with the brights on at night.

Taking in the panorama, I notice that the summits of the towers seem to be caught in the crosshairs of energy beams. The sci-fi fan in me is thinking, ‘Cool!’ What is this scene out of a Hollywood CGI extravaganza?

Ivanpah three towers

Google instantly sets me straight. This is Ivanpah Solar Electric Generating System – the controversial solar power project held up for years due to its potential adverse impact on the “threatened” Mojave desert tortoise. Relocation and private conservation may save the tortoise, but Ivanpah has another ecological downside: It incinerates birds.

Ivanpah began generating power in February of this year. Even before commercial operation commenced, news outlets reported accounts of singed, scorched, and possibly vision-impaired birds. In April, the National Fish & Wildlife Service (FWS) Forensics Laboratory published a preliminary analysis of avian mortality at three California solar facilities. Of those, Ivanpah was the worst offender.

FWS investigators found that cloud-like emanations near the rectangular boilers (see photo below) attract insects, which attract small birds, which attract birds of prey, creating a “mega trap” for both local and migratory winged creatures.

Ivanpah the glow

Environmental journalist Todd Woody ably summarized the FWS study in The Atlantic: [click to continue…]

Weekend Media Roundup

by William Yeatman on July 14, 2014

in Blog

Platts Energy Week with Bill Loveless: The invaluable Platts Energy Week ran a revelatory interview with Retired Vice Admiral Dennis McGinn, the Navy’s assistant secretary for energy, installations and environment. McGinn is the point man on the Navy’s pointless “Farm to Fleet” program, the purpose of which is to achieve “energy independence” by increasing use of biofuels. For the Navy, this means buying large volumes of ultra-expensive “advanced” biofuels, despite the fact that there’s an oil and gas boom in America.

About a minute into the interview, the host got down to brass tacks.

Bill Loveless: One of the requirements of this solicitation is that the bids be cost-competitive…as you know, the navy has taken some heat in the past for testing biofuels that cost as much as $30 a gallon. How do you expect these prices to come in this time?

Retired Vice Admiral Dennis McGinn: We have got a very good set of analyses that shows it [the price] will come in at under $3.50 per gallon. And we’ve verified that several different ways. We are absolutely confident and we are moving forward based on the assumption that it is going to be competitive with petroleum.

Hmmm…..Call me a cynic, but there are some big red flag code words in the Vice Admiral’s answer. Among them: “a very good set of analyses”, “we’ve verified that several different ways,” “absolutely confident,” “based on the assumption.” Pretty much the whole thing. It was a straightforward question—“how much will it cost?—of the sort to which the armed forces have long given obtuse responses.

The host then asked Retired Vice Admiral Dennis McGinn whether the premise of the program, which is the need for “energy independence,” wasn’t undercut by the American energy renaissance. Retired Vice Admiral Dennis McGinn responded that the Navy has to look far forward, beyond the present, when it assesses threats. This raises an obvious question: Why didn’t they foresee the oil and gas boom. Watch the whole interview below.

 

Other weekend media highlights: [click to continue…]

After three fun-filled days at Heartland Institute’s 9th Annual International Climate Conference at the beautiful Mandalay Bay hotel in Las Vegas, I moseyed on over to Planet Hollywood, site of the libertarian jamboree known as Freedomfest.

I gave a 20-minute presentation on a Heritage Foundation-sponsored panel discussion of the Obama administration’s energy policies.

Having come of age in the wild and wooly ’60s, I’ve encounted and debated lots of Lefty spin and progaganda over the years. However, I can’t recall an ideological campaign as thoroughly devoid of substance as the green crusade against the Keystone XL pipeline.

Hence the title of my talk: “Bogus Keystone Controversy — Fabrication of Green Politics.”

Below, I’ve posted my Power Point presentation.

Marlo Keystone Presentation by freedom1001