October 2010

The Obama administration initially downplayed the seriousness of the Gulf oil spill, “slowing response efforts and keeping the American people in the dark for weeks about the size of the disaster, according to preliminary reports from the presidential commission investigating the accident.”

The government also used red-tape to slow the response to the BP oil spill and thwart foreign offers of assistance.

Then, when the seriousness of the oil spill became impossible to downplay, the Obama administration tried to use it to push its failed energy policies and enormously-costly cap-and-trade global warming legislation (which would result in a massive loss of steel, paper, aluminum, chemical, and cement manufacturing jobs. Recent EPA rules aimed at global warming will wipe out at least 800,000 jobs).

As noted earlier, in his speech about the oil spill, Obama advocated expanding “green jobs” funding, 79 percent of which has gone to foreign firms, replacing American jobs with foreign green jobs.  He also advocated passing the pork-filled House energy bill. It would have expanded ethanol subsidies, which cause famine, starvation, and food riots in poor countries by shrinking the food supply. Ethanol makes gasoline costlier and dirtier, increases ozone pollution, and increases the death toll from smog and air pollution. Ethanol production also results in deforestation, soil erosion, and water pollution. Subsidies for biofuels like ethanol are a big source of corporate welfare: “BP has lobbied for and profited from subsidies for biofuels . . . that cannot break even without government support.”

The private sector shed 39,000 jobs in September.  Liberal journalists claim this was “unexpected.”  This reveals their shaky grasp of economics.

If you were an employer, why would you hire somebody in an economy that’s barely growing, when you could be hit by all sorts of employee-related expenses in the future, the way employers have already been hit by increased costs due to Obamacare?  Employers are worried about additional costs that could force them to lay off newly hired workers if Congress passes cap-and-trade global warming legislation (which would impose massive costs on many industries, requiring cutbacks in production).  Recent EPA rules aimed at global warming will wipe out at least 800,000 jobs, with a blizzard of additional new rules expected to follow.  And the stimulus package, despite its $800 billion cost, did little for employers, wiping out export-sector jobs, and funneling green-jobs money to foreign firms.  (The current weak “recovery” actually began in June 2009, before the stimulus package even began being spent.)

Thanks to steadily-expanding government red tape, every time you set a worker’s pay, or have to fire a lazy or incompetent employee, you now face the risk of being sued  (You are less likely to hire someone if you can’t fire them later if they turn out to be lazy or incompetent).  Employees who are fired for even good reasons often turn around and sue the employer for age, race,  sex, or disability discrimination, or for the “hostile work environment” they claim existed during their employment due to things like overheard remarks.  Getting meritless lawsuits tossed out is expensive — years ago, it was typically $25,000 on legal bills if the employer succeeded in getting rid of the lawsuit at the earliest possible stage (on a pre-trial motion to dismiss), $75,000 at the next stage (”summary judgment”), and $250,000 if the employer won at trial.  Under a legal double-standard called the Christiansburg Garment Rule, if the employer wins, the worker seldom has to pay the employer’s legal bills; but if the worker wins, the employer has to pay the worker’s legal bills as a matter of course (or even a multiple of the employee’s legal bills if the lawsuit is brought in some liberal states like New Jersey (see  Rendine v. Panzer (1995)).

You are much less likely to hire someone if you can’t avoid being sued by them later over the pay package you negotiated with them when they were hired.  That’s now a real possibility for employers.  Setting employee pay has gotten harder under the Obama administration due to the 2009 Lilly Ledbetter Fair Pay Act, the first law signed by President Obama, which essentially eliminates the deadline for bringing pay discrimination claims against employers, meaning that employees can wait many years after their pay is set, and sometimes even after they are fired, before bringing a lawsuit against their employer. (Some courts have even allowed employees to use the new law to challenge demotions many years after they occur, under the theory that their demotion indirectly affected their pay.) The Ledbetter Act was named after Lilly Ledbetter, who waited until she was about to retire before suing over alleged pay discrimination, meaning that the supervisor who allegedly discriminated against her was dead and unable to defend himself against discrimination charges by the time the jury decided her case.  (Ledbetter testified in her deposition that she knew of the pay disparity by 1992, but didn’t file a complaint with the EEOC until 1998).  The Ledbetter Act overturned the deadline applied by the Supreme Court in its 5-to-4 ruling against Ledbetter.

The Obama administration wants to make it even easier to sue for discrimination through bills like the Civil Rights Restoration Act and the Paycheck Fairness Act.  The Paycheck Fairness Act would require equal pay for some employees who do unequal work, and allow them to seek unlimited punitive damages against their employers.  Right now, most pay discrimination claims require a showing of unequal treatment (that is, intentional discrimination), although, under Title VII of the Civil Rights Act, big employers can be ordered to pay very limited amounts (back pay, not emotional distress or punitive damages) for certain practices or pay scales that have an unintentional “disparate impact” on women or minorities (like paying people more because they have a high-school diploma, if the job supposedly doesn’t really require a high-school diploma).  The Paycheck Fairness Act would import such standards into the Equal Pay Act, which covers even tiny employers (unlike Title VII), and subject them not merely to back-pay claims, but to uncapped punitive damages and claims for “emotional distress” over pay disparities.

It would require the employer to prove in court things that no tiny employer could ever afford the legal-fees to demonstrate.  Under the Paycheck Fairness Act, an employer would have to show an overriding “business necessity” and lack of any alternative to justify the use of certain factors “other than sex” in setting pay scales.  This is worrisome, because even under existing laws that allow lawsuits over “unintentional” discrimination, employers have been forced to spend hundreds of thousands of dollars on expert witnesses to show that a challenged practice was reasonable, only to have the courts say that that was not enough, that the practice had to be more essential (and more closely-related to technical requirements like “content validity” and “construct validity”).

In a message titled, ”EPA WILL REGULATE GLOBAL WARMING IN STATES WITH OR WITHOUT AUTHORITY,” the ever-vigilant Maryam Brown of the Senate Republican Policy Committee reports:

As you likely saw, Senator Baucus [D-MT] said yesterday that he would strip U.S. EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act: “That would put too much power into few hands.” (Source:  E&E News) Senator Baucus’s apprehension to EPA’s power over all activity is well placed.

On October 5th, EPA officials said that those states not cooperating come January 2nd would face a gap in permitting authority that could prevent sources from receiving the necessary permits.  [In plain English: If states don’t come along, the Obama EPA will hold up projects (and the jobs that go with) in your state.]  (Source:  BNA Daily)

Because these statements echoed states such as Texas’s fears that EPA has a “plan for centralized control of industrial development through the issuance of permits for greenhouse gases,” EPA issued a clarifying statement on October 6th: “EPA has a mechanism in place to ensure permitting can occur without disruption in any states that currently do not have authority to regulate GHG.”  [In plain English: Whether there is authority or not, the Obama EPA will regulate the states.] (Source:  BNA Daily)

Baucus’s opposition to EPA regulation of greenhouse gases is noteworthy for three reasons.

First, as E&E News observes, Sen. Baucus “is considered a key vote to obtain in order to pass any climate bill and a bellwether for many other moderate Democrats on the issue.” Second, Baucus voted against Sen. Lisa Murkowski’s resolution (S.J.Res.26) to overturn EPA’s Endangerment Rule — the trigger for a cascade of greenhouse gas regulation under the Clean Air Act. If he is a “bellwether,” then other opponents of S.J.Res. 26 may also have come to their senses and realize that Congress should not let EPA legislate climate policy.

Third, although Baucus may not acknowledge it, his “too much power into few hands” argument is tacit criticism of the Supreme Court’s ruling in Massachusetts v. EPA, which both authorized and pushed EPA to regulate greenhouse gases via the Clean Air Act. The Court authorized EPA to regulate greenhouse gases when it declared that “greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’” (they don’t, as I explain here).

In addition, the Court pushed EPA to regulate greenhouse gases by pre-judging EPA’s endangerment proceeding. The Court held that EPA must make a positive finding of endangerment if it decides that “greenhouse gases cause or contribute to climate change” — as if climate change per se = endangerment. Since greenhouse gases by definition have a greenhouse effect, the Court left EPA only one alternative — declare that “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” An impossible alternative for an agency that had been a certified member of the alleged “scientific consensus” for many years.

The key point regarding Mass. v. EPA, though, is that Sen. Baucus is almost uniquely qualified to rebut the claim that the Clean Air Act authorizes EPA to regulate greenhouse gases from new motor vehicles. During congressional deliberation on the Clean Air Act Amendments of 1990, Baucus  introduced legislation requiring EPA to do just that. As originally introduced on September 14, 1989, S. 1630, the Senate version of the 1990 Clean Air Act Amendments, contained a Section 216 on “Carbon Dioxide Emissions from Passenger Cars.” The provision would require the Administrator to establish tailpipe emission standards for CO2:

SEC. 216. (a) PROMULGATION OF REGULATIONS- The Administrator shall promulgate regulations providing for standards applicable to emissions of carbon dioxide from passenger automobiles (as defined in 15 U.S.C. 2001(2)). Such standards shall require that for model years 1995 to 2002, the average of such emissions from passenger automobiles manufactured by any manufacturer shall not exceed two hundred and forty two grams per mile, and for model year 2003 and thereafter, such average shall not exceed one hundred and seventy grams per mile.

However, the Senate declined to adopt that provision.  Another part of Baucus’s draft legislation, Title VII of S. 1630, would have made “global warming potential” a basis for regulating ”substances manufactured for commercial purposes,” such as chlorofluorcarbons and halogens. Although Title VII declared reductions in CO2 and methane emissions as a national goal, it did not explicitly provide authority to regulate those gases, which are byproducts of combustion and agricultural activity rather than “substances manufactured for commercial purposes.”

In any event, the House-Senate conference committee ultimately rejected even that limited basis for global warming regulation while also dropping Title VII’s goal of reducing CO2 and methane emissions. The only trace of Title VII’s climate language that survived is Section 602(e) of Title VI, which directs the Administrator to “publish” the “global warming potential”of ozone-depleting substances. To ensure that trigger-happy regulators would not go off half-cocked, the phrase “global warming potential” is immediately followed by this admonition: “The preceding sentence shall not be construed to be the basis of any additional regulation under [the CAA].”

So with the possible exception of Rep. John Dingell (see pp. 65-66 of this committee print), who chaired the House-Senate conference committee on the 1990 Clean Air Act Amendments, probably nobody on Capitol Hill knows better than Sen. Baucus that Congress never authorize EPA to regulate greenhouse gases for climate change purposes. Baucus tried to persuade the Senate to approve greenhouse gas emission standards for new motor vehicles — and failed. House and Senate conferees also rejected the other greenhouse gas regulatory provisions he had proposed. A lawmaker doesn’t forget stuff like that!

And now, 20 years later, Baucus is willing to break ranks with his own party leadership and incur the wrath of the green establishment because EPA is amassing powers that, in the last major re-write of the Clean Air Act, he tried and failed to confer on the agency via legislation. Sen. Baucus, I salute you! OK, I will salute you if you match your brave words with action and do something to stop EPA!

The Court in Mass. v. EPA ignored its own better judgment: “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio [by its silence] to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardozo-Fonseca, 480 U.S. 421, 442-43 (1983) It is not too late to correct the Court’s error. If Sen. Baucus is indeed a bellwether, that correction may not be long in coming.

10:10 Video: Blowing Up Children (Viewer Discretion Advised)

What an inspiring film — people who refuse to cut their personal CO2 emissions are sentenced to death.

The economic illiteracy of these particular global warming alarmists is on fine display. Under the assumption that global warming alarmists are in favor of producing alternatives to fossil fuels; here’s the mistake in their plan to cut fossil fuel emissions:

If everyone decreases their use of fossil fuels the result is a decrease in demand for fossil fuels. The price of fossil fuels falls relative to alternative forms of energy. If fossil fuels become relatively cheaper than alternatives (read another way: alternatives become relatively more expensive), then alternative energies become less economically viable and we only end up prolonging our use of fossil fuels.

A better alternative if they do want to promote the use of alternatives would be this: Have everyone increase their consumption of fossil fuels by 10 percent per year, thus driving up the price of fossil fuels and making alternatives relatively cheaper.

So now, anyone who does not increase their consumption of fossil fuels should be summarily executed.

I wonder if the use of reason would warrant me being blown up.

Energy Secy. Steven Chu kicked off a three-day federal “sustainability” symposium today by announcing that the Department of Energy will install solar rooftop water-heating panels on . . . the White House.

“Around the world, the White House is a symbol of freedom and democracy,” Chu told an audience of federal employees, according to Greenwire, the online energy & environment news service. “It should also be a symbol of America’s commitment to a clean energy future.”

Apparently, nobody interviewed in connection with the article sees anything goofy about the mighty DOE and the White House trying to save the planet one rooftop at a time. Nor anything comedic in talking about the future of presidential bath and shower water.

Chu’s announcement came one month after eco-activist Bill McKibben led a demonstration demanding that President Obama install rooftop solar panels. To show that if you will it, it is not a dream (okay, I’m editorializing here), McKibben presented White House officials with a solar panel from Jimmy Carter’s White House.  Initially, they rebuffed him. But now, they’ve taken one small symbolic step back to the … Carter administration. Of course, McKibben hails Chu’s pledge as a giant step for mankind.

“The White House did the right thing, and for the right reasons: They listened to the Americans who asked for solar on their roof, and they listened to the scientists and engineers who told them this is the path to the future,” said McKibben, the co-founder of the nonprofit 350.org. “If it has anything like the effect of the White House garden, it could be a trigger for a wave of solar installations across the country and around the world.”

Yup, hardly anybody “across the country and around the world” would be planting flowers or “installing” flower gardens  if the White House had not shown the way via those Rose Garden tours!

Apparently, nobody interviewed by Greenwire wanted to mention the elephant in the room, namely, that McKibben’s symbolic victory is a far cry from the political victory Team Obama and eco-campaigners boasted they would win by enacting cap-and-trade.

Ive got nothing against solar technology, which has come a long way since the Carter days. Nonetheless, outside of certain niche markets and applications, solar is not competitive with fossil energy or even with other so-called non-hydroelectric renewable energies. See slide #17 of the Energy Information Administration’s Power Point presentation on its 2010 Annual Energy Outlook report.

Yes, solar power has enjoyed a rapid growth spurt in Germany, but that is due market-rigging subsidies known as feeder tariffs. If an industry cannot sustain itself without special policy privileges, does it really deserve to be called “sustainable”?

The goal of the 10:10 Project is to cut carbon emissions by 10 percent per year. Sony, which supported the 10:10 Project until a promotional video featuring exploding global warming skeptics offended a lot of people, has its own project called the “Road to Zero.”

While they mean well, supporters of the two initiatives seem to have forgotten Zeno’s paradox. Suppose that people are particularly zealous about their carbon-cutting and cut 50 percent per year, not 10 percent. Not only does that make the math easier, it biases the numbers against the argument I’m making.

Their emissions would go from 1 to 1/2 to 1/4 to 1/18 to 1/16, and so on. Emissions move asymptotically towards zero, which is a fancy way of saying they never actually get there.

As with most campaigns of this sort, 10:10 and Road to Zero may succeed in making people feel good about themselves. And there is some value in that. But the schemes, especially taken together, are too clever by half. Or, more likely, the opposite.

A video by a group called 10:10, shows the environmental wackos for exactly who they are: environmental wackos.  The group has just apologized (kind of) for the video.

The video is graphic, so don’t watch it if you think you won’t like seeing exploding bodies.

The video shows three scenarios where individuals are asked to cut their carbon emissions.  When some of the individuals refuse, they are blown up (including children).

At first, I thought this was a satire of extreme environmental pressure groups–then I realized this actually is a video by environmental wackos showing their true colors (and spoofing themselves without realizing it).

More troubling though, it is a message consistent with many of the enviros who believe in population control–get rid of the humans who won’t do their part to reduce carbon or who use too many precious resources.  It makes it very difficult to just say it was a “joke” when the message about population control is consistent with the environmental extremist message.

There appear to be many businesses, educational institutions, and individuals associated with this group, such as Sony.  They may want to reconsider this support.

If approved by the California electorate this November, Proposition 23 will suspend the implementation of AB 32, the California Global Warming Solutions Act, until the State’s unemployment rate declines to 5.5% or less for four consecutive quarters. AB 32 requires a reduction in the State’s greenhouse gas emissions to 1990 levels by 2020 — about 25-30% below the baseline projection.

In a just-published study for the Pacific Research Institute, Dr. Benjamin Zycher estimates that adoption of Proposition 23 will increase aggregate employment in the State by a bit less than 150,000 in 2011, about half a million in 2012, and 1.3 million in 2020, relative to the case in which AB 32 goes into effect.

The California Air Resources Board projects that AB 32 will decrease State-wide energy consumption by 4.5% in 2012 and 9.4% in 2020. Energy, of course, is used to support economic activity: “workers use energy to accomplish their tasks.”

Zycher derives AB 32’s employment impacts from CARB’s energy-consumption projections during 2010-2020 and data on the historical relationship between energy consumption and employment in California.