July 2014

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?

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.

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

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 encountered 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

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. 

James Madison

Regulating is an inherently legislative exercise, in that it entails the promulgation of rules that control private behavior. Indeed, most policy now is rendered via regulation, thanks to the geometric growth of the executive branch during the post-war years.*

However, unlike legislators in congress, executive agency bureaucrats are unaccountable to the electorate. As a result, there’s a danger that executive agencies are effectuating policy absent a popular mandate and away from the public eye.

In theory, the hazard of unaccountable policy-making could be mitigated largely by the 1966 Freedom of Information Act, which enables any person to request, without explanation or justification, access to existing, identifiable, and unpublished executive branch agency records.

b(5), e.g.

In practice, however, federal agencies routinely circumvent information requests, and the censors’ primary tool for achieving opacity is a statutory exemption from disclosing “deliberative process.” Colloquially, it’s known as the “b(5)” exemption, after its statutory provision (5 U.S.C. §552(b)(5)); among information seekers, it’s known as the “withhold it because you want to” exemption.

To be precise, the b(5) exemption covers any “intra-agency” or “inter agency” pre-decisional communications. Its general purpose is to prevent injury to the quality of agency decisions, by preventing agencies from being forced to “operate in a fishbowl.” Whatever its underlying merits, the broad scope of b(5) lends itself to abuse by agencies seeking to hide errors and failures.

According to the Associated Press, the Obama administration’s use of this “deliberative process” exemption set all-time records in 2012 and 2013. Nate Jones, the FOIA coordinator at the National Security Archive and ace blogger, has compiled a list of the Obama’s administration’s most dubious uses, including:

• Censoring the names of victims in the ongoing VA scandal
• Nazi protection
• Refusing to divulge information about the Bay of Pigs fiasco

The continued abuse of the b(5) exemption has engendered bipartisan backlash in the Congress. In late June, Chairman of the Senate Judiciary Committee Patrick Leahy (D., Vt.) and Ranking Member John Cornyn (R., Texas) introduced a bill to reform the b(5) exemption. Pursuant to their FOIA Improvement Act of 2014, agencies (and courts) now must balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents. For more on the bill, see this report by Washington Free Beacon’s CJ  Ciamarella (who, I might add, edits an edifying weekly FOIA newsletter).

Sens. Leahy & Cornyn’s effort is a laudable start, but I argue it doesn’t go far enough. If I had my druthers, Congress would exempt entire agencies from the b(5) exemption, starting with the EPA. [click to continue…]

So I’m here in Las Vegas, in beautiful Mandalay Bay Hotel, at Heartland Institute’s 9th International Conference on Climate Change. This morning I gave a Power Point presentation titled “Carbon Tax: A Conservative Idea Whose Time Has Come?”

A ‘conservative’ carbon tax is so loopy that at times I half believe it must be a passing fad, a bad joke, or a piece of blackboard econometric foppery rather than a grimly-determined political agenda.

But shortly after my presentation, a colleague forwarded an email he received from MIT’s Climate CoLab. The message begins:

FRIDAY: U.S. Carbon Price Webinar with former U.S. Secretary of State George Shultz and former Members of Congress Bob Inglis and Phil Sharp. . . . The Webinar will consider “How could a national price on carbon be implemented in the United States?”

The email goes on to describe the Webinar as “an exciting opportunity” for entrants in Climate CoLab’s Carbon Price Contest “to ask questions and get feedback from advisors who will also be serving as judges.” Winners can earn up to $10K in prize money. These folks mean business, and they’re putting some donor’s money where their mouths are.

Most ‘conservative’ carbon-taxers claim they want a tax that is ‘revenue neutral’ (offsets other taxes dollar-for-dollar) and replaces EPA greenhouse gas regulations, federal fuel-economy standards, state renewable energy mandates, etc. But Washington’s big spenders have no interest in tax ‘reform’ that does not ‘enhance’ revenues, and Big Green has no desire to trade away its capture of regulatory agencies — especially not for a tax that couldn’t be used to fund green-energy programs.

A revenue-neutral, regulation-dismantling carbon tax is a pipe dream.

To view my Power Point, click here.

Yesterday, I noted a New York Times article about how the Natural Resources Defense Council crafted the “blueprint” for EPA’s recently released Clean Power Plan.

Formerly at NRDC

So, NRDC is influencing policy, per the paper of record. With that in mind, now consider NRDC’s political exertions.

In 2003, NRDC started a 501c(4) advocacy group, NRDC Action Fund, to “work to educate and mobilize voters…” To date, most of its influence has been wielded behind the scenes. Although it dabbled in ad hominem attacks, ad hoc polling,and other political tricks during the last election cycle, “NRDC Action Fund primarily operated by encouraging its donors to donate directly to candidates or environmental advocacy groups,” according to an April article by the Washington Post’s controversial Juliet Eilperin.

Now, NRDC’s “c4,” as such groups are colloquially known inside the beltway, is taking on a more conspicuous role. Reports the Posts’s Eilperin:

The League of Conservation Voters and the Natural Resources Defense Council Action Fund are starting LeadingGreen, a collaboration that will steer donations to federal candidates and enlist the help of major donors in lobbying elected officials…”It underscores the fact we need more environmental money in politics, and we need more environmental donors doing advocacy to make sure politicians understand they feel strongly about these issues, and that’s what the new alliance is all about,” Karpinski said in an interview.” [money quote formatted]*

Political spending by special interests is but one manifestation of a phenomenon known as “regulatory capture” by those special interest of regulatory agencies. Another is the existence of a “revolving door” between special interests and agencies; to this end, NRDC is well represented at the EPA among political appointees. The spoils of regulatory capture include policy-making prerogatives of the sort described in the aforementioned New York Times article about the NRDC’ “blueprint.”

In the 1970s, there was widespread belief that industry had captured New Deal-era regulatory agencies, resulting in lax oversight. Today, the nature of regulatory capture is different, at least it is at the EPA. There, environmental special interests have captured the agency in order to co-opt state power in the persecution of industrial foes. The result is mindless, industry-specific regulations, like the Clean Power Plan, Utility MACT, Regional Haze, and many more.

• For more on the actual policy ramifications of present day regulatory capture at the EPA, see this post: “Yes, America, There Is a War on Coal.”

• For more on regulatory capture, see this article, penned by yours truly: “Deadline Citizen Suits: An Idea Whose Time Has Expired”

*I’d be remiss if I failed to give mention to the political contributions of the Sierra Club to the Obama Administration in particular. On Sierra Club’s Politics & Elections webpage, the organization boasts of how, “Working closely with Obama for America, we recruited more than 12,000 members to join Environmentalists for Obama, to participate in “Get Out the Vote” (GOTV) shifts on Election Day, and to plug into the Obama campaign dashboard to make over 30,000 phone calls…It worked. On November 9, the Obama campaign acknowledged our contribution this cycle, stating the Club was “an integral part of (the) win.” Sierra Club is no less well represented at the EPA than is the NRDC.