October 2014

EPA’s Clean Power Plan, the agency’s proposed rule to reduce carbon dioxide (CO2) emissions from existing power plants, is the centerpiece of President Obama’s climate policy agenda. On the day the Plan was published in the Federal Register (June 18, 2014), Murray Coal petitioned the D.C. Circuit Court of Appeals to bar EPA from further work on the rulemaking. Eight days later, nine states led by West Virginia filed an amicus brief in support of that petition.

Ever since Massachusetts v. EPA (April 2007), when the Supreme Court set the stage for EPA’s transformation into a Super Legislature dictating national policy on climate change, litigation to rein in the agency has generated more billable hours for lawyers than regulatory relief for their clients.

Consider Utility Air Regulatory Group v. EPA (June 2014), in which petitioners challenged EPA’s application of Clean Air Act (CAA) permitting requirements to stationary emitters of greenhouse gases. The absence of anything resembling congressional intent for EPA’s policy was breathtaking. Out of 692 bills containing the term “greenhouse gas” during 1990-2011, none specifically provided authority to apply CAA permitting requirements to greenhouse gas emitters. The only regulatory climate bill ever to pass a chamber of Congress — H.R. 2454, the Waxman-Markey cap-and-trade bill — explicitly exempted stationary sources from permitting requirements based on their greenhouse gas emissions.

EPA sought to regulate CO2 from facilities accounting for 86% of U.S. stationary-source greenhouse gas emissions. The Court in UARG trimmed back EPA’s reach to facilities accounting for 83% (slip op., p. 10). Seven of the nine Justices were either too deferential to agency expertise, too activist, or too reluctant to acknowledge errors in Mass. v. EPA to re-limit EPA in any serious way.

A bare majority in UARG did, however, vote to overturn EPA’s Tailoring Rule, the agency’s brazen attempt to rewrite unambigous (numerical) statutory requirements to avoid an administrative debacle of its own making. Moreover, the Scalia majority admonished EPA against adopting statutory interpretations that would “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The Court continued:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” … we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance” (slip op., p. 19).

Those words are a perfect rebuke to the regulatory coup EPA is trying to pull off via the Clean Power Plan. Will EPA get away with it? I don’t think so, especially after reading Here Be Dragons: Legal Threats to the ESPS Proposal by environmental attorney Eric Groten (Vinson & Elkins). [click to continue…]

The Wall St. Journal’s Sept. 20 essay, “Climate Science Is Not Settled”, caused quite a stir, in part because it was authored by physicist Steven Koonin, Dept. of Energy Undersecretary of Science during the first Obama administration.  Yesterday’s edition (Oct. 2) carries a letter criticizing Dr. Koonin’s essay on several grounds, and ends on a patronizing note:

“We welcome the constructive collaboration of the physics community in improving our understanding of … climate.  Many climate scientists are trained physicists…. We invite Dr. Koonin to join their ranks.” 

The letter is co-signed by Dr. Ben Santer, widely known for his work on the climate impact of human activity.

But Santer is also known, to some of us, for a 2009 letter to a colleague complaining about CEI’s petition to EPA to reconsider its Endangerment Finding.  The letter was part of the Climategate document leak, and says this about dissenting climate scientist Patrick Michaels, who was then at U. Va. and who now heads Cato’s Center for the Study of Science:

“Next time I see Pat Michaels at a scientific meeting, I’ll be tempted to beat the crap out of him.  Very tempted.”

So if Dr. Koonin is planning to accept Santer’s invitation to join in some scientific collaboration, maybe he ought to show up wearing a hockey helmet.

According to an excellent article by Sean Murphy of the Associated Press in Oklahoma, wind farms are becoming politically controversial in Oklahoma, Kansas, and Texas. In the past decade, wind energy in Oklahoma has increased from 113 windmills in three projects to 1,700 windmills in 30 projects.

Murphy writes: “A decade ago, states offered wind-energy developers an open-armed embrace, envisioning a bright future for an industry that would offer cheap electricity, new jobs and steady income for large landowners, especially in rural areas with few other economic prospects.  To ensure the opportunity didn’t slip away, lawmakers promised little or no regulation and generous tax breaks.”

However: “But now that wind turbines stand tall across many parts of the nation’s windy heartland, some leaders in Oklahoma and other states fear their efforts succeeded too well, attracting an industry that gobbles up huge subsidies, draws frequent complaints and uses its powerful lobby to resist any reforms…. Opposition is also mounting about the loss of scenic views, the noise from spinning blades, the flashing lights that dot the horizon at night and a lack of public notice about where the turbines will be erected.”

While “the growing cost of the subsidies could decimate state funding for schools, highways and prisons,” the political establishment in Oklahoma is just starting to wake up to the problems that result from creating a new special interest funded by government largesse.  “With the rapid expansion came political clout. The industry now has nearly a dozen registered lobbyists working to stop new regulations and preserve generous subsidies that are expected to top $40 million this year.”

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