2014

This morning, I bemoaned the Supreme Court’s refusal to review Oklahoma, et al. v. EPA, et al., 723 F. 3d 1201 (2013), because the 10th Circuit’s ruling, if it becomes established precedent, would sound the death knell for cooperative federalism under the Clean Air Act. To be sure, that’s a big deal. However, in my rush to give the big picture, I neglected to mention the local impact, which is also a big deal.

In fact, Oklahoma Gas & Electric ratepayers will be forced to pay $1.2 billion, for no purpose other than the furtherance of a political ‘war on coal.’ That’s no hyperbole. At issue in Oklahoma were visibility-improvement regulations, known as Regional Haze, for 4 coal-fired power plants. Oklahoma wanted one set of controls; EPA wanted a different set of controls that cost $1.2 billion more. The problem is that the agency had no justification for its choice, as its preferred controls didn’t actually engender an improvement in visibility. Using modeling software, it’s possible to recreate the visibility “benefits” wrought by EPA’s Regional Haze regulation in Oklahoma, and, immediately below, I’ve posted the side-by-side images of the same skyline, one depicting visibility using Oklahoma’s controls and the other showing the impact of EPA’s controls. As is plainly evident, there is no difference. For this–NOTHING–OG&E ratepayers are on the hook for more than a billion dollars.

Can you tell the difference?

Why would EPA impose this outrageous regulation? The answer has to do with the revolving door between the agency and environmental special interests. Oklahoma falls within EPA Region 6, which was headed by Al “Crucify” Armendariz when the agency acted in Oklahoma on Regional Haze. Immediately before he was Region 6 Administrator, Armendariz was a “technical adviser” to WildEarth Guardians, the green litigation group whose “sue and settle” lawsuit led to…EPA’s Regional Haze controls for Oklahoma! After Armendariz resigned in disgrace, for having compared his enforcement style to a “crucifixion,” he gained employment at Sierra Club’s “Beyond Coal” campaign. Given Armendariz’s zealotry and connection to green special interests, EPA’s Regional Haze in the Sooner State shenanigans at least makes a modicum of sense. That doesn’t make the situation any easier for OG&E ratepayers, alas.  [click to continue…]

What the Court just did: At 9:30 AM this morning, the Supreme Court declined to review the 10th Circuit’s split 2-1 decision in Oklahoma, et al. v. EPA, et al., 723 F. 3d 1201 (2013).

Case background: Under the Regional Haze provision of the Clean Air Act, States are required to submit visibility improvement plans to the EPA for review. In 2010, the State of Oklahoma proposed Regional Haze controls for 6 power plants. In 2012, EPA rejected Oklahoma’s Regional Haze plan; the agency justified its disapproval based on a claim that the State’s cost estimates were erroneous, which (allegedly) led to the State undervaluing certain control options. Rather than allow Oklahoma to correct the alleged error, as is permitted by the Clean Air Act, EPA imposed a federal plan that cost $1.8 billion more than the State’s plan. Oklahoma sued in the 10th Circuit Court of Appeals, alleging that EPA acted outside its authority in rejecting the State’s plan. The Court sided in favor of EPA in July 2013, by a 2-1 split panel decision in Oklahoma, et al. v. EPA, et al., 723 F. 3d 1201 (2013). Oklahoma appealed the 10th Circuit’s ruling, but the Supreme Court today declined to hear the State’s case.

The BFD legal matter at issue: The Clean Air Act is a “cooperative federalism” arrangement, which establishes a State-Federal partnership to improve the nation’s air quality. Because both sovereigns carry a congressional grant of authority, both possess legitimate claims to judicial deference. Complicating matters further, the State, in exercising its share of congressionally delegated authority pursuant to the Clean Air Act, funds its own implementing agency, which establishes its own administrative code. As a result, each sovereign that is responsible for executing the Clean Air Act can claim a congressional delegation, agency expertise, and political accountability—i.e., all the trappings of deference. So what happens when State and Federal Governments, in the course of implementing their respective delegations of authority, disagree on factual findings, with billions of dollars in compliance costs at stake? Is a court supposed to review the reasonableness of the state’s determinations? Or is it supposed to review the reasonableness of the EPA’s review of the reasonableness of the state’s determination? Most simply put: To which sovereign should the courts defer? The 10^th Circuit ruled that EPA is the proper recipient of deference when State and Federal governments disagree over factual findings, a decision that will not be disturbed by the highest court in the land.

Why did cooperative federalism just die?: Pursuant to the precedent established by the 10^th Circuit’s decision, the States, as regulators with initial responsibility under the Clean Air Act, are denied the discretion to conduct reasonable fact-finding. In this scenario—which is now reality—cooperative federalism will cease to have any functional meaning, because the States would become a second class partner. I discuss this matter at length here.

What are the regulatory regimes that will be affected?: [click to continue…]

Details are leaking out about EPA’s impending* climate plan for existing power plants pursuant to section 111(d) of the Clean Air Act. In the past, EPA has interpreted Clean Air Act section 111(d) such that it applied only on a source-by-source basis. However, Bloomberg and Reuters recently reported that EPA’s climate plan would require “beyond the fence” or “mass emissions” approach—i.e., states would be required to regulate beyond a power plant’s smokestack. EPA’s plan thus represents a radical change from past practice.

Pursuant to section 111(d) of the Clean Air Act, EPA is authorized to promulgate “guidelines,” whose function is to aid states in the formulation of plans to achieve the “best” system of emission control system for a “designated” pollutant (greenhouse gases) from a “designated” source (power plants). States are then required to submit these plans to EPA for review. If EPA rejects a State plan, then the agency is empowered to impose a federal plan in its stead.

In this brief post, I address the following question: What sort of federal plan could EPA impose? Alas, the answer is frighteningly broad, and includes policies such as a carbon tax or even a cap-and-trade energy rationing scheme.

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[Editor’s Note: “Primary Document Dump Fridays” is a new weekly feature at globalwarming.org. Every Friday, we’ll post all the primary documents relevant to a major EPA regulation]

Want to learn more about EPA’s impending carbon standards for existing power plants? Below, find the following primary documents, listed in order of their posting. In subsequent posts, these documents will figure prominently in analyses of what the agency is trying to get away with.

• Proposed Procedures for Implementation of 111(d) [39 FR 36102, Monday October 7, 1974]

• Final Procedures for Implementation of 111(d) [40 FR 53340, Monday November 17, 1975]

• Proposed Procedures for Public Notice & Comment of EPA Review of State 111(d) Plans [43 FR 29585, Monday July 10, 1978]

• Final Procedures for Public Notice & Comment of EPA Review of State 111(d) Plans [43 FR 51393, Friday November 3, 1978]

• EPA Guidelines for Control of Fluoride Emissions from Existing Phosphate Fertilizer Plants (March 1979)

• EPA Guidelines for Control of Sulfuric Acid Mist Emissions from Existing Sulfuric Acid Production Units (September 1979)

• EPA Guidelines for Control of TRS Emissions from Existing Kraft Pulping Mills (March 1979)

• EPA Guidelines for Control of Methane & Organic Compound Emissions from Existing Solid Waste Landfills (March 1996)

• EPA Guidelines for  Control of Fluoride Emissions from Existing Primary Aluminum Plants (February 1979)

Proposed Procedures for Implementation of 111(d) [39 FR 36102, Monday October 7, 1974]

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Whether the impetus is legacy-building or fund-raising, the White House is embracing climate change policy. This month, the administration released a report claiming that global warming is responsible for every bad weather event in recent memory; next month, President Obama reportedly will put a “personal touch” on the EPA’s climate plan, which would take over energy oversight from the States.

The President’s political pivot to environmentalism represents a marked change from the ideas he espoused when trying to get elected. Indeed, he campaigned to the right of Mitt Romney on energy policy in 2012. In addition to being ultra-cynical, I suspect that President Obama’s green turn is also bad politics.

After all, public opinion polls are consistent: Americans give low priority to climate change. Anecdotal evidence also suggests as much. For example, consider the “dismal” popularity of “Years of Living Dangerously,” a big budget global warming docudrama by James Cameron and starring a bunch of Hollywood stars. Consider as well the delicious quote below from CNN’s Jeff Zucker (by way of National Journal Overnight Energy):

CNN BOSS: ‘LACK OF INTEREST’ ON CLIMATE. Jeff Zucker, the president of CNN Worldwide, said that while climate change “is one of those stories that deserves more attention,” the network hasn’t gotten viewer involvement. “When we do do those stories, there does tend to be a tremendous amount of lack of interest on the audience’s part,” Zucker said at the Deadline Club’s awards dinner. 

Job growth is underwhelming; accordingly, “it’s the economy, stupid.” And with midterm elections fast approaching, I wonder how American voters will react to the de facto leader of the DNC elevating climate change–“a rich man’s issue” about which the public generally doesn’t care–to the fore. Poorly, I think.  [click to continue…]

James O’Keefe today released a twenty-minute video at the Cannes Film Festival that shows Hollywood environmental activists Ed Begley, Jr., and Mariel Hemingway and environmental propaganda documentary producers Josh and Rebecca Tickell talking about getting $9 million in funding from a phony Middle Eastern oil sheikh to produce an anti-fracking documentary.

The Hollywood Reporter ran an exclusive on O’Keefe’s sting last night, and the video has been posted on YouTube.

The Tickells appear eager to accept the offer of $9 million, but both stress that the source of the funding from Middle Eastern oil interests must be kept secret.  “Money to us, it’s money.  We have no moral issue,” says Josh Tickell on the video.

Rebecca Tickell comments, “But if people think the film is funded by Middle Eastern oil it will, it will not have that credibility.”

As we’ve noted before, Americans rank climate change low on their list of policy priorities. It should, therefore, come as no surprise that Years of Living Dangerously, the 9-part Showtime docu-drama on the need to “do something” about global warming, ranks embarrassingly low on Americans’ TV viewing preferences.

“Years” joins ranks of all-time terrible television ideas

After debuting on April 13th, the show suffered “dismal” viewing metrics. Episodes 2, 3, and 4 averaged an anemic .04 Nielsen rating. Consequently, on May 12th, the show was demoted from Sunday night to Monday night;  presumably, its audience is now even smaller. In fact, the Sunday-to-Monday downgrade is the second ignominy endured by the show in recent weeks. The plot of episode 3, which aired April 27th, centered on Rep. Michael Grimm’s (R-NY) conversion from global warming “skeptic” to “alarmist”; the day after the show aired, Rep. Grimm was indicted by the Justice Department. Needless to say, his credibility—and, by extension, that of the show—was shattered.