2014

…because agency employees are too busy watching pornography!

Allow me to explain: The statutes that authorize EPA’s regulatory programs—the Clean Air Act, the Clean Water Act, etc.—are rife with date-certain deadlines by which EPA must complete its regulatory responsibilities. The agency, however, is woeful at meeting these deadlines. For example, since 1994, EPA has missed 98% (196 out of 200) of its Clean Air Act deadlines, by an average of 5 years. Because EPA won’t do its job, environmental special interests are able to leverage a legal strategy known as “sue and settle” into effective control of the EPA’s regulatory agenda. See this issue brief for the whole story.

I’d long thought that EPA ignored its statutory duties because the agency was pouring agency resources into greenhouse gas regulations (which is, mind you, a discretionary regime—unlike statutory deadlines, which are non-discretionary, and should, therefore, take priority). But now I’m not so sure. Reports the Washington Free Beacon’s CJ Ciaramella.

An Environmental Protection Agency official spent up to six hours a day on the taxpayer dime looking at pornography, according to the EPA Inspector General.

Allan Williams, the deputy assistant inspector general for investigations, told the House Oversight Committee Wednesday that his office had discovered an EPA official who habitually watched porn on a government computer.

“One such investigation involves a career EPA employee who allegedly stored pornographic materials on an EPA network server shared by colleagues,” Williams testified. “When an OIG special agent arrived at this employee’s work space to conduct an interview, the special agent witnessed the employee actively viewing pornography on his government-issued computer. Subsequently, the employee confessed to spending, on average, between two and six hours per day viewing pornography while at work. The OIG’s investigation determined that the employee downloaded and viewed more than 7,000 pornographic files during duty hours.”

Washington Free Beacon later reported that this particular employee received a performance bonus, despite his evident porn problem. Below, I’ve posted video of the House Government & Oversight Reform hearing exchange, in which the EPA confirms the bonus. Unbelievable!

In a post yesterday, I explained that the Supreme Court’s 6-2 ruling in EPA v. EME Homer City Generation denied States a broad right to be a “first implementer” under the cooperative federalism scheme established by the Clean Air Act. While EPA v. EME Homer City Generation is undoubtedly an important federalism case, there is a cert petition before the Supreme Court with implications far more profound for the balance of power between States and EPA under the statute. In the petition, which I’ve reposted at the bottom of this post, the State of Oklahoma has appealed to the Supreme Court to answer the following question: Which sovereign merits judicial deference when State and Federal governments disagree over factual findings in the course of implementing the Clean Air Act?

Recently, I described this supremely consequential matter:

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? To which sovereign should the courts defer?

It’s a tricky question, and much depends on the answer. For starters, the principle of deference to agency fact findings, discretionary determinations, and statutory interpretations is a powerful shield for agency decisions running the gauntlet of judicial review. Whichever sovereign carries this defense is much more likely than not to win the day when a court reviews a federalism conflict pursuant to the Clean Air Act….Both state and federal agencies could render reasonable, yet different decisions on the same matter. In the case of such a federalism dispute, a reviewing court is in no position to split the difference. It must choose which sovereign merits respect, and which doesn’t.

Those are the stakes. And here are the details behind the cert petition that, if granted by the Supreme Court, would lead to a reckoning over these stakes: [click to continue…]

Per SNL,

UBS Securities LLC has downgraded Southern Co. shares to “sell”from “neutral” after the company disclosed cost overruns have pushed the in-service date for the Plant Ratcliffe project in Mississippi to mid-2015.

The news provides further evidence that one of the Obama administration’s top climate policy priorities is illegal.

Allow me to briefly explain. The Plant Ratcliffe project is the only carbon capture and sequestration system currently being constructed in the U.S. Last January, the EPA proposed the Carbon Pollution Standard, which would mandate that all new coal-fired power plants install carbon capture and sequestration. In the proposal, EPA relied on the Plant Ratcliffe project to demonstrate that CCS technology is “adequately demonstrated” as is required by the Clean Air Act.

However, the Clean Air Act forbids EPA’s imposition of a technology that is “exorbitantly” expensive. And the Plant Ratcliffe project, with a price tag of $5.5 billion for 582 megawatts capacity, is well more than 500 percent costlier than a comparably-sized conventional coal fired power plant outfitted with the latest environmental controls. A 500 percent price increase is excellent evidence that EPA’s Carbon Pollution Standard is “exorbitantly” expensive and, as a result, is illegal. The breaking news relayed above is further evidence. Thanks to the incredible costs of CCS at a single power plant, financial analysts are downgrading an entire utility’s stock. [click to continue…]

Last Friday afternoon, my colleague Chris Horner spoke about the EPA’s war on coal on The Blaze:

In the past month, federal watchdogs have raised two red flags over the Department of Energy’s green bank, a.k.a. the Loan Programs Office.

In April, the Energy Department Inspector General reported that the Loan Programs Office had failed to heed the advice of its solar energy expert, who had warned against the issuance of a stimulus-funded loan guarantee to Abound, a Colorado-based solar panel manufacturer that went bankrupt, costing taxpayers scores of millions of dollars.

Last week it was the Government Accountability Office’s turn. On May 1, the GAO released a report titled, “DOE Should Fully Develop Its Loan Monitoring Function and Evaluate Its Effectiveness.” The opening of the executive summary does not inspire confidence regarding the Energy Department’s ability to play the role of green energy investment banker:

“The Department of Energy (DOE) has not fully developed or consistently adhered to loan monitoring policies for its loan programs. In particular…policies for evaluating and mitigating program-wide risk remain incomplete and outdated.”

Lest you think that GAO was picking at needless details, consider: Included among the “loan policies” that the Energy Department has “not fully developed” are the credit reports (!!!) on the loan applicants. That’s a pretty glaring problem for a LOAN Programs Office that already has a $30 billion portfolio. Report reposted below.

GAO Report on DOE Loan Guarantee Program