2014

What is the proper scope of review when an Article III court adjudicates a federalism dispute under the Clean Air Act? 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? Simply put, to which sovereign should courts defer?

In light of the Obama administration’s aggressive oversight of Clean Air Act programs operated by the States, this is a hugely consequential question, with billions of dollars at stake. Yet there exists little statutory direction and conflicting case law to guide lower courts in their review of State-Federal disagreements pursuant to the Clean Air Act. On January 29, the State of Oklahoma petitioned the Supreme Court to revisit this matter, and clarify which sovereign warrants ascendant respect from reviewing courts.

Below, in the first of a two part series, I explore how the cooperative federalism regulatory regime established by the Clean Air Act confuses judicial deference to agency decision-making. Ultimately, I urge the Supreme Court to grant Oklahoma’s cert petition, in order to cut through the uncertainty and establish unequivocally the boundaries of authority between the State and Federal Governments under the Clean Air Act.

In the second part of the series, I will make the case that States, and not the EPA, are the proper recipients of the court’s respect.

Cooperative Federalism Conundrum: Delegation Can Be Split; Deference Can’t

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Would the Keystone XL Pipeline (KXL) serve the U.S. national interest? If the State Department answers that question in the affirmative, TransCanada Corporation can finally begin building the pipeline, more than five and a half years after originally applying for a construction permit.

TransCanada recently submitted comments to State making the case for an affirmative “national interest determination” (NID). The comments are clear, comprehensive, accurate, and, in my opinion, compelling.

Inspired by those comments, I will attempt here to state the common sense of the issue in my own words.

The interminable controversy over the KXL is stunningly pointless. Do modern commerce and transport chiefly run on petroleum-based products? Yes. Are pipelines the most economic, efficient, and safe way to transport large volumes of petroleum? Yes. Is Canada our closest ally and biggest trading partner? Yes. Is Canada already the largest single source of U.S. petroleum imports? Yes. Would building the KXL enhance the efficiency of oil transport from Canada to U.S. markets? Yes. Would building the KXL support tens of thousands of American jobs and add billions to the GDP during the construction period? Yes. Would all the financing be private and not cost taxpayers a dime? Yes.

So how could building the KXL not be in U.S. national interest?

In 2012, TransCanada sought permission to build the “Gulf Coast Project” (the green line in the map below), the southern leg of the 1,700 mile pipeline it originally proposed to build from Hardisty, Canada to Port Arthur, Texas. State environmental agencies and the U.S. Army Corps of Engineers granted all necessary permits for the Gulf Coast Project by August 2012.

Construction began in August 2012 and the project commenced commercial service in January 2014. The earth did not shake, the sky didn’t fall, no one felt a “disturbance in the Force . . . as if millions of voices suddenly cried out in terror and were suddenly silenced.” [click to continue…]

Yesterday, the House Science Energy and Environment Subcommittees held a joint hearing on the “Science of Capture and Storage: Understanding EPA’s Carbon Rules.” EPA Air Office Acting Administrator Janet McCabe was the sole witness on the second panel. Her testimony begins about one hour and 54 minutes (1:54) into the archived Webcast. Although calm and non-ideological in tone, McCabe’s responses in the lengthy Q&A were terse, usually uninformative, and often evasive.

The hearing focused on carbon capture and storage (CCS), the technology new coal-fired power plants will have to install to meet the carbon dioxide (CO2) New Source Performance Standards (NSPS) in EPA’s proposed “Carbon Pollution Rule.” Under the Clean Air Act, NSPS are to “reflect the degree of emission limitation achievable through the application of the best system of emission reduction which . . . has been adequately demonstrated.”

Environment Subcommittee Chair David Schweikert (R.-Ariz.) kicked off the Q&A (1:59) by noting that the “Carbon Pollution Rule” assumes CCS technology is “robust and ready to go,” yet the “previous panel was pretty crisp, even from right to left, that there are still some real concerns on the technology itself.” He asked for “technical” information clarifying how EPA set the CO2 standards.

McCabe responded by explaining that the “Carbon Pollution Rule” does not actually mandate the use of CCS, it sets a performance standard based on CCS, and let’s covered facilities decide for themselves how to meet the standard. Okay, but that’s a distinction without a difference, since the only known technology that can reduce CO2 emissions from coal plants as much as CCS is CCS.

McCabe continued:

When it comes to the technology that we based those numbers on [i.e. 1,100 lbs. CO2 per MWh for new coal plants], we believe that if you look across all the information and data that’s available, that there is adequate and robust data showing that the various components that we based the standard on are in use, have been in use, and will be ready.

In other words, instead of providing technical information addressing the concerns raised during the previous panel, McCabe said, in effect, ‘Trust us, we’re the experts.’

Rep. Suzanne Bonamici (D-Ore.), noting GOP Members’ concerns about the cost of CCS, asked McCabe to discuss the “costs associated with the lack of action to address climate change and increasing emissions.” McCabe responded (2:10):

That’s a very good question. There are costs to our economy and to society from the impacts of climate change that is already happening. In 2013, there were seven extreme weather events. Which I think is a nice way of saying great, big, huge horrible storms that cost the economy over a billion dollars each. This is a real economic impact on our communities, our families across the country.

Prompted by Bonamici, McCabe went on to include “health care costs” and “disruption to families and whole communities” among the costs of inaction.

Whether deliberately or otherwise, McCabe blurs the distinction between climate risk and climate change risk. Hurricanes are not some new phenomenon unique to the Age of Global Warming. Huge, horrible storms have billion-dollar costs — that is the nature of the beast. Blaming hurricanes on CO2 emissions is unscientific. There has been no long-term trend in the strength or frequency of hurricanes, none in global accumulated cyclone energy, and none in hurricane damages once losses are adjusted to take into account increases in population, wealth, and the consumer price index. The U.S. is currently experiencing the longest period on record with no major (category 3-5) hurricane landfall strikes.

Blaming hurricane damages on congressional gridlock (“lack of action”) is loopy. Even complete elimination of U.S. CO2 emissions via immediate and total shutdown of the economy would avert only a hypothetical 0.19°C of warming by 2100 — too small a reduction to have any detectable effect on weather patterns. Ergo, no lesser emission reductions that might have been implemented during the past decade or two could provide any meaningful protection to people or property even if one assumes all seven billion-dollar storms in 2013 were ginned up by climate change. [click to continue…]

Secy. of State John Kerry last week exhorted all State Department officials to conclude a new international climate change agreement, integrate climate change with other priorities, and, in general, “elevate the environment in everything we do.” In the same week, climate researchers produced two more studies undercutting Kerry’s opinion that climate change is “perhaps the world’s most fearsome weapon of mass destruction.”

The studies address the core scientific issue of climate sensitivity — the question of how much warming results from a given increase in atmospheric carbon dioxide (CO2) concentrations.

There are two types of sensitivity estimates. Equilibrium climate sensitivity (ECS) is an estimate of the increase in ‘steady state’ surface temperature after the climate system has fully adjusted to a doubling of CO2 concentrations — a process assumed to take centuries or longer due to oceanic thermal inertia. Transient climate sensitivity (TCS) is the estimated increase in surface temperature during the 20-year period when CO2 doubling occurs, presumably during the final decades of this century.

ECS is the key variable in both climate model predictions of future global warming and model estimates of the “social cost of carbon” – the damage allegedly inflicted on society by an incremental ton of CO2 emissions.

The IPCC’s 2007 Fourth Assessment Report (AR4) estimated a “likely” ECS range of 2°C-4.5°C, with a “best estimate” of 3°C. Since 2011, however, the warming pause and the growing divergence of model predictions and observed global temperatures have been the impetus for several studies finding that IPCC sensitivity estimates are too hot.

Cato Institute scientists Patrick Michaels and Chip Knappenberger maintain a growing list of such studies, which totaled 18 as of February 2014.

The average sensitivity estimate of the 18 studies is just under 2°C. In other words, the AR4 “best estimate” of 3°C is 50% higher than the mean estimate of the new studies. That may be why the IPCC’s 2013-2014 Fifth Assessment Report (AR5) declines to offer a “best estimate.”

A new “best estimate” of 2°C would deflate the scary climate change impacts featured elsewhere in AR5, but recycling the same old 3°C “best estimate” would deflate the IPCC’s claim to be an honest broker. So instead the IPCC chose to lower the low end of the “likely” sensitivity range. Whereas the “likely” range in AR4 was 2°C-4.5°C, in AR5 it is 1.5°C-4.5°C.

That small concession, however, does not dispel the growing challenge to consensus climatology. As indicated in the chart above, the average sensitivity of the climate models used in AR5 is 3.2°C. That is 60% higher than the mean of recent estimates (<2°C). Let’s take a quick look at three studies that have come out this year. [click to continue…]