2014

On Tuesday, some 80 ‘progressive’ organizations (including Sierra Club, Greenpeace, Environmental Defense Fund, League of Conservation Voters, MoveOn.org, Common Cause, Public Citizen, and AFL-CIO) sent a letter to eBay’s CEO, Chairman, CFO, and General Counsel urging them to end the company’s support for the American Legislative Exchange Council (ALEC), the national association of conservative state legislators.

This just in. . . .The New Republic reports that eBay has declined to honor (capitulate to) this request (pressure). Abby Smith, eBay senior director of corporate communications, reportedly told the New Republic:

It should be noted that it’s a business reality that some trade associations and other external groups that advocate for non-environment-related polices that are material to the success of eBay Inc. and our customers may at times hold and/or advocate for positions that conflict with our strategy with respect to climate and energy. As these conflicts are identified, our team of internal stakeholders meets regularly to assess the best approach for resolving these issues.

I’m not sure exactly what that explanation means, but at least for now eBay is not joining the ALEC bashers. Nor does the company go all gooey green just because it recently built the world’s first fuel-cell powered data center.

The aforementioned letter reprises the standard left-wing allegation that ALEC “threatens our democracy” by bringing together “state legislators and corporate lobbyists behind closed doors to discuss proposed legislation.” As I explained in a post about the defame-ALEC campaign when it first launched in July 2011, ALEC’s business-legislator task forces are evidence of skulduggery only on the anti-capitalist premise that corporations are evil and have no legitimate place in the legislative process.

In fact, few ALEC critics actually practice what they preach, because ‘progressive’ politicians also routinely huddle with lobbyists when drafting legislation. For example, the corporate coalition called the U.S. Climate Action Partnership wrote the blueprint for the Waxman-Markey cap-and-trade bill.

The difference is that whereas ‘progressive’ legislation typically aims to rig the marketplace to confer windfall profits on politically-correct companies and impose windfall losses on politically-incorrect companies, ALEC bills aim to remove impediments to free enterprise. ‘Progressives’ aren’t against business lobbying per se. It’s only pro-market businesses they seek to drive out of the marketplace of ideas. [click to continue…]

Here’s what EPA features as “News” on its Web site today:

• EPA Releases Greenhouse Gas Emissions Data from Large Facilities
• Final Cleanup Plan for NJ Superfund Site
• CA Wastewater Treatment Plant will Produce 100% Renewable Energy
• Economics of Climate Change Speech
• Great Lakes Restoration Plan

None of those items is a national headline grabber. EPA has bigger story to tell but you’ve got to use the agency’s search engine to find it.

This week EPA updated its annual Air Quality Trends, and the news is fanastic. “National average air quality continues to improve as emissions decline through 2013,” EPA reports.

EPA provides several charts illustrating the nation’s ongoing progress in cleaning the air. Here’s the first graphic:

The figure shows that between 1980 and 2013, gross domestic product increased 145%, vehicle miles traveled increased 95%, energy consumption increased 25%, and U.S. population increased 39%. Yet during the same period, total emissions of the six principal air pollutants decreased by 62%. Impressive.

“The graph also shows that between 1980 and 2012, CO2 emissions increased by 14 percent,” EPA adds. Well, to me, it’s all good news. Air pollution emissions are increasingly decoupled not only from GDP, VMT, energy consumption, and population, but from CO2 emissions as well.

In other words, CO2 emissions are positively correlated with increases in wealth, mobility, super-human power at the beck and call of ordinary mortals (i.e. energy consumption), and air quality improvement. Those who argue or insinuate that we need a carbon tax or CO2 regulation to clean the air don’t know what they are talking about.

Let’s look at other EPA charts on America’s improving air quality. [click to continue…]

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.”

[click to continue…]

Today is the close of briefing in our appeal of Michael Mann’s defamation suit against the Competitive Enterprise Insitute, CEI adjunct Rand Simberg, National Review and Mark Steyn. Some background information and the court filings can be found here.

We’re appealing a lower court’s refusal to dismiss this case under the District of Columbia’s anti-SLAPP statute, which protects participants in public debate from being silenced by meritless lawsuits. Groups ranging from the Reporters Committee for Freedom of the Press and the ACLU to the Cato Institute and the Electronic Frontier Foundation view Mann’s suit as being exactly that—meritless—and they make this clear in the amicus briefs they filed in our support.

One of Mann’s arguments is that his work has been “exonerated” by a number of investigations, including that of EPA. As our reply brief shows, that is simply untrue. But one thing that EPA did examine was Mann’s own claim that the work of certain opposing scientists was a “fraud”. In EPA’s view, “fraud” is an “entirely acceptable and appropriate” term in scientific debate. (CEI Reply Brief at p.11.)

In short, EPA didn’t exonerate Mann, but it may well have exonerated the defendants.

What follows is my prepared statement for a media conference call I participated in today along with Kristin Sundell,  Director of Policy and Campaigns, Action Aid; fmr. Sen. Wayne Allard, VP for Government Relations, American Motorcycle Association; Nicole Wood, Program Manager, Government Affairs, Boat U.S.; Ben Schreiber, Climate and Energy Program Director, Friends of the Earth; Emily Cassidy, Biofuels Research Analyst, Environmental Working Group; and Nan Swift, Federal Government Affairs Manager, National Taxpayers Union.

Ever since EPA, in November 2013, proposed to cut back the 2014 RFS blending target from 18.15 billion gallons to 15.21 billion gallons, the agency has come under relentless pressure from the corn-ethanol lobby to withdraw the proposal. 

Hints from EPA officials indicate the agency is in retreat. That is unfortunate. The existing 18.15 billion gallon target would compel refiners to buy billions of gallons more ethanol than can actually be sold as E10 (the highest blend compatible with today’s fueling infrastructure, manufacturer liability and warranty policies, and consumer acceptance).  

Refiners would either have to buy what they can’t sell or pay heavy fines and exorbitant prices for blender credits (RINs). Most of those costs would be passed on to consumers at the gas pump. 

The political pressure on EPA to breach the blend wall – and the consequent peril to consumers – will only increase over time as RFS statutory targets ratchet up to 36 billion gallons in 2022.  [click to continue…]

The experience of the 1970s and 1980s taught us that if a technology is commercially viable, then government support is not needed and if a technology is not commercially viable, no amount of government support will make it so.

Thus concluded MIT scholars Thomas Lee, Ben Ball, Jr. and Richard Tabors in their 1990 book Energy Aftermath, a retrospective on energy policy “blunders” of the 1970s and ’80s. How much mischief might have been averted in recent decades had House and Senate rules required a recitation of those words at the start of every debate on energy policy?

The same pithy, big-picture clarity came through yesterday at the Senate Finance Committee’s hearing on “Reforming America’s Outdated Energy Tax Code.” I commend in particular the testimonies of Heritage Foundation economist David Kreutzer and former Republican Senator Don Nickles of Oklahoma. Below are some excerpts from Sen. Nickles’s testimony. (Subtitles are mine.)

Best Energy Tax Reform Is Pro-Growth, Non-Discriminatory, General Tax Reform

My primary message at that hearing two years ago was that, if you do tax reform correctly, there would be no reason to hold another “energy” tax hearing, because a reformed tax code should treat energy companies and the products they produce just like everybody else. No subsidies, and no penalties. If the tax code you devise encourages investment, lowers the corporate rate, and embraces a simplified territorial system, U.S. energy companies will flourish along with all other companies. [click to continue…]

EPA plans to propose and finalize regulations establishing first-ever carbon dioxide (CO2) emission standards for jet aircraft. The agency recently submitted an Information Paper to the UN’s International Civil Aviation Organization (ICAO) setting out a regulatory timeline. Once again, the Obama administration reads the Clean Air Act (CAA) to require a climate policy never intended or approved by Congress, and undertakes to negotiate an international agreement that likely would not survive a Senate vote on ratification.

A product of creeping Kyotoism, the yet-to-be-proposed rule has been gestating since 2007. From EPA’s Information Paper:

The U.S./EPA is initiating the rulemaking process in response to a petition the U.S./EPA received in December 2007, which requested that U.S./EPA make an endangerment finding for aircraft GHGs [greenhouse gases] and regulate these emissions under §231 of the Clean Air Act (CAA). Petitioner filed a lawsuit in 2010 on this matter, and the D.C. District Court in 2012 ruled that the CAA required U.S./EPA to make a final determination on whether aircraft GHG emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. U.S./EPA is now moving forward to make a determination regarding aircraft GHG emissions.

CAA §231 requires EPA to establish emission standards for aircraft if the agency determines that “emission of any air pollutant from any aircraft . . . causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” That EPA will make a positive finding of endangerment is a foregone conclusion.

As the Information Paper notes, EPA already determined in December 2009 that greenhouse gas-related “air pollution” from new motor vehicles endangers public health and welfare. Through that action, EPA empowered itself to set de facto fuel economy standards* under CAA §202, poaching regulatory authority delegated by Congress to another agency (the National Highway Traffic Safety Administration) under a separate statute (the Energy Policy and Conservation Act). So EPA will undoubtedly determine that “air pollution” from aircraft GHG emissions warrants a further expansion of the agency’s regulatory power.

The main difference this time round is that EPA will be setting quasi-fuel economy standards for aircraft, even though no existing statute authorizes any agency to prescribe such standards.

The scientific case for endangerment is weaker today than it was five years ago (see, e.g., here, here, here, here, and here). However, courts are deferential to agency expertise and typically decline to adjudicate scientific controversies.

Courts may, however, be more open to scientific pushback if they question the coherence of EPA’s basic reasoning. What follows is a rumination on EPA’s attempt to define “carbon pollution” in its seminal December 2009 endangerment determination. EPA’s definition, in my view, is a conceptual muddle. [click to continue…]