The National Environmental Policy Act (NEPA), enacted Jan. 1, 1970, requires federal agencies to consider the environmental effects of “any major project — federal, state, or local — that involves federal funding, work performed by the federal government, or permits issued by a federal agency” (Wiki). NEPA also established the White House Council on Environmental Quality (CEQ), which issues guidelines to federal agencies for proper preparation of environmental impact analyses.
On December 14, 2014, CEQ published a Draft Guidance on NEPA review of project-related greenhouse gas emissions and climate change effects. Today (Mar. 25, 2015) is the deadline for submitting comments on the Guidance. On behalf of the Competitive Enterprise Institute, 14 other pro-market organizations, and one university professor, I submitted a joint comment letter critiquing CEQ’s proposal.
In brief, we argue that:
- NEPA review is an inappropriate framework for making climate policy.
- Project-related greenhouse gas emissions should not be a factor determining whether agencies grant or deny permits for individual projects.
- Requiring agencies to consider project-related greenhouse gas emissions will make the pointless sturm und drang over the Keystone XL Pipeline the ‘new normal’ in NEPA review, further empowering NIMBY and anti-energy activists to block development projects with immense economic benefits and immeasurably small, hypothetical climate effects.
- The Guidance will feed the hubris of those who believe government exists to bankrupt businesses and industries they dislike.
- CEQ should withdraw the Guidance.
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In a word, New York University School of Law Professor Richard Revesz is brilliant.
Indeed, this blog is a big fan of the Professor’s seminal 1992 law review, “Rehabilitating Interstate Competition,” which persuasively puts the lie to the theoretical foundations of the “Race to the Bottom” thesis of environmental regulation.
Nonetheless, no jurist–no matter how brilliant–can cure EPA’s Clean Power Plan of its legal infirmities. So when Professor Revesz testified in support of the rule a week ago before the House Energy and Commerce Committee, he was necessarily in a bind because he had to try to defend the indefensible.
In this post, my purpose is to respectfully rebut one of Professor Revesz’s most consequential claims made during his testimony. The claim at issue regards the ongoing debate over whether the plain terms of the Clean Air Act forbids EPA from promulgating the Clean Power Plan. [click to continue…]
In a recent column in Politico, former EPA Administrator Christine Todd Whitman scolds Senate Majority Leader Mitch McConnell (R-Ky.) for an op-ed urging states to ‘just say no’ to EPA’s Clean Power Plan (CPP) — the agency’s proposal to cap carbon dioxide (CO2) emissions from state electric power sectors.
In a nutshell, Whitman accuses McConnell of urging States to break the law. Nonsense. Declining to submit a plan to implement EPA’s regulation is a lawful option under the Clean Air Act. Indeed, the right of States to keep their fingerprints off regulations they regard as unlawful or simply as misguided is basic to the “cooperative federalism” concept on which the Clean Air Act is based. Whether or not states should be complicit in the Clean Power Plan is a prudential question. McConnell argues (correctly, IMO) that the most prudent course for States is to let EPA bear sole responsibility for implementing an unlawful rule.
Although Whitman quotes two sentences from McConnell’s essay, she never engages any of his arguments. Instead, she tut-tuts about the rule of law without apparently understanding what it means.
I reproduce Whitman’s column below and offer commentary on each part. Her text is indented in blue, my comments are standard width in black.
Whitman: Sen. Mitch McConnell earlier this month encouraged states to defy federal environmental regulations by simply ignoring them. This was not some quote taken out of context by a pesky reporter; it was an op-ed he wrote in the Lexington Herald-Leader. The Republican Senate majority leader is protesting the Environmental Protection Agency’s proposal to cut greenhouse gas emissions from coal plants. The agency plans to finalize the rule this summer, after which states will have a chance to submit their own plans to meet the EPA’s specific goal for the state. He writes:
“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism. Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”
None of this is surprising from the senator who said shortly after his reelection that his top priority was “to try to do whatever I can to get the EPA reined in,” but it is extremely disappointing and has the possibility to undermine our nation’s entire rule of law.
ML Comment: It’s also not surprising that a prominent EPA alumna sides with her alma mater. Just as the value of your diploma is affected by your school’s subsequent academic standing, so the prestige of a former Administrator is affected by the public perception, regulatory reach, and economic importance of the agency she once ran. [click to continue…]
You know or suspect that the administration’s war on carbon energy is either a costly exercise in futility or a humanitarian disaster, depending on how aggressively they pursue it. You may also know or suspect that “all of the above” is Washington-speak for dispensing more corporate welfare to under-performing energy companies.
So what would a genuine pro-market energy agenda look like? Sen. Ted Cruz (R-Texas) and Rep. Jim Bridenstine (R-Okla.) put it all together in a bill titled the American Energy Renaissance Act. The bill would “remove federal impediments to energy exploration, development, and trade.” It would increase U.S. GDP, economic opportunity, and geopolitical influence by reducing federal interference with market-driven energy investment.
Sen. Cruz’s press release presents the two lawmakers’ energy policy perspective and summarizes the bill’s key provisions. The policy summary is reproduced below. [click to continue…]
Although President Obama describes his administration as “the most transparent in history,” a new analysis by the Associated Press (AP) finds that, “The Obama administration set a record again for censoring government files or outright denying access to them last year under the U.S. Freedom of Information Act.”
FOIA failings identified by AP include:
- The government took longer to turn over files when it provided any, said more regularly that it couldn’t find documents and refused a record number of times to turn over files quickly that might be especially newsworthy.
- It also acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law – but only when it was challenged.
- Its backlog of unanswered requests at year’s end grew remarkably by 55 percent to more than 200,000. It also cut by 375, or about 9 percent, the number of full-time employees across government paid to look for records. That was the fewest number of employees working on the issue in five years. [click to continue…]
Debate Obama didn’t care about AGW and loved coal
VICE News, which is somehow valued at $2.5 billion (10 times the 2013 price of the Washington Post), recently conducted a sycophantic interview with President Obama. As I understand it, VICE News reporters are supposed to be too-cool-for-school iconoclasts. However, instead of suspicion of “the man,” VICE News founder Shane Smith performed the interview with an evident thrill up his leg.
The first segment addressed environmental policy. Smith started by asking the president, “How do you deal with the negativity? Are you a masochist?” Then he complemented President Obama for having a “rational, sane” plan for dealing with climate change. Finally, after referencing Senate Republicans, he asked why “we’re not acting in a sane and rational way” on global warming (presumably like the President is). Hard hitting stuff.
Today, my purpose is to shatter VICE’s naivety by introducing them to 2012 debate Obama. Debate Obama—the guy trying to get elected by the American people—staked out a position to the right of Republican Mitt Romney on environmental and energy policy. This guy didn’t say a word about climate change. Rather, Debate Obama was all about oil, gas, and even (gasp!) *dirty* coal. Indeed, Obama never once mentioned AGW in any of the 2012 debates. During the VICE interview, by contrast, the President claimed that global warming was among his top priorities.
I humbly submit that Debate Obama demonstrates that the President doesn’t give a hoot about AGW, aside from its legacy-building potential or value in terms of partisan positioning. In short: He’s pulling the wool over your eyes, Mr. Smith.
Debate transcript here; debate video below; writeup here. [click to continue…]
EPA is more than 15-months behind its statutory deadline (Nov. 30, 2013) for establishing Renewable Fuel Standard (RFS) blending targets for last year.
To recap, in Nov. 2013, EPA for the first time proposed to scale back the government’s overall biofuel blending target for the following year. EPA determined that the statutory target for 2014 would exceed the “blend wall” — the maximum quantity of ethanol that can be sold each year given legal or practical constraints on how much can be blended into each gallon of motor fuel.
The most common blend today is E10 — motor fuel with up to 10% ethanol. Although EPA approved the sale of E15 in October 2010, potentially increasing by 50% the total amount of ethanol sold annually, lack of compatible fueling infrastructure, warranty and liability concerns, and, most importantly, consumers’ natural aversion to paying more for a lower-value product effectively limit the standard blend to E10.
So in Nov. 2013, EPA proposed to trim the statutory target for 2014 from 18.15 billion gallons to 15.21 billion gallons — a 16% cutback. That ignited a firestorm of protest from biofuel interests, and EPA has been dithering ever since.
Biofuel lobbyists such as Renewable Fuels Association CEO Bob Dinneen claim the blend wall exists only because the oil industry has “steadfastly refused” to invest in blender pumps, storage tanks, and other infrastructure compatible with E15-and-higher ethanol blends. Weirdly unexplained is why it’s not up to the biofuel industry to pay for the infrastructure on which its success supposedly depends. The RFS forces the oil industry to buy biofuel, process and add value to it, and create a guaranteed retail market for it. Isn’t that enough?
Not for Dinneen and company. If they had their druthers, Congress would compel oil companies to build biofuel-compatible infrastructure and (as President Obama proposed during his first presidential campaign) mandate that all new cars be flex-fuel vehicles capable of running on blends up to E85 (motor fuel made with 85% ethanol).
But would even that policy wish-list eliminate the growing mismatch between market realities and the RFS production quota schedule, which requires 36 billion gallons of biofuel to be blended and sold by 2022? No.
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Agency promises to satisfy “Richard Windsor” FOIA request…in the 22nd century!
The tortuous Richard Windsor saga took yet another twist yesterday, when we filed suit to compel EPA to stop flouting the Freedom of Information Act (FOIA).
To recap: In 2012, I discovered that ex-EPA administrator Lisa Jackson used an alias email persona, known as “Richard Windsor,” in an obvious attempt to evade scrutiny under transparency laws. After a more limited request for certain “war on coal” emails, CEI then submitted a FOIA request for all emails to and from Mr. Windsor/Administrator Jackson. However, EPA has gone to extraordinary lengths to dodge its responsibilities to fulfill the request–despite the Obama administration’s promise to be “the most transparent ever.”
Indeed, CEI has endured multiple rounds of EPA obfuscation. After reversing two absurd delaying maneuvers on administrative appeal, EPA agreed to process an unprecedentedly low 100 records a month—over the course of the next 100 years! [click to continue…]
The worst
…EPA’s use of a Clean Air Act provision regarding the ozone layer in an effort to advance the President’s international climate goals.
This ongoing regulatory regime is known as the Significant New Alternatives Policy program, and it represents the worst of all worlds: it’s a naked power grab; it’s bolstered by rent-seeking; and it actually endangers public health. On account of all of these factors, it’s the pound-for-pound worst regulation promulgated yet by Obama’s EPA.
Bullet-point background: [click to continue…]
For a couple months now, there’s been a battle brewing among critics of EPA’s Clean Power Plan. While we all agree the rule is illegal and illegitimate, there’s much disagreement on strategy.
On the one side are arrayed various politicians and non-profits, who argue that the rule is such an unacceptable affront to cooperative federalism, that States should simply refuse to play ball. That is, they recommend that States should refuse to submit compliance plans, and instead place the onus on EPA to impose a federal plan. This side’s take is purely principle.
On the other side are arrayed state regulators and the business community, and their concerns are more practical. By and large, they agree that the Clean Power Plan is an unacceptable affront to cooperative federalism. However, they also believe that a “just say no” strategy is too risky to pursue, albeit for different reasons:
- For industry, it’s essentially a fiduciary responsibility to oppose the do-nothing camp. That’s for two reasons: First, businesses generally hold more sway with local officials, so they’d have less input under a federal plan. Second, and more importantly, utilities are ultimately on the hook for compliance. They’re the ones who would face daily fines that can measure well into the scores of thousands of dollars. So they’re not as keen on the whole non-compliance idea.
- For state regulators, it’s somewhat similar. Ultimately, they’re on the hook for implementing the regulation. If a State refuses to comply altogether, then it arguably makes the regulators’ job more difficult.
The “just say no” camp won a major victory this week when Senate Majority Leader Mitch McConnell endorsed their position in an oped. Subsequently, it was reported that McConnell’s oped was seconded by several influential Members of Congress, including Senate EPW chairman James Inhofe and Energy & Power subcommittee chairman Ed Whitfield. This set off a flurry of media reports, about how congressional republicans were urging States to defy EPA’s climate regulations.
All of this brings me to the point of this post–the distinct possibility that none of this matters much. And that’s because the likelihood that the regulation will be stayed by the D.C. Circuit Court of Appeals is better than not, I believe. And if the rule is stayed, then there will be a great deal more wiggle room for States to act or demur. Below, I briefly explain why I believe why the odds for a stay are strong. [click to continue…]
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