October 2015

Post image for Motion to Stay Nails Unlawfulness of EPA “Clean Power Plan”


Summary: Recent motions to stay filed by industry groups with the D.C. Circuit Court of Appeals clearly explain the unlawfulness of the EPA’s so-called Clean Power Plan. The rule impermissibly treats an entire economic sector as a single “source.” It would establish EPA as the nation’s electricity czar armed with market-restructuring power Congress denied even to the federal energy agency, FERC. ‘Produce less’ is not a Clean Air Act performance standard, yet the rule’s so-called performance standards would force coal power plants to generate less power or simply shut down.

EPA’s “Clean Power Plan” (CPP), the centerpiece of President Obama’s climate policy agenda, is unlawful in numerous ways, as this blog has explained in many posts. The point needs to be made again and again, however, due to the damage the CPP will do if not immediately put on hold and eventually overturned, the shamelessness of Obama administration officials and their allies in reimagining the Clean Air Act to mandate cap-and-trade and renewable-electricity quota wealth-transfer schemes Congress has rejected, and the superficial plausibility of EPA’s claim that it just wants to clean up “pollution” and protect kids from asthma.

When the CPP went final last Friday, industry groups filed two separate motions with the D.C. Circuit Court of Appeals to put a stay on the rule (suspend its legal force and effect until all litigation challenges are resolved). Yesterday’s blog post briefly summarized a key argument of the motion filed by the U.S. Chamber of Commerce and 15 other trade associations. Today’s post discusses the motion filed by National Mining Association, American Coalition for Clean Coal Electricity, and Murray Energy Corporation. Both briefs are excellent and recommended reading.

On the core issue of the unlawfulness of the CPP, the coal industry motion develops three main arguments, which may be summarized as follows:

(1) An economic sector is not a “source.” Section 111 of the Clean Air Act (CAA), the purported statutory basis for the CPP, provides authority for EPA to set emission performance standards for stationary sources, a class of entities defined to include “any building, structure, facility, or installation which emits or may emit any air pollutant.” Lawful §111 rules regulate such sources, which are individual physical objects. In stark contrast, the CPP primarily regulates the investments and transactions of owners and operators outside the source. That is unprecedented and flouts clear statutory language. EPA came up with emission-rate standards for existing coal and natural gas power plants not by examining the economic feasibility of control technologies or practices individual sources might adopt but by reasoning backward from the total carbon dioxide (CO2) emission reductions the agency thinks the power sector can achieve by producing less electricity from coal and more from renewables. EPA impermissibly treats the entire electric grid as if it were a single source. [click to continue…]

Post image for Obama’s Greenhouse of Cards: Doomed to Collapse or Too Big to Fail?

The Obama administration’s climate agenda is a greenhouse of cards. The jerry-built structure has three stories, floors, or levels. It is unlawful from top to bottom.

The top floor is the Kyoto Protocol-successor treaty that President Obama wants 190-plus nations to adopt at the upcoming COP 21 climate conference in Paris. The final form of the pact is anybody’s guess, but the European Union advocates a treaty reducing global greenhouse gas emissions 60% below 2010 levels by 2050. As explained previously on this blog, actual implementation of the EU’s 60-by-50 target would be a humanitarian disaster for the world’s poor countries.

The floor beneath the climate treaty is EPA’s so-called Clean Power Plan (CPP), which aims to “aggressively transform” and “decarbonize” the U.S. electric power sector. The CPP underpins the treaty because it is the core of Obama’s emission-reduction pledge (the U.S. Independently Determined National Contribution, or INDC) in the COP 21 negotiations. Even with the CPP, Obama’s current and planned climate policies fall far short of his pledge to reduce U.S. emissions 26%-28% below the 2005 level by 2025. Without the CPP, the U.S. negotiating position becomes a farce.

The bottom floor is EPA’s so-called Carbon Pollution Standards (CPS) for new coal and natural gas power plants. The CPS rule is a prerequisite for the CPP, because EPA may not lawfully impose emission performance standards on “existing” stationary sources under §111(d) of the Clean Air Act unless it first (or concurrently) imposes performance standards on “new” sources under §111(b).

Let’s briefly examine why Obama’s three-tiered climate action plan is doomed to collapse–unless, as in the Obamacare cases, courts decide presidential legacy policies are too big to fail[click to continue…]

Have We Finally Reached Peak Lie on the Clean Power Plan?

EPA has marketed its Clean Power Plan on a number of untruths, including (but not limited to):

However, on October 7th, EPA told its biggest 111(d) whopper to date. On that day, during a hearing before the House Energy and Commerce Committee, EPA Office of Air and Radiation chief Janet McCabe said, “The Clean Power Plan does not set in place a cap-and-trade program.” This is a bald face lie. In fact, the administration has proposed to impose a cap-and-trade on any state that refuses to comply with the rule. Moreover, top EPA officials, including Administrator Gina McCarthy, have urged States to comply by participating in a cap-and-trade. For my part, I can understand why McCabe was reduced to such naked duplicity. The Congress has considered and ultimately demurred on a number of cap-and-trade schemes. Now, EPA is trying to impose one, without a legislative mandate. McCabe was before Congress, the institution that has been screwed thusly. So she lied. Heckuva Job, Janet!

Dem Climate Debate Demonstrates Emptiness of Dem Climate Debate

Last Tuesday’s debate featured extensive discussions about climate change policy, a first for a presidential candidate debate of any stripe. The resulting interaction among candidates was heavy on empty exaggeration and obvious fibs. [click to continue…]

Post image for Record-Breaking Major U.S. Hurricane Landfall Drought Continues


While acknowledging in his landmark climate policy speech that “no single weather event is caused solely by climate change,” President Obama quickly added: “But we also know that in a world that’s warmer than it used to be, all weather events are affected by a warming planet.”

That’s a clever way to have one’s cake and eat it. Don’t claim “carbon pollution” is “solely” responsible for any “single” weather event, just link it to bad weather in general. Political implication: Blame the Koch Brothers!

What happens, though, when a nation experiences record-breaking good weather? How would Obama explain it? To what (or whom) would he impute responsibility?

Hall and Hereid (2015), a study published in Geophysical Research Letters and reviewed this week on CO2Science.Org, reports that “not since Hurricane Wilma in 2005 has a major [category 3 and larger] hurricane made U.S. landfall,” and that this nine-year major hurricane “drought” from 2006 to the end of the 2014 hurricane season is “unprecedented in the historical record,” which extends back to 1851. The current “drought” beats the previous record-holder, an eight-year period (1861-1868) with no major U.S. hurricane strikes.

We’re now more than four months into the 2015 hurricane season. If the drought persists through December, the nine-year record will become a 10-year record. [click to continue…]

Post image for Sierra Club President’s Testimony Reveals It’s Worse Than We Thought. Climate Change? No. Group Think About Climate Change.


On Tuesday, the Senate Judiciary Subcommittee on Oversight heard testimony on “Opportunity Denied: How Overregulation Harms Minorities.” Today’s WattsUpWithThat posts a video clip featuring an exchange between Sen. Ted Cruz (R-Texas) and Sierra Club President Aaron Mair.

Even I underestimated how much the bogus 97% consensus has closed the minds of those who invoke it. Under questioning by Sen. Cruz about the 18-plus year warming ‘pause’ in the satellite records, Mair quickly came to sound like a broken record, repeatedly appealing to the alleged 97% “consensus.”

Even after three times consulting with staff, Mair opined that “the pause” refers to a slowdown in warming in the 1940s! Apparently, the President of the Sierra Club assumes that once armed with the “97% consensus,” you no longer need to study the science and can just get on with the business of  making climate policy.

Cruz’s exchange with Mair runs from 0:00 to 8:43 in the video. My unofficial transcript follows.

Sen. Cruz: Thank you, Senator Coons, and I’d like to go back briefly to Mr. Mair. In your written testimony, you said that the science behind climate change and its effect on minority communities, quote: “Should not be up for debate.” I’m curious. Is the Sierra Club . . . is this a frequent practice of the Sierra Club to declare areas of science not up for debate, not up for consideration of what the evidence and data show?

Mair: If you are relying on the evidence and data, the science, the preponderance of the evidence, are there.

Cruz: But that’s a different thing than saying we should not debate a question, that the Sierra Club has declared this scientific issue resolved, and there should be no debate.

Mair: Based upon the preponderance of the evidence the science is settled. But the thing is that anything is up for debate, Senator. We can debate anything.

Cruz: Well, I would note that even the phrase preponderance of the evidence,” having been a practicing lawyer for many years, means 51%, that means 49 . . . at least 51% is what the preponderance means. You know, I would ask, for example, if you want to end debate, if you don’t want to address the facts, how do you address the fact that the last 18 years the satellite data show no demonstrable warming whatsoever?

Mair: Sir, I would rely upon the Union of Concerned Scientists, and I would rely on the evidence, again, of our own NOAA officials, the data are there.

Cruz: Is it correct that the satellite data over the last 18 years demonstrate no significant warming?

Mair: No.

Cruz: How is it incorrect?

Mair: [Confers with staff.] Based upon our experts, it’s been refuted long ago, and there is no longer, it’s not up for scientific debate. [click to continue…]

To reserve its seat in the Paris 2015 climate-con kumbaya chorus, India recently vowed to cut its carbon intensity by 33-35 percent by 2030.  It shouldn’t be a tough promise to keep.

On the surface, the pledge would appear to undercut the skeptics’ argument that U.S. carbon policies will have little impact on world temperatures given the huge growth expected in the developing world, and that the developing world will not cut economic growth to meet first-world carbon targets. You can almost hear the response already, “but India agreed to CO2 cuts…”

Let’s look at those cuts.  The promised cuts are not for CO2 emissions, but, instead, for cuts in the ratio of CO2 emissions to GDP (emissions intensity).  This ratio will go down so long as CO2 emissions rise less rapidly than GDP.  For example, the carbon intensity of the U.S. economy dropped by more than 45 percent between 1981 and 2011 even as CO2 emissions rose 18 percent.

The important question, here, is what would happen to India’s emissions intensity without the pledge?  Of course, projections on GDP and emissions are uncertain, but then so is the commitment to meeting targets. [click to continue…]

Post image for Free Market Groups Submit Joint Comment Letter on Obama Administration’s Heavy Truck Greenhouse Gas/Fuel Economy Standards

Yesterday, the Competitive Enterprise Institute, FreedomWorks, Institute for Energy Research, and Small Business & Entrepreneurship Council submitted a joint comment letter on the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration’s (NHTSA) proposed rule, “Greenhouse Gas Emissions and Fuel Efficiency standards for Medium- and Heavy-Duty Engines and Vehicles – Phase 2.”

The agencies’ Phase 1 rulemaking in 2011 established first-ever greenhouse gas (GHG) and fuel-economy standards for model years (MYs) 2014-2018 semi-trucks, large pickups and vans, and assorted vocational trucks. Phase 2 will set more stringent medium- and heavy-truck GHG and fuel economy standards for MYs 2021-2027.

In 25 thrill-packed pages, our comment letter lays out the following argument:

EPA and NHTSA’s proposed Phase 2 greenhouse gas/fuel economy standards for heavy-duty vehicles endanger the economic viability of small-business truckers. The rule’s putative energy-security and climate benefits are entirely speculative and vanishingly small at best. The agencies fail to demonstrate that, absent regulation, truckers won’t make cost-effective investments in fuel-saving technology. If EPA wants to know why heavy trucks don’t get better mileage than they do today, it should look itself in the mirror. During the 2000s, EPA’s diesel-truck emission standards, both by directly reducing the fuel-efficiency of diesel engines, and by crowding out fuel economy-related R&D and consumer spending, created the problem the agencies purport to solve via additional regulation.


Yesterday the Environmental Protection Agency lowered the nationwide limit for ground level ozone, known officially as a National Ambient Air Quality Standard, from 75 parts per billion to 70 parts per billion.

It will be a painful regulation to implement. Ozone pollution is notoriously expensive to mitigate. These costs, moreover, would be completely incommensurate with the putative benefits. However, as I explain below, the Obama administration had little discretion on the matter, and, within its limited room to maneuver, the EPA chose the least among harms. Moreover, if courts remain consistent (which is by no means a certainty), there’s a good chance this rule will be rejected for being insufficiently stringent. By contrast, there is little chance that the rule would be struck down for being too onerous.

So this is the first absurd environmental regulation issued since January 2009 for which the Obama administration isn’t to blame. Rather, fault for this rule lies with primarily with the legislative and judicial branches of government. The Congress established an inapt regulatory regime for setting the ozone standard. And subsequent court rulings made this ill-suited program even worse. As a result, the ozone NAAQS is a monster, over which the president has little control. [click to continue…]