Marlo Lewis

Post image for Free Market Groups Take Aim at Obama Guidance on NEPA Review of Greenhouse Gas Emissions

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On December 14, 2014, CEQ published a Draft Guidance on NEPA review of project-related greenhouse gas emissions and climate change effects.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.

[click to continue…]

Post image for EPA’s Clean Power Plan: Whitman Goes Orwell on McConnell

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…]

Post image for Sen. Cruz and Rep. Bridenstine Introduce American Energy Renaissance Act

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. John 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…]

Post image for AP Analysis: Obama Administration Sets Record for Flouting Freedom of Information Act

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…]
Post image for Root Cause of Ethanol ‘Blend Wall’? Consumers Don’t Like Rip Offs

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.

[click to continue…]

Post image for Is Climate Policy Sustainable? Sobering Slides on the EU’s 60-by-50 Climate Treaty Proposal

In the current round of climate treaty negotiations, the European Union (EU) advocates a legally-binding ‘protocol’ that would “put the world on track to reduce global greenhouse gas (GHG) emissions by at least 60% below 2010 levels by 2050.” This is roughly equivalent to the EU’s longstanding goal to reduce emissions 50% below 1990 levels by 2050.

On the scale from piece of cake to economic suicide pact, how “ambitious” (or crazy) is the EU proposal?

U.S. Chamber of Commerce VP for climate and technology Stephen Eule kindly sent me two slides based on his analysis of the ‘scope of the challenge.’

To achieve a 60% reduction in carbon dioxide-equivalent greenhouse gases by 2050, the world as a whole must reduce emissions from 49 gigatons CO2e in 2010 to 19.6 gigatons in 2050. That may not seem like a big stretch at first glance until you realize that global emissions are projected to reach 87.0 gigatons in 2050 under current policies. In other words, to meet the EU target, global emissions must decrease by 67.4 gigatons or 77.5% below the baseline estimate for 2050.

Eule 2






The graph should immediately raise red flags. No country has ever powered its development out of poverty chiefly with solar panels, wind turbines, and biofuels. Developing country GHG emissions already exceed those of industrial countries, nearly all emissions growth over the next 35 years and beyond is expected to occur in developing countries, and billions of desperately poor people still lack access to modern commercial energy, nearly 87% of which comes from fossil fuels.

So under the EU’s “60-by-50″ global emissions cap, how much additional CO2-emitting fossil energy would developing countries be allowed to use?

The answer, revealed in Eule’s next chart, is not much. [click to continue…]

Post image for Keystone XL Pipeline: EPA’s Double Spin on Oil Prices

As discussed previously on this blog, EPA in a Feb. 2 comment letter challenged the State Department’s assessment that the Keystone XL Pipeline (KXL) is actually the low-carbon option facing U.S. policymakers.

State reasoned that if permission to build the KXL is denied, roughly the same quantity of oil-sands crude would reach U.S. refiners, it would just come by alternate routes. The alternatives, principally rail, would consume more energy than a single large pipeline. Thus, compared to the proposed KXL, the alternatives would emit 28% to 42% more carbon dioxide (CO2). See p. ES-34 of State’s Final Supplemental Environmental Impact Statement (FSEIS).

Policy implication: Approving the KXL is the ‘climate-friendly’ choice.

To rebut this analysis, EPA seized on a passage in the FSEIS in which State opines that the extra cost of transporting crude by rail could make new oil sands development uneconomical if long-term prices fall below $75 per barrel (ES-12). Noting that prices in recent weeks have been as low as $50 per barrel, EPA speculates that approving the KXL could “change the economics of oil sands development and result in increased oil sands production, and the accompanying greenhouse gas emissions, over what would otherwise occur.”

Predictably, anti-Keystone groups hailed EPA’s letter as proof that the KXL would “significantly exacerbate the problem of carbon pollution” and, thus, fail President Obama’s national-interest ‘litmus test,’ announced in his June 25, 2013 climate change speech at Georgetown University.

Keystone bashers conveniently overlook the obvious. Oil prices are volatile. Prices are low today but neither EPA nor anyone else knows what the price of oil will be a year from now, much less over the lifetime of the proposed project.

As TransCanada, the company seeking to build the KXL, pointed out last week in a comment letter rebutting EPA, Canadian oil sands development took off in late 2008, when oil prices were $41 per barrel, and increased through 2009, when oil prices were generally under $75 per barrel.

Here’s the kicker. When it comes to the KXL, EPA views the recent decline in oil prices as a big deal. But when it comes to the agency’s fuel-economy regulations, EPA regards low oil prices as a nothingburger. [click to continue…]

Post image for Winter: Worse than They Thought

“According to the National Weather Service, the low temperature Sunday at Dulles Airport was about 6 degrees at 7:30 a.m. That breaks the record for the date of 7 degrees set in 1965,” the AP reports.

In addition, “At BWI-Thurgood Marshall Airport outside Baltimore, the low of 6 degrees Sunday matched a record set in 1943.”

Yet as of September 2014, global annual carbon dioxide (CO2) emissions were on track to hit a record 40 billion metric tons – 4 billion more than the previous record set in 2013 of 36 billion tons – and roughly 3.5 times more emissions than in 1965 (11.487 billion tons) and 10 times more than in 1943 (4.007 billion tons).

More importantly, atmospheric CO2 concentration today is 399.85 parts per million (ppm), compared to just 320.23 ppm in 1965 and 310.5 ppm in 1943.

Although only halfway through, February is Boston’s “snowiest month on record,” the NWS reported on its Twitter feed. The city has received 58.5 inches of snow, breaking the previous monthly record of 43.3 inches in January 2005.

And who can forget the Buffalo-area snowstorm of November 2014. The town of Cowlesville, New York, about 25 miles south of downtown Buffalo, got 88 inches of snow (7.3 feet) in just five days — an amount approximately equal to the average Buffalo snowfall in an entire winter.

Although 2014 was supposedly the warmest year on record, in the USA between Nov. 10 and Nov. 19, “there were 4,163 record low temperatures set or tied compared to just 465 warm record temperatures set or tied.”

This year’s winter conditions contributed to at least 10 deaths, suspended or delayed train service, cancelled more than 1,800 flights, and closed schools, businesses, and non-essential government offices.

None of this is intended to deny the reality of anthropogenic global warming. The point, rather, is to put things in perspective. [click to continue…]

Which State in the lower 48 has the highest gas prices? You probably already know the answer. But today’s gas price map on is too pretty not to share with visitors to this blog.

The long-reigning, undisputed champion of pain at the pump is (drum roll . . .) the State with the most ‘progressive’ energy and climate policies.

Gas Prices Map February 12, 2015 Gasbuddy







Source: GasBuddy.Com

Post image for States Should Just Say ‘No’ – 10 Reasons EPA’s Clean Power Plan Is Unlawful

EPA’s Clean Power Plan (CCP) would set carbon dioxide (CO2) performance standards for state electric power sectors. The standards are calibrated in pounds CO2 per megawatt hour. They translate into statewide emission-reduction mandates or caps. On average, states would have to reduce their power-sector CO2 emissions 30% below 2005 levels by 2030.

Under §111 of the Clean Air Act (CAA), a performance standard, whether for new or existing sources, must reflect the “best system of emission reduction” (BSER) that has been “adequately demonstrated,” taking “cost” into account.

Performance standards must also be “achievable,” defined by the D.C. Circuit Court of Appeals to mean achievable by the regulated industry as a whole (National Lime Association V. EPA, 627 F. 2d 416 at 443 [1980]).

Finally, before EPA may promulgate “existing source performance standards” (ESPS), as it proposes to do through the CPP, the agency must first promulgate new source performance standards (NSPS), as it proposes to do through the Carbon Pollution Standards rule.

State policymakers should have no legal qualms about refusing to comply with the CPP. EPA’s proposal is unlawful on at least 10 counts.

(1) CAA § 111(d) prohibits EPA from requiring ESPS for sources already regulated under §112. EPA has been regulating power plants under §112 since December 2011, when the agency finalized the Mercury Air Toxics Standards (MATS) rule. Therefore, the very provision under which EPA proposes to establish performance standards for existing power plants prohibits the agency from doing so.

(2) A state’s electric-power sector is not a “source” to which a performance standard may lawfully be assigned. Unlike all previous §111 performance standards, which, pursuant to the statute, apply to “particular sources,” CPP proposes to cap emissions from each state’s entire electric-power sector. CAA §111(a)(3) defines “stationary source” (whether new or existing) as “any building, structure, facility, or installation which emits or may emit any air pollutant.” Obviously, a state’s power sector is not any such individual physical object.

(3) A “best system of emission reduction” (BSER) is a technology or set of technology options “adequately demonstrated” for “designated facilities,” not a green wish-list of market-restructuring energy policies Congress has repeatedly declined to approve. Nothing in the statutory text, EPA’s implementing regulations, or past practice indicates that EPA may control state policies regarding renewable energy, electricity dispatch, or demand management.

(4) A BSER for CO2 emissions from existing power plants does not exist. Commercial technology to capture or filter CO2 emissions from existing power plants has not yet been developed, as EPA admits. Hence there is no “best system of emission reduction” on the basis of which EPA or states could set CO2 performance standards for existing power plants. [click to continue…]