Marlo Lewis

Post image for Clean Power Plan Litigation: Thoughts on Ripeness and Standing


In Murray Energy Corporation v. EPA, petitioners seek an “extraordinary writ” from the D.C. Circuit Court of Appeals to prohibit further action on EPA’s “ultra vires” (unlawful) Clean Power Plan (CPP) rulemaking. They also seek judicial review of EPA’s legal opinion that §111(d) of the Clean Air Act (CAA) authorizes such regulation.

Previous posts discuss the merits of the case. To recap very briefly, petitioners contend the CPP is plainly unlawful under §111(d), the very provision supposedly authorizing it. CAA §111(d) prohibits EPA from requiring States to adopt performance standards for existing facilities in source categories already regulated under §112. Power plants have been so regulated since December 2011, when EPA finalized its Mercury Air Toxics Standards (MATS) rule. According EPA and its allies, the so-called 112 exclusion is “ambiguous,” EPA’s proposed resolution of the ambiguity is a “reasonable construction” of the statute, and under said construction the CPP is lawful.

The Court heard oral argument on April 16. Most commentary I’ve seen does not expect the Court to rule on the merits but rather to dismiss the petition on “ripeness” and “standing” grounds. Here’s why. The CPP is still a proposed rule. Typically, courts allow the notice-and-comment rulemaking process to play out, limiting review to final agency actions. In addition, demonstrating a “concrete and particularized” injury from an agency action is hard when the final form of the action is undecided and (presumably) still unknown.

On ripeness, Judges Griffith and Kavanaugh asked whether EPA Administrator McCarthy’s cheerleading for the CPP indicates the public comment process won’t change anything and is therefore a “sham.” On standing, Judge Kavanaugh asked whether actions some States are already taking to comply with the CPP help petitioners demonstrate injury, even though States and industry often engage in preparatory action before rules are finalized.

Those questions don’t get to the heart of the matter. The case is ripe because EPA’s basic position on the 112 exclusion is for all practical purposes a final agency action. EPA must conclude that §111(d) does not prohibit performance standards for existing facilities regulated under §112 or else the whole rule collapses.

In theory, of course, EPA could pull an Emily Litella, conclude petitioners are correct about the 112 exclusion, and toss the CPP into the rubbish bin. But if EPA did that, the “centerpiece” of President Obama’s entire climate policy agenda would disappear. So would the core of Obama’s emission-reduction pledge – the administration’s Intended Nationally-Determined Contribution (INDC) – in the COP 21 negotiations for a new international climate agreement. For Obama, the CPP and a new climate pact are legacy policies on a par with Obamacare. Moreover, were EPA to pull the plug on the CPP and, thus, wreck COP 21, the President’s environmentalist base would go berserk.

In short, there is no turning back. EPA is not going to change its legal position on the 112 exclusion (though it might of course modify its rationale for that position). [click to continue…]

Post image for Forgotten Document Sheds New Light on Legality of EPA Climate Rules


A little known document sheds new light on the now 17-year-long controversy over EPA’s Clean Air Act authority with respect to greenhouse gases. The document is a letter of January 26, 1990 from EPA Administrator William Reilly to U.S. Senators. Reilly sets forth the Bush I administration’s reasons for removing greenhouse gas (GHG) regulatory provisions from S. 1630, the Senate version of the Clean Air Act (CAA) Amendments of 1990. Judging by the fact that the Senate later agreed to drop those provisions from the 1990 CAA as enacted, Reilly’s letter would appear to be a key piece of evidence for assessing legislative intent.

Would consideration of the document have altered the Supreme Court’s landmark ruling in Massachusetts v. EPA (2007)? We will never know. What’s hard to fathom is why no party to the case cited the letter. Maybe it was already lost in the mists of time.

Reilly apprises Senators that the Bush I administration “strongly opposes” S. 1630′s “requirement for reductions in carbon dioxide (CO2) emissions from auto tailpipes” — the same basic policy petitioners in Massachusetts would later sue EPA to adopt. Noting that the S. 1630 CO2 emission standards translate into motor vehicle mileage standards, Reilly highlights three reasons for striking the provision, two of which are germane to issues debated in Massachusetts:

First, it is premature to mandate specific controls to address global warming. International studies are underway. International negotiations on a framework convention on global climate change are scheduled for this year and should be completed prior to unilateral U.S. action. 

Second, fuel-economy requirements raise important non-environmental questions that need to be carefully considered, such as feasibility, cost and competitiveness of the U.S. auto industry with foreign manufacturers.

In addition, Reilly contends, the CO2 standards and provisions to regulate ozone-depleting substances based on global warming potential do not “appear to be a particularly effective approach to such a geographically vast problem.”

In Massachusetts, States and environmental groups challenged Bush II EPA’s rejection of a petition to establish motor vehicle emission standards for CO2 and other GHGs. EPA air chief Jeff Holmstead based the agency’s decision on both statutory and policy grounds (68 FR 52922-52933). The Court dismissed the latter arguments as “policy concerns,”  “policy judgments,” and “reasoning divorced from the statutory text.” However, some of Holmstead’s policy reasons for not regulating GHGs under the CAA reprise Reilly’s reasons for keeping GHG regulatory provisions out of the CAA. Specifically, according to Holmstead:

  • Double regulation of fuel economy under both the Energy Policy Conservation Act and CAA could adversely affect U.S. auto industry competitiveness.
  • Scientific uncertainties and lack of cost-effective technologies make GHG emission standards “inappropriate at this time.”
  • Setting GHG motor vehicle standards would “result in an inefficient, piecemeal approach to addressing the climate change issue.”

Far from being “divorced” from the statutory text, similar policy concerns shaped the text of the statute that the 101st Congress passed and President G.H.W. Bush signed.

Why is this old news important? The extent of EPA’s powers with respect to GHGs is the central issue in the controversy over EPA’s Clean Power Plan (CPP). Although the CPP would be unlawful on numerous grounds even if Massachusetts spoke the gospel truth, courts with a healthy skepticism about that decision are more likely to review the CPP without fear or favor.

Previous commentary on this blog and elsewhere (hereherehere, and here) examines the Massachusetts Court’s reasoning. The remainder of today’s post summarizes that commentary. [click to continue…]

Post image for Clean Power Plan: Revisiting EPA’s Bogus Climate Benefit Estimates

EPA claims the climate benefits of the Clean Power Plan (CPP) could exceed compliance costs by 4 to 1 or more. Specifically, EPA’s Regulatory Impact Analysis (RIA) projects incremental compliance costs of $7.3 billion to $8.8 billion in 2030 (RIA ES-7) and a mid-range climate benefit estimate of $31 billion in the same year (RIA ES-23).

In a previous post, I raised the simple question of how the CPP could possibly deliver multi-billion dollar climate benefits in 2030 when, according to the agency’s own climate model, the CPP would avert less than 0.02ºC of warming by 2100. Such a vanishingly small temperature change would make no practical difference to farmers, coastal communities, or polar bears in 2100. The climate benefits in 2030 would be even more miniscule.

In testimony before the House Oversight Committee, economist Anne Smith of NERA Economic Consulting demolishes the RIA’s climate and air quality benefit estimates. The hearing took place almost two months ago but I somehow missed Smith’s testimony until yesterday. Here’s the main takeaway:

When correctly presented, USEPA’s estimates indicate the present value of CPP [compliance] spending through 2030 will exceed $180 billion while climate benefits are not expected to exceed that cost until about 100 to 125 years after the spending has been sunk.

Indeed, Smith’s unpacking of EPA’s numbers reveals that for the United States, CPP costs will exceed climate benefits all the way out to the year 2300. [click to continue…]

Post image for Would EPA’s Defeat in Clean Power Plan Case “Overthrow” the “Structure” of the Clean Air Act?

Would a victory for the State and industry petitioners who are challenging EPA’s Clean Power Plan “overthrow” the “structure” of the Clean Air Act and punch a “gaping hole” in public protections from dangerous air pollution?

That’s what EPA and environmental intervenors contend in Murray Energy v. EPA, a case on which the D.C. Circuit Court of Appeals heard oral argument (audio files 14-1146 & 14-1112) last Thursday. They are peddling nonsense, as will be shown presently.

Moreover, if EPA and its allies were serious about either safeguarding statutory structure or ‘saving the Planet,’ the centerpiece of their agenda would be a proposal to establish national ambient air quality standards (NAAQS) for greenhouse gases, not, as in the Clean Power Plan, carbon dioxide (CO2) performance standards for existing power plants. At EPA, politics trumps both law and climate “action.” [click to continue…]

Post image for House Science Panel Examines Obama UN Climate Pledge

The House Science, Space, and Technology Committee today held a hearing on The President’s UN Climate Pledge–Scientifically Justified or a New Tax on Americans? In diplomatic lingo, the hearing focused on the administration’s “Intended Nationally-Determined Contribution” (INDC) for the December 2015 COP 21 climate conference in Paris. The administration is pledging to reduce U.S. greenhouse gas (GHG) emissions 26%-28% below 2005 levels by 2025.

Four experts testified:

  • Dr. Judith Curry, Professor Earth and Atmospheric Sciences, Georgia Institute of Technology
  • Hon. Karen Harbert, President and CEO, Institute for 21st Century Energy, U.S. Chamber of Commerce
  • Mr. Jake Schmidt, Director International Programs, Natural Resources Defense Council
  • Dr. Margo Thorning, Senior Vice President and Chief Economist, American Council on Capital Formation

All the testimonies have summaries, so there’s no need here for an overview. Certain facts and insights presented by the majority witnesses, though, are noteworthy.

Opponents often point out that EPA’s Clean Power Plan, the centerpiece of the administration’s climate policies, is all pain for no gain, imposing multi-billion dollar costs while hypothetically averting less than 0.02°C of global warming and 0.1 inch of sea-level rise by 2100. Curry notes that all the emission reductions in the administration’s INDC would avert only 0.03ºC of warming by 2100, according to EPA’s MAGICC model. And “If climate models are indeed running too hot, then the amount of warming prevented would be even smaller.”

The stock rejoinder is that if America leads other nations will follow, and a truly global climate treaty will produce substantial warming mitigation. Curry counters that even if the treaty achieves the UN IPCC’s most aggressive emission-reduction scenario, called RCP2.6, and even assuming the accuracy of IPCC models that increasingly overshoot observed warming, “the impact on the climate would not be noticeable until the 2nd half of the 21st century.” Thus, “It is not clear exactly what the INDC commitments are expected to accomplish.” In the graph below, RCP8.5 is the ‘business-as-usual’ emissions scenario. The model-estimated range of warming projections in RCP8.5 significantly overlaps the range of warming projections in RCP2.6 from 2010 through 2050.

IPCC Representative Concentration Pathways




[click to continue…]

Post image for Tree Hugger Alert: Carbon Pollution Strikes Again!

Wish I had posted this on April 1st, but the good news just popped into my in-box last night.

Over at CO2Science.Org, Craig Idso reviews two extensive studies of the impacts of rising carbon dioxide (CO2) concentrations on trees in the Northern Hemisphere.

First, Idso reviews Soulé and Knapp (2015), a study of the growth and water-use efficiency of ponderosa pine and Douglas fir trees in the U.S. Forest Service’s Northern Rockies region since 1850.

The two researchers “collected tree-ring data from 14 different locations, from which information they were able to determine yearly changes (from AD 1850 to the present) in basal area increment (BAI) and intrinsic water-use efficiency (iWUE), the latter of which parameters they derived from yearly stable carbon isotope ratios (δ13C) of the trees’ annual layers of new-wood production.” Note: BAI means the area of a tree-trunk cross section at ground level.

What did Soulé and Knapp find? Both species experienced “exponentially increasing iWUE rates during AD 1850-present, suggesting either increased net photosynthesis or decreased stomatal conductance [i.e. decreased moisture loss via the stomatal pores of needles and leaves], or both.” In addition, “both species experienced above-average BAI in the latter half of the 20th century despite no favorable changes in climate.” The increase in BAI was observed “at all sites, suggesting a pan-regional effect.” Idso helpfully provides a chart illustrating the gains in water-use efficiency and growth.









Ah, but surely in Europe, where enlightened statesman demand draconian cuts in CO2 to save the biosphere, things are different. Nope.

[click to continue…]

Post image for EPW Republicans to McCarthy: Is EPA Climate Science Consistent with Data?

At a March 4 Senate Environment and Public Works (EPW) committee hearing, Sen. Jeff Sessions (R-AL) queried EPA Administrator Gina McCarthy about climate change impacts, global temperatures, and climate models. McCarthy opined that droughts and storms are becoming more frequent worldwide, but had no data to back up her opinion when Sen. Sessions cited conflicting evidence.

In addition, although apparently unaware of the growing divergence between climate model predictions and observations, McCarthy was confident it is irrelevant to EPA’s assessment of climate change risks (i.e. the scientific rationale for the administration’s climate policies). She did, however, promise to provide written answers to Sen. Sessions “within a few days.” See 1:30-6:17 of this video clip.

On April 1, Sessions and three other EPW Republicans (Inhofe of Oklahoma, Wicker of Mississippi, and Barrasso of Wyoming) sent a letter reminding McCarthy of her promise and stating their questions in more detail.

Citing the latest Intergovernmental Panel on Climate Change (IPCC) assessment and other information, the Senators challenge McCarthy to substantiate her views with respect to drought, storms, global temperatures, and the accuracy of climate models.

Sen. Sessions’s press release, which includes the text of the letter, follows. [click to continue…]

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…]