Marlo Lewis

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…]

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…]

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.


Post image for ‘Moderate’ Rs Call for ‘Action’ on Climate (Crank Me-Too Amplifiers Up to Eleven)

Climatewire (subscription required) reports that Rep. Chris Gibson (R-N.Y.) and at least nine other ‘moderate’ Republicans will introduce a Sense of Congress Resolution today on “conservative environmental stewardship.” The resolution includes the usual warnings about climate change adversely affecting extreme weather, public health, agriculture and tourism, federal and state budgets, and international peace and stability. It calls upon the House to work “constructively . . . to create and support economically viable, and broadly supported public and private solutions.”

As if that were not vague enough, the resolution also affirms that efforts to mitigate climate change “should not constrain the economy of the United States, especially in regards to global competitiveness.” Climatewire helpfully notes that two of the nine co-sponsors, Frank LoBiondo of New Jersey and Dave Reichert of Washington, were among the 8 Republicans who voted for the Waxman-Markey cap-and-trade bill in the 111th Congress.

Two questions leap to mind. First, what sort of bipartisan “solutions” could Gibson et al. conceivably negotiate with the Obama administration? Are they saying that the Clean Power PlanHeavy Truck Greenhouse Gas rule, Oil & Gas Methane Rule, and the President’s UN Pledge go too far, so now’s the time to work with Democrats to develop “solutions” that split the difference between Obama’s initiatives and the GOP policy of ‘inaction’? Of course not. For the President and the environmentalist base of the Democratic Party, the administration’s climate initiatives are legacy policies and not open for negotiation or compromise.

Second, just how do the co-sponsors propose to do something “meaningful” about climate change without constraining an economy in which carbon-based fuels supply 82% of annual energy consumption? If policymakers knew how to square that circle, climate change would not be the intensely controversial issue it has been for two-plus decades.

It’s hard to imagine House leadership or any committee of jurisdiction scheduling time to debate or mark up this latest Constructive Republican Alternative Proposal. Nonetheless, given the administration’s increasingly shrill anti-carbon campaign, the impending Papal visit to preach climate alarm to congressional skeptics, and the looming pitched battles over the Clean Power Plan and O’s climate treaty agenda, we should not be complacent when a group of GOP lawmakers decides to crank the Me Too amplifiers up to eleven.










Leadership should have upstaged and preempted the Tweedle Dums by sponsoring its own sense of Congress resolution on climate and energy policy. To encourage such an effort, CEI published a model Sensible Sense of Congress Resolution on Climate Change back in June. Perhaps the Me Too resolution will languish in obscurity after today’s unveiling. But if co-sponsors start piling on, congressional constitutionalists, free-marketers, and affordable energy advocates will need to pass their own resolution to marginalize that of the Tweedle Dums.

As explained in more detail in CEI’s model resolution, the fundamental points to be stressed are: [click to continue…]

Post image for What Has the Pause Done to the Warming Rate?

Christopher Monckton of Brenchley has a must-read post today on Watts Up With That. “The long and model-unpredicted Great Pause of 18 years 8 months in global mean lower-troposphere temperature as recorded in the RSS satellite monthly dataset is inexorably driving down the longer-run warming rate, when the IPCC’s predictions would have led us to expect an acceleration,” he reports.

Monckton Pause RSS 18 Years 8 Months (Sep 8 2015)




The bright blue line shows the 440-month lower-troposphere temperature trend in the Remote Sensing Systems (RSS) record. The green line shows the zero degree warming trend during the 224-month “pause” since December 1997, which, as Monckton notes, is “more than half the entire 440-month record.”

Here’s the cool thing (literally). Thanks to the pause, the trend during the full satellite record works out to just 1.21ºC per century. That is substantially below the IPCC’s central estimate in 1990, which (along with NASA scientist Jim Hansen’s overheated prediction in 1988), put global warming on the political map.

Monckton comments:

In 1990, the IPCC had predicted near-straight-line warming of 1 K to 2025, equivalent to almost 2.8 K/century. Of this warming, more than 0.7 K should have happened by now, but only 0.26 K has actually occurred. The IPCC’s central estimate in 1990, though made on the basis of “substantial confidence” that the models on which it relied had captured all the essential features of the climate system, has proven – thus far, at any rate – to be a near-threefold exaggeration.  

The IPCC knows its models are predicting too much warming. In the graph below, Monckton enlarges the right-hand corner of Figure 10.1(a) from the IPCC’s 2013 Fifth Assessment Report (AR5). CMIP3 is the ensemble of models used in the 2007 Fourth Assessment Report (AR4), CMIP5 is the ensemble used in AR5. Although CMIP5 predicts less warming than CMIP3, it still increasingly diverges from reality.

Monckton IPCC 10.1(a) Enlarged Sep 8 2015







Note also that a 21st century warming of 1.21ºC is well within the bounds (0.3ºC-1.7ºC) of the IPCC’s lowest projection (RCP2.6), which assumes a 70% reduction in cumulative greenhouse gas emissions from 2010 to 2100 compared to baseline projections. In short, the RSS data show about the same warming rate that climate campaigners urge policymakers to achieve via draconian restrictions on carbon-based energy.

What is to be done?

[click to continue…]

Post image for Economic Growth Is the Best Climate Insurance Policy

Declining vulnerability to river floods and the global benefits of adaptation” is the cheery title of a study published in Proceedings of the National Academy of Sciences (PNAS) and reviewed this week by Craig Idso on CO2Science.Org. What caught my attention is the study’s rather obvious albeit unstated implications:

  • Richer is safer.
  • Economic growth is the best climate insurance policy.
  • Climate policies that hinder growth would also reduce investments that make our naturally dangerous climate more livable.

The study, by Brenden Jongman of Amsterdam University and five colleagues, examines three factors affecting flood-related deaths and damages around the globe: hazard (the natural frequency and intensity of floods, without human interventions), exposure (the population and assets located in flood-prone areas), and vulnerability (the susceptibility of exposed population and assets to death and damages). The researchers use high-resolution modeling and empirical data to compare changes in hazard and exposure to changes in vulnerability. The metrics for vulnerability are mortality rates (fatalities as a percentage of exposed population) and loss rates (economic damages as a percentage of exposed GDP).

From the abstract:

We find that rising per-capita income coincided with a global decline in vulnerability between 1980 and 2010, which is reflected in decreasing mortality and losses as a share of the people and gross domestic product exposed to inundation. The results also demonstrate that vulnerability levels in low- and high-income countries have been converging, due to a relatively strong trend of vulnerability reduction in developing countries. Finally, we present projections of flood losses and fatalities under 100 individual scenario and model combinations, and three possible global vulnerability scenarios. The projections emphasize that materialized flood risk largely results from human behavior and that future risk increases can be largely contained using effective disaster risk reduction strategies.

India provides a telling example of the power of adaptation to reduce flood-related vulnerability. Two similar tropical cyclones struck eastern India in 1999 (Cyclone 05B) and 2013 (Phailin). “Exposed population was greater in 2013 due to population growth and development in cyclone-prone areas. However, the vulnerability in the region had drastically decreased with the implementation of a disaster management authority; cyclone shelters and early-warning systems ensured that only a small fraction of the population was vulnerable to this event.” As a consequence, “fewer than 50 lives were lost in 2013, whereas the cyclone in 1999 was responsible for more than 10,000 lives lost.” [click to continue…]

Post image for Obama’s Alaska Trip: Do We Have a Climate Change Problem or a Russia Problem?



Is the glass half empty or half full? If you listen to climate activists, melting polar ice can only mean trouble, with competition for previously inaccessible resources setting the stage for great power conflict, a return to Cold War tensions, or worse.

Yet, as noted in a previous post, activists also warn that climate change will promote conflict by making resources scarcer. The Arctic contains 13% of the world’s undiscovered oil and 30% of its undiscovered natural gas, according to the U.S. Geological Survey. If Arctic ice melt leads to greater global energy supply, opens the fabled Northwest Passage, and facilitates trade, it could also foster cooperation and peace.

Here’s my two cents. Whatever happens to the polar ice cap in coming decades, nations are more likely to cooperate and resolve disputes peacefully if the United States possesses the capability and will to deter aggression. As factors determining national security risk, potential adversaries’ longstanding geopolitical ambitions and evolving capabilities are likely to matter more than climate change.

The Obama administration, it seems, is worried about Russia’s expanding presence in the Arctic, but wants the public to think we have a climate change problem rather than a Russia problem. Staring down a melting glacier is just so much easier than standing up to Vladimir Putin.

Today is the second day of the President’s three-day trip to Alaska “to shine a spotlight on the impacts of climate change.” As reported in the New York Times by Julie Herschfeld Davis, Obama will “propose speeding the acquisition and building of new Coast Guard icebreakers that can operate year-round in the nation’s polar regions, part of an effort to close the gap between the United States and other nations, especially Russia, in a global competition to gain a foothold in the rapidly changing Arctic.” 

Russia is far ahead of us in ice breakers, and the “gap” is growing:

The aging Coast Guard fleet is not keeping pace with the challenge, the administration acknowledged, noting that the service has the equivalent of just two “fully functional” heavy icebreakers at its disposal, down from seven during World War II. Russia, by contrast, has 41 of the vessels, with plans for 11 more. China unveiled a refurbished icebreaker in 2012 and is building another.  

Russia is also building military bases. Davis quotes Alaska Gov. Bill Walker, who traveled with the President on Air Force One yesterday:

“It’s the biggest buildup of the Russian military since the Cold War,” Mr. Walker said, noting Alaska’s proximity to Russia. “They’re reopening 10 bases and building four more, and they’re all in the Arctic, so here we are in the middle of the pond, feeling a little bit uncomfortable.”

Constructing new ice breakers and “evaluating the feasibility” of extending the port in Nome, Alaska, don’t seem like much of a strategy to counter the Russian military buildup, and the White House is not describing them as such.

The map below, from an Aug. 31 NYT article by Stephen Lee Meyers, shows the Arctic areas with a >50% chance of large undiscovered oil and gas reserves, each country’s exclusive economic zone, international waters (“high seas”), and Arctic waters under Russian control.

Arctic Exclusive Economic Zones






Portions of the region are still in dispute, Wikipedia reports:

Canada, Denmark, Norway, Russia, and the United States all regard parts of the Arctic seas as national waters (territorial waters out to 12 nautical miles (22 km)) or internal waters. There also are disputes regarding what passages constitute international seaways and rights to passage along them.

Russia, for example, views the Northern Sea Route (NSR) stretching from the Bering Sea to the North Atlantic “as internal waters, and thus subject to transit fees, while the international community views the NSR as an international passage,” note Heather Conley and Carolyn Rohloff of the Center for Strategic and International Studies (CSIS).

Meyers of the NYT paints a vivid picture of “Russia’s scramble for the Arctic.” [click to continue…]

Post image for Clean Energy Incentive Program: New Unlawful Element in EPA’s Power Plant Rule?



EPA’s recently finalized Clean Power Plan (CPP) contains a key policy initiative not discussed or even mentioned in the proposed rule: the Clean Energy Incentive Program (CEIP). Through the CEIP, EPA will award extra emission allowances and emission rate credits to states that “act early” to increase generation from wind and solar power and/or reduce electricity demand via energy-efficiency measures. By “early,” EPA means before the 2022-2030 CPP compliance period.

You might suppose EPA would explain the legal authority for a substantive policy change affecting potentially hundreds of regulated entities, but there appears to be no discussion of the CEIP’s statutory basis in either the final rule, the CEIP fact sheet, or EPA’s proposed “backstop” Federal Plan.

What accounts for this curious omission? Does EPA not explain the legal basis for the CEIP because it can’t?

In the climate policy debates of the late 1990s and early 2000s, “credit for early action” was an issue of recurring controversy. What most policymakers, interest groups, and activists eventually acknowledged is that current law does not authorize any federal agency to award regulatory credits for “early” or “voluntary” reductions of greenhouse gases. Ironically, some of today’s most aggressive CPP advocates helped forge the ‘consensus’ that federal agencies lack statutory authority to implement an early action credit program. [click to continue…]