Marlo Lewis

I am posting Benchmarking US Air Emissions (2006), a joint report by Ceres, NRDC, and PSEG, because it apparently is no longer available on the Internet, and it contains research relevant to the climate policy debate. For example, many of the nation’s biggest CO2 emitters (e.g. American Electric Power) are also leading advocates of cap-and-trade. Does this make Waxman-Markey a “polluter-crafted” bill, and recipients of AEP campaign contributions “polluter-funded” politicians? Yes, if you apply green “logic” without fear or favor.

Moveon.Org is running a series of TV ads accusing Senators Blanche Lincoln (D-AR), Ben Nelson (D-NB), and Mary Landrieu (D-LA) of “working to roll back the Clean Air Act.” The ads tell the Senators to “Leave it [the Clean Air Act] alone,” because “Many Americans are already smoking the equivalent of a pack a day just from breathing the air.”

As I show here, Moveon’s attack ads are a triple whopper, piling falsehood upon falsehood upon falsehood.

(1) The Senators are not working to roll back the Clean Air Act. Rather, they are working to stop non-elected bureaucrats, trial lawyers, and activist judges from ‘enacting’ climate policies not authorized by the people’s elected representatives. It is the Senators’ defense of regulatory accountability — of democracy — that Moveon vilifies.

(2) Carbon dioxide (CO2) emissions do not form smog or soot, history demonstrates that we don’t need CO2 controls to clean the air, and EPA currently does not regulate CO2 emissions. Hence, it’s complete bunk that stopping EPA from setting climate policy for the nation ‘rolls back’ the Clean Air Act.  

(3) No American smokes the equivalent of a pack a day, or even one cigarette a day, just from breathing the air. Pope et al. (2009), a study published by the American Heart Association, finds that a pack-a-day smoker gets a daily dose of 140 to 240 milligrams of fine particulate matter (PM2.5), whereas a non-smoker living in a city with high PM2.5 levels inhales 0.44 to 0.56 milligrams per day. The pack-a-day smoker’s dose is hundreds of times greater. In fact, smoking just one cigarette delivers roughly 12 to 27 times as much PM2.5 into the lungs as does breathing the air in a city with high PM2.5 levels.

Moveon should promptly do three things: (1) Apologize to Sens. Lincoln, Nelson, and Landrieu for subjecting them to a smear campaign. (2) Apologize to their members for peddling disinformation. (3) Return every penny to anyone whom the ads angered or frightened into making a financial contribution.

(Revised Feb. 10, 2010. My conclusion was rushed, because I wanted to leave the office before the snowstorm suspended bus service from D.C.-area metro stops. Revisions below are in italics.)

If you missed it Sunday, the Audi Super Bowl ad is on Youtube, and it’s a hoot. The ad promotes the Audi A3 TDI clean diesel. The main selling point, surprisingly, is not that this car, which won a “Green Car of the Year” award, is good for the planet, but that if you drive it, you won’t be hassled, bullied, and jailed by the “green police.”

The ad tries to work both sides of the street. It attempts to appeal to those who believe SUVs are destroying the planet – and those who resent eco-elitists and busybodies telling them how to live.

The hilarious South Park episode, “Smug Alert” (Season 10), frames the issue with which the Audi ad execs seem to be wrestling.

In the episode, clouds of smug from ”Toyonda Pious” sales in South Park, George Clooney’s acceptance speech at the 78th Academy Awards, and San Francisco’s pretensions as a progressive city all coverge, creating a “perfect smug storm” that threatens to destroy everything in its path. The citizens of South Park scrap their hybrids just in time to avoid annihilation, although thousands of homes are destroyed. However, it is too late to save San Francisco, which “disappears up its own @!*hole.”

At the end of the episode, Kyle, echoing the famous NRA slogan (”Guns don’t kill people, people do”), argues that hybrids are a good thing, it’s only when hybrid owners become smug and act like they’re better than everybody else that the danger arises. However, like the liberals who don’t want a gun in the house, fearing they might use it, the people of South Park decide they are not ready to own hybrids without becoming  smug — “it’s simply asking too much.”

The Audi ad tells preening, greener-than-thou progressives ‘here is the car for you.’ At the same time, it lampoons the authoritarianism of green busybodies, allowing the rest of us to admire the car’s mpg rating without feeling we have to identify with Al Gore or the Sierra Club.

Or, at least, I think that’s the objective. Another way to put is the Audi folks want to have their cake and eat it. They want to be both green and independent of green.

My suspicion is it doesn’t work. Eco-activists are likely offended by the ad, whether because it mocks them or because it comes too near the mark of what life would be like in a society that heeds Al Gore’s injunction to make “rescue of the environment” the “central organizing principle for civilization.” On the other hand, people who resent officious bureaucrats may remember little about the ad except that Audi has something to do with “green police.”

Lastly, Audi is foolish if it expects to prosper under a green police state. The Audi A3 TDI gets above 40 mpg, but its fuel still comes from Big Oil. The Gorethodox won’t be satisfied until cars are all-electric, and the electricity comes from solar panels and wind turbines. Even if levened by tongue-in-cheek, greener-than-thou feeds the perception that global warming is a “planetary emergency” and government must restrict our liberties to save us from ourselves.

What do you think? Watch the Audi ad, and post a comment!

Climategate, Himalayagate, Pachaurigate, and now NOAAgate — it’s hard to keep up with all the relevations and allegations buzzing around some of the biggest names in climate science.  

Earlier this week in the Telegraph, the intrepid James Delingpole debuted “Amazongate.” Like Himalayagate, this is a case in which the IPCC relied on a World Wildlife Fund (WWF) report, rather than a peer-reviewed scientific study, to make a scary claim about global warming.

The IPCC (Working Group II, Ch. 13, p. 596) says that, “Up to 40% of the Amazonian forests could react drastically to even a slight reduction in precipitation” due to global warming. The IPCC’s reference for this claim is Rowell and Moore (2000), which turns out to be an IUCN/WWF report, Global Review of Forest Fires.  

The IUCN/WWF report does cite a peer-reviewed study to support the 40% estimate: Nepsted et al. 1999. Large – scale Impoverishment of Amazonian Forests by Logging and Fire, Nature, Vol. 398, p. 505. The study is available here. 

But the Neptsed study doesn’t quite say what WWF suggests it does. The study says: “Because of the severe drought of 1997 and 1998, we calculate that approximately 270,000 km2 of Amazonian forest had completely depleted plant-available water stored in the upper five metres of soil by the end of the 1998 dry season. In addition, 360,000 km2 of forest had less than 250mm of plant-available soil water left by this time . . .”

The IUCN/WWF report reproduces that statement almost verbatim:
“Up to 40% of the Brazilian forest is extremely sensitive to small reductions in the amount of rainfall. In the 1998 dry season, some 270,000 sq. km of forest became vulnerable to fire, due to completely depleted plant-available water stored in the upper five metres of soil. A further 360,000 sq. km of forest had only 250 mm of plant-available soil water left.”

However, IUCN/WWF’s paraphase adds something — the “up to 40%” estimate. That figure does not appear in Nepsted et al.

Since the Amazon rain forest is estimated at 8.2 million km2 (http://rainforests.mongabay.com/amazon/), it would seem that about 8% (630,000 km2) of the region was threatened by the drought in 1998, not 40%.

Note also that the terms “climate change” and “global warming” do not appear in the text of the Nepsted study (although footnote 14 references a paper titled “Amazonian deforestation and regional climate change”).

Apparently, the IPCC recycled two claims in the IUCN/WWF report that the report’s supposed source – Nepsted et al. (1999) — did not make: namely, 40% of the rain forest is risk, and this is due to global climate change.

There may be other reasons to conclude that climate change endangers 40% of the rain forest, but they are not to be found in Nepsted et al. (1999) — the source for the IPCC’s source.

Last Thursday, Sen. Lisa Murkowski (R-AK), ranking member of the Senate Energy and Natural Resources Committee, introduced a resolution of disapproval, under the Congressional Review Act (CRA), to overturn EPA’s endangerment finding. Murkowski’s floor statement and a press release are available here.

As you’d expect, Sen. Barbara Boxer (D-CA) and other apostles of Gorethodoxy were quick to condemn the resolution as an attack on the Clean Air Act, science, public health, and the children.

Rubbish!

At a press conference she organized on the same day the resolution was introduced, Boxer and others tried to spin the Murkowski resolution as a referendum on science – as if Congress, King Canute-fashion, could alter the results of scientific research.  

A strong case can be made that the endangerment finding is scientifically-challenged. But that’s not what the Murkowski resolution is about.

As the Senator made clear in her floor statement, and as you can see from the text, the resolution is a referendum on the propriety of EPA taking control of the economy without so much as a by-your-leave from the people’s elected representatives. The Murkowski resolution vetoes the endangerment finding’s regulatory force and legal effect, not its intellectual content.

EPA’s endangerment finding, as I explain in this column on Pajamas Media, would launch an era of runaway regulation without representation. The Murkowski resolution is a gutsy action to safeguard the economy, government’s accountability to the people, and the separation of powers under the Constitution.

Today, Reps. Lamar Smith (R-TX), Sam Graves (R-MO), Trent Franks (R-AZ), and Lynn Westmoreland (R-GA) sent a letter to Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein sharply critical of EPA’s December 7, 2009 finding that “air pollution” from carbon dioxide (CO2) and other greenhouse gases (GHGs) endangers public health and welfare. 

“On the basis of EPA’s endangerment finding,” the legislators warn, “virtually every economic activity undertaken in America stands to come under the thumb of federal regulation.” They explain: “These actions begin with EPA’s and the Department of Transportation’s proposed new light vehicle emission standards, continue through greenhouse gas (GHG) preconstruction and operating permit requirements for stationary sources and extend as far as the mind can contemplate.” They continue: “In these ways, EPA threatens to burden our economy with vastly expanded regulation not contemplated by Congress when it passed the Clean Air Act.” 

Yes, indeed. As I discuss here and here, EPA’s endangerment finding starts a regulatory cascade that could (1) subject tens of thousands of previously unregulated small businesses to Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) pre-construction permitting regulations, (2) subject millions of small businesses to CAA Title V operating permit requirements, and (3) compel EPA to establish national ambient air quality standards (NAAQS) that would effectively require the United States to de-industrialize. The Supreme Court pushed EPA to make the endangerment finding in its April 2007 Massachusetts v. EPA decision.

The four Members of Congress ask OIRA chief Sunstein to make EPA convene a Small Business Advocacy Review Panel to develop and evaluate regulatory alternatives to mimimize the endangerment finding’s impacts on small business. Until and unless EPA does this, the lawmakers say, the endangerment finding should be “withdrawn.”

The representatives acknowledge that EPA’s proposed October 2009 Tailoring Rule  “seeks to delay for a handful of years the imposition of requirements on sources emitting less than 25,000 tons of carbon dioxide per year.” However, this fix is by design temporary, and it is legally dubious, since EPA would be flouting clear statutory language. Under the CAA, entities must obtain a PSD permit in order to construct or modify a facility with a potential to emit 250 tons per year of a CAA-regulated air pollutant, and a Title V permit in order to operate a facility with a potential to emit 100 tons per year.

EPA estimates that if these provisions are enforced as written, the number of entities applying for PSD permits would jump from 280 to 41,000 per year, and the number applying for Title V permits would jump from 14,700 to 6.1 million per year. The flood of permit applications would overwhelm agency administrative resources, the permitting programs would implode under their own weight, construction activity would grind to a halt, and millions of firms would find themselves in legal limbo — all in the midst of the worst economic downturn since the Great Depression.  

It will be interesting to see how Sunstein responds to the lawmakers’ letter. Will he stick up for small business and honor the spirit of the Regulatory Flexibility Act (RFA), or will he bless EPA’s evasive legal semantics? 

Under the RFA, agencies are to convene a small business review panel unless the agency head certifies that the proposed regulation will not have a “significant impact upon a substantial number of small entities.”  In a recent year, each PSD permit on average cost $125,120 and 866 burden hours for sources to obtain (just the paperwork and administrative costs, exclusive of any associated technology investments). The going rate for Title V administrative fees is $43.75 per ton, implying a virtual carbon tax (exclusive of administrative expenses) of $4,375 for a small business emitting 100 tons of CO2 per year. The Tailoring Rule estimates (p. 55338) that if small sources of CO2 must comply with the law as written, rather than as doctored by EPA, they will incur an expense of more than $38 billion just for Title V compliance over the next six years.  A significant economic impact by any standard.

Note also that the $38 billion figure refers just to the direct expenses small firms would incur to comply with Title V. It does not include the reduced output and job losses due to the diversion of resources to regulatory compliance. Nor does it include the loss of investment in firms that, due to their sheer number, face years of delay and uncertainty in obtaining permits to build or operate their facilities.

The endangerment finding is what tees up all these costs and consequences, so you’d think it would be a no brainer that it has ”significant impact upon a substantial number of small entities.”

Well, EPA says otherwise. In the Endangerment Finding (p. 66545), Administrator Lisa Jackson certifies that EPA’s findings “do not in-and-of-themselves” impose new requirements on small entities. Hence, there’s no need for an RFA review panel. Similarly, EPA’s GHG motor vehicle standards proposal (p. 49628) certifies that it would not have a significant impact on a substantial number of small entities, since the standards would apply to automakers, very few of which are small businesses.

By making new cars more costly, however, the rule could adversely affect thousands of auto dealers, most of whom are small businesses. EPA says not a word about that potential impact. More importantly, the GHG motor vehicle standards are what directly trigger the PSD and Title V requirements.

EPA says the Tailoring Rule (p. 55349) won’t have a significant impact on a substantial number of small entities, because it “will relieve the regulatory burden associated the PSD and Title V operating programs for new and modified major sources that emit GHGs, including small businesses.” So EPA acknowledges there is a burden to be relieved — a PSD/Title V burden. Where does that come from?  The endangerment finding and the GHG motor vehicle emissions rule. Yet EPA claims those actions have no impact of any consequence for small business.   

Isn’t legal hair-splitting grand? Of course, the findings “in-and-0f-themselves” regulate nothing — but they compel the adoption of GHG motor vehicle standards under CAA Sec. 202, which then automatically trigger pre-construction permitting requirements under Secs. 160-160 and operating permit requirements under Secs. 501-507.

The endangerment finding also sets the stage for regulation of GHG emissions from motor fuels under CAA Sec. 211, non-road engines and vehicles under Sec. 231, the establishment of GHG new source performance standards (NSPS) for scores of industrial source categories under Sec. 111, and the establishment of economy-wide NAAQS regulation of GHGs under Secs. 107-110.  ”Yes, Your Honor, I pulled the trigger, but I am innocent; the bullet killed the man!”

And if litigation and the logic of the CAA compel EPA to establish NAAQS for CO2 and other GHGs, which could easily qualify as the most expensive rulemaking in history, you can bet your bottom dollar what EPA will say. There’s no significant impact on a substantial number of small businesses, because NAAQS “in-and-of-themselves” don’t regulate anybody. The actual regulation of businesses large and small will be done by the states, through their State Implementation Plans (SIPs). “Once the rockets are up who cares where they come down, that’s not my department,” says Wernher Von Braun.

Small business clearly needs an advocate in the room and at the table whenever EPA deliberates about any regulatory action pertaining to greenhouse gases and CO2. Congress enacted the RFA to protect small business from regulatory excess. Right now it’s not working. Cass Sunstein has an opportunity to ensure that small businesses have a say in regulatory decisions affecting their very survival. He should seize it.

A pithy column in Foreign Policy by the Breakthrough Institute’s Ted Nordhaus and Michael Schellenberger says that ”twice-fooled” Democrats, who have been “BTUed” by two Democratic administrations, “are unlikely to sign up for more of the same in the next Congress” (cap-and-trade being the regulatory form of a BTU tax on carbon-based energy).  

The phrase “BTUed” calls to mind Paul Simon’s great ’60s cut-the-hype, get-out-of-my-face folk anthem, A Simple Desultory Philippic (Or How I was Robert McNamara’d Into Submission), and inspired me to attempt a bit of musical parody. Here it is, with apologies to Rhymin’ Simon:

I been Al Gore’d and Yvo de Boer’d.
I been Rajendra Pauchauri’d and regulatory’d.
I been UN’d and CRU’d till I’m blind.
I been Climategated and often hated
Called a skeptic ‘cause I follow the data
That’s what real science is about, well, never mind!
I been BTU’d and cap-and-traded.
I been Hockey Sticked, Hide-the-Decline-Tricked.
Well, I paid all the taxes I want to pay.
And I learned to doubt by debating these louts,
And offsets don’t mean no regrets,
So I blog about Gorethodoxy each day.

Dr. Rob Bradley, CEO of the Institute for Energy Research, documents in Political Capitalism how fraud and corruption at Enron were the inevitable consequence of a business strategy emphasizing the political pursuit of market-rigging regulations as a strategy to reap windfall profits and grow market share.

Enron, for example, was a key lobbyist for the Kyoto Protocol, a treaty calculated to increase demand for Enron’s services as a natural gas distributor, renewable energy seller, and cap-and-trade broker.

Today at MasterResource, the free-market energy blog, Bradley reveals that Enron also spearheaded the push for renewable energy mandates that made Texas the leading windpower state in the country.

Bradley worked at Enron for 16 years and frequently clashed with senior management over its infatuation with get-rich-quick green energy schemes. “Oh how sad I am that Enron purchased Zond [Corporation, a struggling wind energy company] and did so much to enable the artificial windpower boom in Texas and United States,” he writes.

In this two–part post on MasterResource.Org, the free-market energy blog, I argue that the EPA’s proposed Tailoring Rule is a temporary, legally questionable, and incomplete antidote to Massachusetts v. EPA’s legacy of “absurd results.”
 
Here is the gist of the column:
 
Congress did not intend to apply the Clean Air Act’s preconstruction permitting (PSD) and Title V operating permits programs to small entities, did not intend for those programs to implode under their own weight, did not intend for PSD to stop development, and did not intend for Title V to undermine Clean Air Act compliance.
 
However, those are the inexorable consequences of the greenhouse gas endangerment finding and motor vehicle emission standards that the Court authorized and indeed pushed EPA to make. To avoid this mess, which would likely produce a fierce political backlash against EPA and the Obama administration, the Agency now proposes via the Tailoring Rule to amend the PSD and Title V programs.
 
This breach of the separation of powers only compounds the constitutional crisis inherent in the Court’s attempt to legislate global warming policy from the bench.

Even if the Tailoring Rule survives judicial scrutiny despite its flouting of clear statutory language, it will provide no defense against Mass. v. EPA’s most absurd result: regulation of carbon dioxide under the National Ambient Air Quality Standards (NAAQS) program.

Congress must step up to the plate and either overturn Mass. v. EPA, overturn the endangerment finding, or, at a minimum, prohibit EPA from regulating carbon dioxide from stationary sources.