William Yeatman

On Tuesday morning, EPA Office of Air and Radiation chief testified before a House Energy and Commerce subcommittee on draft legislation that would allow States to “opt out” of the Clean Power Plan.

McCabe did not acquit herself well. Unlike her boss, she is not adept at the black arts of congressional testimony. Instead of smooth obfuscation, McCabe all too often goes off script, as was evident on Tuesday.

I noted one of her flubs yesterday; with this post, I’d like to draw your attention to another. When pressed by Rep. David McKinley (R-West Virginia) on the costs of the regulation to his constituents, McCabe replied with the incredible claim that the Clean Power Plan would decrease, rather than increase, utility bills. I’ve excerpted their exchange immediately below.

OAR Chief Janet McCabe: Given the way the industry is going, in terms of employing energy efficiency, we lay out that our proposal will lead to lower energy bills by 2030. So energy bills will go down.

Rep. David McKinley: Wait. I want to make sure I’m clear here. You say energy prices will go down?

OAR Chief Janet McCabe: Energy bills will go down.

Rep. David McKinley: How in the world are energy bills going to go down.

OAR Chief Janet McCabe: With energy efficiency, people will be buying less electricity.

Rep. David McKinley: Are you serious? You really believe this?

OAR Chief Janet McCabe: I do. We’re seeing it all across the country. We’re seeing it in places like New England, where they’ve been very aggressive on energy efficiency. If we use less energy, our bills can go down. And our carbon emissions can go down.

To recap: OAR chief Janet McCabe claimed before Congress that the Clean Power Plan would reduce energy bills. Her evidence for this claim was to cite the New England experience.

[click to continue…]

“Flexibility” is the crown jewel on the tiara of EPA talking points regarding the Clean Power Plan.

In the real world, the rule is rigid as they come, quite contrary to what EPA purports. As I’ve before explained, “The rule takes all the known means of reducing GHG emissions within the electricity sector, ratchets them up to an impossible degree, calculates the GHG reductions commensurate with each of these measures, and then uses the resultant aggregate emissions reductions to set a state-wide standard.” Of course, EPA can’t admit as much–i.e., that the rule wrings blood from oranges–so instead the agency takes every opportunity (and then some) to trumpet the regulation’s supposed “flexibility.” According to EPA (with ad nauseam repetitiveness), the Clean Power Plan affords states and utilities the “flexibility” to choose any number of policies outside of the four “building blocks” on which the rule’s emissions standards are based.

But here’s the thing: No one at EPA can identify any ersatz building blocks!

Take, for example, EPA Administrator Gina McCarthy’s right-hand official, Office of Air and Radiation chief Janet McCabe.

In late February, McCabe was reduced to “halting, incomplete sentences” when asked by FERC Commissioner Philip Moeller to name alternatives to the policies on which were based the states’ Clean Power Plan targets.

That was almost two full months ago. Having been reportedly startled by FERC Commissioner Moeller’s “flexibility” question, one would imagine that EPA’s McCabe, in the time since, could have identified a significant greenhouse gas reduction strategy that States could use in lieu of the four building blocks (if such a policy actually exists). But she didn’t! Or, rather, she *can’t*.

On Tuesday, McCabe testified before a House Energy and Commerce subpanel, during which she was asked by a friendly lawmaker to elaborate on what EPA means when it says that the Clean Power Plan is “flexible.” Somewhat incredibly, McCabe’s answer was even worse than it was last February. I’ve excerpted text of their exchange below.

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Directly below, I’ve posted an issue brief whose purpose is to investigate the constitutionality of EPA’s Clean Power Plan, a subject that has been at the center of a lively public debate between Harvard Professors Laurence Tribe, Richard Lazarus, and Jody Freeman. While undoubtedly edifying, this professorial skirmish has occurred on a conceptual basis that is largely removed from the nuts and bolts of how the Clean Air Act actually works in practice. In the working paper that follows, my intention is to fill this analytic lacuna by exploring the constitutionality of the Clean Power Plan against a backdrop of how the rule would be implemented in the real world. Specifically, I address the constitutionality of EPA’s range of statutory options to effectuate the Clean Power Plan in a State that refuses to comply with the rule.

Investigating the Constitutionality of EPA's Clean Power Plan

Judicial review of EPA’s Mercury and Air Toxics Standards (a.k.a., the absurd “Utility MACT”) has run a course all the way to the Supreme Court. The case is Michigan v. EPA; briefs and a transcript of oral arguments may be found here at the invaluable SCOTUSblog.

The issue at hand is: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”

Below, I’ve posted the briefest of recaps (ignore the following paragraph if you are already up to speed): [click to continue…]

In a word, New York University School of Law Professor Richard Revesz is brilliant.

Indeed, this blog is a big fan of the Professor’s seminal 1992 law review, “Rehabilitating Interstate Competition,” which persuasively puts the lie to the theoretical foundations of the “Race to the Bottom” thesis of environmental regulation.

Nonetheless, no jurist–no matter how brilliant–can cure EPA’s Clean Power Plan of its legal infirmities. So when Professor Revesz testified in support of the rule a week ago before the House Energy and Commerce Committee, he was necessarily in a bind because he had to try to defend the indefensible.

In this post, my purpose is to respectfully rebut one of Professor Revesz’s most consequential claims made during his testimony. The claim at issue regards the ongoing debate over whether the plain terms of the Clean Air Act forbids EPA from promulgating the Clean Power Plan. [click to continue…]

Debate Obama didn't care about AGW

Debate Obama didn’t care about AGW and loved coal

VICE News, which is somehow valued at $2.5 billion (10 times the 2013 price of the Washington Post), recently conducted a sycophantic interview with President Obama. As I understand it, VICE News reporters are supposed to be too-cool-for-school iconoclasts. However, instead of suspicion of “the man,” VICE News founder Shane Smith performed the interview with an evident thrill up his leg.

The first segment addressed environmental policy. Smith started by asking the president, “How do you deal with the negativity? Are you a masochist?” Then he complemented President Obama for having a “rational, sane” plan for dealing with climate change. Finally, after referencing Senate Republicans, he asked why “we’re not acting in a sane and rational way” on global warming (presumably like the President is). Hard hitting stuff.

Today, my purpose is to shatter VICE’s naivety by introducing them to 2012 debate Obama. Debate Obama—the guy trying to get elected by the American people—staked out a position to the right of Republican Mitt Romney on environmental and energy policy. This guy didn’t say a word about climate change. Rather, Debate Obama was all about oil, gas, and even (gasp!) *dirty* coal. Indeed, Obama never once mentioned AGW in any of the 2012 debates. During the VICE interview, by contrast, the President claimed that global warming was among his top priorities.

I humbly submit that Debate Obama demonstrates that the President doesn’t give a hoot about AGW, aside from its legacy-building potential or value in terms of partisan positioning. In short: He’s pulling the wool over your eyes, Mr. Smith.

Debate transcript here; debate video below; writeup here[click to continue…]

The worst

The worst

…EPA’s use of a Clean Air Act provision regarding the ozone layer in an effort to advance the President’s international climate goals.

This ongoing regulatory regime is known as the Significant New Alternatives Policy program, and it represents the worst of all worlds: it’s a naked power grab; it’s bolstered by rent-seeking; and it actually endangers public health. On account of all of these factors, it’s the pound-for-pound worst regulation promulgated yet by Obama’s EPA.

Bullet-point background: [click to continue…]

For a couple months now, there’s been a battle brewing among critics of EPA’s Clean Power Plan. While we all agree the rule is illegal and illegitimate, there’s much disagreement on strategy.

On the one side are arrayed various politicians and non-profits, who argue that the rule is such an unacceptable affront to cooperative federalism, that States should simply refuse to play ball. That is, they recommend that States should refuse to submit compliance plans, and instead place the onus on EPA to impose a federal plan. This side’s take is purely principle.

On the other side are arrayed state regulators and the business community, and their concerns are more practical. By and large, they agree that the Clean Power Plan is an unacceptable affront to cooperative federalism. However, they also believe that a “just say no” strategy is too risky to pursue, albeit for different reasons:

  • For industry, it’s essentially a fiduciary responsibility to oppose the do-nothing camp. That’s for two reasons: First, businesses generally hold more sway with local officials, so they’d have less input under a federal plan. Second, and more importantly, utilities are ultimately on the hook for compliance. They’re the ones who would face daily fines that can measure well into the scores of thousands of dollars. So they’re not as keen on the whole non-compliance idea.
  • For state regulators, it’s somewhat similar. Ultimately, they’re on the hook for implementing the regulation. If a State refuses to comply altogether, then it arguably makes the regulators’ job more difficult.

The “just say no” camp won a major victory this week when Senate Majority Leader Mitch McConnell endorsed their position in an oped. Subsequently, it was reported that McConnell’s oped was seconded by several influential Members of Congress, including Senate EPW chairman James Inhofe and Energy & Power subcommittee chairman Ed Whitfield. This set off a flurry of media reports, about how congressional republicans were urging States to defy EPA’s climate regulations.

All of this brings me to the point of this post–the distinct possibility that none of this matters much. And that’s because the likelihood that the regulation will be stayed by the D.C. Circuit Court of Appeals is better than not, I believe. And if the rule is stayed, then there will be a great deal more wiggle room for States to act or demur. Below, I briefly explain why I believe why the odds for a stay are strong. [click to continue…]

Cooler Heads Digest 6 March 2015

"Did you hear about Walter Peck?"

“Did you hear about Walter Peck?”

In January 2014, EPA proposed the Carbon Pollution Standards, a regulation that would require new coal-fired power plants to install carbon capture and sequestration (CCS) technology. Because CCS is not yet commercially viable, it is prohibitively expensive. As a result, EPA’s Carbon Pollution Standards rule effectively bans the construction of new coal-fired power plants. Needless to say, the regulation is very controversial. It is expected to be finalized this summer.

However, for months in D.C. there’s been circulating a rumor, to the effect that EPA is second-guessing the wisdom of its CCS mandate. Per these whispers, EPA is thinking of dropping a CCS requirement because the agency recognized that the Carbon Pollution Standards’ precarious legality jeopardized the Obama administration’s #1 climate change priority—the Clean Power Plan. The two regulations share a sequentially consequential relationship under the Clean Air Act, such that the Carbon Pollution Standard (a *new* source standard) must precede the Clean Power Plan (an *existing* source standard). If the former gets struck down in court, then it undercuts the latter. By dropping the CCS, EPA also drops a legal liability for the Clean Power Plan.

Yesterday, the rumor finally went public, in an InsideEPA article ($) by the always reliable Dawn Reeves, the opening of which I’ve excerpted immediately below [click to continue…]