William Yeatman

A big problem for EPA in trying to defend its egregious Clean Power Plan is that the rule is being promulgated in the name of fighting climate change, but it won’t actually impact the climate.

As a result, the agency has had to resort to two bits of trickery in order to justify the rule’s exorbitant costs.

The first is known as the social cost of carbon. As has been persuasively argued by my colleague Marlo Lewis, the social cost of carbon is assumption-driven garbage. (See, e.g., this).

trickEPA’s second statistical misdirection, which is the subject of this post, is to claim that the rule would save thousands of lives by reducing conventional pollutants other than carbon dioxide, primarily ozone and fine particulate matter. Today, a group of public health professionals issued a press release trumpeting a study backing the EPA’s “co-benefit” claims regarding the Clean Power Plan.

In this post, my purpose is not to rebut the statistical analysis by which these “prevented deaths” were conjured. As Bjorn Lomborg smartly pointed out in his book Cool It, we could reduce untold emissions of air pollution, and save scores of thousands of lives, simply by reducing the speed limit everywhere to five miles per hour. Just because there are “co-benefits” attendant to any given policy doesn’t mean much in a vacuum.

Of course, the Clean Power Plan was not promulgated in a vacuum. Rather, the rule exists within a regulatory structure created by the Clean Air Act. Accordingly, my purpose in this brief post is to demonstrate that these “co-benefits” are a legal/regulatory sham.

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Yesterday, during a speech at the Columbia University Center for Global Energy, EPA Administrator Gina McCarthy articulated a disturbingly expansive view of the agency’s authority. Here’s what she said:

My main point is that a low carbon future is absolutely inevitable … Our role [EPA’s] is to look at the transition that is happening in the energy world, and instead of running against the tide, let’s put some wind in those sails! Let’s put a marker down about what investments should happen if we can all agree that a low carbon future is essential to pursue … America is already bullish on clean energy and the low carbon economy. That is my argument. That is what money and investments are telling me. And EPA simply wants to send the right signal, so [American industry] can feel sure, when they double down, it can be profitable to them.

According to Administrator McCarthy, EPA’s “role” is to decide what investments in the energy industry “should happen,” in order to ensure that such investments will be “profitable.”

This is an amazing statement, in a terrible way. EPA, of course, is a creature of Congress. When did Congress delegate to the agency the power dictate how a trillion dollar sector of the economy should render its investments? Or empower EPA to pick and choose which industries should be profitable?

Moreover, McCarthy’s claimed authority doesn’t make any sense. Why would such responsibilities reside in the office of federal environmental regulators at the EPA, rather than the Federal Energy Regulatory Commission or the Department of Energy?

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Saturday evening, at the ultra-pretentious White House Correspondents’ Dinner, President Obama took congressional Republicans to task for blocking his climate agenda. Vox’s Ezra Klein & Climate Progress’s Joe Romm loved the president’s routine, which they believed to entail the delivery of “brutal truths.”

In fact, the joke is on Klein and Romm, who’ve been duped by O’s duplicitous and disingenuous climate stand-up/speech.

For starters, the President misidentified the objects of his scorn. It’s his own caucus, rather than republicans, that’s at the root of his problems. As I’ve explained over and over and over again, opposition to climate policy is robustly bipartisan in both chambers of the U.S. Congress. Indeed, if all issues enjoyed the bipartisan support that does opposition to climate change mitigation policy, then no one would ever whine about D.C. being dysfunctional.

In this manner, Obama’s thesis—the one that is being championed by Klein & Romm—is wrong. But it’s worse than that, for the president is being a giant phony, in addition to his being mistaken.

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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.

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“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…]