Washington Examiner’s Zack Colman just tweeted that Sen. Al Franken spent at least a bathroom break’s worth of Senate time this morning to claim that the U.S. government birthed the technological advances in oil and gas drilling collectively known as “fracking.”
Sen. Franken is wrong. Here, Devon Energy chief Larry Nichols—who was present at the creation of “fracking”—explains that it was the private sector behind this breakthrough. And here, Platts Director of News John Kingston explains that subsurface property rights were the sine qua non of the American energy renaissance. Both of these insights were rendered on Platts Energy Week with Bill Loveless, which is no longer on and is sorely missed.
Perhaps the hottest debate raging today in administrative law circles regards Article III court deference to federal agency interpretations of their own rules. Such deference is known as “Seminole Rock” or “Auer” deference (after Bowles v. Seminole Rock & Sand, Co., 325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997)).
In the smallest of nutshells, critics argue that Seminole Rock deference rests on shaky constitutional ground, because it allows administrative agencies both lawmaking (i.e., writing rules) and law exposition (i.e., interpreting rules) powers.* The other criticism is practical, and alleges that Seminole Rock deference incents arbitrary regulation. To be more precise, this second criticism suggests that agencies take advantage of Seminole Rock deference by writing vague implementing rules, and then issuing subsequent “interpretations” that impose policies outside the notice and comment requirements for administrative procedure.**
Seminole Rock/Auer deference is so hot right now because the Supreme Court is openly reconsidering it. Justice Scalia recently pilloried Seminole Rock/Auer, and, in the same decision, Chief Justice Roberts announced, “that there is some interest in reconsidering those cases.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013) at 1339
In this context, I would like for you, dear readers, to consider a recent EPA proposal to take over Regional Haze programs operated by Texas and Oklahoma, pursuant to the Clean Air Act. The rule is extraordinary for a number of reasons. For starters, it’s the latest from the most arbitrary regulatory regime at EPA during the Obama era—namely, the Regional Haze/§110(a)(2)(D)(i)(II) program. For another, it’s a massive power grab, one with big implications for other States. I will explain these and other flaws in subsequent posts; my purpose today is to draw your attention to page 74829 of the 79th Federal Register, in which EPA attempts to justify the rule’s long reach by notifying the public of the agency’s Seminole Rock/Auer rights! I’ve reposted the offending language after the break. [click to continue…]
“The Chicken McNuggets of Energy News”
- My colleague Myron Ebell was on The Diane Rehms Show yesterday morning to discuss President Obama’s proposal to designate nearly 12 million acres in the Arctic National Wildlife Refuge, including the hydrocarbon rich 1002 area, as an off-limits “Wilderness Area.” It’s a lively interview; listen here.
- On that note, the President’s policy has raised the ire of the Alaskan congressional delegation, according to a good piece in Monday’s Washington Examiner by Zack Colman. You should read it, for the rhetoric is bold. Rep. Young said that the administration has gone “wacko,” while even mild mannered Sen. Murkowski used war as an analogy. The senior Senator’s anger is especially notable, due to her possession of the Appropriations subcommittee gavel with jurisdiction over the Interior Department and EPA. She’s well-positioned for wrath.
- Sticking to that note: The White House released its new Alaskan anti-energy policy via a sappy public service announcement, available here. The ad has the President waxing lyrical about Alaska’s beauty, to the tune of an acoustic guitar, with an overlay of slow motion video depicting Alaskan mountains, critters, and critters on mountains. I think that’s the first time that a policy has been announced by PSA. Another Obama breakthrough!
- In what is the best evidence to date that Iowa’s first-primary-in-the-country is terrible for America, Iowa Gov. Terry Branstad (R) last week announced the launch of a multi-million dollar campaign that will pressure presidential contenders to support the Renewable Fuel Standard. To be sure, the RFS is great for Iowa, because it grows a great deal of corn, the primary feedstock for ethanol. But it’s horrible for the rest of the world, causing the price of both food and fuel to increase. [click to continue…]
Two weeks ago, the Washington Post’s fact checker pooh-poohed a study on regulatory costs by my colleague Wayne Crews. According to the Post’s ill-informed* analysis, my colleague’s excellent study is imbalanced, because it accounts only for the costs, and not the benefits, of regulation.
In this blog, I will briefly challenge an operating assumption held by the Washington Post’s fact-checker: Namely, the assumption that regulations necessarily benefit the public interest. In fact, regulation during the Obama age has been characterized by the political regulation—one whose purpose is to benefit a narrow special interest, rather than the public at large.
Consider, for example, President Obama’s EPA. In 2008 and 2012, green advocacy groups spent scores of millions of dollars to help elect Obama. In return, these special interests have been rewarded with the reins to the EPA. In this fashion, they can direct state power to persecute their political enemies. In practice, this quid pro quo relationship results in regulations whose public health justifications are highly dubious, and whose only discernible purpose is to target “dirty” fossil fuels. Mind you, these green groups have based fundraising and issue campaigns on moving “beyond coal” and “beyond gas”; as such, their institutional raison d’etre is inextricably intertwined with a fight against an abstraction of an industry. Simply put, I’m saying that the basis of these rules is politics, instead of disinterested civil service. That is why I call them political regulations, in order to distinguish them from rules that are promulgated with the public interest at heart.
After the break, I demonstrate my point with DIRECT PHOTOGRAPHIC EVIDENCE!!! [click to continue…]
During last Tuesday’s State of the Union Address, President Obama said:
And no challenge — no challenge — poses a greater threat to future generations than climate change. (Applause.)
Yet when White House Chief of Staff Denis McDonough appeared on four Sunday morning political talkies—on the first weekend since the State of the Union—all the hosts wanted to talk about was the Middle East (i.e., Yemen, ISIS, Netanyahu, etc.).
I miss Platts Energy Week with Bill Loveless
Indeed, climate change never came up once during McDonough’s interview with Chuck Todd on NBC’s Meet the Press, nor in his conversation with George Stephanopoulos on ABC’s “This Week,” nor in his discussion with Bob Schieffer on CBS’s Face the Nation. Ultimately, not one of these three shows even mentioned global warming, despite the fact that it “poses a greater threat to future generations” than any combination of current conflagrations abroad, according to the President.
However, it is true that McDonough came very close to mentioning climate change during his interview with Chris Wallace on Fox News Sunday: [click to continue…]
Globalwarming.org today sped up its economic doomsday clock to three minutes until midnight, in response to last week’s launch of a green missive that calls to mind the terrifying extent to which the U.S. economy operates under the imminent threat of economic apocalypse engendered by enviro litigation.
The immediate impetus for alarm is a letter issued Thursday from 5 green groups. Its purpose is to remind EPA of a May deadline to render a decision whether GHGs from airplanes “endanger” public health & welfare. That sounds boring and innocuous, but in fact the letter portends the ominous consequences of the Obama administration’s 2010 decision to trigger Clean Air Act regulations for greenhouse gases. This fateful determination has provided environmental special interests the opportunity to seize the reins of the U.S. economy through litigation, as I explain briefly below.
The problem is that the Clean Air Act regulates like a chain reaction: one provision triggers another provision triggers another, and so on and so forth. So, for example, EPA’s first action—the push that got this regulatory snowball rolling down the hill—was to regulate GHGs from automobiles. Under longstanding EPA statutory interpretation, auto regulations set off Clean Air Act requirements for stationary sources. Henceforth, new major stationary sources must install “best available control technology” to limit GHGs. (Of course, the agency is working on a bundle of climate regulations that would overhaul the electricity industry, but that’s a discretionary regime.)
First automobiles…then stationary sources…and the next non-discretionary duty brought about by EPA’s opening of a regulatory Pandora’s Box pertains to the airline industry. The statutory tripwire that activated the 2010 auto regulations—the rule that set off this whole mess—was a 2009 EPA determination that tailpipe GHG emissions “endangered” public health and welfare. Under the Clean Air Act, an identical threshold exists for the regulation of airline emissions. That is, if the agency finds that airline GHG emissions “endanger” the public, then it must regulate the sector. [click to continue…]
Two characteristics of the Clean Air Act are relatively harmless in isolation, but together engender serious public policy concerns. They are:
- The fact that the act includes far more deadlines than the agency can meet; and,
- A provision of the act that empowers environmental special interests to sue to compel EPA to meet its overdue date-certain duties (known as the “citizen suit” provision).
In short, the Clean Air Act contains hundreds of date-certain duties, and EPA is out of compliance with virtually all of them. The agency’s inability to meet its statutory responsibilities wouldn’t be a problem but for the fact that the statute empowers green groups to sue to force EPA to meet its nondiscretionary responsibilities. Such “agency forcing citizen suits” lead to three public policy troubles:
In this post, I briefly walk through a topical example of the third type—a major rulemaking that has been rendered awful by an impossibly tight deadline pursuant to an “agency forcing” citizen suit regarding a missed deadline. [N.B.: I do so in only 500 more words (only 700 total)!]. The rule in question is the “industrial, commercial, and institutional hazardous air pollutants area sources rule.” [click to continue…]
Reports Greenwire’s Robin Bravender ($),
First lady Michelle Obama will host a sea-level rise researcher at the State of the Union address tomorrow, a signal that climate change will be a major component of the president’s speech.
Nicole Hernandez Hammer, a sea-level expert in southeast Florida, was one of nearly two dozen guests announced today by the White House. The first lady typically invites guests to the event who embody the themes the president plans to highlight in his speech.
If history serves as a guide, President Obama would sound garbled were he to address climate change in tonight’s State of the Union address. [click to continue…]
Recently, I’ve made a practice of cataloging mistakes and other oddities at Grist, a website which fancies itself a source of “independent green journalism.” In this fact-checking vein, I’d like to bring your attention to a post published on Grist two days ago, whose inaccuracies are remarkable even by the site’s standards. [click to continue…]