William Yeatman

Tomorrow, the House is expected to vote on the H.R. 2042, the Ratepayer Protection Act. The bill well-deserves every vote it gets on the way to passage.

It’s a commonsense measure that basically codifies how EPA interpreted the Clean Air Act for three decades before the Obama administration. In the late 1970s, EPA promulgated a rule that allowed States to exempt sources from regulation under the “existing source performance standards” program, which is the same provision that authorizes EPA’s controversial Clean Power Plan. EPA, however, made no mention of these variances in its proposed Clean Power Plan. The Ratepayer Protection Act would reintroduce this practice by allowing Governors to opt out the rule if he/she determines it would have an unacceptable impact on energy prices or electric reliability.

In addition, the bill would delay implementation of the Clean Power Plan until judicial review ran its course. This is necessary to correct a potential injustice attributable to the slow wheels of justice. On the one  hand, capital-intensive businesses like utilities must plan on 4+ years horizons. On the other, it takes about three years for Clean Air Act rules to endure judicial review (brashly assuming SCOTUS grants cert). The unfortunate result is that utilities, in the name of certainty, may lock in implementation of the Clean Power Plan, before we know whether or not the rule is illegal.**The Ratepayer Protection Act would preclude this unfair outcome***

Below, find a coalition letter in support of the legislation. It’s signed by 14 organizations, including the Competitive Enterprise Institute:

Coalition Letter in Support of H .R. 2042 Ratepayer Protection Act – Jun 23 2015

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Both chambers of Congress appear likely to pass appropriations bills amended with policy riders that would check EPA on a number of fronts.

Mainstream media reports stress that these policy riders are GOP initiatives, but the fact is that all of them assuredly will enjoy robust bipartisan support. In fact, members of both parties are wary of the President’s multiple power grabs. And once these riders are attached to a spending bill, they’ll enjoy even more bipartisan appeal. After all, spending is the sine qua non of parochial politics, on which all lawmakers—regardless of political party—rely for reelection. The bipartisan support for these bills, in turn, will pressure Obama. It will be harder for the President to justify a veto (and, by extension, a shutdown of some or perhaps all federal agencies) on the grounds of GOP intransigence if his own party is in on the act.

Thus, these bills are viable politics. Which means that green groups are sharpening their knives.

As I’ve explained here, here, and here, green special interest have become very active in the business of slimy attack ads. Whenever one of their ideological ends is threatened, these groups spend millions of dollars on tasteless and mendacious media campaigns that portray their opponents as murderers hellbent on polluting babies to death. Alas, I’m not making this up.

So here’s a prediction you can take to the bank: Green groups will soon announce a new “hard hitting” television, radio, and online media campaign whose purpose is to influence the Congress’s vote on the appropriations bill. The ads will feature wheezing babies or toddlers in oxygen masks. They will blatantly infer that any Member of Congress who sides with “polluters” (by voting for the spending bill) will have the blood of children on his or her hands.

All of this brings me to my purpose today, which is twofold:

First, I want to sound the alarm that these duplicitous green ads are coming, and thereby afford any interested parties (i.e., American business or giant pools of “dark money,” wherever they may collect) the opportunity to produce a rebuttal.

Second, I’ve generously shown the way, by producing the advertisement below, which I hope will provide an example as to how these things can be done. In it, I play the role of legendary HOFer Pittsburgh Steeler running back Franco Harris. He was the only famous bearded athlete I could think of. This would function well as a regional spot in the Keystone State; for a national spot, I’d use Phil Mickelson. And so…without further ado… [click to continue…]

Cooler Heads Digest 12 June 2015

EPA's CWA rule: For the kidz

EPA’s CWA rule: For the kidz

Plainly, the Obama administration has politicized the Environmental Protection Agency to an unprecedented degree.

Take, for example, the unseemly nexus between the agency and green special interests. Environmental groups like Sierra Club and NRDC spent untold resources getting President Obama elected; in turn, they were given the run of the mill at the EPA.

Of course, special interest regulatory capture is merely a variant of old-fashioned spoils politics, but the agency also evinces a more contemporary obsession with political “optics.” Consider the “strategic communications” memo unearthed by my colleague Chris Horner. Early in the Obama administration, the memo was circulated among EPA heavies—including Richard Windsor—and it makes the ultra-cynical case that the agency should justify its impending climate regulatory regime on the basis of asthmatic children instead of climate change, because no one cares about polar ice caps. Very slick.

We got more of the same last week when EPA promulgated a regulation that vastly expands federal jurisdiction under the Clean Water Act. The rule’s roll out was obviously focus-group tested.   [click to continue…]

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