William Yeatman

Post image for The Profound Political Illegitimacy of Obama’s Climate “Deal” with China

Three days ago, the President reached a much ballyhooed “deal” with China to mitigate climate change. In a recent post, my colleague Myron Ebell explained that the agreement is non-binding and therefore empty. Another colleague of mine, Chris Horner, had a more pessimistic take: He argues that the President is trying to establish precedential “customary international law.” Regardless whether the agreement has teeth, it enjoys zero political legitimacy, as is demonstrated by the brief timeline below:

  • 2012: President Obama ran to the right of Mitt Romney on energy policy during the 2012 election. In so doing, the President took great pains to avoid mentioning climate change.
  • November 2014: Environmentalists spend an unprecedented sum to make climate change a major issue in the midterm elections. However, upon realizing that voters simply don’t care about climate change, the greens shifted tactics and instead spent their money on run of the mill attack ads. They still lost.

To recap: Polling data and election results demonstrate clearly that American voters give ultra-low priority to climate change. This explains why opposition to cap-and-trade in the Congress is healthily bipartisan. It also explains why Obama dodged the issue of climate change in 2012. And it explains why environmental special interest had to shelve climate change as an issue in the 2014 midterm elections, even though they desperately wanted to harp about it. Finally, the absence of a popular mandate explains why the President’s climate “deal” with China is flavored so authoritarian: According to the White House, the “deal”—which, as described by various editorial boards is “landmark” international diplomacy—does not require congressional approval, because it is based on executive actions that he’s taking without congressional approval. It’s a closed loop of executive power!

Per the twitter account of SNL Energy’s Dan Lowrey:

dl

The Hill’s Laura Barron Lopez reports the full quote by Sierra Club executive director Michael Brune:

“Despite the climate movement’s significant investments and an unprecedented get out the vote program, strong voices for climate action were defeated and candidates paid for by corporate interests and bolstered by sinister voter suppression tactics won the day.”

You can’t make this stuff up!

Of course, this is utter nonsense. As my colleague Myron Ebell explained here, environmental special interests & their billionaire benefactors had intended to make climate change an issue in this campaign, but they quickly learned an inconvenient truth: Voters don’t care about climate change. So, instead of spending scores of millions of dollars highlighting environmental issues, they spent all their money on run of the mill political attack ads. The upshot is that unsubstantiated, wild-eyed claims of “voter suppression” fail miserably to account for why “strong climate action” candidates lost. Rather, they lost for the ultra-simple reason that voter priorities are far different that those shared by environmental special interests.

EPA’s greenhouse gas regulation for existing power plants, known as the Clean Power Plan, is off-putting for a number of reasons. For starters, it’s expensive and threatens electric reliability. The regulation, moreover, is an affront to federalism, insofar as it usurps the States long-held, exclusive authority to oversee retail electricity markets. Despite these drawbacks, the rule would in no way impact the climate.

That’s a parade of horribles; however, the most off-putting element of the Clean Power Plan is the nuts and bolts of the EPA’s regulatory reasoning, which, in practice, would give the agency unlimited power.

Allow me to explain. As I indicate above, the Clean Power Plan would fundamentally overhaul the power sector. It is, as such, a big deal. And yet, this hugely consequential policy was based on an “obscure” and infrequently-used provision of the Clean Air Act–§111(d). In order to engender such a big policy from such a small statutory authorization, EPA had to get creative. Whereas, in the past, EPA deployed Clean Air Act §111(d) on a source-by-source basis, EPA aggregated sources subject to the Clean Power Plan. Thus, the rule applies to the entire power sector within a States, rather than one source category (i.e., coal plants, gas plants, etc.) at a time.*

EPA’s unprecedented aggregation of sources subject to the rule is an unsettling precedent, because it suggests EPA’s power is unlimited. If EPA can group together technologies as disparate as a coal-fired boilers, gas turbines, and solar panels, then there’s no logical endpoint to the agency’s authority to aggregate sources. What’s to stop EPA from adding manufacturers? Or livestock farms? Under the precedent established by the Clean Power Plan, EPA can regulat anything and everything pursuant to 111(d), which is, again, a short and obscure provision of the statute.

[click to continue…]

Post image for NRDC Left with Egg on Face as “Laughable” Lawsuit Proceeds against Proposed Clean Power Plan

On June 18, 2014, Murray Energy Corporation, an Ohio-based coal mining company, filed a novel lawsuit in the D.C. Circuit Court of Appeals seeking to overturn EPA’s proposed Clean Power Plan. When asked for a reaction, an environmental lobbyist at the Natural Resources Defense Council called the lawsuit “laughable,” and predicted that the court would dismiss the case summarily. However, on September 18, a three-judge panel, acting on its own motion, ordered EPA to file a brief in response to the suit. So, contrary to what the green lobby predicted, the case will indeed proceed. Presumably, no one at the NRDC is laughing now.

To be sure, under the Clean Air Act’s provision for judicial review (42 U.S.C. §7607(b)(1), which, in turn, is modeled on a provision of the Administrative Procedures Act), an EPA regulation cannot be challenged until it is final. The Clean Power Plan, by contrast, is only at the proposed stage of the legislative rulemaking process. This is the primary reason why the NRDC lobbyist labeled the suit “laughable”—because it is a bedrock principle of administrative law that an agency action can’t be challenged until it is final, and the Clean Power Plan isn’t final.

Yet Murray Energy didn’t base its claim on the Clean Air Act, nor on the Administrative Procedures Act. Instead, the petitioners cleverly founded their challenge on the 1789 All Writs Act, a broad and historic statute that grants Article III Courts the authority to issue “necessary and appropriate” injunctions where “gaps” in a statutory scheme pervert the ends of justice. U.S. v. Valdez-Pacheco, 237 F. 3d 1077 (9th Cir. 2001) at 1080; U.S. v. New York Telephone Co., 434 U.S. 159 (1977) at 173.

[click to continue…]

EPA yesterday promulgated in the Federal Register the agency’s 52nd Clean Air Act takeover of a state air quality program, known as a “Federal Implementation Plan” (“FIP”). This time, the target was Arizona’s visibility improvement program, known as Regional Haze.

The agency’s latest takeover provides an unfortunate segue to a report I authored that was published this week by the Competitive Enterprise Institute, titled “How the Obama Administration Is Undermining Cooperative Federalism under the Clean Air Act.” The paper, which is reposted at the bottom of this blog, includes the latest survey of EPA regulatory takeovers of state air quality programs, known as federal implementation plans (“FIPs”). As noted above, Obama’s EPA has imposed 52 Clean Air Act FIPs. By comparison, the previous three presidential administrations—George H.W. Bush, William Clinton, and George W. Bush—accounted for a grand total of…FIVE! Mind you, there are still two lame duck years left of the current administration.

AAAAA FIP Chart

This is not a welcome trend. As I explain in the paper, a FIP is the most aggressive action EPA can take against a State government. It’s a direct usurpation of a co-sovereign. This is why previous administrations have resorted to FIPs so sparingly. Moreover, the paper details how 98% of EPA’s Clean Air Act FIPs are of dubious legitimacy. Finally, the paper proposes a number of legislative solutions to reestablish Clean Air Act cooperative federalism as the Congress intended it. The most provocative of these solutions is for Congress to level the deference accorded by Article III courts to agency-decision making when State and Federal Governments disagree how to implement the Act, such that EPA’s factual determinations and textual interpretations are no longer controlling in this circumstance.

FINAL William Yeatman -How the EPA is Undermining Cooperative Federalism

Last Friday, EPA’s staff issued its final recommendation for a revised national ambient air quality standard for ozone (“ozone NAAQS”), known as a Policy Assessment, which I’ve posted at the bottom of this blog. The document is supposed to represent “the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from [ozone],”* and thereby inform Administrator Gina McCarthy’s determination of where to set the standard. The ozone NAAQS was last revised to 75 parts per billion in 2008; on Friday, the EPA staff recommended that standard be revised to somewhere between 60 and 70 parts per billion.

But here’s the thing: The staff’s advice doesn’t matter. Thanks to a recent ruling in the D.C. Circuit Court of Appeals, the EPA—indeed, the federal government!—has no say in the setting of an ozone NAAQS. Instead, that prerogative has been bestowed on an obscure group of technocrats known as the Clean Air Scientific Advisory Council.

This is to be feared. The economic consequences of a revised ozone NAAQS are tremendous. There are literally trillions of dollars at stake. Such a decision is unequivocally a POLICY determination, especially given that we’re talking about non-mortal health impacts. In America, a POLICY decision should be rendered by a branch of government with an electoral foundation, not a roomful of epidemiologists enamored with the “profound policy implications” of their research. I explain this here and here.

*But rarely does.

 

PA

 

Cooler Heads Digest 8 August 2014

a bombThe Clean Air Act employs a “belt and suspenders” approach to mitigating air pollution, such that regulation begets further regulation.

In late 2009, for example, EPA determined that greenhouse gas emissions from automobiles “endangered” public health and welfare. As a consequence, the agency was compelled to regulate cars and trucks under the Clean Air Act. However, the agency’s responsibilities didn’t end there! Clean Air Act §165 requires that all new, “major” stationary sources of conventional pollution to achieve “best available control technology” for all pollutants subject to regulation under the statute. As such, EPA’s greenhouse gas rules for automobiles triggered greenhouse gas rules for stationary sources.

This redundant approach to regulating perhaps makes sense for conventional pollution, of the sort that Congress had in mind when it wrote the Clean Air Act in 1970, but it’s an irresponsible course for greenhouse gases, which are ubiquitous and for which there are no market-ready control technologies.

Simply put, the agency risks biting off more than it can chew. By starting down a path of climate regulation, the agency is accruing unmet responsibilities to control GHGs. This wouldn’t be a problem if the agency had the discretion to manage its own resources, but, alas, that’s not the case, because the Clean Air Act empowers environmental special interests to sue to force the agency to meet its non-discretionary duties.

Yesterday, another domino fell, when a coalition of green groups notified EPA of their intention to sue in order to force the agency to promulgate greenhouse gas standards for the aviation sector. Clean Air Act §231(a)(2)(A) requires EPA to determine whether emissions of a given pollutant may reasonably be anticipated to endanger public health or welfare. If such a determination is made in the affirmative, the agency must adopt standards to limit those emissions.

In fact, the Obama administration doesn’t want to subject the sector to regulations; to this end, it is proceeding with international negotiations. But I don’t see how they can avoid it. If greenhouse gases from cars “endanger” public health, then how could it be possible that emissions from airplanes don’t do the same?

All of these regulations—for cars, for plans, for new stationary sources—are tiddlywinks relative to the ever-present threat that environmental groups will sue to compel a Clean Air Act National Ambient Air Quality Standard for greenhouse gases. Under §108(a), EPA must set a greenhouse gases NAAQS if

  1. The agency determines that GHGs may reasonably be anticipated to endanger public health or welfare;
  2. The pollutant in question is emitted by a variety of stationary and mobile sources.

[click to continue…]

Last Friday, 12 Attorneys General filed a lawsuit challenging EPA’s recently proposed greenhouse gas regulations for existing power plants, known as the Clean Power Plan. Putting aside the significant procedural and jurisdictional matters attendant to the case, the meat and potatoes of the AGs’ complaint is that 1990 amendments to the Clean Air Act prohibit EPA from issuing the rule.

In response to a reporter’s query, NRDC’s David Doniger called the lawsuit “laughable.” And in a follow up post for NRDC’s blog, Doniger used the modifier “lame” to describe the litigation’s substantive allegations regarding the 1990 Clean Air Act Amendments.

In reality, however, it is Doniger’s comments that are “lame.” They’re actually worse than lame; they’re the epitome of legal cynicism. This is because NRDC used to make the same argument that is now being advanced by the States. Simply put: NRDC used to argue that EPA doesn’t have the authority to issue the Clean Power Plan. Talk about your all-time flip-flops!

In a previous post, I explained the legislative backstory:

EPA’s  recently proposed climate rule for existing power plants is based on Clean Air Act §111(d). This provision authorizes the agency to prescribe “regulations” for “any air pollutant” from “any existing source” …

As originally enacted in 1970, §111(d) included an exclusion that prohibited EPA from prescribing §111(d) regulations for any hazardous air pollutant already regulated under §112 of the Clean Air Act. The idea behind this “§112 Exclusion” was to avoid duplicative regulation.

In 1990, Congress amended the Clean Air Act…The House of Representatives passed a bill that fundamentally changed the nature of the §112 exclusion. Before the 1990 Clean Air Act Amendments, the exclusion from 111(d) applied to hazardous air pollutants regulated under §112; under the House bill, this exclusion applied to §112 source categories (rather than §112 pollutants).

Unlike the House, the Senate bill left unchanged the pre-1990 §112 Exclusion. That is, the Senate version maintained a prohibition on EPA’s issuance of 111(d) regulations for §112 hazardous air pollutants. However, in order to harmonize the pre-1990 §112 Exclusion with the language of the 1990 Clean Air Act Amendments, the Senate passed a “conforming” amendment to 111(d). Thus, the Senate’s amendment was a ministerial change.

The Conference Committee adopted the House’s substantive amendment. Logically, the adoption of the House language rendered moot the Senate clerical language. However, the Conference Committee failed to remove the Senate’s conforming amendment. As a result, the Statutes at Large contain both the House’s substantive amendment and the Senate’s conforming amendment.

In a nutshell, the 1990 Clean Air Act Amendments contained two provisions that circumscribe EPA’s authority under §111(d)—one originating in the House and one in the Senate. The House version prohibits EPA from issuing §111(d) standards for source categories subject to §112, while the Senate version prohibits EPA from issuing §111(d) standards for pollutants subject to §112.*

This “§112 Exemption” is important because EPA in 2012 subjected power plants to §112 standards. Due to the fact that this source category—power plants—is now subject to §112, it is exempt from §111(d) standards, pursuant to the aforementioned House version of the “§112 Exemption.” That is, the Clean Power Plan is illegal if the House provision is given any meaning. To this end, the Attorneys General argue** that the House and Senate provisions can co-exist cogently, such that each retains its meaning. Thus read, the 1990 Clean Air Act Amendments prohibit EPA from issuing the Clean Power Plan.

According to Doniger, this legal reasoning is “lame.” Yet NRDC used to make the exact same argument! Seven years ago, NRDC opposed a Bush-era rule that would have regulated mercury pursuant to Clean Air Act §111(d), and, in this capacity, Doniger’s employer argued that EPA doesn’t have the authority to issue §111(d) regulations for power plants.

Don’t take my word for it! Below, I’ve reprinted this key paragraph from NRDC’s brief seeking to overturn the Bush-era rule:

EPA fails to refute Environmental Petitioners’ argument that the plain statutory reading that most readily ‘fit[s]… all parts into an harmonious whole’ prohibits EPA from setting § 111 standards for pollutants like mercury “emitted from a source category which is regulated under section 112” or included on the §112(b) list of pollutants... [Formatting added; internal citations omitted].

NRDC’s words speak for themselves. The organization argued before the D.C. Circuit Court of Appeals that EPA does not have the authority to establish §111(d) standards for pollutants like greenhouse gases, which are “emitted from a source category which is regulated under section 112.” This raises an important question: How can the AGs’ argument be “lame” if the NRDC used to make it?***

In a July 6th New York Times article, Cora Davenport reports that David Doniger was one of three NRDC lawyers who wrote the “blueprint” for EPA’s Clean Power Plan. It is “laughable” that the NRDC would write the “blueprint” for a regulation whose legality it used to contest. [click to continue…]

Two events last Wednesday morning demonstrate well the EPA’s dichotomous approach to collaboration: If you’re an environmental special interest that helped Obama get elected, EPA welcomes you with open arms; if you’re anybody else, EPA will spurn you.

DOEThe first such event was a House Science, Space, and Technology Committee hearing on EPA’s regulatory regime for climate change. Panelists included Charles McConnell, who was assistant secretary for fossil energy at the Energy Department until early 2013. His office was responsible for facilitating federal assistance in the development of carbon capture and sequester (CCS) technology. In fact, EPA proposed to require CCS technology in its controversial carbon rule for new coal-fired power plants, the Carbon Pollution Standard. You’d think that the agency would welcome the Energy Department’s assistance, given that the EPA possesses no expertise in CCS technology. Alas, you’d be wrong. McConnell told the committee that “a true collaborative effort would have been far different from what I observed.” According to Mr. McConnell, EPA viewed the interagency process as a “box-checking exercise” and he called the agency’s attitude “disingenuous.”*

Thus, EPA rejected collaboration with a sister agency. Moreover, as I’ve long noted on this blog, Obama’s EPA has had an unprecedentedly poor relationship with States, which are supposed to be the agency’s partners under the cooperative federalism framework established by the Clean Air Act and other enabling statutes.  And it goes without saying that this EPA treats “dirty” industry with contempt. The upshot is that this EPA refuses to play nice with either the public or the private sector.

The second Wednesday event served to demonstrate that there’s at least one sector to which EPA is solicitous, and that’s environmental special interests. At 11:30 AM, the Senate Environment & Public Works minority staff released an informative new report, “Billionaire’s Club,” that neatly explains the web of elite political donors, green groups, and EPA political appointees that together have effectively seized the reins of policy-making at the agency. I found particularly edifying the EPW report’s section on the “revolving door” between environmental special interests and EPA, a subject that has been broached before on this blog.

Further evidence to this end—that of demonstrating regulatory capture of EPA by green special interests—is lent by a July 6th New York Times article, which reports that three lobbyists at the NRDC wrote the “blueprint” for EPA’s greenhouse gas regulations for existing power plants.   [click to continue…]