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U. S. President Barack Obama and Chinese President Xi Jinping will announce that their two countries are officially joining the Paris Climate Treaty when they meet on Saturday, 3rd September, ahead of the G-20 summit meeting in Hangzhou, China.  The South China Morning Post reported on 25th August that the announcement would occur on Friday, 2nd September, but an environmental reporter told me today that Saturday was the day.

President Obama’s action in joining the treaty without ratification by the Senate is clearly an unconstitutional usurpation of the Senate’s authority.  Article Two, Section Two, Clause Two of the U. S. Constitution states: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The U. S. State Department insisted at COP-21 in Paris last December that calling it the Paris Agreement rather than the Paris Climate Treaty would help President Obama evade the constitutional requirement of Senate ratification.  Obama Administration officials continue to insist that it is an executive agreement that only requires the President’s approval. Marlo Lewis, my CEI colleague, details why it is a treaty and not merely an executive agreement in this analysis, and Steven Groves of the Heritage Foundation makes a similar analysis here.

Negotiators at COP-21 went along with the charade that it’s not really a treaty for the United States.  However, the UN Framework Convention on Climate Change Secretariat considers it a treaty.  The relevant UNFCCC web page is headlined: “Paris Agreement—Status of Ratification.”  The information note prepared by the UNFCCC Legal Affairs Programme on the Entry into Force of the Paris Agreement: Legal Requirements and Implications begins: “1. The Vienna Convention on the Law of Treaties states that ‘a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree’.”

Moreover, every other country considers it a treaty and is going through its normal procedures for joining a treaty.  Patrick Goodenough in CNS News reported recently that even in China, which is ruled by a Communist Party dictatorship, the government has referred the treaty to the Standing Committee of Parliament for its approval.

The fact that President Obama knows that Paris is a treaty inadvertently slipped out just this week. Valerie Richardson reported in the Washington Times that: “Speaking at a conservation summit in Lake Tahoe, Nevada, Mr. Obama said elected officials in the U.S. must continue to work on policies to reduce greenhouse gas emissions after he leaves office in January. ‘It’s not going to happen if we boast about how we’re going to scrap international treaties, or have elected officials who are alone in the world in denying climate change, or put our energy and environmental policies in the hands of big polluters,’ Mr. Obama said.”

It will be a bitter irony if President Obama does indeed unilaterally commit the United States to the Paris Climate Treaty on 3rd September for it was on that day in 1783 that United States negotiators signed the Treaty of Paris officially ending the American Revolutionary War with the United Kingdom.  An official U. S. government web page includes this comment: “The three American negotiators, John Adams, Benjamin Franklin, and John Jay, proved themselves to be masters of the game, outmaneuvering their counterparts and clinging fiercely to the points of national interest that guaranteed a future for the United States.”

Clinging fiercely to the national interest is not really President Obama’s thing. Another difference between then and now is that the Continental Congress meeting in Annapolis ratified the Treaty of Paris on 14th January 1784.

 

 

The South China Morning Post reported on Thursday that U. S. President Barack Obama and Chinese President Xi Jinping “are set to jointly announce their ratification” of the Paris Climate Treaty when they meet on 2nd September before the G-20 Summit.  This is curious because ratifying treaties in the United States requires a two-thirds vote of the Senate.

Here is the language from Article Two, Section Two, Clause Two of the U. S. Constitution: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The article by Li Jing references this curious requirement: “There are still some uncertainties from the US side due to the complicated US system in ratifying such a treaty, but the announcement is still quite likely to be ready by Sept 2,” said a source, who declined to be named.

In China’s Communist Party dictatorship, ratification merely requires their Maximum Leader to say, “So be it.”

Later in the article, Li Jing again tries to explain the inscrutable U. S. methods for ratifying a treaty: “US law allows the nation to join international agreements in a number of ways, including through the authority of the president.”

Lo and behold, the President of the United States can ratify a treaty in the same way as China’s Maximum Leader.  He merely has to say the magic words, “So be it.”  And it is so.  Who knew that President Barack Obama has become our Maximum Leader, or perhaps I should say our dear Maximum Leader? 

 

Post image for Posting: Little-Known Documents Pertinent to Assessing the Legality of EPA’s Clean Energy Incentive Program

The public comment period for EPA’s proposed rule titled Clean Energy Incentive Program Design Details closes on September 2, 2016. I intend to submit comments on behalf of the Competitive Enterprise Institute and other free-market groups. We will argue that EPA has once again exceeded its statutory authority. The gist of the argument is available here and here.

Among other evidence, we will cite regulatory comments that no longer exist on agency Web sites. To ensure those sources have active links, I post several below. But first some background. [click to continue…]

Post image for Kyoto-Financed Cook Stoves Fail as Health/Climate “Intervention”

Researchers from Canada, the United States, and India measured the indoor air quality impacts of providing modern “clean cook stoves” to families in southern India. The Kyoto Protocol’s Clean Development Mechanism (CDM) subsidizes the distribution of such devices.

The effectiveness (or lack thereof) of CDM-supported cook stoves to reduce indoor air pollution is a big deal. As the researchers explain:

Burning solid fuel (wood, dung, agricultural residues, and coal) in traditional stoves for cooking and heating negatively affects the health and welfare of nearly 3 billion people, mostly in low and middle-income countries. Household air pollution (HAP) emitted from solid fuel combustion contributed to an estimated 2.9 million premature deaths and 81.1 million disability adjusted life-years in 2013.

The researchers examined indoor air pollution concentrations and fuel use in 187 households in a village in Karnataka, India. About half the households received “clean” stoves, and half–the control group–did not.

Clean Cook Stoves

 

 

 

The study, published in Environmental Science & Technology, is paywall protected. The online journal Phys.Org accurately summarizes the results: “Actual indoor concentrations measured in the field were only moderately lower for the new stoves than for traditional stoves.”

Part of the reason was that “40 percent of families who used a more efficient wood stove as part of the intervention also elected to continue using traditional stoves, which they preferred for making staple dishes such as roti bread. That duplication erased many of the hoped-for efficiency and pollution improvements.” Those households “stacked” new and old stoves instead of replacing the old with the new. See the image at the top right corner of the page.

The climate benefit of the CDM-financed “intervention” was also nil. As Phys.Org reports:

Laboratory studies suggested that the more efficient, cleaner-burning stoves could reduce a family’s fuelwood consumption by up to 67 percent, thereby reducing household air pollution and deforestation. In practice, there was no statistically significant difference in fuel consumption between families who used the new stoves and families who continued to cook over open fires or traditional stoves.

Moreover, the “clean” cook stoves actually “increased the proportion” of household emissions composed of black carbon, a strong warming agent that darkens and melts Arctic ice.

black-carbon-ice-melt-c

 

 

 

 

 

[click to continue…]

Post image for CEQ Finalizes NEPA Guidance for Greenhouse Gases: Will Pointless Keystone XL Controversy Become ‘New Normal’?

The White House Council on Environmental Quality (CEQ) today released its final guidance on how federal agencies should consider climate change effects in National Environmental Policy Act (NEPA) reviews of their proposed actions.

NEPA is the landmark 1969 statute requiring federal agencies to consider the environmental impacts of “any major project—federal, state, or local—that involves federal funding, work performed by the federal government, or permits issued by a federal agency.”

This being the Age of Global Warming, when all things are to be measured by their carbon footprints and all policies judged by their conformity to the climate agenda, the Obama administration’s push to elevate climate concerns in NEPA reviews was a foregone conclusion.

CEQ’s fact sheet claims the final guidance “provides a level of predictability and certainty by outlining how Federal agencies can describe these impacts by quantifying greenhouse gas emissions when conducting NEPA reviews.” On the contrary, the NEPA process already empowers NIMBY (not-in-my-backyard) and anti-energy activists to delay and block development projects with immense economic benefits and immeasurably small, hypothetical climate effects. The guidance will increase the role of climate politics, with all their irrationality and rancor, in NEPA reviews. [click to continue…]

The Democratic Party officially adopted their 2016 platform at their national convention in Philadelphia on July 25th. The energy and environment section is titled “Combat Climate Change, Build a Clean Energy Economy, and Secure Environmental Justice.” It begins with this statement: “Climate change is an urgent threat and the defining challenge of our time.”

The challenge doesn’t actually seem to be much of a challenge, because the platform claims that tackling it by producing “50 percent of our electricity from clean energy sources within a decade, with half a billion solar panels installed within four years and enough renewable energy to power every home in the country” will create “millions of good-paying middle class jobs” and “save families and businesses money on their energy bills.”

“Democrats believe that carbon dioxide, methane, and other greenhouse gases should be priced to reflect their negative externalities, and to accelerate the transition to a clean energy economy and help meet our climate goals.” However, putting a price on emissions does not mean a carbon tax, which is not mentioned, although the platform does say that they “support using every tool available to reduce emissions now.” These steps include the so-called Clean Power Plan, fuel efficiency standards for automobiles and heavy-duty trucks, and higher energy efficiency standards in building codes and appliances.

As for environmental justice, Democrats “will work to expand access to cost-saving renewable energy by low-income households, create good-paying jobs in communities that have struggled with energy poverty, and oppose efforts by utilities to limit consumer choice or slow clean energy deployment.”

Although renewable energy apparently saves us money, “Democrats believe the tax code must reflect our commitment to a clean energy future by eliminating special tax breaks and subsidies for fossil fuel companies as well as defending and extending tax incentives for energy efficiency and clean energy.”

Democrats vow to prohibit oil production in the Arctic and off the Atlantic coast and to “phase down extraction of fossil fuels from our public lands,” while working “to expand the amount of renewable energy production on federal lands and waters.”

The platform pointedly mentions twice that Republican presidential nominee Donald Trump has called climate change a “hoax.” Trump has also promised to stop funding the UN Framework Convention on Climate Change and withdraw the U.S. from the Paris Climate Treaty. Democrats, on the other hand, “are committed to a national mobilization, and to leading a global effort to mobilize nations to address this threat on a scale not seen since World War II.” Mobilization will begin in the first 100 days of the next administration when “the President will convene a summit of the world’s best engineers, climate scientists, policy experts, activists, and indigenous communities to chart a course to solve the climate crisis.”

In addition to supporting corporate disclosure of climate risk, “Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.”

Compare and contrast this line in a speech at the Democratic National Convention last night:

“Democrats don’t alienate, isolate, exclude or demonize; and we don’t manufacture fear.”   —California Senate President Pro Tem Kevin De Leon, in a speech at the Democratic National Convention, 25th July 2016, https://www.youtube.com/watch?v=qKhNWIPmfcM

With a few quotes from the “Web of Denial” speeches by Senate Democrats on the Senate floor two weeks ago:

“Welcome to the web of denial. Thank you to those who are working to expose it. It is a filthy thing in our democracy.”  —Senator Sheldon Whitehouse (D-RI), in a speech on the Senate floor, 11th July 2016, Congressional Record, page S4952

“These front groups are paid to spin a web of denial wrapped in ideology with the aim of purposely deceiving the public about the dangers of climate change.”   —Senator Jeanne Shaheen (D-NH), in a speech on the Senate floor, 12th July 2016, Congressional Record, page S4987

“So it seems that while CEI has changed its client, it is still in the exact same business of selling lies and selling out the health and the future of ordinary Americans.”  —Senator Jeanne Shaheen, 12th July, Congressional Record, page S4989

“But this past May, William Happer was a signatory on a misleading, full-page ad in the New York Times.  The ad, placed by another thread in the web of deceit, the Competitive Enterprise Institute, attacked the reasonable efforts of New York attorney general Eric Schneiderman and a coalition of other attorneys general united for clean power who are investigating more than 100 businesses, nonprofits, and private individuals to see if they misled the public about climate change.”  —Senator Edward Markey (D-Mass.), in speech on the Senate Floor, 12th July 2016, Congressional Record, page S5012

 

The Republican National Convention on 18th July officially adopted their 2016 party platform.  Senator John Barrasso (R-Wyo.) chaired the platform committee; and the co-chairs were Oklahoma Governor Mary Fallin and Representative Virginia Foxx (R-NC).

Notably, the GOP platform states that the Paris Climate Treaty cannot bind the United States unless it is ratified by the Senate.  The party also demands immediate defunding of the UN Framework Convention on Climate Change in accordance with Public Law 103-236.  It opposes a carbon tax and subsidies for politically-favored types of energy.

On regulations, the platform says Republicans will prohibit EPA from regulating carbon dioxide and repeal the “Clean Power” Plan.  It also vows to block the hydraulic fracturing rules, end the misuse of the Endangered Species Act to stop resource production, and reform the National Environmental Policy Act permitting process.

Perhaps most interestingly, the Republican Party now officially supports dismantling the Environmental Protection Agency: “We propose to shift responsibility for environmental regulation to the states and to transform the EPA into an independent bipartisan commission, similar to the Nuclear Regulatory Commission, with structural safeguards against politicized science.”  In addition: “ We will strictly limit congressional delegation of rule-making authority, and require that citizens be compensated for regulatory takings.”

On energy production, the platform contrasts its support for more domestic production of all types of energy (that don’t require subsidies) with the Democrats’ call to “keep it in the ground.”  It states that the “Democratic Party’s campaign to smother the U. S. energy industry takes many forms, but the permitting process may be its most dangerous weapon.”  Permitting delays for oil and gas production on federal lands are cited as the prime example.

Further in regard to federal lands, for the first time, the Republican Party supports transferring federal lands (which comprise over 640 million acres or nearly 30% of the country) to the states.

The Philippine Daily Inquirer reported that President Rodrigo Duterte announced on 18th July that the Philippines would not ratify the Paris Climate Treaty.  According to the story by Marlon Ramos, “the president said a foreign ambassador recently reminded him of the country’s commitment to limit its carbon emissions.”  Duterte continued that he was angry and wanted to kick the ambassador.

President Duterte explained why: “We have not reached the age of industrialization. We’re now going into it. But you are trying to stymie [our growth] with an agreement that says you can only go up to here.  That’s stupid. I will not honor that.”

He continued: “Now that we’re developing, you will impose a limit?  That’s absurd.  That’s how very competitive and constricted our lives [are] now.  It’s being controlled by the world, it’s being imposed upon us by the industrialized countries. They think that they can dictate the destiny of the rest of the [world].”

The Philippines’ Nationally Determined Contribution to the Paris Treaty is to reduce emissions by up to 70% by 2030.  That commitment was made by the previous administration, which also approved building 29 new coal-fired power plants over the next decade.  Duterte was elected president on 9th May 2016 by an overwhelming majority and took office on 30th June.

Fifteen Republican state attorneys general led by West Virginia AG Patrick Morrisey sent a letter to House and Senate leadership on 11th July that calls on Congress to eliminate “burdensome and illegal regulations by strengthening the Administrative Procedure Act (APA).”  The letter received very little attention in the press when it was sent, but on 19th July there was an article in the West Virginia Record and another by Michael Bastasch in the Daily Caller.

The first paragraph summarizes the AG’s objections to federal regulatory overreach:

“As the chief legal officers of our States, we are concerned about the mounting costs that unlawful federal regulations—advanced in violation of the Administrative Procedure Act—impose on citizens, businesses, and state and local governments.  With seemingly increasing frequency, federal agencies are: (1) issuing guidance documents as a way to circumvent the notice and comment process; (2) regulating without statutory authority; (3) failing to consider regulatory costs; and (4) failing to fully consider the effect of their regulations on States and state law.”

The letter continues with a summary of their request:

“We are encouraged that the U. S. House of Representatives and the U. S. Senate recently have considered legislation directed toward resolving some of these concerns.  We write today to urge Congress to go further and take concrete action to ensure that federal agencies are in fact providing opportunity for notice and comment for all binding agency requirements, acting within their delegated authority, and always rigorously assessing the costs of their regulations.”

The letter notes that guidance documents, interpretive rules, and policy statements are not subject to the APA because in theory they are not binding.  But in practice, many of these quasi-rules are binding.  Wayne Crews, my CEI colleague, wrote a significant study, Mapping Washington’s Lawlessness, published last December that catalogues the extent of these binding non-rules.  And here is a recent interview with Wayne on what he has named “regulatory dark matter.”