Post image for EPW Republicans to McCarthy: Is EPA Climate Science Consistent with Data?

At a March 4 Senate Environment and Public Works (EPW) committee hearing, Sen. Jeff Sessions (R-AL) queried EPA Administrator Gina McCarthy about climate change impacts, global temperatures, and climate models. McCarthy opined that droughts and storms are becoming more frequent worldwide, but had no data to back up her opinion when Sen. Sessions cited conflicting evidence.

In addition, although apparently unaware of the growing divergence between climate model predictions and observations, McCarthy was confident it is irrelevant to EPA’s assessment of climate change risks (i.e. the scientific rationale for the administration’s climate policies). She did, however, promise to provide written answers to Sen. Sessions “within a few days.” See 1:30-6:17 of this video clip.

On April 1, Sessions and three other EPW Republicans (Inhofe of Oklahoma, Wicker of Mississippi, and Barrasso of Wyoming) sent a letter reminding McCarthy of her promise and stating their questions in more detail.

Citing the latest Intergovernmental Panel on Climate Change (IPCC) assessment and other information, the Senators challenge McCarthy to substantiate her views with respect to drought, storms, global temperatures, and the accuracy of climate models.

Sen. Sessions’s press release, which includes the text of the letter, follows. [click to continue…]

Post image for EPA’s Clean Power Plan: Whitman Goes Orwell on McConnell

In a recent column in Politico, former EPA Administrator Christine Todd Whitman scolds Senate Majority Leader Mitch McConnell (R-Ky.) for an op-ed urging states to ‘just say no’ to EPA’s Clean Power Plan (CPP) – the agency’s proposal to cap carbon dioxide (CO2) emissions from state electric power sectors.

In a nutshell, Whitman accuses McConnell of urging States to break the law. Nonsense. Declining to submit a plan to implement EPA’s regulation is a lawful option under the Clean Air Act. Indeed, the right of States to keep their fingerprints off regulations they regard as unlawful or simply as misguided is basic to the “cooperative federalism” concept on which the Clean Air Act is based. Whether or not states should be complicit in the Clean Power Plan is a prudential question. McConnell argues (correctly, IMO) that the most prudent course for States is to let EPA bear sole responsibility for implementing an unlawful rule.

Although Whitman quotes two sentences from McConnell’s essay, she never engages any of his arguments. Instead, she tut-tuts about the rule of law without apparently understanding what it means.

I reproduce Whitman’s column below and offer commentary on each part. Her text is indented in blue, my comments are standard width in black.

Whitman: Sen. Mitch McConnell earlier this month encouraged states to defy federal environmental regulations by simply ignoring them. This was not some quote taken out of context by a pesky reporter; it was an op-ed he wrote in the Lexington Herald-Leader. The Republican Senate majority leader is protesting the Environmental Protection Agency’s proposal to cut greenhouse gas emissions from coal plants. The agency plans to finalize the rule this summer, after which states will have a chance to submit their own plans to meet the EPA’s specific goal for the state. He writes:

“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism. Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”

None of this is surprising from the senator who said shortly after his reelection that his top priority was “to try to do whatever I can to get the EPA reined in,” but it is extremely disappointing and has the possibility to undermine our nation’s entire rule of law.

ML Comment: It’s also not surprising that a prominent EPA alumna sides with her alma mater. Just as the value of your diploma is affected by your school’s subsequent academic standing, so the prestige of a former Administrator is affected by the public perception, regulatory reach, and economic importance of the agency she once ran. [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…]

Post image for Winter: Worse than They Thought

“According to the National Weather Service, the low temperature Sunday at Dulles Airport was about 6 degrees at 7:30 a.m. That breaks the record for the date of 7 degrees set in 1965,” the AP reports.

In addition, “At BWI-Thurgood Marshall Airport outside Baltimore, the low of 6 degrees Sunday matched a record set in 1943.”

Yet as of September 2014, global annual carbon dioxide (CO2) emissions were on track to hit a record 40 billion metric tons – 4 billion more than the previous record set in 2013 of 36 billion tons – and roughly 3.5 times more emissions than in 1965 (11.487 billion tons) and 10 times more than in 1943 (4.007 billion tons).

More importantly, atmospheric CO2 concentration today is 399.85 parts per million (ppm), compared to just 320.23 ppm in 1965 and 310.5 ppm in 1943.

Although only halfway through, February is Boston’s “snowiest month on record,” the NWS reported on its Twitter feed. The city has received 58.5 inches of snow, breaking the previous monthly record of 43.3 inches in January 2005.

And who can forget the Buffalo-area snowstorm of November 2014. The town of Cowlesville, New York, about 25 miles south of downtown Buffalo, got 88 inches of snow (7.3 feet) in just five days — an amount approximately equal to the average Buffalo snowfall in an entire winter.

Although 2014 was supposedly the warmest year on record, in the USA between Nov. 10 and Nov. 19, “there were 4,163 record low temperatures set or tied compared to just 465 warm record temperatures set or tied.”

This year’s winter conditions contributed to at least 10 deaths, suspended or delayed train service, cancelled more than 1,800 flights, and closed schools, businesses, and non-essential government offices.

None of this is intended to deny the reality of anthropogenic global warming. The point, rather, is to put things in perspective. [click to continue…]

Leading global warming alarmists often claim that saving the world from global warming will be easy.  Research reports from universities and environmental groups are regularly published that show the costs will be minimal and the costs of not doing it will be astronomical.  As former Vice President Al Gore, Nobel Prize and Oscar winner, puts it, how can it be costly to replace dirty, expensive energy from coal, oil, and natural gas with clean, free energy from wind and solar?

unfccc hqBut every year or two, a leading alarmist lets the cat out of the bag.  At a press conference in Brussels on 3rd February, Christiana Figueres, the executive secretary of the UN Framework Convention on Climate Change, said that completely transforming the global economy in a few decades “is probably the most difficult task we [the UN? Mankind?] have ever given ourselves.”

“This is the first time in the history of mankind that we are setting ourselves the task of intentionally, within a defined period of time, to change the economic development model that has been reigning for at least 150 years, since the industrial revolution,” Figueres said. [click to continue…]

On EPA’s FY16 Budget

  1. EPA’s FY16 budget unabashedly avows that the President’s Climate Action Plan is the agency’s lodestar.* This is an unfortunate (and unwise) state of affairs, because the centerpieces of the President’s Climate Action Plan are discretionary regulations. (Indeed, the whole regulatory regime could’ve been avoided). Meanwhile, the agency remains woefully out of compliance with hundreds of non-discretionary duties as stipulated by Congress in the Clean Air Act. These regulations—the mandatory ones that EPA refuses to perform—pertain to conventional pollutants of the sort that could pose a threat to living human beings. By contrast, EPA’s climate regs would stave off sea-level rise equal to the thickness of three sheet of paper, a century from now. To recap: The EPA is ignoring its non-discretionary responsibilities regarding regulations that might achieve a human health benefit; instead of addressing this glaring and ongoing problem, the administration wants to pour resources into discretionary climate regulations that wouldn’t actually impact the climate.
  2. E&E PM’s Jeremy Jacobs reports ($) that EPA is seeking 3.5 million in order to hire 20 full-time-equivalent layers and associated staff “to provide legal counsel in support of EPA’s Clean Power Plan.” WOW! For starters, they might as well call this the ‘NRDC Full Employment Fund,’ because the green group obviously stands to win big were this provision to see the light of day. After all, what better lawyers to hire than the NRDC staffers who wrote the rule? Setting aside the special interests who stand to benefit, $50 million for 40 lawyers’ yearlong service seems steep to me, especially given that the agency doesn’t have nearly enough resources to perform its non-discretionary duties (see above). [click to continue…]
typical FOIA production by 'most transparent admin. ever'

typical FOIA production from ‘most transparent admin. ever’

[Editor’s Note: Yesterday, the Daily Caller’s Michael Bastasch reported that Republican lawmakers are demanding the Environmental Protection Agency fork over documents relating to text messages to and from the agency’s chief administrator that were allegedly deleted rather than preserved for federal records, or simply because as “correspondence” they are regularly the subject of Freedom of Information and oversight requests and therefore must be preserved. Their request stems from the work of my colleague Chris Horner, who literally wrote the book on the opacity of the Obama administration (The Liberal War on Transparency). Below, Horner discusses the latest developments in this burgeoning transparency scandal.]

We have gotten to this point in a far too long and winding way, requiring numerous FOIA requests, first for text messages, then phone bills, then metadata, more text messages once we learned the ones we had requested were destroyed, and now for emails discussing all of this.  Developments along this way include:

The most recent step pertains to emails sent between EPA’s Office of General Counsel and Ms. McCarthy which mention texting.  This request was followed by, what is even in my experience, an unprecedented series of delays; a cynic might suspect that this was intended to avoid these emails, described below, from emerging until a federal court in DC rules on our efforts to depose Ms. McCarthy, among others, about EPA destroying its senior advisors’ text correspondence.

Here is why.   [click to continue…]

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…]

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.

doomsday-clock-110516The 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…]

“Sue and settle” refers to a phenomenon whereby environmental special interests leverage the legal process to dictate the EPA’s priorities.

GAO watchdogAt heart, sue and settle results from the Clean Air Act’s overabundance of deadlines. Simply put: Congress tasked EPA with far more date-certain duties than the agency can handle. This wouldn’t necessarily be a problem in a statutory vacuum, but the fact is that the Clean Air Act affords green groups the right to sue EPA to compel the agency to perform its non-discretionary responsibilities. As a result of these dynamics [i.e., EPA doesn’t meet any of its deadlines, and green groups can sue to force the agency to meet its missed deadlines], environmental litigation groups like the Sierra Club can use the courts to set the agency’s priorities.

Of course, priority-setting necessarily entails policymaking—after all, it’s a decision on the use of the agency’s limited resources. Opponents of “sue and settle” argue that EPA should make policy with elected officials in Congress or the States (the regulated entity), rather than through litigation or negotiation with special interests.

Factually speaking, there can be no doubt that greens are employing deadline suits to control the EPA’s regulatory reins. As I demonstrate here, EPA is out of compliance with virtually all its Clean Air Act deadlines, which number well into the hundreds, by an average of more than 5 years. And in this report, on which I collaborated, we list all the Clean Air Act rules and regulations that were galvanized by sue and settle lawsuits.

Nonetheless, despite the evident existence of sue and settle problems, House Republicans on the Energy and Commerce Committee asked the Government Accountability Office to investigate the matter further. Yesterday, the GAO’s December report was finally released to the public. The document’s unfortunate tone is aptly imparted by its title: “Impact of Deadline Suits on EPA’s Rulemaking Is Limited.”

In this post, I’ll detail the GAO report’s flaws, and why its title is misleading. [click to continue…]