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In a recent post, I explained how the EPA and environmental special interests entered into a collusive consent decree that would effectively require States to use air quality models to demonstrate compliance with national ambient air quality standards. Thus, unelected bureaucrats and green special interests rendered policy, in a process known as “sue and settle.”

The underlying suit, Sierra Club, et al. v. McCarthy, was filed in the United States District Court for the Northern District of California, in Oakland. This is notable insofar as the court condoned a great deal of suspect behavior.

  • For example, in the course of the lawsuit, EPA and the environmental plaintiffs (Sierra Club & NRDC) litigated to oppose intervention in the legal proceedings by the States, even though the States are responsible for implementing the regulation in question. The Bay area court sided with EPA & the greens.
  • Moreover, EPA, Sierra Club, and NRDC pointedly refused to allow States to participate in settlement discussions. Despite this seeming affront to the Clean Air Act’s cooperative federalism structure, the Bay area court accepted the consent decree.
  • Finally, Clean Air Act “agency forcing” consent decrees are supposed to be limited solely to the establishment of agency deadlines,* as I explain in this article. The Sierra Club, et al. v. McCarthy consent decree, on the other hand, was naked policy: It mandated the use of a regulation that the agency has only proposed. In the face of this apparent procedural abuse, the Bay area court gave its imprimatur to the consent decree.

All of this brings me to the point of this post: I wonder how many courts would’ve objected to consent decree, either due to its non-participatory formulation or because of its inappropriate content?

After all, federal district court judges aren’t chosen based on merit; rather, they are nominated by the President, with consideration given to the recommendation by Senators from the State whose judicial district is at issue. They are political creatures. And, given California politics, it stands to reason that the Bay area court is one of the most “progressive” in the country.

So it makes sense that environmental special interests would want to get in this court. Alas, their primary legal tactic—the Clean Air Act deadline citizen suit (whence “sue and settle”)—allows green groups to file “agency forcing” suits in any federal district court in the country (42 U.S. Code §7604(a)). As a result, the opportunity presents itself for forum shopping, and that’s exactly what environmental litigants have done.

Recently, I crunched the numbers:

…[O]f all settlements pursuant to agency-forcing citizen suits from 1997 to 2013 affecting more than three states, 26 percent ( 12 of 46) were filed in the U.S. District Court, Northern California District, based in the Bay Area.

The U.S. Chamber of Commerce, in a wider sampling of “sue and settle” cases, found a similar bias towards the plaintiffs filing in this Bay area court:

sue and settle chart

This is something to which the Congress might direct its attention. For final EPA regulations, the Clean Air Act limits jurisdiction for judicial review to the D.C. Circuit Court of Appeals. There is, however, no such requirement for deadline citizen suits. As a result, green groups are piling into arguably the most progressive court in the country, where they are operating with EPA to push the boundaries of executive power. This is suboptimal, from a policy perspective.

*This “sue and settle” process affects policy, but it does so in an indirect fashion, by giving priority to the EPA’s limited resources.

As discussed here last week, the Ivanpah Solar Electric Generating System, located about 40 miles southwest of Las Vegas in the Mojave Desert, kills butterflies, dragonflies, other insects, bats, and birds.

Tens of thousands of large mirrors (“heliostats”) focus sunlight on boilers (“receivers”) perched atop 459-foot towers. The “solar flux” field surrounding the boilers can reach temperatures of 800ºF — hot enough to melt, singe, and burn the feathers of birds that fly through it.

Ivanpah Solar Tower Glare All Three

The intense luminosity of the boilers attracts insects, which attract insect-eating birds, which in turn attract raptors. Fish & Wildlife Service (FWS) officials investigating the site observed “streamers” — trails of smoke from birds transiting the flux fields – about once every two minutes.

Ivanpah injured bird

Update: Environmental journalist Chris Clarke, who’s been reporting on avian mortality at Ivanpah since September 2013, reports that a federal study confirms that glare from Ivanpah’s heliostat arrays may create safety hazards for commercial and private aviation in the area.

Ivanpah Glare pilot hazard

In March, Ivanpah co-owner NRG Energy told Nevada aviation officials that potentially-hazardous glare was a temporary problem likely to abate once all heliostats were “calibrated” for commercial operation. But, reports Clarke, Sandia National Laboratories finds that the heliostats cause intense glare when they are in “standby position” — their default position when not aimed at the boilers. From the article: [click to continue…]

Post image for American Lung Association Manipulates ‘Maternal Instinct’ to Sell EPA Power Grab

The American Lung Association (ALA) has launched a TV and digital ad campaign touting EPA’s Clean Power Plan, also called the carbon “pollution” rule for existing power plants.

ALA’s Facebook page offers a brief explanation:

Power plant pollution is a serious threat to our health, especially to kids. Check out our new television commercial to see what we’re doing to standup for little lungs vs. big polluters.

The commercial, titled “Mother’s Instinct,” features a baby boy in a crib with a monitor that lets Mom (and us) hear him breathing.

Here’s the text:

The Clean Air Act stops polluters from poisoning his [the baby's] air with arsenic, lead, and mercury. Now the loophole that let’s them pump unlimited carbon pollution into his air is closing too . . . if polluters and their friends in Washington don’t interfere. Don’t let polluters weaken our clean air protection.

As the narrator says the words “if polluters,” the baby disappears from the screen and instead we see what looks like smoke billowing out of the stack of a coal power plant.

Fact check time. First, mercury emissions from power plants do not poison anyone’s air. When mercury emissions deposit in soils and water bodies, bacteria can transform inorganic mercury (Hg) into methylmercury (CH3Hg), an organic compound that can bioaccumlate in aquatic food webs. In theory, American women who consume hundreds of pounds of self-caught (non-commercial) fish from the most contaminated water bodies can damage the cognitive and neurological development of their unborn children. However, in the 24 years since Congress tasked EPA to study the health risks of mercury, the agency has not identified a single child whose learning or other disabilities can be traced to prenatal mercury exposure due to maternal fish consumption. But even if mercury in fish were a significant health hazard, it would still be false to claim that power-plant mercury emissions poison the air kids breathe.

The case is somewhat similar for arsenic. Inhalation is a “route of exposure” but mainly as an occupational hazard at certain types of industrial facilities that emit arsine gas. For the general population, which includes children, the main route of exposure is ingestion of contaminated food or water.

More importantly, carbon dioxide (CO2), the substance targeted by EPA’s Clean Power Plan, is non-toxic to humans and animals at multiple times today’s atmospheric concentration (~400 parts per million) or any level reasonably anticipated for centuries to come. [click to continue…]

There’s a very interesting legal argument that the Clean Air Act forbids EPA from regulating greenhouse gases from existing power plants, which is the purpose of a major climate change rule proposed by the agency on June 2. In a nutshell, the argument goes like this:

  • EPA’s climate regulatory regime for existing sources is authorized by §111(d)
  • In 1990 Amendments to the Clean Air Act, Congress barred EPA from issuing §111(d) regulations for any source category that is also subject to §112 standards for hazardous air pollution. This exclusion is found in 111(d)(1)(A)(i)*
  • In February 2012, EPA promulgated §112 standards for power plants (the ridiculous Utility MACT).
  • Therefore, EPA is prohibited from subjecting power plants to §111(d) regulations.

Environmental special interests, on the other hand, currently claim that this line of reasoning has no merit. To this end, they point to the existence of a drafting error rendered during the Conference Committee to reconcile the House and Senate versions of the 1990 Clean Air Act Amendments. According to leading environmental lawyers, there are, in fact, two versions of §111(d)(1)(A)(i) as it pertains to the §112 exclusion, and, as a result, the text is ambiguous. Statutory ambiguity, in turn, is a classic trigger for judicial deference to agency interpretation.

Consider, for example, David Doniger, Policy Director and Senior Attorney, Natural Resources Defense Council Climate and Clean Air Program. Here’s what he said about the matter at a May 23 Federalist Society event (video above):

[At the 59:20 mark] When you look at this statute, it turns out that Congress really kind of screwed up in 1990. They adopted two provisions in two different sections of the 1990 Clean Air Act Amendments that both modified the same sentence of §111(d), and the codifiers didn’t know what to do. So they tried, and picked one version of it, and put it in the US code. But it turns out that what is really the law of the land, is the Statute at Large. So you have to reconcile these two inconsistent amendments adopted at the same time to a single sentence of the CAA. If there ever was a place when the Chevron doctrine applies, it’s gotta be that, where the statute is literally a mutation in the process in dividing and combining between the House and Senate. And the agency is going to end up with the leeway to resolve that. The EPA did produce a resolution to that in the [pause] I believe it was the mercury regulations or maybe it was a recent one. And I think the Supreme Court will spend five minutes on that one.

I’ve added the formatting to highlight Doniger’s correct claim that the EPA has indeed “produce[d] a resolution” to this textual discrepancy. The agency first did so in 2005, as part of its Clean Air Mercury Rule. Briefly, EPA’s 2005 mercury rule would have exempted power plants from §112 hazardous air pollution controls, and instead subjected them to §111(d) controls for mercury. NRDC, for whom Doniger works, opposed the 2005 Clean Air Mercury Rule. And a key component of NRDC’s legal reasoning–at that time, at least–was that the Clean Air Act bars EPA from imposing §111(d) requirements on a source that is already subject to §112 standards. See for yourself: At the bottom of this post, I’ve reposted NRDC’s reply brief in opposition to the 2005 mercury standards. (See Part II, “EPA May Not Adopt §111 Standards for EGU Emissions of Listed HAPS,” p 13, where the environmental plaintiffs state that the Clean Air Act “…prohibits EPA from setting §111 standard for pollutants like mercury “emitted from a source category which is regulated under section 112”…”)

[click to continue…]

[Editor’s Note“Primary Document Dump Fridays” is a new weekly feature at globalwarming.org. Every Friday, we’ll post all the primary documents relevant to a major issue]

For this week’s Primary Document Dump, we’ve chosen to highlight an ongoing “sue and settle” outrage that demonstrates everything insidious about this practice that has proliferated in the Obama Age.

Sue and settle refers to sweetheart lawsuits between EPA and environmental groups. The victims are States, which get left out of negotiations with a material impact on policy-making, despite the fact that they—the States—are EPA’s rightful partners (rather than green groups).

How Sue & Settle Works

In fact, the opportunity for such sue and settle shenanigans is created by the Congress’s overreliance on deadlines in environmental statutes. The Clean Air Act, in particular, contains far many more date-certain duties than the agency has proven capable of performing. Since 1993, of 200 date-certain duties pursuant to three core Clean Air Act programs, only 2% were completed on time, and the agency was, on average, late by almost 6 years.

Missed deadlines, per se, wouldn’t be problematic. However, they have become a policy problem because the Clean Air Act empowers environmental special interests to sue in order to compel the agency to perform any nondiscretionary duty. In the case of a “sue and settle,” an environmental group sues over a missed deadline, and, instead of litigating (and thereby defending its prerogative to set its own priorities), the agency immediately agrees to settle.

If the EPA is out of compliance with virtually all its Clean Air Act deadlines, as is demonstrated by the data above, then clearly the agency has limited resources relative to its responsibilities. As a result, establishing any deadline determines how the EPA deploys its limited resources, which is no different than rendering policy. Of course, if the EPA wants to give priority to its many outstanding responsibilities, it should do so in cooperation with the states, which have to actually implement these regulations, rather than the likes of environmental special interests like the Sierra Club and NRDC.

For more on sue and settle in general, see these studies:

Today’s Case Study—Sierra Club, et al. v. McCarthy—Is Especially Bad

The lawsuit we highlight today is unusually harmful to States. It’s one thing to establish the agency’s priorities, in the fashion described above. It’s a whole different matter to actually negotiate substantive policy behind closed doors under the auspices of consent decree discussions, to the exclusion of affected parties. Yet this is precisely what happened in Sierra Club et al. v. McCarthy, Civil Action No. 3:13-cv-3953. Below, I describe the case, in the course of presenting every primary document of import that is related to the case. [click to continue…]

Post image for Sign Up for the Weekly Cooler Heads Digest (doing so is free & easy)

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Executive agencies weren’t present at the creation. Rather, they are creations of Congress, and they enjoy no powers outside those that are delegated to them by Congress.

In delegating its authority, the Congress is quite literally granting a piece of its policy-making power to the Executive. In fact, such a delegation is a practical necessity: Congress can’t legislate every foreseeable scenario, so it must allow agencies the discretion to act within bounds established by the enabling statute (if it is to create regulatory regimes). Courts understand this; delegation is the basis of the judiciary’s deference to executive action.

Of course, a policy-making executive comports poorly with the Founding Father’s distrust of executive authority and also their view of the Congress as the primary policymaker. Simply put, policy in America should have a popular mandate. Accordingly, a federal agency’s exercise of its powers, especially when involving an expansion of authority, should have been a policy that the President campaigned on, or at least highlighted in some fashion when he or she is being vetted by the voters. That way, the American people have a say. No less an authority than the Supreme Court has identified the President’s popular mandate as a basis for deference to agency decision-making.

All this brings me to my point: the conspicuous absence of a popular mandate for EPA’s climate plan for existing power plants, which will be unveiled today. Consider:

  • The President campaigned to the right of Mitt Romney on energy and environment. During the 2012 Presidential debates, Obama never once mentioned global warming.
  • As noted by my colleague Marlo Lewis, the Congress explicitly considered the policies that EPA is now proposing to impose. As such, the people’s representatives have spoken to the issue, and they didn’t proceed with policy.
  • As if that’s not enough, poll after poll demonstrates that the American electorate gives ultra-low priority to global warming.

Taken as a whole, the available evidence strongly indicates the President’s climate plan is illegitimate.

When it comes to the expansion of federal power, Barack Obama is a once-in-a-generation President. According to data compiled by globalwarming.org, President Obama’s EPA has executed as many Clean Air Act regulatory takeovers of State programs than the previous three administrations combined, multiplied by 10.

The charts below depict the number of Clean Air Act federal implementation plans imposed by EPA, broken down into presidential terms and also by year.* A federal implementation plan, or FIP, is the most extreme action the EPA can take against a State under the cooperative federalism scheme created by Congress. A FIP entails a complete EPA takeover from the state of the regulatory regime in question. With this in mind, the chart below speaks volumes about cooperative federalism as practiced in the Obama era.

FIP Chart 2 [click to continue…]

Post image for The West Antarctic Ice Sheet Is Doomed — but don’t sell the beach house!

Three recent studies on the West Antarctic Ice Sheet (WAIS) are making waves in the media, re-stoking fears of catastrophic sea-level rise, and putting a spring in the step of many a carbon-taxer.

Thomas Sumner summarizes two of the studies in a Science magazine commentary titled “No Stopping the Collapse of the West Antarctic Ice Sheet.” The studies, he writes, conclude that:

Thwaites Glacier, a keystone holding the massive West Antarctic Ice Sheet together, is starting to collapse. In the long run, they say, the entire ice sheet is doomed. Its meltwater would raise sea levels by more than 3 meters.

Specifically, Joughin et al., writing in Science, find that “in as few as 2 centuries Thwaites Glacier’s edge will recede past an underwater ridge now stalling its retreat. Their models suggest that the glacier will then cascade into rapid collapse.” Rignot et al., writing in Geophysical Research Letters (GRL), “describes recent radar mapping of West Antarctica’s glaciers and confirms that the 600-meter-deep ridge is the final obstacle before the bedrock underlying the glacier dips into a deep basin.”

In addition, McMillan et al., also writing in GRL, report that Antarctica as a whole is losing about 159 billion tons of ice per year. That’s an amount larger than previous estimates and translates to an overall sea-level rise contribution of 0.45 mm/year (1.7 inches per century).

The first two studies expressly conclude that the Thwaites and neighboring outlet glaciers have retreated to a point of no return and that, once gone, nothing can prevent the rest of the WAIS from flowing into the sea.

My initial reaction was: What’s really new here?

Conway et al. (1999), a study of the relentless retreat of the WAIS grounding line since the early-to-mid Holocene (i.e. 9,000 years ago or more), and Bindschadler (2006), a study of the inexorable melting of submarine glaciers in contact with warm ocean currents, both concluded that the WAIS is doomed.*

[click to continue…]

Post image for Federalism Red Alert: President’s Reported Climate Plan Would Subject State Energy Planning to EPA Control

President Obama reportedly is considering a climate change plan that would upend oversight of the electric industry in all 50 States– without a popular mandate from either the Congress or a single State Legislature.

The regulation of electricity provision has been the primary preserve of the States since the New Deal. With the passage of the Public Utility Holding Company Act in 1935, the Congress facilitated State oversight of electric utilities; the law was intended to inhibit speculation in electric utilities, a cause of the Great Depression, by dividing the market into 50 parts (i.e., States).  As such, all 50 States have a regulatory body, usually known as a “Public Utilities Commission,” that functions to overlord electricity production within State borders. If, for example, a utility needs to build a power plant or raise rates, it must get PUC permission. And if a State Legislature were to enact a law affecting the electricity industry, such a mandate would be implemented by the PUC. Thus, States control the electricity industry within their borders.

This state-centric model for electricity oversight would be altered radically by the climate plan President Obama reportedly is considering for release next month. Per Bloomberg:

According to two people familiar with the discussions, the administration is considering an approach that would require a cut of 25 percent in emissions in two stages. In the five years starting in 2019, only limited reductions at the plants would be mandated. Deeper cuts would required from 2024 to 2029 to reach 25 percent, one of the people said…

The rules could achieve steeper cuts at a lower cost if the targets are based on a more holistic view of an electrical system—the operating generating units, power lines, opportunities for renewable energy, and even reductions in use by customers.

Setting aside the conspicuous legal problems attendant to such a “beyond the fence” approach under the Clean Air Act,* the President’s reported proposal raises huge federalism concerns. In practice (as reported by Bloomberg), the President’s plan would bind the hands of all 50 PUCs, by requiring them to re-orient their energy planning to meet a 25% reduction in emissions. In order to achieve the President’s goal, State PUCs would be forced to adopt from among a suit of bad policies, including:

  • Soviet-style green energy production quotas;
  • silly demand-side management programs that force consumers to use less energy;
  • and  regressive ratepayer subsidies to owners of rooftop solar systems.

Because the President’s climate plan is based on the Clean Air Act, EPA would have the authority to impose a Federal Implementation Plan—i.e., a regulatory take-over—if the agency disagrees with a State on energy policy. Pursuant to this authority, EPA would have the power to impose energy Federal Implementation Plans on the States.

[click to continue…]