Features

Post image for Attorney Peter Glaser’s “Morning After” Reflections on the D.C. Circuit Court GHG Decision

Despite the disappointing decision yesterday, it would be well to remember that the real damage was done in the Supreme Court’s 5-4 Massachusetts decision, where EPA was found to have authority to regulate GHGs under the CAA so long as it determined that GHGs endanger the public health and welfare. 

. . .the Massachusetts decision was a real travesty.  It is impossible to review the history of the public debate on GHG regulation in this country beginning in the 1980s, when potential climate change first came to prominence, and conclude that authority to regulate GHGs was always available, hiding in plain sight in the CAA as first enacted in 1970. The Supreme Court said in the 2001 American Trucking Associations decision, in language that is often cited, that Congress does not “hide elephants in mouseholes.”  Evidently, in the case of EPA GHG regulation, Congress did.

In the end, the most rational thing for the country to do on GHGs is for Congress to enact legislation that gets EPA out of the GHG regulatory business entirely.  — Peter Glaser

In Massachustts v. EPA, the 5-4 majority argued: (1) The Clean Air Act (CAA) defines “air pollutant” as any airborne substance whatsoever; (2) the EPA has a mandatory duty to regulate air pollutants emitted by automobiles if the associated “air pollution” “may reasonably be anticipated to endanger public health and welfare”; and (3) “welfare” effects include changes in “weather and climate.” Given these premises, the Court basically left the EPA one way to avoid regulating GHGs: Cancel its membership in the self-anointed “scientific consensus” — the climate alarm movement – that the agency had spent years promoting and leading. No chance of that happening.

For reasons discussed here and here, the lynchpin of the Massachusetts Court’s argument, premise (1), was a misreading of the CAA definition of “air pollutant.” At a minimum, respondent EPA’s opinion that carbon dioxide (CO2) is not an air pollutant was a “permissible construction” of the statute and thus should have been accorded deference under the Court’s Chevron Step 2 test. If the GHG regime EPA is building were proposed in legislation and put to a vote, Congress would reject it. Congress would surely have rejected the EPA’s GHG agenda in 1970, when it enacted the CAA and defined “air pollutant.” The terms “greenhouse gas” and “greenhouse effect” do not even occur in the CAA. Only as amended in 1990 does the CAA even obliquely address the issue of global climate change. Congress considered and rejected regulatory climate policies in the debates on the 1990 CAA Amendments. The very provisions tacitly addressing climate change – CAA Secs. 103(g) and 602(e) – admonish the EPA not to adopt “pollution control requirements” for CO2, and not to regulate substances based on their “global warming potential.”

With the case law on GHG regulation hopelessly botched by the Supreme Court, only Congress can rein in the EPA — and only if there is a change of management in the White House and the Senate in November.

Peter Glaser’s full commentary on the D.C. Circuit Court decision follows. [click to continue…]

Post image for EPA’s Carbon Pollution Standard — One Step Closer to Policy Disaster

Today (June 25th) is the deadline for submitting comments on the EPA’s proposed Carbon Pollution Standard Rule, which will establish first-ever New Source Performance Standards (NSPS) for carbon dioxide (CO2) emissions from fossil-fuel electric generating units.

The proposed standard is 1,000 lbs of CO2 per megawatt hour (MWh). The EPA claims that 95% of all new natural gas combined cycle power plants can meet the standard — maybe, maybe not. One thing is clear — no conventional coal power plant can meet the standard. Even today’s most efficient coal power plants emit 1,800 lbs CO2/MWh on average.

A coal power plant equipped with carbon capture and storage (CCS) technology could meet the standard, but the EPA acknowledges that  CCS is prohibitive, raising the cost of generating electricity by as much as 80%.

So what the proposal is really telling the electric utility industry is this: If you want to build a new coal-fired power plant, you’ll have to build a natural gas combined cycle plant instead. Not surprising given President Obama’s longstanding ambition to “bankrupt” anyone who builds a new coal power plant.

In a comment letter submitted today on behalf of the Competitive Enterprise Institute, I recommend that the EPA withdraw the proposed regulation for the following reasons: [click to continue…]

Post image for Sen. Inhofe Seeks to Rein in EPA’s All Pain and No Gain Utility MACT

Senator James M. Inhofe (R-Okla.) has announced that he will bring a Congressional Review Act resolution of disapproval of the EPA’s Utility MACT (for Maximum Achievable Control Technology) Rule to the Senate floor for a vote on or before Monday, 18th May.  Since Senate Majority Leader Harry Reid (D-Nev.) is trying to hold as few votes on tough issues as possible before the November elections, this could be the most important vote on an energy or regulatory issue that the Senate takes this year.

Under the Congressional Review Act, the resolution of disapproval, S. J. Res. 37, is a privileged motion.  A vote cannot be blocked by the Majority Leader or filibustered and requires only a simple majority to pass.

The Utility MACT Rule would regulate mercury and some other emissions from coal-fired power plants.  The proposed limits are so stringent that utilities will be forced to close many coal-fired power plants.  This will raise electric rates and threaten electric reliability in many States.

CEI this week published a paper by Marlo Lewis, William Yeatman, and David Bier titled, All Pain and No Gain: the Illusory Benefits of the Utility MACT.  It shows that the health benefits claimed by the EPA are non-existent, while the costs to consumers and manufacturers are huge.

The vote on the resolution is likely to be very close.  Right now, it looks like it will lose narrowly.  Senator Inhofe appears to have the support of forty fellow Republicans and four Democrats.  The Democrats are Senators Joe Manchin of West Virginia, Ben Nelson of Nebraska, Mark Pryor of Arkansas, and Mary Landrieu of Louisiana.

Five Republicans oppose the resolution or are leaning no.  They are Lamar Alexander of Tennessee (whose opposition has been outspoken), Scott Brown of Massachusetts, Olympia Snowe of Maine, Susan Collins of Maine, and Kelly Ayotte of New Hampshire.  A number of Democrats are not publicly committed.  They include: Jon Tester of Montana, Max Baucus of Montana, Claire McCaskill of Missouri, Bob Casey of Pennsylvania, Jim Webb of Virginia, Mark Warner of Virginia, Kent Conrad of North Dakota, and Debbie Stabenow of Michigan.

Senator Mark Kirk (R-Ill.) is still recovering from a stroke, so is not expected to vote.  That means that if all other Senators vote, the resolution will need fifty votes to pass.  As I see it, Senator Inhofe needs to gain the support of at least two more Republicans and then focus on getting three Democrats who are in tough re-election races in States that mine or use a lot of coal.

Post image for Union of Concerned Scientists Not Very Concerned With Accuracy

Ron Bailey of Reason took a closer look at one of the many reports out there written to discredit those organizations (and corporations) that remain skeptical of plans to dramatically scale back the world’s carbon dioxide emissions. What the report intended to insinuate was that corporations were hypocritical: they claimed to publicly support policies to combat climate change but privately gave money to those organizations whose aims were to undermine support for such policies. While I can certainly believe that some corporations will want to present a happy face to the public while also being more privately concerned with the impact new legislation has on their profitability, upon closer inspection the report wasn’t quite what it seemed:

In line with the findings of the UCS, the L.A. Times specifically declared, “General Electric has backed six environmental and non-partisan research groups that accept the scientific consensus on climate change, including the Brookings Institution and the Nature Conservancy. At the same time, it has funded four organizations that reject or question the consensus, including the Competitive Enterprise Institute and Heritage Foundation.” Based on the UCS report, The Guardian (U.K.) stated, “Some of America’s top companies are spending heavily to block action on climate change or discredit climate science, despite public commitments to sustainable and green values.” The Guardian specifically mentioned that UCS had identified General Electric as being two-faced about climate change. According to the UCS report, among the four GE-supported organizations that “misrepresent” climate-change science is the Reason Foundation, the nonprofit that publishes this website.

So what vast sums of money did the duplicitous executives at General Electric lavish on the Reason Foundation in 2008 and 2009 to support an implied campaign to traduce climate science? Exactly $325. How much did GE spend on matching and direct grants on the six think tanks identified by the UCS as being pro-climate consensus? That would be $497,744. At least with regard to General Electric’s contributions, it appears that the Union of Concerned Scientists has salted a follow-the-money trail with pieces of fool’s gold, which certain unwary news outlets obligingly picked up and reported as real bullion.

You can read the entire report here. It’s mostly documentation of various corporations and their perceived support or opposition towards climate change legislation. It separates groups into what seems to be “good” and “bad,” with most of the fossil fuel energy making the bad group.

The noteworthy part is the way in which the media swallowed the conclusions without doing any work of their own. Bailey points out that the only funding Reason received from General Electric was to the tune of roughly $300, and only because G.E. has a company wide policy that matches donations made by employees to groups like the Reason Foundation or the Competitive Enterprise Institute. The report didn’t mention that GE’s support was not actually corporate funding, but rather a very small match towards employee contributions. Keith Kloor offers sympathetic commentary.

[click to continue…]

Post image for Ethanol Reduced Gas Prices by $1.09/gal. – Or Didn’t You Notice?

Iowa State University’s Center for Agricultural and Rural Development (CARD) has just updated its 2009 and 2011 studies of ethanol’s impact on gasoline prices. CARD claims that from January 2000 to December 2011, “the growth in ethanol production reduced wholesale gasoline prices by $0.29 per gallon on average across all regions,” and that in 2011 ethanol lowered gasoline prices by a whopping $1.09 per gallon.

I’m no econometrician, but this study does not pass the laugh test. We’re supposed to believe that ethanol has conferred a giant boon on consumers even though gasoline prices have increased as ethanol production has increased, and even though gas prices hit their all-time high when ethanol production hit its all-time high. If that is success, what would failure look like?

CARD’s argument boils down to this. The gasoline sold at the pump today is E-10 — motor fuel blended with 10% ethanol. Ethanol thus makes up 10% of the motor fuel supply for passenger cars. If there were no ethanol, the motor fuel supply would be 10% smaller, and gas prices would be $1.09 per gallon higher (p. 6).

Well, sure, if we assume a drop in supply and no change in demand, prices will rise. But this scenario tells us nothing about what really matters — whether ethanol’s policy privileges, especially the Renewable Fuel Standard (RFS), a.k.a., the ethanol mandate, benefit or harm consumers.*

Note first that even in the absence of government support, billions of gallons of ethanol would be sold each year anyway as an octane booster. So a scenario in which 10% of the motor fuel supply simply disappears does not correspond to any policy choice Congress is actually debating or considering.

More importantly, CARD assumes that if the motor fuel supply were 10% smaller, refiners would not increase output to sell more of their product at higher prices. In other words, refiners would not engage in the economically-rational, profit-maximizing behavior that would bring supply back into balance with demand, thereby moderating the initial price increase.

Why wouldn’t they? There are only two possible explanations. One is that refiners don’t want to get rich, which is absurd. The other is that refiners operate like a cartel, colluding to restrict output in order to charge monopoly rents. CARD gives no sign of endorsing this view, and repeated investigations of the U.S. refining industry by the Federal Trade Commission repeatedly fail to find evidence of such anti-competitive scheming.

CARD’s analysis also ignores the opportunity costs of ethanol’s policy props. Capital is a finite resource. Every dollar refiners are forced or bribed to spend on ethanol is a dollar they cannot spend to produce gasoline. Government cannot rig the market in favor of ethanol without discouraging gasoline production. It is ridiculous to assume that all of the resources (e.g., refining capacity) commandeered by federal policy over the past decade to boost ethanol’s market share would have been left idle and not used to make gasoline in a free market.

In short, CARD’s analysis abstracts from the most basic economic realities we were all supposed to learn in Econ 101: resources are finite, choices have opportunity costs, and incentives (prices) matter.

I leave it to econometricians to quantify the repercussions, but this much is clear. In a free market, refiners would have blended less ethanol and produced more gasoline than they did in the market rigged by the RFS and other pro-ethanol policies. CARD — or, more precisely, CARD’s sponsors, the Renewable Fuel Association (RFA) — would have us believe that refiners would produce no more gasoline in a free market than they would in a market politicized by mandates and subsidies. That assumption is so unrealistic that any analysis based upon it is inappropriate and even fraudulent if used as a justification for maintaining or expanding government support for ethanol. [click to continue…]

Post image for Wind Energy: The Wheels Are Coming Off the Gravy Train

The wind energy industry has been having a hard time. The taxpayer funding that has kept it alive for the last twenty years is coming to an end, and those promoting the industry are panicking.

Perhaps this current wave started when one of wind energy’s most noted supporters, T. Boone Pickens, “Mr. Wind,” in an April 12 interview on MSNBC said, “I’m in the wind business…I lost my ass in the business.”

The industry’s fortunes didn’t get any better when on May 4, the Wall Street Journal (WSJ) wrote an editorial titled, “Gouged by the wind,” in which they stated: “With natural gases not far from $2 per million BTU, the competitiveness of wind power is highly suspect.” Citing a study on renewable energy mandates, the WSJ says: “The states with mandates paid 31.9% more for electricity than states without them.”

Then, last week the Financial Times did a comprehensive story: “US Renewables boom could turn into a bust” in which they predict the “enthusiasm for renewables” … “could fizzle out.” The article says: “US industry is stalling and may be about to go into reverse. …Governments all over the world have been curbing support for renewable energy.”

Michael Liebreich of the research firm Bloomberg New Energy Finance says: “With a financially stressed electorate, it’s really hard to go to them and say: ‘Gas is cheap, but we’ve decided to build wind farms for no good reason that we can articulate.’” Christopher Blansett, who is a top analyst in the alternative-energy sector in the Best on the Street survey, says, “People want cheap energy. They don’t necessarily want clean energy.”

It all boils down to a production tax credit (PTC) that is set to expire at the end 2012. Four attempts to get it extended have already been beaten back so far this year—and we are only in the fifth month. The Financial Times reports: “Time-limited subsidy programmes…face an uphill battle. The biggest to expire this year is the production tax credit for onshore wind power, the most important factor behind the fourfold expansion of US wind generation since 2006. Recent attempts in Congress to extend it have failed.”

[click to continue…]

Post image for ♫ Corn Is Busting Out All Over ♫ (Update on Global Warming and the Death of Corn)

About a year ago on this blog, I offered some skeptical commentary about the gloomy testimony of Dr. Christopher Field of the Carnegie Institution for Science, who warned the House Energy & Commerce Committee that global warming would inflict major losses on U.S. corn crop production unless scientists develop varieties with improved heat resistence.

I noted that long-term U.S. corn production was increasing, including in areas where average summer temperatures exceed 84°F, the threshold beyond which corn yields fall, according to Field.

Well, this just in, courtesy of the Renewable Fuels Association (RFA): USDA projects the U.S. corn crop for 2012 to reach 14.79 billion bushels, the biggest ever. RFA’s objective, of course, is not to debunk climate alarm, but to assure us that we can have our corn (ethanol) and eat it too. Nonetheless, the numbers are mighty impressive and indicate that, in this decade at least, U.S. corn farmers are more than a match for climate change. From RFA’s briefing memo:

At 14.79 billion bushels, the 2012 corn crop would:

  • be a record crop by far, beating the 2009 crop of 13.09 billion bushels by 11%.
  • be 65% larger than the crop from 10 years ago (8.97 billion bushels in 2002).
  • be more than twice as large as the average-sized annual corn crop in the decade of the 1980s (7.15 billion bushels on average).

The 2012 projected yield of 166 bushels per acre would:

  • be a record yield, beating out the 2009 average yield of 164.7 bushels per acre.
  • be only the third time in history yields have topped 160 bu/acre, the others being 2009 (164.7) and 2004 (160.4).
  • be 35% higher than the average yield from the 1990s and 12% higher than the average yield since 2000.
Post image for Buffett’s Support Signals Movement on Keystone Pipeline

The House and Senate conference committee on re-authorizing the highway bill met for the first time on Tuesday, 8th May.  One of the most contentious issues is House language that would require permitting of the 1700-mile Keystone XL pipeline from Alberta’s oil sands to Gulf refineries. Initial reactions were that the Keystone provision has little chance of being included in the final conference report.  However, there are signs that the ground is shifting.

Representative John Mica (R-Fla.), Chairman of the House Transportation and Infrastructure Committee, said last Thursday that he thought the Keystone provision was making great progress toward being included in the final bill. Mica noted that eleven Democratic Senators and 69 Democratic House members (out of 190) have recently voted for permitting the pipeline.

Perhaps more importantly, billionaire investor Warren Buffett told Fox Business News last week that he supports building the Keystone XL Pipeline. Buffett is a close supporter of President Barack Obama.  It has been speculated that Buffett was one of those advising Obama to deny the Keystone permit last fall out of self interest.  Buffett’s Berkshire Hathaway owns the Burlington Northern Santa Fe Railroad, which because of the lack of pipeline capacity has become a major shipper of crude oil from the Bakken Formation in North Dakota and Montana to refineries.  The Keystone XL would transport oil from the Bakken Formation as well as from Alberta’s oil sands.

Buffett may well have been offering his own opinion without consulting the White House first.  On the other hand, his comments may be a sign that the White House is maneuvering to save face and let the Keystone permit go through.  President Obama’s political advisers clearly understand that the President is on the wrong side of public opinion on Keystone.  Letting the Congress overrule the President this summer would largely take away a campaign issue in the fall.

Post image for Iron Man: Capitalist Hero

In the new movie The Avengers (which is excellent: see my review for National Review Online here), Iron man’s alter-ego Tony Stark (Robert Downey, Jr.) perfects a renewable, clean energy source, and uses it to light up his company’s new Manhattan skyscraper.

In spite of this green street-cred, Stark is a hero designed—literally—to drive liberals crazy.  Stan Lee, who co-created Iron Man in the 1960′s, has often reminisced to interviewers about his motives for creating Stark.  After helping to create a string of popular heroes for Marvel Comics, including Spider-Man and the Fantastic Four, Lee had decided to give himself a challenge, and asked himself:  Who do young people (read: liberals) hate?  The military, Lee thought right away (it was the 60′s, after all), and the wealthy.  So for his next hero, Lee decided to create a millionaire industrialist who made weapons for the army, and then make him likable.  Iron Man was born.

Now, Filmmakers who have brought Tony Stark to the big screen in a string of recent blockbusters—Iron Man (2008), Iron Man 2 (2010), The Avengers (2012)—have made him even more unpalatable to liberals.  After all, what other super-hero is regularly shown blasting terrorists out of their caves in Afghanistan, or working side-by-side with the United States Military?

Imagine how queasy greens must feel to see that this arch-capitalist be the one to invent renewable energy in the Marvel universe.  And worse, he didn’t do it for the good of Mankind.  He did for entirely selfish reasons, indeed, the most selfish reason:  He built the first, miniature version of his energy source in the first Iron Man film in order to power his wounded heart, which had been shredded by enemy shrapnel.
More unforgivable from the environmentalists’ perspective, however, is that Stark did all of this without a Department of Energy grant.  Unlike Solyndra, he needed no government incentives or funding.  Unlike Solyndra, he succeeded.   Now, in The Avengers, Stark uses this technology to power a gigantic monument to himself, a gleaming tower with “Stark” emblazoned in bright letters at its apex.

True, Stark and his exploits are fiction.  But can there be any doubt that, if and when an actual, viable green tech is invented, that it will be by someone like Stark, a self-reliant, independent genius, as opposed to a pasty-faced D.O.E. bureaucrat?  Can there be any doubt that it will be a capitalist, working for his or her own selfish ends, that will provide the breakthroughs that environmentalists insist the government must provide and/or subsidize?

And won’t that drive them crazy?

Post image for Fossil Fuel Shill Sierra Club Bites the Hand That Fed It

National Journal’s Amy Harder reported last week that the Sierra Club is re-branding its anti-natural gas efforts as “Beyond Natural Gas.”  Beyond Natural Gas joins the Sierra Club’s other two anti-energy campaigns, Beyond Coal and Beyond Oil (Beyond Nuclear is a separate organization founded in 2007 and headquartered in Takoma Park, Maryland, which has been an official nuclear-free zone since 1983).

Here’s how the Sierra Club introduces its Beyond Natural Gas web page: “The natural gas industry is dirty, dangerous, and running amok. Government loopholes exempt natural gas drillers from the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act — and at the same time, don’t require them to disclose the frequently toxic chemicals they use in hydraulic fracturing, or “fracking,” the violent process they employ to dislodge gas deposits from shalerock formations. The closer we look at natural gas, the dirtier it appears; and the less of it we burn, the better off we will be.”

The Sierra Club’s timing, whether intentionally or not, kicks Aubrey McClendon, their former patron, when he is down.  Time Magazine reported earlier this year that McClendon gave the Sierra Club $26 million between 2007 and 2010 for their Beyond Coal campaign.  This week McClendon was relieved of his duties as chairman of one of the U. S.’s largest natural gas producers, Chesapeake Energy, although he remains CEO.  It also became public knowledge last week that the Securities and Exchange Commission has launched an investigation into McClendon and Chesapeake.

The SEC investigation and the decision by Chesapeake’s board to replace McClendon as chairman are the result of revelations by Reuters on 18th April that McClendon, the founder of Chesapeake, had a sweetheart deal with the company to borrow over $1 billion and use it to buy personal shares in Chesapeake gas wells.