Post image for Which Sovereign Merits Judicial Deference When State & Federal Governments Conflict under the Clean Air Act’s Cooperative Federalism Arrangement?

What is the proper scope of review when an Article III court adjudicates a federalism dispute under the Clean Air Act? Is a court supposed to review the reasonableness of the state’s determinations? Or is it supposed to review the reasonableness of the EPA’s review of the reasonableness of the state’s determination? Simply put, to which sovereign should courts defer?

In light of the Obama administration’s aggressive oversight of Clean Air Act programs operated by the States, this is a hugely consequential question, with billions of dollars at stake. Yet there exists little statutory direction and conflicting case law to guide lower courts in their review of State-Federal disagreements pursuant to the Clean Air Act. On January 29, the State of Oklahoma petitioned the Supreme Court to revisit this matter, and clarify which sovereign warrants ascendant respect from reviewing courts.

Below, in the first of a two part series, I explore how the cooperative federalism regulatory regime established by the Clean Air Act confuses judicial deference to agency decision-making. Ultimately, I urge the Supreme Court to grant Oklahoma’s cert petition, in order to cut through the uncertainty and establish unequivocally the boundaries of authority between the State and Federal Governments under the Clean Air Act.

In the second part of the series, I will make the case that States, and not the EPA, are the proper recipients of the court’s respect.

Cooperative Federalism Conundrum: Delegation Can Be Split; Deference Can’t

[click to continue…]

Post image for Would Keystone XL Serve the U.S. National Interest?

Would the Keystone XL Pipeline (KXL) serve the U.S. national interest? If the State Department answers that question in the affirmative, TransCanada Corporation can finally begin building the pipeline, more than five and a half years after originally applying for a construction permit.

TransCanada recently submitted comments to State making the case for an affirmative “national interest determination” (NID). The comments are clear, comprehensive, accurate, and, in my opinion, compelling.

Inspired by those comments, I will attempt here to state the common sense of the issue in my own words.

The interminable controversy over the KXL is stunningly pointless. Do modern commerce and transport chiefly run on petroleum-based products? Yes. Are pipelines the most economic, efficient, and safe way to transport large volumes of petroleum? Yes. Is Canada our closest ally and biggest trading partner? Yes. Is Canada already the largest single source of U.S. petroleum imports? Yes. Would building the KXL enhance the efficiency of oil transport from Canada to U.S. markets? Yes. Would building the KXL support tens of thousands of American jobs and add billions to the GDP during the construction period? Yes. Would all the financing be private and not cost taxpayers a dime? Yes.

So how could building the KXL not be in U.S. national interest?

In 2012, TransCanada sought permission to build the “Gulf Coast Project” (the green line in the map below), the southern leg of the 1,700 mile pipeline it originally proposed to build from Hardisty, Canada to Port Arthur, Texas. State environmental agencies and the U.S. Army Corps of Engineers granted all necessary permits for the Gulf Coast Project by August 2012.

Keystone XL Pipeline Gulf Coast Route, State Department Final EIS 2014

Construction began in August 2012 and the project commenced commercial service in January 2014. The earth did not shake, the sky didn’t fall, no one felt a “disturbance in the Force . . . as if millions of voices suddenly cried out in terror and were suddenly silenced.” [click to continue…]

Post image for EPA: Artless Dodging on ‘Carbon Pollution’ Rule

Yesterday, the House Science Energy and Environment Subcommittees held a joint hearing on the “Science of Capture and Storage: Understanding EPA’s Carbon Rules.” EPA Air Office Acting Administrator Janet McCabe was the sole witness on the second panel. Her testimony begins about one hour and 54 minutes (1:54) into the archived Webcast. Although calm and non-ideological in tone, McCabe’s responses in the lengthy Q&A were terse, usually uninformative, and often evasive.

The hearing focused on carbon capture and storage (CCS), the technology new coal-fired power plants will have to install to meet the carbon dioxide (CO2) New Source Performance Standards (NSPS) in EPA’s proposed “Carbon Pollution Rule.” Under the Clean Air Act, NSPS are to “reflect the degree of emission limitation achievable through the application of the best system of emission reduction which . . . has been adequately demonstrated.”

Environment Subcommittee Chair David Schweikert (R.-Ariz.) kicked off the Q&A (1:59) by noting that the “Carbon Pollution Rule” assumes CCS technology is “robust and ready to go,” yet the “previous panel was pretty crisp, even from right to left, that there are still some real concerns on the technology itself.” He asked for “technical” information clarifying how EPA set the CO2 standards.

McCabe responded by explaining that the “Carbon Pollution Rule” does not actually mandate the use of CCS, it sets a performance standard based on CCS, and let’s covered facilities decide for themselves how to meet the standard. Okay, but that’s a distinction without a difference, since the only known technology that can reduce CO2 emissions from coal plants as much as CCS is CCS.

McCabe continued:

When it comes to the technology that we based those numbers on [i.e. 1,100 lbs. CO2 per MWh for new coal plants], we believe that if you look across all the information and data that’s available, that there is adequate and robust data showing that the various components that we based the standard on are in use, have been in use, and will be ready.

In other words, instead of providing technical information addressing the concerns raised during the previous panel, McCabe said, in effect, ‘Trust us, we’re the experts.’

Rep. Suzanne Bonamici (D-Ore.), noting GOP Members’ concerns about the cost of CCS, asked McCabe to discuss the “costs associated with the lack of action to address climate change and increasing emissions.” McCabe responded (2:10):

That’s a very good question. There are costs to our economy and to society from the impacts of climate change that is already happening. In 2013, there were seven extreme weather events. Which I think is a nice way of saying great, big, huge horrible storms that cost the economy over a billion dollars each. This is a real economic impact on our communities, our families across the country.

Prompted by Bonamici, McCabe went on to include “health care costs” and “disruption to families and whole communities” among the costs of inaction.

Whether deliberately or otherwise, McCabe blurs the distinction between climate risk and climate change risk. Hurricanes are not some new phenomenon unique to the Age of Global Warming. Huge, horrible storms have billion-dollar costs — that is the nature of the beast. Blaming hurricanes on CO2 emissions is unscientific. There has been no long-term trend in the strength or frequency of hurricanes, none in global accumulated cyclone energy, and none in hurricane damages once losses are adjusted to take into account increases in population, wealth, and the consumer price index. The U.S. is currently experiencing the longest period on record with no major (category 3-5) hurricane landfall strikes.

Blaming hurricane damages on congressional gridlock (“lack of action”) is loopy. Even complete elimination of U.S. CO2 emissions via immediate and total shutdown of the economy would avert only a hypothetical 0.19°C of warming by 2100 — too small a reduction to have any detectable effect on weather patterns. Ergo, no lesser emission reductions that might have been implemented during the past decade or two could provide any meaningful protection to people or property even if one assumes all seven billion-dollar storms in 2013 were ginned up by climate change. [click to continue…]

Post image for More Studies Find Lower Climate Sensitivity

Secy. of State John Kerry last week exhorted all State Department officials to conclude a new international climate change agreement, integrate climate change with other priorities, and, in general, “elevate the environment in everything we do.” In the same week, climate researchers produced two more studies undercutting Kerry’s opinion that climate change is “perhaps the world’s most fearsome weapon of mass destruction.”

The studies address the core scientific issue of climate sensitivity — the question of how much warming results from a given increase in atmospheric carbon dioxide (CO2) concentrations.

There are two types of sensitivity estimates. Equilibrium climate sensitivity (ECS) is an estimate of the increase in ‘steady state’ surface temperature after the climate system has fully adjusted to a doubling of CO2 concentrations — a process assumed to take centuries or longer due to oceanic thermal inertia. Transient climate sensitivity (TCS) is the estimated increase in surface temperature during the 20-year period when CO2 doubling occurs, presumably during the final decades of this century.

ECS is the key variable in both climate model predictions of future global warming and model estimates of the “social cost of carbon” – the damage allegedly inflicted on society by an incremental ton of CO2 emissions.

The IPCC’s 2007 Fourth Assessment Report (AR4) estimated a “likely” ECS range of 2°C-4.5°C, with a “best estimate” of 3°C. Since 2011, however, the warming pause and the growing divergence of model predictions and observed global temperatures have been the impetus for several studies finding that IPCC sensitivity estimates are too hot.

Cato Institute scientists Patrick Michaels and Chip Knappenberger maintain a growing list of such studies, which totaled 18 as of February 2014.

Climate Sensitivity Michaels & Knappenberger 18 Studies Feb 2014

The average sensitivity estimate of the 18 studies is just under 2°C. In other words, the AR4 “best estimate” of 3°C is 50% higher than the mean estimate of the new studies. That may be why the IPCC’s 2013-2014 Fifth Assessment Report (AR5) declines to offer a “best estimate.”

A new “best estimate” of 2°C would deflate the scary climate change impacts featured elsewhere in AR5, but recycling the same old 3°C “best estimate” would deflate the IPCC’s claim to be an honest broker. So instead the IPCC chose to lower the low end of the “likely” sensitivity range. Whereas the “likely” range in AR4 was 2°C-4.5°C, in AR5 it is 1.5°C-4.5°C.

That small concession, however, does not dispel the growing challenge to consensus climatology. As indicated in the chart above, the average sensitivity of the climate models used in AR5 is 3.2°C. That is 60% higher than the mean of recent estimates (<2°C). Let’s take a quick look at three studies that have come out this year. [click to continue…]

Post image for Secretary Kerry Focuses on Climate Diplomacy While Russia Marches Into Crimea

U. S. Secretary of State John Kerry on 7th March 2014 issued his first official Policy Guidance to all Ambassadors and other heads of missions abroad.  It’s not about Russia’s aggressive takeover of the Crimea, a part of the sovereign state of Ukraine.  It’s not about China’s naval buildup.  It’s not about the implosion of Venezuela’s elected dictatorship.  It’s not about Iran’s ongoing program to build nuclear weapons.  It’s not about the continuing civil war in Syria.  It’s about what Secretary Kerry thinks is the major national security threat facing the United States—global warming!

Here is how Secretary Kerry introduces his Policy Guidance:

Leading the way toward progress on this issue is the right role for the United States, and it’s the right role for the Department of State.  That’s why I’ve decided to make climate change the subject of my first Policy Guidance as Secretary of State.  I have been deeply impressed by the way Secretary Clinton elevated global women’s issues as a top-tier diplomatic priority, and believe me, we’re committed to keeping them there.  When the opportunities for women grow, the possibilities for peace, prosperity, and security grow even more.  President Obama and I believe the same thing about climate change.  This isn’t just a challenge, it’s also an incredible opportunity.  And the Policy Guidance I’m issuing today is an important step in the right direction.

One thing’s for sure:  there’s no time to lose.  The scientific facts are coming back to us in a stronger fashion and with greater urgency than ever before.  That’s why I spoke in Jakarta about the threat of climate change and what we, as citizens of the world, can do to address it.  That’s why I raised this issue at our senior management retreat here in Washington, and why I’ll be raising it again at our Chiefs of Mission Conference next week.  This challenge demands elevated urgency and attention from all of us.

I’m counting on Chiefs of Mission to make climate change a priority for all relevant personnel and to promote concerted action at posts and in host countries to address this problem.  I’ve also directed all bureaus of the Department to focus on climate change in their day-to-day work.

[click to continue…]

Post image for Quadrennial Defense Review 2014: Lions and Tigers and ManBearPigs, Oh My!

Every four years the Pentagon publishes a Quadrennial Defense Review presenting its assessment of the nation’s “strategic challenges and opportunities,” and outlining DOD’s plans and budget priorities for protecting U.S. security interests. The just-published 2014 Quadrennial Defense Review calls the effects of climate change “threat multipliers,” much as the previous 2010 QDR called climate change an “accelerant of instability or conflict.”

These reports contain no trace of Secy. of State John Kerry’s hysteria about climate change being “perhaps the world’s most fearsome weapon of mass destruction.” Nonetheless, the usual suspects frequently cite DOD’s assessments as proof that climate change is a national security threat (‘even the generals are worried’).

Let’s look at pertinent passages in the 2014 QDR, beginning with the Executive Summary:

The impacts of climate change may increase the frequency, scale, and complexity of future missions, including defense support to civil authorities, while at the same time undermining the capacity of our domestic installations to support training activities [p. VI].

Well, sure, if we make a long train of assumptions about climate change causing droughts and floods, and the latter causing crop failure, and the latter causing food riots, and the latter causing state failure or exacerbating regional conflict, then it “may” increase the “frequency, scale, and complexity” of future missions. But don’t bet money on it.

So far, the alleged link between global warming and extreme weather “exists” only in the virtual world of non-validated computer climate models. There has been no trend in the strength or frequency of land-falling hurricanes in the world’s five main hurricane basins during the past 50-70 years; no trend globally in accumulated cyclone energy since 1970; no trend in global weather-related losses since 1960 once impacts are adjusted for increases in wealth, population, and the consumer price index; little change in global drought over the past 60 years; and no trend in U.S. flood magnitudes over the past 85 years.

Plus, the carbon dioxide (CO2) emissions allegedly responsible for the “climate crisis” added literally trillions of dollars to global agricultural output over the past 50 years, and will likely increase output by many more trillions over the next 35 years. The net impact of CO2 emissions on global food security and, thus, international stability and peace, is likely to be positive in coming decades.  [click to continue…]

Post image for Voting with Their Feet: Warmer Is Better

From 2007 to 2012, the GDP of Texas grew by 13%, compared to 2.5% for the nation as a whole, New York Times columnist Paul Krugman reports. Krugman, however, doesn’t want to give credit to Gov. Rick Perry, the shale boom, or “the more general miracle of free-market capitalism.”

So what explains the Lone Star State’s strong economic performance? Krugman opines:

Partly we’re seeing the continuation of the long-term movement of U.S. population and jobs to the Sunbelt; Ed Glaeser likes to point out that the single best predictor of state growth is the number of winter degree days. On top of that, Texas does do one very important thing right: it has relaxed zoning, which keeps housing abundant and cheap.

In other words, the Texas economy benefits from warm weather and the absence of think-globally, act-locally climate policy — land-use restrictions misleadingly labeled “smart growth.”

In a recent column, Cato Institute scientists Pat Michaels and Chip Knappenberger find a long-term and accelerating increase in average U.S. experiential temperature — the average temperature Americans experience in their daily lives primarily because of how they vote with their feet.

This map shows population growth rates by state from 1900 to 2010:

Population Change U.S. 1900-2010

This map shows average temperature by state from 1900-2010:

U.S. Annual Temperatures by State 1900-2010

Comparing the two maps “reveals a pretty strong indication that people seem to be seeking out warmer states,” the two scientists write. But they do more than eyeball the relationship, they quantify it.  [click to continue…]

Post image for Utility Air Regulatory Group v. EPA: What’s Really at Stake?

Earlier this week, the Supreme Court heard oral arguments in Utility Air Regulatory Group v. EPA. The case is the first since Massachusetts v. EPA (2007) to examine the extent of the EPA’s Clean Air Act authority to regulate greenhouse gas (GHG) emissions.

The Court is limiting its review to one question:

Whether EPA permissibly determined that greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

In other words, the Court is reviewing the agency’s April 2010 Timing Rule.

According to the Timing Rule, regulation of any air pollutant under any part of the Clean Air Act automatically requires anyone seeking to build or modify a “major” stationary source of that pollutant to apply for a Prevention of Significant Deterioration (PSD) preconstruction permit from EPA or a state environmental agency. The EPA began regulating carbon dioxide (CO2) when its greenhouse gas Tailpipe Rule took effect (Jan. 2, 2011). To qualify for a PSD permit, an applicant must demonstrate that the proposed facility or modification will comply with “best available control technology” (BACT) standards.

Because of the narrow scope of review — the Justices have no intention of revisiting Mass. v. EPA, reviewing EPA’s greenhouse gas Endangerment Rule and Tailpipe Rule, or revisiting the Court’s opinion in American Electric Power v. Connecticut that EPA may adopt new source performance standards (NSPS) to regulate CO2 emissions from stationary sources — some observers conclude that UARG v. EPA is not very important and it really doesn’t matter what the Court decides. Not so.

Because BACT standards are facility-specific, they are more intrusive than NSPS, which apply to industrial source categories. Especially if the regulated “pollutant” is CO2, a byproduct of energy use, BACT is an invitation for bureaucratic micro-management of industrial design and operations. As I discuss in a recent Forbes column:

Because there are no bolt-on commercial technologies to reduce CO2 emissions from industrial processes, BACT for CO2 will consist mainly of facility-specific changes in work practices and equipment to improve energy efficiency. Thus, warns the Energy-Intensive Manufacturers Working Group, a petitioner in the case, BACT for CO2 will empower the EPA and its state counterpart agencies to meddle in “every aspect of a facility’s operation and design that affects either its emission of carbon dioxide or its consumption of energy, because the latter is the primary determinant of the former.” Options listed by EPA include everything from changing light bulbs in the factory cafeteria, to replacing draft fans and water heaters, to basic design changes that, in EPA’s words, “fundamentally redefine the nature” of the facility.

More importantly, overturning the Timing Rule could significantly narrow the scope and slow the pace of EPA regulation of CO2 from industrial facilities.

Consider how long it can take to adopt just one NSPS regulation. EPA committed to adopt CO2 NSPS for new coal-fired power plants and petroleum refineries in Dec. 2010. They still have not even proposed NSPS for refineries. Maybe they’ll finalize the NSPS (“carbon pollution”) rule for new power plants this year. But the rule is beset with legal problems (for example, it is based on the fiction that carbon capture and storage, a technology at least 10 years away from commercialization, has been “adequately demonstrated”). If litigants block the “carbon pollution” rule, then EPA won’t be able to move ahead with CO2 performance standards for existing coal plants.

So here’s the big practical difference. The NSPS route forces EPA to fight for regulatory turf one industry at a time. BACT permitting pursuant to the Timing Rule empowers EPA to impose CO2 regulation on “major” sources throughout the economy in one fell swoop.

The political significance is obvious. If the Court nixes BACT for CO2, EPA will be able to establish far fewer regulatory beachheads between now and Obama’s departure. That would facilitate efforts by future Congresses and the next president to halt or even roll back EPA’s greenhouse gas regulatory agenda. [click to continue…]

Post image for Menace to Society: Commentary on the Social Cost of Carbon

Yesterday was the deadline for filing comments with the Office of Management and Budget (OMB) on the Obama administration’s social cost of carbon (SCC) estimates. I submitted a comment letter on behalf of the Competitive Enterprise Institute, Americans for Tax Reform, CFACT, Freedom Action, FreedomWorks Foundation, Frontiers of Freedom, George C. Marshall Institute, Heartland Institute, Rio Grande Foundation, Science & Environmental Policy Project, and Small Business & Entrepreneurship Council.

We argue that carbon’s social cost is an unknown quantity; that SCC analysts can get just about any result they desire by fiddling with non-validated climate parameters, made-up damage functions, and below-market discount rates; and that SCC analysis is computer-aided sophistry, its political function being to make renewable energy look like a bargain at any price and fossil energy look unaffordable no matter how cheap.

One point we emphasize that may come as a complete shock to OMB is that there are potentially very large social costs of carbon mitigation.

Those include:

  1. The public health and welfare risks of policies that raise business and household energy costs.
  2. The economic, fiscal, and energy security risks of policies that endanger the shale revolution.
  3. The economic development risks of policies that limit poor countries’ access to affordable energy.
  4. The risks to international peace and stability of impeding developing country economic growth through carbon caps or taxes and carbon-tariff protectionism.
  5. The proliferation risks of policies that increase developing country demand for fissile materials and nuclear technology.
  6. The risks to scientific integrity when government is both chief funder of climate research and chief beneficiary of “consensus” science supporting a bigger role for government in economic decisions.
  7. The risk to the democratic process when governments promote “consensus” climatology to justify bypassing legislatures and marginalizing opponents as “anti-science.”

Here I will excerpt* the discussion addressing point 7 — the risks climate policy poses to democratic self-government.

“Perhaps the biggest casualty [of the global warming movement] is science,” author Rupert Darwall opines. Climate models produce long-term forecasts that cannot be validated in our lifetimes. Inevitably, “consensus” and “expert judgment” displace reproducibility as tests of scientific validity. Government grants and appointments reward researchers whose findings support the consensus. Since the politicians and agencies funding the research and invoking “consensus” are the same ones seeking greater control over energy markets and energy production, researchers face continual pressure or temptation to cross the line between policy relevance and policy advocacy. Groupthink becomes the norm.

A related casualty is the democratic process. The Obama administration’s M.O. is to “enact” climate policies through regulations Congress has not approved and would reject if introduced as legislation and put to a vote. Such policies include the 54 mpg fuel-economy standard, application of best available control technology standards to major stationary greenhouse gas emitters, and a “carbon pollution rule” that effectively bans construction of new commercial coal generation. Administration officials and their allies invoke the “consensus of scientists” to explain why they “can’t wait” for the people’s representatives to act. [click to continue…]

Post image for Who’s the Real Flat-Earther? McKnider and Christy Respond to Secy. Kerry

In today’s Wall Street Journal, atmospheric scientists Richard McKnider and John Christy respond to Secy. of State John Kerry’s Feb. 16 pejorative-laden climate change speech in Jakarta, Indonesia.

Kerry lambasted so-called climate skeptics as members of the “Flat Earth Society” for doubting the reality of anthropogenic climate change. He declared, “We should not allow a tiny minority of shoddy scientists” and “extreme ideologues to compete with scientific facts.”

McKnider and Christy note that they “embrace many of the facts” people like Kerry claim they deny (for example, greenhouse gases trap heat in the atmosphere, greenhouse gas concentrations are rising due to industrial emissions). What skeptics deny is that there is solid evidence — scientific or economic — of an impending climate catastrophe. Many also argue that because global economic development is overwhelmingly fossil-fueled, abandoning carbon energy before commercially-viable alternatives are available is perilous and likely a “cure” worse than the alleged disease.

Kerry opines that “climate change can now be considered another weapon of mass destruction, perhaps the world’s most fearsome weapon of mass destruction.” Big picture data suggests otherwise. A century and more of rising carbon dioxide (CO2) emissions and global temperatures has also seen unprecedented improvement in the abundance of human life (population), health (average life expectancy), and per capita income.

Goklany Global Progress 1760-2009 population GDP life expectancy CO2


Name-calling used to be considered beneath the dignity of the Secy. of State. But if it works for President Obama (“We don’t have time for a meeting the Flat-Earth Society”), who is Kerry to abstain from slinging snark?

The Flat-Earth hypothesis was once the “scientific consensus.” So who’s the real Flat-Earther in today’s climate debate? Someone, like Kerry, who exaggerates the “findings” of flawed climate models, or someone who is skeptical of climate models because of their growing failure to replicate climate reality?

McKnider and Christy post a chart that is one those pictures worth a thousand words.

Models v Observations Christy McKnider, WSJ Feb 20, 2014