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The end of the month (Jan. 31) is the deadline for submitting comments on EPA and the National Highway Traffic Safety Administration’s (NHTSA’s) joint proposed rule to establish first-ever greenhouse gas/fuel economy standards for diesel trucks and other heavy-duty (HD) vehicles. When finalized, the rule will substantially increase both agencies’ power over the freight goods industry.

The agencies’ chief rationale for the proposal is that the fuel economy of HD vehicles, especially “combination tractors,” the semi-trucks used in long-haul freight, has not improved in recent years or even declined. This is paradoxical, because nobody has a greater incentive to demand cost-effective improvements in fuel economy than people who haul freight for a living.

EPA and NHSTA offer five “potential hypotheses” to explain the “paradox” of “under-investment” in HD vehicle fuel economy. As I explain here, none of the hypotheses demonstrates a market failure and two suggest that truckers are just behaving like prudent buyers. In two other posts (here and here), I develop an alternate hypothesis: EPA’s diesel-engine emission standards, via their impacts on engine performance and the HD vehicle market, caused the very problem the agencies now propose to solve with more regulation.

I am now pleased to share additional evidence supporting my hypothesis.

In March 2010, Kevin Jones, a reporter for The Trucker magazine, interviewed Daimler Trucks North America President and CEO Martin Daum at the Louisville, Ky. Mid-America Trucking Show.  Daum told Jones that EPA’s emission standards added $20,000 to the cost of an 18-wheeler over the previous six years. That’s a substantial chunk of change truckers don’t have to spend on vehicles with better fuel economy.

Daum draws a distinction between “push innovations” (changes compelled by regulation) and “pull innovations” (changes driven by market demand). This too speaks to a point made in the earlier posts. To comply with EPA rules, engine manufacturers had to spend hundreds of millions of dollars and deploy hundreds of engineers to develop emission-control technologies rather than fuel-saving technologies. “Push innovations” crowded out “pull innovations.”

ECON 101 also tells us that as price increases, demand falls (other things being equal). Consequently, even if newer trucks were more fuel efficient, the $20k cost increase imposed by EPA’s emission standards would discourage truckers from buying those vehicles.

In fact, however, as earlier posts discuss, newer vehicles typically get fewer miles per gallon, because emission-control technologies decrease the fuel efficiency of diesel engines. A Wall Street Journal article from April 2007,  by Robert Guy Matthews, sheds light on this point:

A requirement that newly manufactured diesel trucks spew out less soot starting this year is posing a paradox for truck fleets: These new-generation trucks are cleaner than older-generation vehicles, but they get worse mileage.

With emission standards to get even tougher in 2010, truck-fleet owners are seeking changes to other rules, to help improve efficiency. Some are lobbying for the go-ahead to hitch up longer trailers, while others are pushing requirements for manufacturers to make engines offering a certain minimum mileage.

Previous-generation trucks average about nine or 10 miles to each gallon of diesel fuel. New engines designed to meet the more-stringent federal mandate on truck exhaust get about one mile less to the gallon. That may not seem like much, but it all adds up for large fleet owners that operate trucks crisscrossing the country.

“For every additional mile-per-gallon lost, it costs us about $10 million in [total annual] fuel costs” said YRC Worldwide Chief Executive Bill Zollars. YRC is one of the largest transportation providers in the country, operating a fleet of 20,000 trucks. . . .

Freightliner LLC, the largest heavy-duty truck maker in North America, confirmed that some loss of fuel economy was inevitable for engines to comply with the new standards. Certain parts of the engine must run at a higher temperature to burn off pollutants, and that requires more fuel.

A few pieces of this puzzle still elude me. How much did engine manufacturers actually spend since 2000 to comply with EPA’s emission standards? A March 2004 Government Accountability Office report (p. 12 ) indicates that the total could easily exceed $1 billion. What was the actual cost? More importantly perhaps, what was the actual expenditure as a percentage of total diesel-engine manufacturer R&D? Any information, tips, or leads regarding these matters would be greatly appreciated.

            Undefeated Auburn beat Oregon to win the BCS championship last night, yet Sports Illustrated magazine failed to include Auburn in its Preseason top 25.  Believe it or not, this was far from SI’s silliest error in recent years.  The magazine was even further off the mark with its March 12, 2007 cover story on global warming.

Yes, SI devoted an entire story to global warming, and in particular its impact on sports.  The tone was set by the cover itself, which depicted then-Florida Marlins pitcher Dontrelle Willis in Dolphins Stadium.  Presumably he’s on the mound, but it’s hard to tell since he is above his knees in water – the text explains that “the seas will rise and coastal areas, including parts of South Florida, will eventually be underwater.”   In fairness, SI’s prediction of sea level rise stretches to 2100, so it cannot yet be disproven.  But the cover certainly suggests more immediate impacts, and elsewhere the story stresses that “global warming is not coming; it is here.”  Much of the rest of the piece is an anecdotal litany of spectator and participant sports purportedly being ruined by global warming – ski seasons getting shorter, summer heat waves causing cancelled high school football practices, and even the bats used by the hitters Willis faces jeopardized by warming-induced insect infestations of ash forests.      

             Nearly four years later, few of the article’s scary scenarios are standing the test of time.   Since 2007, we have seen bad ski seasons have followed by good ones, unusually hot summers followed by mild ones – in other words, fluctuations in weather that are completely normal and nothing for the sports fans – or the rest of us – to be particularly worried about. 

            The good news is that the public is wisely tuning out global warming alarmism, though Willis may have been convinced by rising sea levels to move inland – he is on the Cincinnati Reds roster for 2011.  Either it was global warming or the $12 million a year he is getting from the Reds.

In his 2006 State of the Union Address, President George W. Bush joined the chorus of environmental scolds in disparaging America’s spaciously mobile civilization as being “addicted to oil” and called for various R&D programs to move us beyond petroleum. A key objective was to commercialize so-called cellulosic ethanol made from prairie grasses, wood waste, and other fibrous plant materials. Bush proclaimed:

We will also fund additional research in cutting-edge methods of producing ethanol, not just from corn but from wood chips and stalks or switch grass. Our goal is to make this new kind of ethanol practical and competitive within six years.

switchgrass

Responding to this presidential initiative, Congress, in 2007, enacted a Soviet-style production quota for renewable fuels, commonly known as the ethanol mandate. It required refiners to blend and sell 100 million gallons of cellulosic ethanol in 2010 and 250 million gallons in 2011.

Commercial output was so anemic, however, that last year EPA watered down the 2010 cellulosic target to 5 million gallons and the 2011 target to 6.6 million gallons. And even those essentially symbolic targets are too ambitious.

Today’s Climatewire (subscription required) reports that commercial blending of cellulosic biofuel likely did not exceed 1 million gallons in 2010. And what about 2011 — six years after President Bush announced his goal to make cellulosic fuel “practical and competitive within six years”? The Energy Information Administration’s most optimistic scenario projects the sale of less than 4 million gallons this year.

Although a world beyond petroleum may emerge some day, it is today still a pipedream.

Here is the lineup so far for House committees with jurisdiction over energy, energy-rationing, and global warming policy.  Rep. Fred Upton (R-Mich.) is the new Chairman of the House Energy and Commerce Committee.  Rep. Henry Waxman (D-Beverly Hills), who was the Chairman in the 111th Congress, is now the Ranking Democrat.  The Energy and Environment Subcommittee will be chaired by Rep. Ed Whitfield (R-Ky.).  The Democrats have not yet picked their ranking member for the subcommittee.

The new Chairman of the House Natural Resources Committee is Rep. Doc Hastings (R-Wash.), and the ranking Democrat is Rep. Ed Markey (D-Mass.), of Waxman-Markey fame.  Rep. Doug Lamborn will chair the Energy and Mineral Resources Subcommittee.  Again, the Democrats have not yet picked their subcommittee ranking members.

Rep. Ralph Hall (R-Tex.) will chair the Science, Space, and Technology Committee.  The ranking Democrat will be Rep. Eddie Bernice Johnson (D-Tex.).  Chairman Hall has not yet announced his pick to chair the Energy and Environment Subcommittee.  On the Appropriations Committee, Rep. Hal Rogers (R-Ky.) is the new the Chairman and Rep. Norm Dicks (D-Wash.) is the new Ranking Democrat.  Rep. Darrell Issa will chair the Oversight and Government Reform Committee, while Rep. Elijah Cummings (D-Md.) is the new ranking Democrat.

The Senate, as is usually the case, is taking longer to organize itself.

After being sworn a week ago, New Mexico Governor Susana Martinez’s (R) first order of business was to overturn outgoing Governor Bill Richardson’s (D) attempt to impose a cap-and-trade program. As the Cooler Heads Digest reported, then-Governor Richardson pushed an energy rationing scheme through the Environmental Improvement Board, without approval from the State Legislature, on the same day that voters elected Martinez, who had campaigned against cap-and-trade. On Saturday, Governor Martinez fired the entire EIB, and moved to block the cap-and-trade regulation. Last Friday, she chose former astronaut and climate change skeptic Harrison Schmitt to run the Energy, Minerals and Natural Resources Department. What a great start!

The 112th Congress was sworn in on Wednesday, and Rep. John Boehner (R-Ohio) was elected Speaker of the House.  Nineteen Democrats voted against Rep. Nancy Pelosi (D-San Francisco), which is extraordinary when you consider that Pelosi as Minority Leader still controls committee assignments for her party’s members.  The House began Thursday by reading the Constitution (my thoughts on that may be found here), which surprised me by causing a lot of foaming at the mouth on the left.  Later that morning, Senator Barbara Boxer (D-Marin County), who remains Chairman of the Environment and Public Works Committee, held a press conference during which she vowed to block any attempt to prohibit or delay the EPA from regulating greenhouse gas emissions using the Clean Air Act.

Boxer may be very busy.  The hottest item of the first week of the new Congress was introducing a bill to block EPA.  Rep. Marsha Blackburn (R-Tenn.) along with 45 co-sponsors re-introduced her bill (H. R. 97) to remove greenhouse gas emissions from the list of things that can be regulated under the Clean Air Act.  Rep. Shelley Moore Capito (R-WV) introduced a bill to delay EPA from regulating greenhouse gas emissions for two years.  This is similar to the bill that Senator Jay Rockefeller (D-WV) introduced last year and announced this week that he would re-introduce in the 112th Congress.  And Rep. Ted Poe (R-Tex.) introduced a bill to prohibit any funding to be spent on implementing or enforcing a cap-and-trade program to reduce greenhouse gas emissions.

In the News

Obama’s $5 Gas Is Just Ahead
Washington Examiner editorial, 7 January 2010

Did U.K. Government Hide Cold Weather Info on Eve of Climate Talks?
Global Warming Policy Foundation, 6 January 2010

Rocky, Shadow Boxing EPA
Chris Horner, AmSpecBlog, 5 January 2010

The Climate Crisis Hoax
Larry Bell, Forbes, 5 January 2010

Drilling Is Stalled Even After Ban Was Lifted
Ben Casselman & Daniel Gilbert, Wall Street Journal, 3 January 2010

Green Skeletons Hide in GOP Closet
Darren Samuelsohn, Politico, 2 January 2010

The EPA’s End Run around Democracy
Marlo Lewis, Pajamas Media, 1 January 2010

New Peer Reviewed Study: No Correlation between GHGs, Temperature
Anthony Watts, WattsUpWithThat, 1 January 2010

News You Can Use

Gas Tops $3

For the first time during President Obama’s tenure, gasoline prices are averaging more than $3.00 per gallon nationwide, and many signs point to further increases as 2011 unfolds.   The President’s  global warming regulations, drilling moratoriums, and other anti-energy policies were unpopular enough when gas was cheap.  Now that it isn’t, the call for change is going to get a lot louder.

Inside the Beltway

Myron Ebell

112th Congress starts with flurry of bills to block EPA regulations

The 112th Congress was sworn in on Wednesday, and Rep. John Boehner (R-Ohio) was elected Speaker of the House.  Nineteen Democrats voted against Rep. Nancy Pelosi (D-San Francisco), which is extraordinary when you consider that Pelosi as Minority Leader still controls committee assignments for her party’s members.  The House began Thursday by reading the Constitution (my thoughts on that may be found here), which surprised me by causing a lot of foaming at the mouth on the left.  Later that morning, Senator Barbara Boxer (D-Marin County), who remains Chairman of the Environment and Public Works Committee, held a press conference during which she vowed to block any attempt to prohibit or delay the EPA from regulating greenhouse gas emissions using the Clean Air Act.

Boxer may be very busy.  The hottest item of the first week of the new Congress was introducing a bill to block EPA.  Rep. Marsha Blackburn (R-Tenn.) along with 45 co-sponsors re-introduced her bill (H. R. 97) to remove greenhouse gas emissions from the list of things that can be regulated under the Clean Air Act.  Rep. Shelley Moore Capito (R-WV) introduced a bill to delay EPA from regulating greenhouse gas emissions for two years.  This is similar to the bill that Senator Jay Rockefeller (D-WV) introduced last year and announced this week that he would re-introduce in the 112th Congress.  And Rep. Ted Poe (R-Tex.) introduced a bill to prohibit any funding to be spent on implementing or enforcing a cap-and-trade program to reduce greenhouse gas emissions.

Key House Committee Chairmen in the 112th Congress

Here is the lineup so far for House committees with jurisdiction over energy, energy-rationing, and global warming policy.  Rep. Fred Upton (R-Mich.) is the new Chairman of the House Energy and Commerce Committee.  Rep. Henry Waxman (D-Beverly Hills), who was the Chairman in the 111th Congress, is now the Ranking Democrat.  The Energy and Environment Subcommittee will be chaired by Rep. Ed Whitfield (R-Ky.).  The Democrats have not yet picked their ranking member for the subcommittee.

The new Chairman of the House Natural Resources Committee is Rep. Doc Hastings (R-Wash.), and the ranking Democrat is Rep. Ed Markey (D-Mass.), of Waxman-Markey fame.  Rep. Doug Lamborn will chair the Energy and Mineral Resources Subcommittee.  Again, the Democrats have not yet picked their subcommittee ranking members.

Rep. Ralph Hall (R-Tex.) will chair the Science, Space, and Technology Committee.  The ranking Democrat will be Rep. Eddie Bernice Johnson (D-Tex.).  Chairman Hall has not yet announced his pick to chair the Energy and Environment Subcommittee.  On the Appropriations Committee, Rep. Hal Rogers (R-Ky.) is the new the Chairman and Rep. Norm Dicks (D-Wash.) is the new Ranking Democrat.  Rep. Darrell Issa will chair the Oversight and Government Reform Committee, while Rep. Elijah Cummings (D-Md.) is the new ranking Democrat.

The Senate, as is usually the case, is taking longer to organize itself.

Across the States

New Mexico

After being sworn in on Saturday, New Mexico Governor Susana Martinez’s (R) first order of business was to overturn outgoing Governor Bill Richardson’s (D) attempt to impose a cap-and-trade program. As the Cooler Heads Digest reported, then-Governor Richardson pushed an energy rationing scheme through the Environmental Improvement Board, without approval from the State Legislature, on the same day that voters elected Martinez, who had campaigned against cap-and-trade. On Saturday, Governor Martinez fired the entire EIB, and moved to block the cap-and-trade regulation. Yesterday, she chose former astronaut and climate change skeptic Harrison Schmitt to run the Energy, Minerals and Natural Resources Department.

Texas

On Monday, the EPA started regulating greenhouse gases from stationary sources using the Clean Air Act. Texas, however, refuses to participate, so the EPA wants to seize control of the State’s air quality permitting program.  In an effort to ward off the EPA’s power grab, Texas Attorney General Greg Abott is challenging the EPA on a number of fronts. In October, Texas filed suit in the U.S. Circuit Court of Appeals for the District of Columbia alleging that EPA does not have the authority to regulate greenhouse gases under the Clean Air Act. In mid December, it filed a petition in the 5th U.S. Circuit Court of Appeals challenging EPA’s finding that Texas’s permitting process was not in compliance with the agency’s rules. On December 30 the State filed a new petition in the U.S. Circuit Court of Appeals for the District of Columbia taking issue with EPA’s regulatory schedule. In the latter case, the District of Columbia court agreed to stay EPA’s takeover of the Texas permitting program until all parties filed briefs, which could be as early as today.

The Cooler Heads Digest is the weekly e-mail publication of the Cooler Heads Coalition. For the latest news and commentary, check out the Coalition’s website, www.GlobalWarming.org

Jonathan Pershing, State Department deputy special envoy for climate change and top U.S. negotiator at the Copenhagen (2009) and Cancun (2010) climate conferences, says the Kyoto Protocol “didn’t work,”  Politico reports. Pershing explained:

Under Kyoto, which is the old model, emissions between 1990 and 2007, from [carbon dioxide], climbed on the order of 40 percent. So, if you think that that was a successful model, then you should think again. It didn’t work.

The Politico article continues:

Noting that the Kyoto Protocol was never ratified in the U.S., Pershing said that despite its popularity abroad, “it is equally clear that the structures of Kyoto would not work for us.

“It is clear that it would not work politically; we couldn’t move forward under that framework,” he added. “We need a different process.”

Agreed. But what does that tell us about the Obama administration’s core approach — impose CO2 controls via EPA regulation under the aegis of the Clean Air Act? The only reason that “works” politically, or seems to, is that it bypasses Congress and the legislative process entirely.

U.S. rejection of the failed Kyoto “model” doesn’t have much point if EPA can ignore the people’s representatives and ‘enact’ an even riskier regulatory scheme. Republicans and centrist Democrats in the 112th Congress should take courage from the defeat of Kyoto and Waxman-Markey and stand up to EPA’s attempt to ‘legislate’ climate policy.

“All politics is local,” former House Speaker Tip O’Neil used to say. Accordingly, climate activists often emphasize the allegedly horrible impacts of global warming on the region, state, or locale of their target audience.

This is an old tactic. During the Clinton Administration, EPA and other agencies conducted a traveling road show touting model-projected “regional impacts” of climate change. Global warming would intensify hurricanes, EPA told Gulf Coast residents. It would destroy the ski and maple syrup industies, EPA told New Englanders. It would parch the southwest and intensify conflict over water resources, the agency told westerners.

 Showcasing the alleged “local links” of global climate change looked like a winning formula for while. Then came Climategate and the outing of cap-and-trade as a stealth energy tax.

What’s surprising is not that this tactic failed to sell cap-and-tax but that Obama Deputy Interior Secretary David Hayes seems to think it’s a novel approach — one that could put new wind in the sails of the good ship Kyoto.

In “Climate PR Efforts Heat Up,” Politico columnist Darren Samuelsohn reports:

Deputy Interior Secretary David Hayes said in an interview that the Obama administration is engaged on several levels in climate education by bringing the latest science to land, water and wildlife managers. He cited an 11-year old water shortage in the Colorado River Basin. “It’s one of the worst droughts in history,” Hayes said. “And we’re bringing the data to the table.”

This statement puzzled me, since it is well established in the literature that the American West experienced severe droughts centuries before the advent of SUVs and coal-fired power plants. So I did a quick search at www.CO2Science.Org, Web site of the Center for the Study of Carbon Dioxide and Global Change, where Drs. Sherwood, Keith, and Craig Idso review scores of peer-reviewed science studies each year. Below are excerpts from a few of their reviews.

Colorado Stream Flow: Its Past and Likely Future [Review of Woodhouse, C.A. and Lukas, J.J. 2006. Multi-century tree-ring reconstructions of Colorado streamflow for water resource planning. Climatic Change 78: 293-315.]

Woodhouse and Lukas’ streamflow reconstructions indicated, in their words, that “the 20th century gage record does not fully represent the range of streamflow characteristics seen in the prior two to five centuries.” Of greatest significance, in this regard, was probably the fact that “multi-year drought events more severe than the 1950s drought have occurred,” and that “the greatest frequency of extreme low flow events occurred in the 19th century,” with a “clustering of extreme event years in the 1840s and 1850s.”

This being the case, it can be appreciated that predictions of abnormal (relative to the past hundred or so years) perturbations of both types of conditions (dry and wet) likely will see fulfillment … but it will not be because of CO2-induced global warming, for atmospheric CO2 concentration and air temperature were both significantly lower than they were throughout the 20th century during the prior centuries that experienced the greatest natural variability in streamflow.

A Brief History of Upper Colorado Basin Stream Flow [Review of Woodhouse, C.A., Gray, S.T. and Meko, D.M. 2006. Updated streamflow reconstructions for the Upper Colorado River Basin. Water Resources Research 42: 10.1029/2005WR004455.]

Woodhouse et al. determined that the major drought of 2000-2004, “as measured by 5-year running means of water-year total flow at Lees Ferry … is not without precedence in the tree ring record,” and that “average reconstructed annual flow for the period 1844-1848 was lower.” They also report that “two additional periods, in the early 1500s and early 1600s, have a 25% or greater chance of being as dry as 1999-2004,” and that six other periods “have a 10% or greater chance of being drier.”

“Overall,” in the words of the three researchers, “these analyses demonstrate that severe, sustained droughts are a defining feature of Upper Colorado River hydroclimate.” In fact, they conclude from their work that “droughts more severe than any 20th to 21st century event occurred in the past,” meaning the preceding few centuries.

Southern California, USA[Review of MacDonald, G.M., Kremenetski, K.V. and Hidalgo, H.G. 2008. Southern California and the perfect drought: Simultaneous prolonged drought in Southern California and the Sacramento and Colorado River systems. Quaternary International 188: 11-23.]

The authors developed dendrochronological reconstructions of the winter Palmer Drought Severity Index (PDSI) for southern California over the past one thousand years (first figure below), plus concomitant annual discharges of the Sacramento and Colorado Rivers (second figure below). This work revealed, in their words, that “prolonged perfect droughts (~30-60 years), which produced arid conditions in all three regions simultaneously, developed in the mid-11th century and the mid-12th century during the period of the so-called ‘Medieval Climate Anomaly’,” which is also widely known as the Medieval Warm Period, leading them to conclude that “prolonged perfect droughts due to natural or anthropogenic changes in radiative forcing, are a clear possibility for the near future.” Consequently, since the perfect droughts of the 20th century “generally persist[ed] for less than five years,” while those of the MWP lasted 5 to 12 times longer, one could reasonably conclude that late 20th-century warmth was significantly less than that of the central portion of the Medieval Warm Period.

l2_socalrivers2b

Fluctuating Water Supply of the Colorado River Basin [Review of Hidalgo, H.G., Piechota, T.C. and Dracup, J.A.  2000.  Alternative principal components regression procedures for dendrohydrologic reconstructions.  Water Resources Research 36: 3241-3249.]

. . . in the words of the authors, that there has been “a near-centennial return period of extreme drought events in this region,” going all the way back to the early 1500s.

These results provide yet another indication of the cyclical nature of climate.  They also provide evidence for the existence of past droughts, which – if they were to begin today and last as long as they have in the past – would surely be ascribed to the result of CO2-induced global warming, when, in reality, they are totally unrelated to what the air’s CO2 content is doing.

Upper Colorado River Basin (USA) Super Megadrought of the Mid-1100s [Review of Meko, D.M., Woodhouse, C.A., Baisan, C.A., Knight, T., Lukas, J.J., Hughes, M.K. and Salzer, M.W. 2007. Medieval drought in the upper Colorado River Basin. Geophysical Research Letters 34: 10.1029/2007GL029988.]

Using a newly developed network of tree-ring sites located within the Upper Colorado River Basin (UCRB) of the western United States – which consists of tree-ring samples from living trees, augmented by similar samples obtained from logs and dead standing trees (remnant wood) – the authors extended the record of reconstructed annual flows of the Colorado River at Lee Ferry, Arizona, into the Medieval Climate Anomaly (MCA) . . .

. . . they say that “conditions in the mid-1100s in the UCRB were even drier than during the extremely widespread late-1500s North American mega-drought (Stahle et al., 2000). 

One of the major tenets of Al Gore’s “climate crisis,” as articulated in his testimony of 21 March 2007 to the U.S. Senate, is that “droughts are becoming longer and more intense” in response to global warming. On the one hand, we could say this claim is refuted by the late-1500s North American megadrought described by Stahle et al. (2000), which occurred during the Little Ice Age. On the other hand, we could say it is confirmed by the super-megadrought described by Meko et al., which occurred during the Medieval Warm Period. But if this latter route is taken, the temperature-drought correlation claimed by Gore suggests that the Medieval Warm Period was likely much warmer than the Current Warm Period (a concept climate alarmists absolutely abhor), which has seen nothing even remotely similar to the mid-1100s drought. In terms of drought extremes, therefore, any way one looks at this aspect of Al Gore’s climate crisis claim, it rings mighty hollow throughout much of North America.

So there you have it. Colorado River Basin drought is nothing new under the Sun. Neither is the local nature of politics. Neither is fear-mongering as a tool of political advocacy.

H.L. Menkin said it best:

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

 

The first of EPA’s greenhouse gas regulations kicked in yesterday (Sunday, Jan. 2). More are on the way. Is the agency following the law or doing an end-run around democracy?

My New Year’s Day column in PajamasMedia.Com addresses this vital issue.  The column restates what seems to me the common sense of the matter. When Congress enacted the Clean Air Act in 1970, it did not design or intend the Act to be a framework for global climate change policy, let alone for de-carbonizing the U.S. economy. Congress, moreover, has never, in the intervening years, given its approval for the Act to be used as such a framework, or for such purposes. 

Restating the obvious is important at this time because the greenhouse lobby is trying to persuade the incoming 112th (Tea Party) Congress that stopping EPA’s power grab would undermine (“roll back”) the Clean Air Act. EPA, they claim, is acting “under court order” and  just following the law as interpreted by the Supreme Court in Massachusetts v. EPA. In effect, EPA’s apologists argue, Congress’s only ethical choice is to sleep in the bed it made back in 1970 and let EPA determine climate policy.

This is bunkum for three main reasons. First, the Supreme Court in Mass. v. EPA did not order EPA to regulate greenhouse gases. The Court said that EPA could decline to regulate if it provided an explanation grounded in statutory reasons (p. 32). EPA did not even discuss this option, preferring to push the start button on a regulatory process that would dramatically expand its control over the economy.

Second, and more importantly, the 5-4 majority misread the Clean Air Act, setting the stage for an economy-squashing array of “absurd results” that EPA now can avoid only by amending (“tailoring”) the statute, which is not kosher under our Constitution of separated powers. The Supreme Court’s errors are the main focus of my Pamajas Media column and a MasterResource.Org column last summer rebutting former EPA Administrator Russell Train’s argument that EPA is merely acting as Congress intended.

Third, even if it were true (it is not) that the 1970 Clean Air Act implicitly authorizes EPA to make climate policy, Congress should still stop EPA. As explained in both aforementioned columns, once the Clean Air Act is applied to greenhouse gases, the logic of the Act impels its transformation into an Anti-Stimulus Program or even an economically-suicidal de-industrialization mandate.

Besides, if war is too important to be left to the generals, climate policy is too important to be left to non-elected, politically-unaccountable, bureaucrats, trial lawyers, and activist judges appointed for life. Congress, not EPA, should decide the content and direction of national policy.