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That’s the topic of this week’s National Journal energy blog. In my contribution, I argue that EPA has been playing a mischievous game that endangers democracy, and that Sen. Lisa Murkowski’s legislation to veto the agency’s endangerment finding would remove this threat. 

In a Feb. 22 letter to Sen. Jay Rockefeller (D-WV), EPA Administrator Lisa Jackson warns that enactment of the Murkowski legislation would scuttle the joint EPA/National Highway Traffic Safety Administration (NHTSA) greenhouse gas/fuel economy rulemaking, which in turn would compel the struggling auto industry to operate under a “patchwork quilt” of state-level fuel-economy regulations.

Ms. Jackson neglects to mention that the patchwork threat exists only because she, reversing Bush EPA Administrator Stephen Johnson’s decision, granted California a waiverto implement its own GHG/fuel economy program. Had Jackson reaffirmed Johnson’s denial, there would be no danger of a patchwork, hence no ostensible need for the joint EPA/NHTSA rulemaking to avert it.

As my blog post explains, EPA should not have approved the waiver in the first place. The California GHG/fuel economy program violates the Energy Policy and Conservation Act, which prohibits states from adopting laws or regulations “related to” fuel economy. Worse, the waiver creates a reverse right of preemption whereby states may nullify federal law within their borders — an affront to the Supremacy Clause. 

Specifically, the waiver would allow California, and other states opting into the California program, to nullify within their boundaries the reformed national fuel economy program that Congress enacted in the 2007 Energy Independence and Security Act (EISA). That leads straight to a patchwork of state-by-state compliance regimes inimical to a healthy auto industry.

The game EPA is playing is a classic case of bureaucratic self-dealing.

First, EPA endangers the U.S. auto industry by authorizing states to flout federal law and the Constitution. Then, EPA proposes to avert disaster via a rulemaking that just happens to put EPA in the driver’s seat in regulating fuel economy – a power Congress never delegated to EPA when it enacted and amended the Clean Air Act.

Nor is that all. The joint GHG/fuel economy regulation will compel EPA to regulate CO2 from stationary sources – another power Congress never delegated to EPA. By expanding its control over the transport sector, EPA will then have to expand its control over manufacturing, power generation, and much of the commercial and residential sectors, too, because all emit CO2.

In addition, the motor vehicle GHG rule sets the stage for EPA to “tailor,” that is amend, the Clean Air Act so that the agency can delay imposing pre-construction and operating permit requirements on small business, which would surely ignite a political backlash.

So thanks to the endangerment finding, EPA not only gets to play in NHTSA’s fuel-economy sandbox, and extend its tentacles throughout the economy, it also gets to play lawmaker, violating the separation of powers.

In light of all the new powers EPA now expects to wield, it is hardly surprising that EPA never made the strong case against Clean Air Act regulation of CO2 in Massachusetts v. EPA. Here’s what EPA should have argued:

• EPA cannot regulate GHG emissions from new motor vehicles under Sec. 202 of the Clean Air Act without regulating CO2 under the Act as a whole. 
• Aplying the Act as a whole to CO2 leads ineluctably to “absurd results” that contravene congressional intent.
• Therefore, Congress could not have intended for EPA to regulate GHG emissions under Sec. 202.

Did EPA throw the fight in the 11th round? I dunno, but losing the Massachusetts case was surely sweet victory to those in the agency who long to regulate America into a ”clean energy future.” The Massachusetts decision laid the groundwork for EPA to deal itself into a position to bypass the people’s elected representatives, impose its will on the auto industry, and, in time, dictate national climate and energy policy.

What happens if Congress enacts Sen. Murkowski’s resolution, nixes the endangerment finding, and mothballs the GHG/fuel economy rule? The authority to make law and national policy returns to where the framers of the Constitution intended — the people’s elected representatives.

Some global warming skeptics have been using the remarkably cold winter and record snowfalls to attack the idea of global warming. Believers are crying foul. “You’re confusing weather with climate!” they insist.

And they’re right. But they invented the game a long time ago and have been deftly playing it ever since.

Among the complainers is Pulitzer Prize winning Washington Post columnist Eugene Robinson, “The Earth is really, really big,” he condescendingly but correctly observes in a nationally syndicated column. “It’s so big that it can be cold here and warm elsewhere – and this is the key concept – at the same time. Even if it were unusually cold throughout the continental U.S., that still represents less than 2% of the Earth’s surface.”

He makes other points, too, but what he somehow misses is that the warmists never hesitate to use any unusual phenomena to assert their case. “Any?” you ask with incredulity. “Any!” I respond with assurance. Check out the list at this Web site. One glance blows you away. It includes everything from “acne” to “yellow fever,” with “short-nosed dogs endangered” in between.

Moreover, time and again the warmists have use terribly cold weather and blizzards to say “global warming is at it again!” and that includes a Bill McKibben column that appeared in the Washington Post just five days before Robinson’s column!

Read about it in my new Forbes Online piece, “Weather Hype, Climate Trype.”

I know newspaper Web polls are not scientific, but wow.

I have a piece in National Review Online today outlining the fantasy behind Sen. Lindsey Graham’s latest attempt to keep cap-and-trade alive. Here’s the beginning:

After declaring energy cap-and-trade “dead” in the Senate, the Left’s new favorite Republican, Sen. Lindsey Graham (R., S.C.) has been working hard to resurrect it under another name. Working with Senators Kerry (D., Mass.) and Lieberman (I., Conn.), along with lobbyists for the major electric utilities (and, err, Big Oil), Senator Graham appears to have come up with a new boondoggle that would institute a cap-and-trade scheme for utilities only, thereby creating a carbon cartel. The plan would impose a carbon “fee” on transportation fuels, driving up the price of gas, that would be rebated in the shape of funding for highway projects — which the Big Oil lobbyists appear to believe would help offset the rise in gas prices. All of this, of course, amounts to a new tax on energy, so Senator Graham and his cohorts are cloaking their smash-and-grab raid in the mantle of investment in “green jobs.”

Read the whole thing here.

Instead of exercising its “judgment,” as required by Sec. 202 of the Clean Air Act, to determine whether greenhouse gas (GHG) emissions endanger public health and welfare, EPA largely deferred to the judgment of an external agency not subject to U.S. data quality and freedom of information laws — the United Nations Intergovernmental Panel on Climate Change (IPCC).

The IPCC developed three lines of evidence for its conclusion that GHG emissions are causing dangerous global warming. The first is based on the IPCC’s understanding of the physics of the climate system. The second is the claim that recent decades are unusually warm compared to previous centuries during the current interglacial period known as the Holocene. The third line of evidence is the asserted agreement between observations and computer model simulations.

Peabody Energy’s 240-page petition for reconsideration assesses these lines of evidence in light of new information not in EPA’s possession when it drafted the endangerment finding. Much of this new information is contained in the thousands of emails and other files that produced the Climategate scandal. The files and emails provide an insider’s look at the professional (or unprofessional) behavior of leading climate scientists at the UK’s Climate Research Unit and their colleagues in the United States. This scandal has led to the resignation (allegedly temporary) of Dr. Phil Jones as director of the CRU and an official determination that the CRU violated the UK’s freedom of information act. 

Peabody concludes that the Climategate files undermine each of the IPCC’s principal lines of evidence, and confirm what many climate “skeptics” had long suspected:

The CRU information reveals that many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy. Indeed, they went far beyond even what is acceptable as advocacy, as they actively suppressed information that was contrary to the “nice, tidy story” that they wished to present, they refused to disclose underlying data concerning the studies in which they were involved to third parties who might use the information to critique those studies, they engaged in a wide variety of improper and indeed unethical tactics to manipulate the type of scientific information that appeared both in the IPCC reports and in the peer-reviewed scientific journals upon which the IPCC largely relied, and they relied on inaccurate and unverified information from secondary source material that was included anyway to advance the authors’ advocacy agenda. Moreover, the Information Commissioner’s Office of the United Kingdom (“U.K.”), the agency that oversees and enforces the U.K.’s freedom of information laws, after investigation, recently concluded that CRU broke those laws in refusing to respond to information requests.

EPA’s only reasonable course of action, Peabody argues, is to reopen the endangerment proceeding:

EPA has effectively delegated its judgment under section 202(a) of the CAA to an international body that acted contrary to basic U.S. standards of information quality, integrity and transparency. In the interests of good science and policy, and as required by law, EPA must now reconsider its Endangerment Finding in light of the CRU revelations. The importance of low-cost, reliable energy to the economy is too high for EPA to begin regulation based on such an uncertain foundation.