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Today, I submitted a comment on EPA’s proposed Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule.  The gist of my argument is as follows:

In Massachusetts v. EPA, the Supreme Court legislated from the bench, authorizing and indeed pushing EPA to control emissions of greenhouse gases (GHGs) for climate change purposes. This is a policy decision of immense economic and political magnitude that Congress never intended or approved when it enacted and amended the Clean Air Act (CAA or Act).

Regulating GHGs under the CAA leads inexorably to “absurd results,” including an economically-chilling administrative quagmire. To prevent GHG regulation from overwhelming agency administrative resources and stifling economic development, EPA proposes to suspend, for six years, the “major” source applicability thresholds for the CAA pre-construction and operating permits programs. That is, EPA proposes to amend the Act. This violation of the separation of powers compounds the constitutional crisis inherent in the Court’s substitution of its will for that of the people’s elected representatives.

The small-business protections proposed in the Tailoring Rule are temporary, legally dubious, and incomplete. Even if courts uphold the Tailoring Rule, despite its flouting of clear statutory language, it will not avert the most absurd result of the Court’s misreading of the CAA:  regulation of carbon dioxide (CO2) and other greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program.

EPA runs enormous political risks leading the charge for GHG regulations not approved by Congress. It is in the Agency’s best interest not to oppose legislative action to overturn the endangerment finding and Mass. v. EPA.

The full text of my comment is available here.

Here is my op-ed published in the Detroit News on December 23.

Climategate: What e-mail really means

Daniel Compton

By now, most people are aware of the scandal surrounding the leak of thousands of e-mails and other documents from the University of East Anglia’s Climate Research Unit (CRU). Among these is an e-mail exchange involving several of the world’s leading climate scientists, dated October of 2009, in which the admission is made that even their best models cannot account for the last decade of temperature data. “The fact is that we can’t account for the lack of warming at the moment and it is a travesty that we can’t,” said Kevin Trenberth, one of the world’s preeminent climate scientists and lead author of the 2001 and 2007 IPCC reports.

Significantly for public policy, the admission implies that efforts to reduce carbon dioxide emissions — including the EPA’s endangerment finding, all forms of cap-and-trade-style legislation, and any possible resolution to emerge from the recently convened Copenhagen conference –have no basis in science .

Trenberth’s statement is compelling on its own, but the subsequent discussion is even more illuminating. Later in the same e-mail thread, fellow climate scientist Tom Wigley replies that he does not agree with Trenberth’s assertion. Trenberth then responds to Wigley, clarifying and expounding upon his earlier claims:

“How come you do not agree with a statement that says we are no where close to knowing where energy is going or whether clouds are changing to make the planet brighter. We are not close to balancing the energy budget. The fact that we can not account for what is happening in the climate system makes any consideration of geoengineering quite hopeless as we will never be able to tell if it is successful or not! It is a travesty!”

This comment requires some scientific translation for its significance to be fully understood. The “energy budget” is the total energy gains and losses incurred by the Earth. The overwhelming majority of the energy entering the Earth comes from the Sun. Some of that energy is reflected back out into space by the atmosphere, clouds, and the Earth’s surface, while the remaining energy is absorbed, and is later reradiated as heat. The amount of energy the Earth gains is approximately equal to the amount it loses, which is why global temperatures remain relatively stable from day to day.

We have fairly good estimates of how much energy is entering the Earth, and we know from the laws of thermodynamics that energy cannot cease to exist, so “balancing the energy budget” simply entails accounting for where all that energy is going. “Global warming” refers to the condition in which the Earth as a system is taking on slightly more energy than it is losing for a sustained period, causing it to heat up over time. Therefore, it is highly significant when one of the world’s leading climate scientists asserts that we are “no where close to knowing where energy is going” and “not close to balancing the energy budget”.

In this context, “geoengineering” refers to any deliberate effort to affect net energy gains or losses to achieve a desired result, such as a cooler planet. The energy income of the planet is approximately static, and also well beyond our control, so affecting net energy flow necessarily involves changing systemic energy losses.

Greater atmospheric concentrations of greenhouse gases, like carbon dioxide (CO2), can reduce energy loss, so reducing CO2 emissions is one method of geoengineering. Indeed, Trenberth, in a letter published in the February 2009 issue of Physics Today defined “geoengineering” to include all efforts to “reduce emissions … or reduce the amount of carbon dioxide in the atmosphere.” Therefore, using his own definition of “geoengineering,” Trenberth’s remark could be interpreted thus:

The fact that we can not account for what is happening in the climate system makes any consideration to reduce emissions … or reduce the amount of carbon dioxide in the atmosphere quite hopeless as we will never be able to tell if it is successful or not!

All policy actions that would be required under the EPA endangerment finding, cap-and-trade legislation, and any global climate treaty amount to attempts to reduce carbon dioxide emissions. Thus, by his own admission, Kevin Trenberth appears convinced that all these efforts are quite hopeless indeed.

Daniel Compton is a research associate at the Competitive Enterprise Institute and contributor to OpenMarket.org

I was intrigued with a reference in Wes Pruden’s Washington Times column today that the Copenhagen COP15 delegate from Tuvalu, weeping while pleading for energy restrictions (and money) to keep the tiny Pacific island from sinking into the sea, is really a Ph.D. student in Australia, who lives in New South Wales.  The source for this information is The Australian newspaper, which carried an article about the Tuvaluan representative, Ian Fry, on December 17.  Here’s an excerpt:

But the part-time PhD scholar at the Australian National University actually resides in Queanbeyan, NSW, where he’s not likely to be troubled by rising sea levels because the closest beach at Batemans Bay is a two-hour, 144km drive away. Asked whether he had ever lived in Tuvalu, his wife told The Australian last night she would “rather not comment”.

A career environmentalist who once worked as a Greenpeace political liaison officer, Mr Fry has found his niche in global climate change talks over the past 10 years, representing small Pacific nations and running the climate negotiations for the Association of Small Island States.

What’s also interesting is that Tuvalu is the poster child for rising sea levels caused by global warming, but as this article in Science magazine notes, the sea level around the island has actually been declining for nearly 50 years.

Is there no shame among global warming zealots?

Cato’s Pat Michaels, one of the scientists attacked in the Climategate emails, has an excellent editorial in the Wall Street Journal today with examples of how the scientists promoting catastrophic global warming shut out dissident voices in supposedly peer-reviewed journals.

Michaels notes that the EPA finding of endangerment from CO2 emissions, based on the tainted research of the Climategate emailers, should be called into question.  He writes:

The result of all this is that our refereed literature has been inestimably damaged, and reputations have been trashed. Mr. Wigley repeatedly tells news reporters not to listen to “skeptics” (or even nonskeptics like me), because they didn’t publish enough in the peer-reviewed literature—even as he and his friends sought to make it difficult or impossible to do so.

Ironically, with the release of the Climategate emails, the Climatic Research Unit, Michael Mann, Phil Jones and Tom Wigley have dramatically weakened the case for emissions reductions. The EPA claimed to rely solely upon compendia of the refereed literature such as the IPCC reports, in order to make its finding of endangerment from carbon dioxide. Now that we know that literature was biased by the heavy-handed tactics of the East Anglia mob, the EPA has lost the basis for its finding.

Rep. Joe Barton (R-TX), ranking member of the House Energy and Commerce Committee, announced today that he plans to introduce a “resolution of disapproval” to overturn the Environmental Protection Agency’s (EPA’s) recently finalized endangerment finding on greenhouse gases.

This is  huge. It means that Republicans are going to insist that climate and energy policy be made by the people’s elected representatives rather than by non-elected judges, litigators, and bureaucrats. It means that EPA regulation of carbon dioxide (CO2) under the Clean Air Act (CAA or Act) will be an issue in the 2010 elections. It means that citizens will be able to hold accountable — and punish at the ballot box — any Member of Congress who votes against Barton’s resolution of disapproval and in favor of the compliance burdens, rising energy costs, and litigation risks to the economy that EPA regulation of CO2 unavoidably entails.

In a press release issued today, Barton stated:

“I want to announce that I and others on the Republican side will ask the House of Representatives to consider and pass a resolution strongly disapproving the discreditable decision by the Obama administration to outlaw carbon dioxide and with it, millions of jobs in America.

“The Environmental Protection Agency’s endangerment finding plainly was intended to make the president’s policies look good in advance of his visit to the Copenhagen global warming conference, not to advance any public good in America, but it also has policy implications that threaten serious damage to the economy for generations to come.

“The EPA’s finding accurately reflects the thousands of candid, outrageous e-mails that EPA’s allies in the global warming community sent to each other by demonstrating that public relations priorities rather than straightforward science are driving U.S. policymaking on global warming, and no where did anyone demonstrate a whiff of concern for who pays the bill or how they earn their living.

“Everybody also understands that the endangerment finding is supposed to prod Congress into resuscitating cap-and-trade legislation that is dying from overexposure to public scrutiny. The social cost of this public relations effort, however, will dwarf the hundreds of billions of dollars already spent by the most profligate administration in history.

“Worst of all, the policy envisioned by the Obama administration will treat the recession by committing the country to living with fewer jobs instead of more, and to taking even more money out of the pockets of those lucky enough to have jobs so that radical environmentalists can wage a war against nature.

“Congress has the right and the responsibility to nullify the decisions of the bureaucracy when they run counter to the people’s interests, and a formal Resolution of Disapproval is fully warranted in this instance.”

Why is EPA inaugurating a regime of global warming regulations that Congress never voted for or approved?  Because the Supreme Court, in Massachusetts v. EPA (April 2007), decided to legislate global warming policy from the bench.

In Mass. v. EPA, eco-litigation groups, led by a baker’s dozen state attorneys general, attempted to do an end run around Congress and impose Kyoto-like policies on the U.S. economy through judicial fiat. They found five willing accomplices on the Court, who essentially ruled that Congress authorized EPA to regulate GHGs for climate change purposes when it enacted the CAA in 1970 — decades before global warming became a public concern. The Court’s decision — an affront to common sense — all but ensured that EPA would issue an endangerment finding for greenhouse gases. That, in turn, would compel EPA, under CAA Sec. 202, to establish first-ever GHG emission standards for new motor vehicles.

However, what none of the principals in the case bothered to mention, is that once EPA adopts the GHG motor vehicle standards sought by plaintiffs, CO2 automatically becomes a pollutant “subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Under the CAA, firms must obtain a PSD permit in order to construct or modify a “major emitting facility,” and a Title V permit in order to operate such a facility. A facility is major under PSD if it is in one of 28 categories and has a potential to emit 100 tons per year (TPY) of a regulated pollutant, or 250 TPY if it is any other type of establishment. A facility is major under Title V if it has the potential to emit 100 TPY of a regulated pollutant. As it happens, millions of previously unregulated buildings and facilities — office buildings, apartment complexes, big box stores, enclosed malls, heated agricultural facilities, small manufacturing firms, even commercial kitchens — emit enough CO2 to meet these thresholds.

EPA estimates that if PSD and Title V are applied as written to CO2 sources, the number of PSD permit applications per year would jump from 280 to 41,000, and the number of Title V permit applications would jump from 14,700 to 6.1 million! The CAA permitting programs would crash under their own weight, putting a freeze on new construction, and thrusting millions of firms into legal limbo. Thanks to Mass. v. EPA, the CAA is about to become an economic wrecking ball aimed straight at small business.

EPA’s October 2009 proposed Tailoring Rule attempts to avoid these “absurd results” by suspending the PSD and Title V requirements for any source emitting less than 25,000 tons per year (TPY) of CO2-equivalent GHGs. EPA hopes in this way to have its cake (the power to regulate CO2) and eat it (avoid an uncontrollable regulatory cascade that would provoke a backlash against the Obama administration, the eco-litigation fraternity, and the Court). But in order to pull off this trick, EPA must play lawmaker, effectively amend the Act, and violate the separation of powers.

Rep. Barton is right not to put his trust in the efficacy of this solution to the regulatory nightmare the Court conjured up in Mass. v. EPA. For one thing, it is unclear whether the Tailoring Rule will survive judicial challenge, because it flouts clear statutory language. Secondly, to preserve the fiction that EPA is not amending the Act, the Agency claims in the Tailoring Rule that its goal is to apply PSD and Title V to smaller and smaller CO2 sources over time, eventually including sources emitting 250 TPY and 100 TPY. EPA proposes to spend five years developing “streamlined” permitting procedures for smaller sources, but the legality of such contrivances is dubious as well, and at best streamlining would reduce irrational regulatory burdens on small business, not avoid them.

Finally, and most importantly, the Tailoring Rule, even if upheld by courts, would provide no protection from the most “absurd result” of the endangerment finding: Imposition of national ambient air quality standards (NAAQS) for CO2 that essentially require the de-industrialization of the United States.

The endangerment finding that EPA has just finalized substantively satisfies the endangerment test in CAA Sec. 108 that governs the first phase of a NAAQS rulemaking. The endangerment finding asserts that current atmospheric CO2 concentrations endanger public health and welfare, so logically, a NAAQS for CO2 would have to be set below current levels. Two eco-litigation groups, the Center for Biological Diversity (CBD) and 350.org, have already petitioned EPA to establish NAAQS for CO2 set at 350 parts per million (PPM). Their motto is “350 or Bust!”

The present atmospheric CO2 level is 390 PPM. Even if the entire world met the emissions reduction target of the Waxman-Markey bill — 83% below 2005 levels by 2050 — this would only “stabilize” CO2 concentrations at 450 PPM. Not even a global depression lasting many decades would be enough to reduce CO2 concentrations to 350 PPM. Yet under established legal interpretation, EPA is prohibited from considering compliance costs when establishing NAAQS.

Clearly, the only solid protection against Mass. v EPA’s “absurd results” is to nip the regulatory mischief in the bud. Barton’s resolution of disapproval would do just that. CBD and its allies have their slogan, and now the friends of liberty have one too: Barton or Bust!

Earlier this week, at an American Geophysical Union meeting in San Francisco, NASA unveiled new data on atmospheric greenhouse gases (GHGs), notably carbon dioxide (CO2) and water vapor, from its Atmospheric Infrared Sounder (AIRS) unit on the agency’s Aqua spacecraft. NASA touted two main findings as “breakthroughs” in GHG research.

One supposed breakthrough is the discovery that CO2 is not “well-mixed” through the global troposphere (mid-level atmosphere), but is actually “lumpy” — distributed in higher concentrations in two “belts” circling the globe, especially in Northern hemisphere, which is more heavily industrialized. Now, I suppose this is a breakthrough in the sense that it will allow researchers to improve CO2 “transport models,” which hitherto have assumed that CO2 concentrations are uniform throughout the troposphere. But it would be surprising indeed if scientists did not know until now that industrialized regions have higher CO2 levels than non-industrialized areas.

The second supposed breakthrough is the claim that the AIRS data remove “most of the uncertainty about the role of water vapor [feedback]” in climate change.  “AIRS temperature data have corroborated climate model predictions that the warming of our climate produced as carbon dioxide levels rise will be greatly exacerbated — in fact, more than doubled — by water vapor,” said climate scientist Andrew Dressler of Texas A&M University. According to Dressler, “We are virtually certain to see Earth’s climate warm by several degrees Celsius in the next century, unless some strong negative feedback mechanism emerges elsewhere in the Earth’s climate system.” Dressler is talking about the assumption, common to all IPCC climate models, that the initial warming from rising CO2 levels increases concentrations of the atmosphere’s main greenhouse gas, water vapor, trapping more outgoing longwave (heat or infrared) radiation (OLR) and increasing global average rainfall.

William Gray of Colorado State University, perhaps the world’s leading hurricane forecaster, offers a different perspective on the NASA water vapor data. Gray’s comment follows:

I have just heard that NASA has a new satellite in orbit that can directly measure CO2 content in the atmosphere and that these new measurements are beginning to show that there is a positive association between increased rainfall (from higher CO2 gas amounts) and Outgoing Longwave Radiation (OLR) suppression. This is to be expected in and around the areas of precipitation — but not necessarily in global areas surrounding precipitation where return flow mass subsidence is driving the water vapor radiation emission level to a lower and somewhat warmer temperature.

I and a colleague, Barry Schwartz, have been analyzing 21 years (1984-2004) of ISCCP (International Satellite Cloud Climatology Project) outgoing longwave radiation on various space scales as related to precipitation differences. We have investigated how OLR changes with variations in precipitation from NOAA reanalysis data on time scales from 3 hours, a day, a month, and up to a year scale.

We find that on a small space scale where rainfall is occurring OLR is greatly suppressed. But on the larger regional to global scales, OLR rises with increasing precipitation. This is due to increased return flow subsidence in the surrounding cloud free and partly cloudy areas. Globally, we are finding that net OLR increases with net increased amounts of global precipitation. This is the opposite of what most GCMs [general circulation models] have programmed into their models and, if I’m interpreting the new NASA announcement correctly, opposite to what they are currently reporting to the media.

Dr. Gray presents a more detailed examination of these issues in his March 2009 Heartland Institute climate conference paper, available here.