Politics

EPA’s Regulatory Burden

by Iain Murray on April 18, 2011

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Last week I received a message from someone knowledgeable about both the EPA and the Hill. It speaks for itself:

Shimkus is holding a hearing now on the coal ash rule, which is live on the committee web site.  The assistant administrator for Solid Waste and Emergency Response or someone from EPA just said that EPA always weighed costs and benefits before implementing a regulation and would never implement a regulation when the costs outweighed the benefits.  Whitfield asked him what proposed regulations had been killed when they found that the costs did outweigh the benefits.  The EPA guy said that he couldn’t think of any off the top of his head so would have to get back to him.  Whitfield asked him to provide one example, so that they could see the difference between a regulation that met the cost-benefit test and one that didn’t.  Don’t hold your breath.

EPA is one of the leading agencies burdening us with more and more regulation every year. For instance, at the moment it has these in the pipeline:

  • Rulemaking to address greenhouse gas emissions from motor vehicles
  • Clean air visibility, mercury, and ozone implementation rules
  • Review of National Ambient Air Quality Standards for lead, ozone, sulfur dioxide, particulate matter, and nitrogen dioxide
  • Rulemakings regarding lead-based paint• National drinking water regulations covering groundwater and surface water
  • National emission standards for hazardous air pollutants from plywood and composite wood products, certain reciprocating internal combustion engines, and auto paints
  • Renewable fuels standard program
  • Standards for cooling water intake structures
  • Combined rulemaking for industrial, commercial, and institutional boilers and process heaters
  • Standards for management of electric power producer coal-combustion wastes
  • Control of emissions from nonroad spark ignition engines, new locomotives, and new marine diesel engines

That’s one of the astonishing facts contained in my CEI colleague Wayne Crews’ annual review of the regulatory state, Ten Thousand Commandments, which is released today. I have a more general review of what it contains over National Review Online.

Post image for House Passes Energy Tax Prevention Act, 255-172

The House of Representatives this afternoon passed H. R. 910, the Energy Tax Prevention Act, by a vote of 255 to 172.  Nineteen Democrats voted Yes.  No Republicans voted No.  This is a remarkable turnaround from the last Congress when on 26th June 2009 the House voted 219 to 212 to pass the Waxman-Markey cap-and-trade bill.

The Energy Tax Prevention Act, sponsored by Rep. Fred. Upton (R-Mich.), the Chairman of the Energy and Commerce Committee, would prohibit the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions and thereby put a potentially huge indirect tax on American consumers and businesses.   Coal, oil, and natural gas produce carbon dioxide, the principal greenhouse gas, when burned.  Those three fuels provide over 80% of the energy used in America.  Thus regulating carbon dioxide emissions essentially puts the EPA in charge of running the U. S. economy.

This is just the first step in stopping the Obama Administration’s attempt to raise energy prices .  The House bill now heads to the Senate, where yesterday an attempt to add the Energy Tax Prevention Act (introduced in the Senate as S. 482 by Senator James M. Inhofe of Oklahoma) as an amendment to another bill was defeated on a 50-50 vote.  Minority Leader Mitch McConnell’s amendment would have required 60 votes to be attached to S. 493.  Four Democrats joined 46 Republicans in voting for the amendment–Senators Joe Manchin of West Virginia, Mary Landrieu of Louisiana, Ben Nelson of Nebraska, and Mark Pryor of Arkansas.  Senator Susan Collins of Maine was the only Republican to vote No.

The strong House vote in favor of the Energy Tax Prevention Act should build new momentum to pass it in the Senate later this year.  Of course, the White House has already issued a veto threat, which shows that President Obama is not interested in creating new jobs and restoring prosperity to America.  Congress has now rejected cap-and-tax resoundingly, but the President still hopes to achieve through backdoor regulation his goals of skyrocketing electric rates and gasoline prices at the $10 a gallon European level.

Post image for Everything You Need To Know about the Energy Tax Prevention Act

The House of Representatives is scheduled to debate and pass H. R. 910, the Energy Tax Prevention Act, on Wednesday.  The Senate could also vote this week on an amendment offered by Minority Leader Mitch McConnell that is identical to the Senate version of the Energy Tax Prevention Act, S. 482.  H. R. 910 was introduced by the Chairman of the Energy and Commerce Committee, Fred Upton.  S. 482 was introduced by Senator James M. Inhofe, Ranking Republican on the Environment and Public Works Committee.  Here are talking points I prepared for Freedom Action on the legislation.

  1. This is a debate about who has authority to decide our nation’s regulatory policies—Congress or autonomous executive agencies.  The first sentence of the first article of the Constitution should be determinative.
  2. H. R. 910 / S. 482 is not about what Members think about climate science.  It is about whether they think that using the Clean Air Act to regulate greenhouse gas emissions is the proper policy.
  3. Congress never intended for the Clean Air Act to be used to regulate greenhouse gas emissions and in fact explicitly rejected an attempt in the debate over the Clean Air Act Amendments of 1990 to add such language to the Act.  H. R. 910 / S. 482 pre-empts regulation until Congress authorizes it.
  4. Cap-and-trade legislation failed in the 111th Congress, yet the Environmental Protection Agency is now trying to achieve the same result through a regulatory end-run around Congress.
  5. H. R. 910 / S. 482 does not in any way restrict or change the Clean Air Act’s regulation of air pollution.  It instead restores the Act to achieve Congress’s original intent.
  6. The United States derives over 80% of its total energy from the three fossil fuels now being regulated by the Clean Air Act on the basis of EPA’s Endangerment Finding.  The Obama Administration has in effect decided that the EPA knows how to run the U. S. economy.
  7. Regulating greenhouse gas emissions is an indirect tax on energy.  By raising energy prices, it will make consumers poorer and manufacturing and transportation more expensive, thereby destroying jobs; and it will likely result in perpetual economic stagnation.  A 2010 study published by Harvard University’s Belfer Center concluded that meeting President Obama’s targets to reduce greenhouse gas emissions would require a gasoline price of $7-9 a gallon.  President Obama said in 2008 that under his plan, “…electricity rates would necessarily skyrocket.”
  8. EPA claims that it will implement its regulations in a reasonable way that minimizes costs.  The Tailoring Rule (which overturns explicit language in the Clean Air Act) is offered as evidence of EPA’s reasonableness.  However, EPA cannot determine the outcome of the many lawsuits that have been filed by environmental pressure groups to require faster and deeper emissions reductions.
  9. The Clean Air Act is a complicated set of interlocking regulatory mechanisms.  The logical outcome is that the courts will require EPA to set a National Ambient Air Quality Standard.  The entire world will then be out of attainment for carbon dioxide levels.  A NAAQS gives EPA almost unlimited power to deny permits for new and operating facilities in non-attainment areas.
  10. H. R. 910 / S. 482 pre-empts the major vehicle for regulating greenhouse gas emissions, the Clean Air Act.  However, there are others: Endangered Species Act, National Environmental Policy Act, Clean Water Act, common law nuisance lawsuits, etc.  Congress should block these other routes to unauthorized regulation through amendments to H. R. 910 or through future legislation.
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House Ready To Pass Upton Bill Next Week

The House has scheduled H. R. 910, the Energy Tax Prevention Act, for floor debate and passage on Wednesday, 6th April.  This could still slip given the wrangling that is going on between the House and the Senate over the Continuing  Resolution to fund the federal government for the rest of FY 2011 after the current CR runs out on 8th April.

Energy and Commerce Committee Chairman Fred Upton’s (R-Mich.) bill will pass easily with over 250 votes.  That most likely includes all 241 Republicans and 12 to 20 Democrats.

The Rules Committee has not yet met to decide which amendments will be in order.  Conservative Republicans in the Republican Study Committee are considering offering several amendments to strengthen the bill.

H. R. 910 as marked up by the Energy and Commerce Committee prohibits the EPA from using the Clean Air Act to regulate greenhouse gas emissions, but does not prohibit the Administration from using other existing statutes to regulate emissions.  Nor does it ban common law nuisance lawsuits against emitters of greenhouse gases, such as power plants, manufacturers, railroads, airlines, and cement producers.

Thus one obvious amendment would be to ban common law nuisance suits.  The Supreme Court is currently considering such a case.  It may find that such suits may proceed, but even if it does not it could do so for the wrong reason—namely, that the EPA is regulating emissions and has thereby pre-empted common law.

Democrats led by Rep. Henry Waxman (D-Beverly Hills) will undoubtedly offer some of the same silly, irrelevant grandstanding amendments that they offered in committee.  Waxman was reported this week as expressing confidence that the bill has no chance in the Senate.

That was certainly true of his Waxman-Markey cap-and-trade bill in the last Congress.  One significant difference is that Waxman-Markey barely passed the House, 219-212.  The Upton-Whitfield bill will pass by a much wider margin.

Moreover, cap-and-trade was swimming against strong public opposition, while blocking EPA’s attempt to achieve cap-and-trade through the regulatory backdoor is swimming with public opinion.  That’s why, for example, Senator Claire McCaskill (D-Mo.) is still undecided about voting for the McConnell amendment (which is identical to the Senate version of H. R. 910) in the Senate.  She doesn’t want to vote for it, but she’d like to be re-elected in 2012.

Will the Senate Ever Vote on the McConnell Amendment?

The Senate spent another week without voting on Senator Mitch McConnell’s (R-Ky.) amendment to block EPA from using the Clean Air Act to regulate greenhouse gas emissions or either of the two Democratic alternatives.  It is quite possible that there will be votes next week.  It is also quite possible that Majority Leader Harry Reid (D-Nev.) will work out a deal with McConnell to dispose of many of the amendments to the underlying bill without votes and proceed to passage of the Small Business Innovation Research Re-Authorization Act.  Or Reid may keep stalling.

McConnell originally introduced his amendment (#183 if you’re keeping track) to S. 493 on 15th March.  It is identical to Senator James M. Inhofe’s (R-Okla.) Energy Tax Prevention Act, S. 482, which is identical to the House bill of the same name, H. R. 910.

Senator Jay Rockefeller (D-WV) introduced an amendment to try to provide cover for fellow Democrats and thereby siphon support from McConnell’s amendment.  Rockefeller would delay EPA regulations for two years.

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Post image for Obama Decries Gimmicks and Slogans with “Win the Future” in Background

Let’s acknowledge the irony here. From a copy of Obama’s prepared remarks today at Georgetown University discussing his administration’s energy plan:

 

But here’s the thing – we’ve been down this road before.  Remember, it was just three years ago that gas prices topped $4 a gallon.  Working folks haven’t forgotten that.  It hit a lot of people pretty hard.  But it was also the height of political season, so you had a lot of slogans and gimmicks and outraged politicians waving three-point-plans for two-dollar gas – when none of it would really do anything to solve the problem.  Imagine that in Washington.

The truth is, of course, was that all these gimmicks didn’t make a bit of difference.  When gas prices finally fell, it was mostly because the global recession led to less demand for oil.  Now that the economy is recovering, demand is back up.  Add the turmoil in the Middle East, and it’s not surprising oil prices are higher.  And every time the price of a barrel of oil on the world market rises by $10, a gallon of gas goes up by about 25 cents.

President Obama is decrying gimmicks and slogans (as he should be), noting their inability to achieve anything, with his newest slogan “Win the Future” in the background.

“WTF” indeed.

Krugman and Climategate

by Brian McGraw on March 29, 2011

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Paul Krugman, never one to mince words when writing about Republicans,  looks desperately for common ground on two unrelated issues in his latest column. As a result of a blog post (among other pieces) written by a Professor William Cronon of Wisconsin, the Wisconsin State Republican Party has requested copies of all communication that Cronon has made using his University e-mail related to the recent union struggle in Wisconsin.

They seem to be legally entitled to this information under a state law similar to the Freedom of Information Act. It’s not clear that Cronon’s e-mails could be construed as anything other than embarassing, as he isn’t directly involved in preparing policy summaries that have enormous political implications.

Regardless of how you feel about this specific issue, Krugman errs when he tries to relate this to Climategate, insinuating that they are at all similar:

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Post image for President Obama Endorses More Oil Production—in Brazil

The most astonishing event this week was President Barack Obama endorsement of more oil production—in Brazil.  In a speech to a CEO Business Summit in Brasilia, the President said:

By some estimates, the oil you recently discovered off the shores of Brazil could amount to twice the reserves we have in the United States.  We want to work with you.  We want to help with technology and support to develop these oil reserves safely, and when you’re ready to start selling, we want to be one of your best customers.  At a time when we’ve been reminded how easily instability in other parts of the world can affect the price of oil, the United States could not be happier with the potential for a new, stable source of energy.

This is the same President who has spent the last two years doing everything he can to reduce oil production in the United States.  Cancelled and delayed exploration leases on federal lands in the Rocky Mountains; the re-institution of the executive moratorium on offshore exploration in the Atlantic, the Pacific, most Alaskan waters, and the eastern Gulf of Mexico; the deepwater permitting moratorium and the de facto moratorium in the western Gulf.  The result is that domestic oil production is about to start a steep decline.  An article on Red State by Steve Maley summarizes the future effects of the Obama Administration’s war against oil.

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Post image for EPA Provides the Cash, American Lung Association Hits Upton and the Energy Tax Prevention Act

The American Lung Association is right up there with the Union of Concerned Scientists as a leftist activist organization pretending to be a professional association with high-minded objectives.  In fact, the American Lung Association is a bunch of political thugs.  Their latest hit job is putting up billboards in Rep. Fred Upton’s district in Michigan that urge him to “protect our kids’ health. Don’t weaken the Clean Air Act (PDF).” The billboard has a photo of an adolescent girl with a respirator.

The American Lung Association is opposing a bill, the Energy Tax Prevention Act (H. R. 910), that is sponsored by Rep. Upton, the Chairman of the House Energy and Commerce Committee.  Upton’s bill, which is expected to be debated on the House floor in early April, does nothing to weaken the Clean Air Act.  It simply prevents the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions.

Congress never intended the Clean Air Act to be used to enforce global warming policies on the American people.  As my CEI colleague Marlo Lewis recently noted, attempts to add provisions to the Clean Air Act Amendments of 1990 that would allow the EPA to regulate greenhouse gas emissions were defeated in the Senate.  A similar attempt in the House went nowhere.

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Post image for Van Jones: Fracking is poisoning our water

The New York Times has a story on the front page of its business section headlined, “Natural Gas Now Viewed as Safer Bet.”  Politico’s Morning Energy reports that Van Jones tweeted a response: “At least until the public learns that fracking poisons H2O.”

Van Jones appears to be a serious person.  He is certainly highly respected in the liberal academic and political establishment.  He earned a law degree at Yale University, founded three leftist activist organizations, and wrote a book, the Green Collar Economy.  Time magazine named him a Hero of the Environment.

President Barack Obama appointed Jones in March 2009 to the new position of Special Advisor for Green Jobs, Enterprise, and Innovation at the White House Council on Environmental Quality.  Jones resigned in September 2009 after controversies arose about several of his past statements and associations.

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Update on the States

by William Yeatman on February 28, 2011

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Louisiana

Three weeks ago, a federal judge in Louisiana found the Department of the Interior in contempt for its moratorium on oil and gas drilling in the Gulf of Mexico enacted in the wake of last year’s BP spill. As a result of the ruling, the government will have to pay the plaintiff’s legal fees, but it didn’t impact the moratorium, which was lifted on October 22, 2010. Despite the end of the de jure moratorium, the Obama administration has kept in place a de facto moratorium through bureaucratic foot-dragging.

Two weeks ago, the same U.S. District Judge, Martin Feldman, lifted this de facto moratorium, by granting a preliminary injunction requiring that the Interior Department act within 30 days on five pending permit applications. According to Judge Martin’s ruling, “Delays of four months and more in the permitting process, however, are unreasonable, unacceptable and unjustified by the evidence before the court.”

New Hampshire

By a 246 to 104 vote, the New Hampshire House of Representatives last week passed HB 519, legislation that would withdraw New Hampshire from a regional energy-rationing scheme known as the Regional Greenhouse Gas Initiative. Governor John Lynch (D) promised to veto the bill before it was introduced, but this week’s vote is veto-proof. The State Senate is expected to pass HB 519 with enough votes to overturn the Governor’s promised veto.

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