puppet masterLast week, the Senate Environment & Public Works Committee held a hearing featuring EPA Office of Air & Radiation chief Janet McCabe, on the subject of EPA’s climate regulations. During his five minutes of questions, Sen. David Vitter (R-Louisiana) pursued a line of inquiry regarding the outsized role played by NRDC in the drafting of the Clean Power Plan for existing power plants. As reported by the New York Times, 3 lobbyist/lawyers at the NRDC wrote the “blueprint” for the regulation, which would fundamentally overhaul the electricity sector. This is unseemly because, in 2008 and 2012, NRDC spent a great deal of resources getting President Obama elected. An impartial observer easily could conclude that NRDC was being rewarded with policymaking prerogatives, in exchange for having helped elect Obama.

In pressing his point, Sen. Vitter held up a placard featuring an email exchange between an NRDC lobbyist and a top EPA political appointee, in which the former pitches to the latter the idea of the drafting a template Clean Power Plan ‘federal implementation plan’ (a.k.a. a “FIP”). In seeming conformity with the NRDC’s direction, EPA last month proposed a Clean Power Plan model FIP (discussed here, here, and here at length).

Sen. Vitter expressed his belief that this behavior was inappropriately collusive. And it was, judging by the evidence at hand (i.e., the email depicted on the placard). Yesterday, however, NRDC alleged that Vitter doctored the email to make his case. According to E&E GreenWire’s Jean Chemnick ($): [click to continue…]

A Lively Debate, The Peril of Rushed Regulations, and a Classic Example of the Practice

  • Last Friday, I participated in a Federalist Society Teleforum on “’Sue and Settle’ and the Endangered Species Act,” with Assistant Professor Justin Pidot of the University of Denver Sturm College of Law and Susan Combs, former Texas Comptroller of Public Accounts. It was a lively discussion, and I think all parties acquitted themselves well. Listen here.justice
  • An adverse policy outcome often attendant to “sue and settle” agreements are low quality rulemakings due to impossibly tight deadlines. For example, consider EPA’s absurd Utility MACT, which threatens to shut down 25% of the nation’s coal-fired power capacity in order to achieve illusory benefits. EPA agreed in an October 2009 consent agreement to issue a final Utility MACT rule by November 16, 2011. Thanks to this too-ambitious schedule, EPA was forced to rush to complete the rule (which ultimately was finalized in February 2012). It is news to no one that rushed work is careless work; accordingly, the final Utility MACT was rife with errors. As a result, EPA constantly has been amending the rule. In the 3 years since the rule went final, EPA has: finalized a round of major corrections (4/19/2012); formally reconsidered the rule three times (11/30/2012; 4/24/2013; 11/19/2014); and partially stayed it once (8/2/2012). On Tuesday EPA proposed yet another round of significant corrections for the rule. Of course, this is terrible for regulatory certainty. Because the agency committed itself to an impossible deadline, it promulgated a highly flawed rule. As a result, about twice a year on average since the rule went final, utilities have had to deal with substantive changes to this hugely consequential rule. [click to continue…]
Post image for Keystone XL Pipeline: EPA’s Double Spin on Oil Prices

As discussed previously on this blog, EPA in a Feb. 2 comment letter challenged the State Department’s assessment that the Keystone XL Pipeline (KXL) is actually the low-carbon option facing U.S. policymakers.

State reasoned that if permission to build the KXL is denied, roughly the same quantity of oil-sands crude would reach U.S. refiners, it would just come by alternate routes. The alternatives, principally rail, would consume more energy than a single large pipeline. Thus, compared to the proposed KXL, the alternatives would emit 28% to 42% more carbon dioxide (CO2). See p. ES-34 of State’s Final Supplemental Environmental Impact Statement (FSEIS).

Policy implication: Approving the KXL is the ‘climate-friendly’ choice.

To rebut this analysis, EPA seized on a passage in the FSEIS in which State opines that the extra cost of transporting crude by rail could make new oil sands development uneconomical if long-term prices fall below $75 per barrel (ES-12). Noting that prices in recent weeks have been as low as $50 per barrel, EPA speculates that approving the KXL could “change the economics of oil sands development and result in increased oil sands production, and the accompanying greenhouse gas emissions, over what would otherwise occur.”

Predictably, anti-Keystone groups hailed EPA’s letter as proof that the KXL would “significantly exacerbate the problem of carbon pollution” and, thus, fail President Obama’s national-interest ‘litmus test,’ announced in his June 25, 2013 climate change speech at Georgetown University.

Keystone bashers conveniently overlook the obvious. Oil prices are volatile. Prices are low today but neither EPA nor anyone else knows what the price of oil will be a year from now, much less over the lifetime of the proposed project.

As TransCanada, the company seeking to build the KXL, pointed out last week in a comment letter rebutting EPA, Canadian oil sands development took off in late 2008, when oil prices were $41 per barrel, and increased through 2009, when oil prices were generally under $75 per barrel.

Here’s the kicker. When it comes to the KXL, EPA views the recent decline in oil prices as a big deal. But when it comes to the agency’s fuel-economy regulations, EPA regards low oil prices as a nothingburger. [click to continue…]

A month ago, during the State of the Union Address, President Obama averred that “no challenge—no challenge—poses a greater threat to future generations than climate change.” And ten days ago, the White House released a National Security Strategy that lists climate change alongside international terrorism and Russian aggression as the preeminent threats today facing the United States.

And yet, despite the President’s best efforts to elevate AGW as a clear and present danger, not one of the four Sunday political talkies (Fox News Sunday, Face the Nation, This Week, and Meet the Press) has fielded a full question about climate change since the SOTU. (As I’ve noted here, here, and here). This is notable insofar as these shows are the embodiment of the political establishment. By ignoring the putative AGW threat to national security, they suggest that conventional wisdom on the issue rests well to the right of the President.

This notion was reinforced yesterday, when ABC This Week became the first Sunday political talkie to ask a question about climate change since the SOTU. The query was delivered by ABC’s Jon Karl with mild incredulity, and its purpose was gauge whether Reps. Adam Schiff (D-Cal.) & Adam Kinzinger (R-Ill.) agree with the president that AGW and terrorism are on par as national security threats:

KARL: So I want to ask you quickly before we go, the president gave this interview to Vox where he suggested that climate change is a greater threat than terrorism. Do you agree with that? Start with you Congressman Schiff. [click to continue…]

There are three ongoing legal challenges to EPA’s proposed Clean Power Plan:

  • On June 18, 2014, Murray Energy Corporation, an Ohio-based coal mining company, filed a novel lawsuit in the D.C. Circuit Court of Appeals seeking an all Writs Act injunction that would halt EPA from continuing with the Clean Power Plan. (Case no. 14-1112)
  • On August 1, 2014, thirteen States led by West Virginia AG Patrick Morrisey filed a petition in the D.C. Circuit Court of Appeals seeking to overturn a non-judicial settlement agreement by which EPA committed itself to propose and finalize the Clean Power Plan. (Case no. 14-1146]
  • On August 15, Murray Energy filed another petition in the D.C. Circuit seeking to overturn the regulation based on the judicial review provisions of the Clean Air Act. (Case no. 14-1151)

In late January, a D.C. Circuit panel established a parallel schedule for all three cases; oral arguments will take place on April 16.

Setting aside their respective jurisdictional hurdles, the challengers essentially share the same case on the merits. If you’ve read this far, then presumably you’re already acquainted with the inside-baseball legalese of these lawsuits; I’ve given the nitty-gritty details here. Very simply put, both the States & Murray Energy argue that the plain text of the Clean Air Act bars EPA from promulgating the Clean Power Plan.

In September, an NRDC lawyer called the lawsuits “laughable.” Nonetheless, NRDC felt it was necessary to intervene in all of them. Last week, NRDC and other environmental interveners submitted two briefs on behalf the EPA (one for the states’ case, and another for both the Murray cases). Notably, the two briefs adopt distinct arguments regarding the plaintiffs’ shared argument on the merits. In this short post, I will address the environmental interveners’ briefs. [click to continue…]

Post image for Winter: Worse than They Thought

“According to the National Weather Service, the low temperature Sunday at Dulles Airport was about 6 degrees at 7:30 a.m. That breaks the record for the date of 7 degrees set in 1965,” the AP reports.

In addition, “At BWI-Thurgood Marshall Airport outside Baltimore, the low of 6 degrees Sunday matched a record set in 1943.”

Yet as of September 2014, global annual carbon dioxide (CO2) emissions were on track to hit a record 40 billion metric tons – 4 billion more than the previous record set in 2013 of 36 billion tons – and roughly 3.5 times more emissions than in 1965 (11.487 billion tons) and 10 times more than in 1943 (4.007 billion tons).

More importantly, atmospheric CO2 concentration today is 399.85 parts per million (ppm), compared to just 320.23 ppm in 1965 and 310.5 ppm in 1943.

Although only halfway through, February is Boston’s “snowiest month on record,” the NWS reported on its Twitter feed. The city has received 58.5 inches of snow, breaking the previous monthly record of 43.3 inches in January 2005.

And who can forget the Buffalo-area snowstorm of November 2014. The town of Cowlesville, New York, about 25 miles south of downtown Buffalo, got 88 inches of snow (7.3 feet) in just five days — an amount approximately equal to the average Buffalo snowfall in an entire winter.

Although 2014 was supposedly the warmest year on record, in the USA between Nov. 10 and Nov. 19, “there were 4,163 record low temperatures set or tied compared to just 465 warm record temperatures set or tied.”

This year’s winter conditions contributed to at least 10 deaths, suspended or delayed train service, cancelled more than 1,800 flights, and closed schools, businesses, and non-essential government offices.

None of this is intended to deny the reality of anthropogenic global warming. The point, rather, is to put things in perspective. [click to continue…]

On Friday, I participated in an online video interview with the Wall Street Journal’s Mary Kissel regarding the green scandal that engulfed Oregon Democratic Governor John Kitzhaber. After the video, I’ve posted my summary of the situation.

Oregon’s Democratic Governor John Kitzhaber announced his resignation on Friday, 13th February, as the result of revelations that Oregon’s “First Lady” Cylvia Hayes has taken hundreds of thousands of dollars in payoffs from green energy clients and non-profit groups to promote their interests.  Kitzhaber will be succeeded by Oregon’s elected Secretary of State, Kate Brown, until a special election is held in November 2016 to fill the last two years of his term.

Hayes has been Kitzhaber’s girlfriend for several years and more recently his fiancée.  The governor designated her as Oregon’s official first lady and allowed her to run her clean energy consulting business out of the governor’s mansion and gave her authority to direct state employees on policies related to her clients.  Hayes received payments from some of these clients that were not reported by her in state conflict of interest filings.  These payments included $118,000 from the Clean Economy Development Center in 2011 and 2012 and a further $85,000 in 2013, including $50,000 from the Energy Foundation. [click to continue…]

Cooler Heads Digest 13 February 2015

Which State in the lower 48 has the highest gas prices? You probably already know the answer. But today’s gas price map on GasBuddy.com is too pretty not to share with visitors to this blog.

The long-reigning, undisputed champion of pain at the pump is (drum roll . . .) the State with the most ‘progressive’ energy and climate policies.

Gas Prices Map February 12, 2015 Gasbuddy







Source: GasBuddy.Com

Post image for States Should Just Say ‘No’ – 10 Reasons EPA’s Clean Power Plan Is Unlawful

EPA’s Clean Power Plan (CCP) would set carbon dioxide (CO2) performance standards for state electric power sectors. The standards are calibrated in pounds CO2 per megawatt hour. They translate into statewide emission-reduction mandates or caps. On average, states would have to reduce their power-sector CO2 emissions 30% below 2005 levels by 2030.

Under §111 of the Clean Air Act (CAA), a performance standard, whether for new or existing sources, must reflect the “best system of emission reduction” (BSER) that has been “adequately demonstrated,” taking “cost” into account.

Performance standards must also be “achievable,” defined by the D.C. Circuit Court of Appeals to mean achievable by the regulated industry as a whole (National Lime Association V. EPA, 627 F. 2d 416 at 443 [1980]).

Finally, before EPA may promulgate “existing source performance standards” (ESPS), as it proposes to do through the CPP, the agency must first promulgate new source performance standards (NSPS), as it proposes to do through the Carbon Pollution Standards rule.

State policymakers should have no legal qualms about refusing to comply with the CPP. EPA’s proposal is unlawful on at least 10 counts.

(1) CAA § 111(d) prohibits EPA from requiring ESPS for sources already regulated under §112. EPA has been regulating power plants under §112 since December 2011, when the agency finalized the Mercury Air Toxics Standards (MATS) rule. Therefore, the very provision under which EPA proposes to establish performance standards for existing power plants prohibits the agency from doing so.

(2) A state’s electric-power sector is not a “source” to which a performance standard may lawfully be assigned. Unlike all previous §111 performance standards, which, pursuant to the statute, apply to “particular sources,” CPP proposes to cap emissions from each state’s entire electric-power sector. CAA §111(a)(3) defines “stationary source” (whether new or existing) as “any building, structure, facility, or installation which emits or may emit any air pollutant.” Obviously, a state’s power sector is not any such individual physical object.

(3) A “best system of emission reduction” (BSER) is a technology or set of technology options “adequately demonstrated” for “designated facilities,” not a green wish-list of market-restructuring energy policies Congress has repeatedly declined to approve. Nothing in the statutory text, EPA’s implementing regulations, or past practice indicates that EPA may control state policies regarding renewable energy, electricity dispatch, or demand management.

(4) A BSER for CO2 emissions from existing power plants does not exist. Commercial technology to capture or filter CO2 emissions from existing power plants has not yet been developed, as EPA admits. Hence there is no “best system of emission reduction” on the basis of which EPA or states could set CO2 performance standards for existing power plants. [click to continue…]