Last week, Judge Lawrence O’Neill of the U.S. District Court in Fresno issued a preliminary injunction blocking enforcement of California’s Low Carbon Fuel Standard (LCFS), a regulation requiring a 10% reduction in the carbon content of motor fuels sold in the state by 2020. O’Neill concluded that the LCFS violates the Commerce Clause of the U.S. Constitution because it discriminates against out-of-state economic interests and attempts to control conduct outside the state’s jurisdiction.

The California Air Resources Board (CARB) adopted the LCFS as part of its strategy to implement California Assembly Bill 32, the Global Warming Solutions Act of 2006, which aims to reduce the state’s total greenhouse gas (GHG) emissions to 1990 levels by 2020. Other AB 32-implementing measures include a cap-and-trade program covering the state’s largest emitters, a renewable portfolio standard (RPS) requiring 33% of California’s baseload power to come from renewable sources by 2020, and the state’s motor vehicle greenhouse gas emission standards (AB 1493), which implicitly (and, I argue, unlawfully) regulate fuel economy. CARB estimated that the LCFS would reduce in-state carbon dioxide-equivalent (CO2-e) emissions by 16 million metric tons (mmt), or about 10% of the total 174 mmt CO2-e emission reduction target for 2020.

The injunction is a setback for the California greenhouse political establishment, including former Gov. Arnold “I say the debate is over” Schwarzenegger, who issued the Jan. 2007 executive order directing CARB to develop and adopt the LFCS. CARB says it will appeal O’Neill’s decision. If the injunction is upheld, it should strengthen opponents of similar policies proposed or adopted by other states.

O’Neill considered three separate lawsuits by refiners, truckers, and out-of-state ethanol producers against the LCFS. The injunction focuses on the ethanol producers’ complaints.

The LCFS requires a 10% reduction in the carbon intensity (CI) of motor fuels sold in the state by 2020. CI is calculated on a life-cyle (“well-to-wheels”) basis, taking into account not only the GHGs emitted when the fuel is combusted but also emissions associated with production and transport of the fuel. Life-cycle analysis is an essential planning tool for climate policy regulators, because what supposedly matters climatologically is not the emission reductions from a particular source or jurisdiction but the net reduction in global emissions.

For example, life-cycle analysis indicates that switching from gasoline-powered cars to electric vehicles in China would actually increase net GHG emissions, because almost 80% of China’s electricity comes from coal.

But it’s precisely CARB’s use of life-cycle analysis that puts the LCFS crosswise with the U.S. Constitution. Midwest ethanol producers get much of their electricity from coal. To sell their product in California they must transport it thousands of miles. Their methods of turning ethanol byproducts into animal feed may be more carbon-intensive than comparable operations in California. On a life-cycle basis, ethanol produced in the Midwest, although physically and chemically identical to ethanol produced in California, has a higher CI rating.

Thus, to compete in the California motor fuels market, Midwest producers must either make additional CI-reducing investments California producers do not have to make, or buy surplus low-carbon fuel credits from California producers whose CI score is below the required state-wide average for that year. Either way, the LCFS puts the Midwest producers at a competitive disadvantage. It discriminates against interstate commerce.

In Judge O’Neill’s words:

CARB is attempting to stop leakage of GHG emissions by treating electricity generated outside the state differently than electricity generated inside its border. This discriminates against interstate commerce. Moreover, tying carbon intensity scores to the distance a good travels in interstate commerce discriminates against interstate commerce.

O’Neill also agreed with plaintiffs that the LCFS attempts to control conduct outside of California’s territorial jurisdiction. According to plaintiffs, CARB’s life-cycle analysis “calibrates CI scores so that they regulate, among other things, deforestation in South America, how Midwest farmers use their land, and how ethanol plants in the Midwest produce animal nutrients.” For example, CARB “imposes a substantial penalty — more than 30% of the CI score for corn ethanol — for ‘indirect land use.’ That penalty is used to discourage farmers around the world from converting nonagricultural land into farmland to enter the corn market.”

CARB contends that taking these out-of-state activities into account in calculating CI scores is not the same as regulating those activities. O’Neill disagreed. Just because the LCFS does not “directly regulate” out-of-state activities does not mean it does not attempt to control the conduct of out of state activities. CARB acknowledges that the LCFS assigns higher CI scores based on those out-of-state activities to provide “an incentive for regulated parties to adopt production methods which result in lower emissions.” CARB “cannot dispute that the ‘practical effect’ of the regulation would be to control this conduct — occurring wholly outside of California.” Thus, the LCFS “impermissibly attempts to ‘control conduct beyond the boundary of the state.’”

O’Neill also considered what would happen if many or all states adopt a LCFS. To the extent that distance traveled influences CI, each state’s LCFS would discriminate against out-of-state imports. [A Midwest LCFS would discriminate against California ethanol producers -- Ha!] The proliferation of LCFS regulations would “balkanize” fuel markets and “plainly intefere” with free trade in ethanol and ethanol production. Moreover, there is no guarantee that each state would set the same CI reduction targets. “Ethanol producers and suppliers would be hard pressed to satisfy the requirements of 50 different LCFS regulations which may require 50 different levels of reductions over 50 different time periods.”

If upheld, Judge O’Neill’s ruling should embolden opponents of the LCFS proposed last August by the Northeast States for Coordinated Air Use Management (NESCAUM).

Tomorrow, the House Energy and Commerce Committee will hold its second hearing on Solyndra, the manufacturer of innovative non-silicon-based solar panels that borrowed $527 million only to file for bankruptcy, shutter its brand new Freemont, Calif. factory, and lay off 1,100 employees on September 6. Expect Committee Democrats to blame China and the allegedly unforeseen fall in the price of conventional silicon-based solar panels for the debacle.

That’s the line the Department of Energy’s (DOE) witness, Jonathan Silver, took at the Committee’s first (September 14) Solyndra hearing, noting China’s provision of more than $30 billion in subsidized financing to its solar manufacturers, which rapidly dropped silicon prices, “taking Solyndra, and many industry analysts, by surprise.” DOE’s blog, Energy.Gov, had already adopted this explanation on August 31, the day Solyndra announced it would file for bankruptcy.

Similarly, Solyndra’s August 31 announcement coyly cited the “resources of larger foreign [i.e. Chinese] manufacturers” and a “global oversupply of [mainly Chinese] solar panels” as factors foiling the company’s business plan. Solyndra’s ex-employees have applied to the Department of Labor (DOL) for aid under the Trade Adjustment Assistance (TAA) program, claiming that China put them out of work. If DOL approves the application, Solyndra’s former workers will receive allowances for job retraining, job searching, and health care for up to 130 weeks, or about $13,000 per employee. Blogger Scott Linicom decries such double dipping:

So to recap: massive government subsidies created 1,100 “green jobs” that never would’ve existed but for those massive government subsidies.  And when those fake jobs disappeared because the subsidized employer-company inevitably couldn’t compete in the market, the dislocated workers blamed China (instead of what’s easily one of the worst business plans ever drafted) in order to receive . . . wait for it . . . more government subsidies. Behold, the Circle of Government Life.

Whether it’s Solyndra execs and DOE officials trying to save face, ”progressives” defending the honor of green industrial policy, or former employees looking for more taxpayer freebies, they all would have us believe that Solyndra’s $535 million loan guarantee was a good bet at the time it was made. They need a scapegoat for Solyndra’s crash, so they blame China. Indeed, some (e.g. Grist) claim Solyndra’s collapse shows that the U.S. government isn’t doing enough to help our “clean tech” companies “compete.” Balderdash.    

Solyndra’s business plan was dubious from the getgo. Committee Ranking Member Henry Waxman (D-Calif.) claims that “under both the Bush Administration and the Obama Administration, DOE officials strongly backed Solyndra.” In fact, on January 9, 2009, Bush’s DOE declined to approve Solyndra’s loan guarantee application, citing several “unresolved” issues including lack of an independent study of the company’s long-term prospects, questions about the company’s financial strength, and concern about the scale-up of production assumed in the business plan (Documents Entered into Record, p. 1).

As for the allegedly unanticipated glut in rooftop solar panels, which made Solyndra’s thin-film panels uncompetitive, it was the topic of a January 12, 2009 USA Today article. In an email dated January 13, 2009, Bush DOE staff cited the glut, reported in USA Today, as the reason for the DOE Credit Committee’s “unanimous decision not to engage in further discussions with Solyndra at this time” (Documents Entered into Record, p. 2).

Emails obtained by the Committee suggest that White House pressure for quick approval may have compromised the depth and quality of DOE and Office of Management and Budget (OMB) review of Solyndra’s loan application (Documents Entered into Record, pp. 4, 11, 12):

• “There’s a recurrent problem with the [White House] scheduling office looking for events [loan guarantee approvals] before they are ready to go.” (March 10, 2009)
• “As long as we make it crystal clear to DOE that this is only in the interest of time, and that there’s no precedent set, then I’m okay with it. But we also need to make sure they don’t jam us on later deals so there isn’t time to negotiate those, too.” (August 27, 2009)
• “We have ended up in the situation of having to do rushed approvals on a couple of occasions (and we are worried about Solyndra at the end of the week). We would prefer to have sufficient time to do our due diligence reviews and have the approval set the date for the announcement rather than the other way around.” (August 31, 2009)

DOE approved the Solyndra loan guarantee on September 4, 2009 — an event timed to coincide with the ground breaking ceremony for the company’s Freemont, California factory. Speakers included DOE Secretary Steven Chu, California Gov. Arnold Schwarzenegger, and Vice President Biden (via satellite feed). But a scant two weeks before, on August 19 and 20, emails between DOE staff note that when Fitch modeled Solyndra’s cash flow over time, the company ”runs out of cash in Sept. 2011 even in the base case without any stress. This is a liquidity issue” (Documents Entered into Record, pp. 8-9). Rarely has a government business forecast been so accurate!

In addition to the liquidity problem, it is unclear whether Solyndra had a viable plan to reconcile its production costs and sale prices. According to an ABC News analysis:

While Energy Department officials steadfastly vouched for Solyndra — even after an earlier round of layoffs raised eyebrows — other federal agencies and industry analysts for months questioned the viability of the company. Peter Lynch, a longtime solar industry analyst, told ABC News the company’s fate should have been obvious from the start.

“Here’s the bottom line,” Lynch said. “It costs them $6 to make a unit. They’re selling it for $3. In order to be competitive today, they have to sell it for between $1.5 and $2. That is not a viable business plan.”

Along the same lines, ELECTRO IQ (November 8, 2010) posed the question: “Can Solyndra reconcile cost-per-watt and sale price?” From the article:

In the last year, there have been numerous stories about CIGS [copper idium gallium selenide] thin-film manufacturer Solyndra’s troubles — a pulled IPO, a restructuring of the executive team, and, most troubling, the high cost of module production. (In an S-1 filing a year ago, the company said its average sales price was over $3.20 a watt, about 65% more than leading crystalline-silicon PV manufacturers. Its cost of manufacturing was over $6 a watt). Solyndra aims at $3.5 per watt by the end of 2011.

Tim Worstall, writing in Forbes (September 17, 2011), argues that, “Yes, it was possible to see this failure coming.” Defenders of the loan argue that the fall in silicon solar prices was unforeseen, hence “Solyndra’s non-silicon technology got bushwhacked by something no one could have anticipated.”

In reality, it was “blatantly obvious” that competitors’ prices would fall. In the mid-2000s demand exceeded supply and the price soared. But as Econ 101 tells us, soaring prices create incentives to increase supply, which then push prices down.

What’s more, says Worstall, by 2008, First Solar, a leading supplier of non-silicon modules, had already achieved lower cost-per-watt than Solyndra hoped to achieve by 2011.

Concludes Worstall: “It wasn’t an unexpected fall in silicon prices that did in Solyndra: they were never even close to being competitive on pricing against non-silicon technologies. They weren’t even in the right ballpark at all.”

Let’s take a closer look at DOE loan program director Silver’s ’don’t-blame-DOE-or-Solyndra’ explanation of why the company went bust:

In 2009, Solyndra appeared to be well-positioned to compete and succeed in the global marketplace. Solyndra manufactured cylindrical, thin-film, solar cells, which avoided both the high cost of polysilicon — a crucial component used in conventional solar panels — and certain costs associated with installing flat panels. But polysilicon prices subsequently dropped significantly, taking Solyndra, and many industry analysts, by surprise. Among the principal beneficiaries of this pricing environment were four of Solyndra’s Chinese competitors, which sell polysilicon panels and received $20 billion in credit from the China Development Bank in 2010.

* * *

Unfortunately, changes in the solar market have only accelerated in 2011, since the restructuring [of Solyndra's loan guarantee in February 2011] — making it more difficult for the company to compete. Chinese companies have flooded the market with inexpensive panels, and Europe — currently the largest customer base for solar panels — have suffered from an economic crisis that has significantly reduced demand and forced cuts in subsidies for solar deployment that were important to Solyndra’s business model. The result has been a further and unprecedented 42% drop in solar cell prices in the first eight months of 2011.

All of that may be correct, but the pertinent issue is whether anyone could have foreseen these changes in the marketplace in 2009 and 2010 when the U.S. government decided to bet taxpayers’ money on Solyndra. Far from being unforeseeable that China would subsidize its ”clean tech” companies to beat out U.S. firms and capture market share, this was a major premise of DOE’s loan guarantee program. We had to fight fire with fire or else lose the “clean energy race,” Obama officials warned. As DOE Secretary Chu said in testimony on October 27, 2009:

China has already made its choice. China is spending about $9 billion a month on clean energy. . . .The United States, meanwhile, has fallen behind. . . .We manufactured more than 40 percent of the world’s solar cells as recently as the mid 1990s; today, we produce just 7 percent. When the starting gun sounded on the clean energy race, the United States stumbled. But I remain confident that we can make up the ground. . . .The Recovery Act includes $80 billion to put tens of thousands of Americans to work developing new battery technologies for hybrid vehicles, making our homes and businesses more energy efficient, doubling our capacity to generate renewable electricity, and modernizing the electric grid.

Moreover, one did not need to be a rocket scientist to predict that if the U.S. government leverages billions of dollars in private investment to compete with Chinese firms, China would up the ante. After all, Beijing is flush with cash, whereas Washington is deep in debt.

Nor was any great acumen required to anticipate that the economic crisis would cut subsidies and thereby reduce demand for solar panels in Europe. In October 2009, the Rheinisch-Westfälisches Institut (RWI) reported that Germany’s feeder tariff system was on course to subsidize solar voltaic modules to the tune of $73 billion from 2000 through 2010, yet solar power was providing less than 1% of the nation’s electricity. Such lavish subsidies are unsustainable, especially during a financial crisis.

One also wonders why Solyndra had to hire 3,000 people to build a brand new factory (“Fab 2″). Wouldn’t it have been cheaper to rent space in an existing building? Ah, but then there would have been no groundbreaking and no photo-op for Secy. Chu, Gov. Schwarzenegger, and Vice President Biden. Mixing politics with business politicized Solyndra’s business plan.

Even if one makes the dubious assumption that Solyndra’s business plan was sound at the time DOE approved the loan guarantee, why did S0lyndra stick to the plan when it became clear the company was going broke?  ”The Fed money was explicitly tied to being *solely* used to build Fab 2. Solyndra could not use the loan proceeds for *anything* else,” according to an anonymous member of Solyndra’s management team. The DOE loan guarantee, it seems, reduced Solyndra’s ability to adapt to changing market conditions.

Sadly, the one lesson Team Obama will never draw from Solyndra’s failure is the most important one: the folly of government trying to play venture capitalist. Heritage Foundation economist David Kreutzer offers some choice words in two recent blog posts:

“We have such a great product that nobody will lend us the money,” was the nonsensical argument from Solyndra and its backers. Those who did not see the logical flaw in 2009 cannot help but see the flawed result in 2011. Unfortunately, some still do not see the logical problem that led to the mess.

Indeed, two of the criteria for the loan program show how silly it is to have government run a bank. One is that the loan must be for a commercially viable project. Another is that the applicants have to demonstrate that they could not get private financing. By definition, the second criterion rules out the first.

California Superior Court judge Ernest Goldsmith ruled on Friday that the state’s Air Resources Board (ARB) must halt “any futher rulemaking and implementation of cap-and-trade” until the agency examines alternatives policies to meet the greenhouse gas-reduction targets established by Assembly Bill 32, the Global Warming Solutions Act. ARB must also, pursuant to the California Environmental Quality Act (CEQA), complete a review of the environmental impacts of its preferred regulatory strategy before adopting it.

Note: The ruling does not challenge AB 32 itself, and petitioners in the case are greenies who think ARB’s plan to curb greenhouse gas (GHG) emissions doesn’t go far enough. Nonetheless, this is a setback to California politicians and cap-and-taxers throughout the land. ARB has 15 months to provide the requisite analyses. ARB says it will appeal the decision. Rots of ruck!

AB 32 requires ARB to establish a statewide GHG emissions tonnage limit for 2020 equivalent to the state’s emission levels in 1990, and to develop a regulatory path, known as a Scoping Plan, to achieve ”maximum technologically feasible and cost-effective reductions in greenhouse gas emissions from sources or categories of sources of greenhouse gases by 2020.” Judge Goldsmith ruled that ARB “committed a prejudicial abuse of discretion when it failed to proceed in a manner required by law by inadequately describing and analyzing Project alternatives [other ways of reducing GHG emissions] sufficient for informed decisionmaking and public participation.”

Judge Goldsmith more extensively discussed the issues in his Jan. 24, 2011 Tentative Statement of Decision. Petitioners, led by the Association of Irritated Residents (AIR), asserted that  ARB “failed to meet the mandatory statutory requirements of AB 32 and the California Environmental Quality Act (CEQA) by essentially treating the Scoping Plan as a post hoc rationalization for ARB’s already chosen policy approaches.” Specifically, petitioners argued that ARB violated AB 32 by:

(1) excluding whole sectors of the economy from GHG emission controls and including a cap-and-trade program without determining whether potential reduction measures achieved maximum technologically feasible and cost-effective reductions; (2) failing to adequately evaluate the total cost and benefits to the environment, the economy, and public health before adopting the Scoping Plan; and (3) failing to consider all relevant information regarding GHG emission reduction programs throughout the United States and the world, as required by AB 32, prior to recomending a cap-and-trade regulatory approach.

The significance for national politics? This is another nail in cap-and-trade’s coffin. AB 32 was a point of pride for both former Gov. Schwarzengger and California Democratic legislators. Indeed, one purpose of the statute was to place California “at the forefront of national and international efforts to reduce emissions of greenhouse gases.” AB 32 became the much-vaunted “California model” that Rep. Henry Waxman (D-Calif.) and Sen. Barbara Boxer (D-Calif.) invoked during their multi-year campaign to sell cap-and-trade on Capitol Hill.

Cap-and-trade has been on the skids since its day in the Sun back in June 2009, when the House narrowly passed the Waxman-Markey bill. After passage, the bill became politically radioactive and never came to a vote in the Senate. The December 2009 Copenhagen climate conference ended in failure, producing no agreement on a successor treaty to the Kyoto Protocol.

In February 2010, Arizona Gov. Jan Brewer issued an executive order stating that Arizona would not implement the Western Climate Initiative (WCI) cap-and-trade plan, scheduled to begin on January 1, 2012. Aside from California, none of the other WCI states (Arizona, New Mexico, Oregon, Washington, Montana, and Utah) is close to implementing cap-and-trade. Yet in August 2010, ARB Chair Mary Nichols said that California would not go it alone: ”We won’t launch this program without partners to trade with. It doesn’t make sense for an economy even as big as California, to try to do this all by ourselves.”

In November 2010 the Chicago Climate Exchange emissions trading pilot program announced it would shut down “for lack of legislative interest.”

And now, thanks to the Irritated and Judge Goldsmith, ARB may not be able to implement cap-and-trade even if Ms. Nichols wants to fly solo.

Political movements fizzle without momentum. Judge Goldsmith just put the Golden State’s cap-and-trade plan on ice.

Via the Los Angeles Times.

Ironically, the cap-and-trade program has been temporarily halted due to a lawsuit brought forth by other environmental groups, concerned that the CARB did not sufficiently consider alternatives to a C&T program such as a direct carbon tax:

The groups contend that a cap-and-trade program would allow refineries, power plants and other big facilities in poor neighborhoods to avoid cutting emissions of both greenhouse gases and traditional air pollutants.

“This decision is good for low-income communities like Wilmington, Carson and Richmond,” said Bill Gallegos, executive director of Communities for a Better Environment. “It means that oil refineries, which emit enormous amounts of greenhouse gases and contribute to big health problems, cannot simply keep polluting by purchasing pollution credits, or doing out of state projects.”

This logic is odd, as even under a cap-and-trade program, oil refineries won’t simply disappear. It’s possible that they might be required to reduce their own pollution rather than buying permits, but this speaks mainly to the design of the cap-and-trade program. A small carbon tax would likely have the same effect, and if the design of the cap-and-trade program is any hint, it would be difficult to pass a significant carbon tax.

However, given that the program involves distributing initial permits to many companies for free (which, according to Wikipedia, will cover 90% of their emissions), a pure carbon tax would involve less corporatism.

Do recall the CARB press release touting the economic benefits of this program:

The economic analysis compares the recommendations in the draft Scoping Plan to doing nothing and shows that implementing the recommendations will result in:

• Increased economic production of $27 billion
• Increased overall gross state product of $4 billion
• Increased overall personal income by $14 billion
• Increased per capita income of $200
• Increased jobs by more than 100,000

and subsequent commentary offered by peer review (many of whom support the program, none of whom buy into the free-lunch aspect):

Professor Robert Stavins, the Director of Harvard’s Environmental Economics Program:

I have come to the inescapable conclusion that the economic analysis is terribly deficient in critical ways and should not be used by the State government or the public for the purpose of assessing the likely costs of CARB’s plans. I say this with some sadness, because I was hopeful that CARB would produce sensible policy proposals analyzed with sound scientific and economic analysis.

5.       New Jersey Governor Chris Christie
Christie’s skepticism of global warming alarmism is great. What’s not so great is his continued participation in a regional cap-and-trade energy rationing scheme. For whatever reason, the climate skeptic sounding governor has yet to pull his state out of the Regional Greenhouse Gas Initiative, the aforementioned energy tax.

4.       Florida Governor Charlie Crist (lame duck)
In 2007, Crist signed a series of environmentalist executive orders, which, thankfully, never came to fruition because they were spurned by the State Legislature. Crist earned his spot on this list for his invertebrate take on offshore drilling. When he campaigned for Governor, he opposed offshore drilling; when gas prices spiked in the summer of 2008, he supported drilling; and after the Gulf oil spill this past summer, he reverted back to opposing the practice.

3.       California Governor Arnold Schwarzenegger (lame-duck)
As I’ve explained here, here, and here, the Governator’s environmentalist pandering is empty blathering. For all the talk about California going green, the fact of the matter is that California’s environmentalist energy policies have been ineffectual at achieving anything other than higher energy prices. Rather than environmentalist accomplishments, Schwarzenegger’s only lasting legacy will be the almost-unlimited power he has bequeathed to his successor, Governor-elect Jerry “Moonbeam” Brown. Starting in 2011, the law accords the Governor amorphous, yet absolute, authority to mitigate climate change.

2.       New Mexico Governor Bill Richardson (lame duck)
Using authority derived from 1978 state law, New Mexico Governor Bill Richardson (D) last month imposed a cap-and-trade energy rationing scheme. The lame-duck Governor enacted the energy-rationing scheme administratively on November 2, the same day that voters indicated their displeasure with expensive energy climate policies by electing Susana Martinez (R) to succeed Richardson. She had campaigned against cap-and-trade. To be sure, Richardson’s energy policy is largely toothless; nonetheless, the executive power grab is disconcerting.

1.       Colorado Governor Bill Ritter (lame duck)
It will take a generation for Coloradans to undo the harm inflicted by the Governor Bill Ritter’s much-ballyhooed “New Energy Economy.” At Ritter’s behest: the General Assembly changed the mission of state utilities from providing “least cost” electricity, to fighting climate change; the Public Utilities Commission allowed the nation’s first carbon tax; and Department of Public Health and Environment exaggerated the threat of federal air quality regulations in order to justify legislation that picks winners and losers in the electricity industry.