Gina McCarthy — President Obama’s pick to succeed Lisa Jackson as EPA Administrator — is often described as a “straight shooter” and “honest broker.” As my colleague Anthony Ward and I explain in Forbes, McCarthy has a history of misleading Congress about the EPA’s greenhouse gas regulatory agenda.
Specifically, McCarthy and the Air Office over which she presides gave Congress and the electric power sector false assurances that the EPA’s greenhouse gas regulations would not require utilities planning to build new coal-fired power plants to “fuel switch” to natural gas. McCarthy also denied under oath that greenhouse gas motor vehicle standards are “related to” fuel economy standards, even though anyone with her expertise must know that the former implicitly and substantially regulate fuel economy.
McCarthy and the Air Office’s misleading statements about fuel switching discredited critics who claimed the EPA was waging a war on coal and would, if left to its own devices, ban new coal generation. The fiction that greenhouse gas emission standards are unrelated to fuel economy standards gave the EPA legal cover to gin up a regulatory nightmare for auto makers — the prospect of a market-balkanizing, state-by-state, fuel-economy ”patchwork“ – just so the White House, in hush-hush negotiations, could demand auto industry support for the administration’s motor vehicle mandates as the price for averting the dreaded patchwork. This is a complicated tale, which I will discuss in Part 2 of this series.
The bottom line is that if the EPA had not dissembled on fuel switching and not obfuscated on fuel economy, more Senators might have voted for legislative measures, sponsored by Sen. Lisa Murkowski (R-Alaska) in 2010 and Sen. James Inhofe (R-Okla.) in 2011, to rein in the agency. In addition to their well-publicized transparency concerns about the EPA under the leadership of Lisa Jackson and Gina McCarthy, Senators should also have separation of powers concerns.
Earlier this week, Sen. David Vitter (R-La.), Ranking Member of the Senate Environment & Public Works Committee, released a 123 page document containing McCarthy’s responses to hundreds of questions on a wide range of issues. In today’s post, I comment on McCarthy’s responses to Sen. Vitter’s questions about fuel switching. In Part 2 of this series, I will comment on McCarthy’s responses regarding the administration’s motor vehicle program. [click to continue…]
Earlier this month, the House Oversight and Government Reform Committee issued a staff report on the Obama Administration’s fuel economy/greenhouse gas (GHG) regulatory program. The report, A Dismissal of Safety, Choice, and Cost, is the product of a “multi-year Committee investigation” that includes three hearings, a transcribed interview of EPA Assistant Administrator Gina McCarthy, and a review of more than 15,000 documents obtained by the Committee from the EPA, the National Highway Traffic Safety Administration (NHTSA), the California Air Resources Board (CARB), and 15 automobile manufacturers.
Some key findings:
- The Administration performed an end-run around the law and ran a White House-based political negotiation, led by “czars” who marginalized NHTSA, the federal agency charged in statute with setting fuel economy standards.
- Contrary to the statutory scheme Congress created, the EPA became the lead agency in fuel economy regulation and NHTSA was sidelined. Contrary to Congress’s preemption of State laws or regulations “related to” fuel economy, CARB became a “major player” and an “aggressive participant in the process,” allowing unelected state regulators in Sacramento to set national policy outside the federal rulemaking process.
- The Administration violated the spirit – and possibly the letter – of the Administrative Procedure Act, Presidential Records Act, and Federal Advisory Committee Act by negotiating agreements on both the Model Year (MY) 2012-2016 and MY 2017-2025 standards behind closed doors with only a select group of stakeholders.
- The new fuel-economy/GHG standards will add thousands of dollars to the cost of new vehicles. Consumers are likely to incur net financial losses unless annual gasoline prices reach $5-$6 per gallon.
- Compliance with the new standards will require mass reductions that will, in turn, compromise vehicle safety. EPA and CARB officials mocked and belittled safety concerns raised by NHTSA.
In a law journal article and regulatory comment letter, I also make the case that the administration’s fuel-economy agenda trashes the separation of powers and administrative procedures. But the Committee’s report provides the first, detailed behind-the-scenes chronology of Team Obama’s fuel economy machinations, confirming what other critics suspected but could not document.
Some secrets of the sausage factory, though, may never come to light: “Despite multiple requests, the Executive Office of the President refused to provide any information on its involvement in developing the fuel economy and GHG emissions standards.”
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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. [click to continue…]
I keep coming back to this topic because fuel economy zealots are trashing our constitutional system of separated powers and democratic accountability. Only Congress can make them stop. Leading the counter-offensive is House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), who has been watch-dogging the Obama administration’s fuel economy agenda since 2009. [click to continue…]
The California Air Resources Board (CARB) proposes to amend its Zero Emission Vehicles (ZEV) program to help the state meet its goal of reducing greenhouse gas emissions 80% below 1990 levels by 2050. Under the proposal, ZEVs — plug-in hybrids, battery-electric vehicles, and fuel cell vehicles — would account for 15.4% of all new cars sold in California by 2025 and nearly 100% by 2040. By 2050, 87% of all vehicles on the road will be ZEVs, CARB estimates.
It’s déjà vu all over again. [click to continue…]
Federal agencies are not supposed to be overtly partisan. They are also not supposed to legislate. EPA Administrator Lisa Jackson and Department of Transportation Secretary Ray LaHood apparently didn’t get the memo. Or maybe they just don’t give a darn.
In a press release announcing their plan to raise fuel economy standards to 54.5 miles per gallon by 2025, the agency heads boast: “Today’s announcement is the latest in a series of executive actions the Obama Administration is taking to strengthen the economy and move the country forward because we can’t wait for Congressional Republicans to act” [emphasis added]. Jackson and LaHood even title their press release, “We Can’t Wait.”
‘What do we want? Energy independence! When do we want it? Now!’ Even if that means trashing the separation of powers, the essential constitutional foundation for accountable government.
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The Union of Concerned Scientists (UCS) and seven other green groups sent the National Automobile Dealers Association (NADA) a letter (dated October 19) criticizing NADA’s opposition to President Obama’s plan to increase new-car fuel economy standards to 54.5 miles per gallon by Model Year (MY) 2025.
The UCS letter parrots the administration’s claims about the many wonderful benefits more stringent fuel economy standards will achieve during MYs 2017-2025. In a letter dated November 2, NADA points out that the claimed benefits depend on assumptions, such as future gasoline prices and, most importantly, whether consumers will want to buy the cars auto makers are forced to produce.
The UCS letter neglects to mention that, according to the administration’s own estimates, the MY 2025 standard would add at least $3,100 to the average cost of a new vehicle. NADA also notes other likely consumer impacts:
- Vehicles that currently cost $15,000 and less effectively regulated out of existence.
- Weight reductions of 15%-25%, with potential adverse effects on vehicle safety in collisions.
- 25% to 66% of the fleet required to be hybrid or electric, even though hybrids today account for only 2-3% of new vehicle sales.
The “concerned” scientists also completely ignore NADA’s critique of the legal basis of Obama’s fuel economy agenda. [click to continue…]
Earlier this week, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) sent letters to three Obama administration officials regarding the veracity of their testimonies at an October 12 subcommittee hearing on the administration’s fuel economy policies.*
Issa’s letters — to National Highway Traffic Safety Administration (NHTSA) Administrator David Strickland, EPA Assistant Administrator for Air and Radiation Gina McCarthy, and EPA Director of Transportation and Air Quality Margo Oge – are identical in content.
The gist of the letters is that each administration witness denied under oath that EPA and California’s greenhouse gas emission standards are “related to” fuel economy standards, whereas in fact, according to Issa, ”regulating greenhouse gases and regulating fuel economy is a distinction without a difference.”
This matters for three inter-related reasons: (1) EPA is currently regulating fuel economy by setting motor vehicle greenhouse gas emission standards even though the Clean Air Act provides no authority for fuel economy regulation; (2) EPA in June 2009 granted California a waiver to establish motor vehicle greenhouse gas emission standards despite the Energy Policy Conservation Act’s (EPCA’s) express prohibition (U.S.C. 49 § 32919) of state laws or regulations “related to” fuel economy; and (3) the California waiver, by threatening to create a market-balkanizing “regulatory patchwork,” enabled the Obama administration to extort the auto industry’s support for EPA’s new career as greenhouse gas/fuel economy regulator in return for California and other states’ agreement to deem compliance with EPA’s greenhouse gas/fuel economy standards as compliance with their own.
As I will demonstrate below, greenhouse gas emission standards are highly “related to” fuel economy standards, and the administration witnesses cannot possibly be ignorant of the relationship. Do their denials of plain fact rise to the level of perjury? [click to continue…]
In a sharply worded letter (August 11, 2011) to White House Counsel Kathryn Ruemmler, House Oversight and Government Reform Committee Chairman Darrel Issa (R-Calif.) contends that “the new Corporate Average Fuel Economy (CAFE) and EPA vehicle greenhouse gas (GHG) standards announced by President Obama and select automobile manufacturers on July 29, 2011, were negotiated in secret, outside the scope of law, and could generate significant negative impacts for consumers.”
Issa is also concerned “that the government’s ownership interest in General Motors and Chrysler at the time these negotiations were conducted creates a troublesome conflict-of-interest.”
Accordingly, Issa is launching ”an investigation into the activities of the Administration leading up to the agreement for new CAFE standards for model years (MY) 2017-2025.”
I won’t try to summarize Issa’s 8-page letter, which among other things developes a detailed case that the 54.5 mpg fuel-economy deal will adversely affect vehicle prices, consumer choice, vehicle safety, and, hence, automotive sales and auto industry jobs. This post will only discuss the legal issues that Issa spotlights. My concern here — as in numerous previous columns — is with bureaucratic ‘lawmaking’: the trashing of the separation of powers and democratic accountability in the illusory pursuit of climate stability and energy independence. [click to continue…]
Earlier this week, Politico published an op-ed by former Sen. Majority Leader George Mitchell (1989-1995) and former EPA Administrator William Reilly (1989-1993) that is as intellectually mushy as it is politically devious.
In “Calif. Must Again Lead Way on Emission Standards,” Mitchell and Reilly pretend that the California Air Resources Board’s (CARB’s) proposal to establish a 62 mpg fuel economy standard is the moderate middle between automakers who “protest that the proposal is too demanding” and environmentalists who “want something more stringent.” Horsefeathers!
In September 2010, CARB, EPA, and the National Highway Traffic Safety Administration (NHTSA) issued an Interim Joint Technical Assessment Report where they considered raising the passenger car fuel economy standard from 35.5 mpg in 2016 to 47 mpg, 51 mpg, 56 mpg, or 62 mpg in 2025.
Let’s not forget that the 2016 standard imposed by EPA, CARB, and NHTSA accelerated by four years the standard Congress set in the 2007 Energy Independence and Security Act, which was itself 27% more stringent than the previous standard (27.5 mpg). In May 2011, the Auto Alliance, citing a U.S. Energy Information Administration assessment (p. 26), cautioned EPA Administrator Lisa Jackson and Transportation Secretary Ray LaHood that a 62 mpg standard would depress auto sales in 2025 by 14%. Team Obama subsequently settled on a 56 mpg standard. That’s a tad less extreme than the 62 mpg standard championed by CARB, but it’s still over the top.
A remarkable study by the Center for Automotive Research (CAR) – The U.S. Automotive Market and Industry in 2025 (June 2011) — reveals how cockamamie these proposals are. [click to continue…]