Last Friday, April 29th, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit dismissed a challenge to EPA’s “California waiver”.  That waiver permitted California to set its own greenhouse-gas emissions for new vehicles.  Because CO2 was the major gas that California was seeking to control, its rules amounted to a new, more stringent automotive fuel-economy standard.  And because at least 14 other states had adopted California’s standard, its actions may well have effectively replaced the federal CAFE standard with a higher one set in Sacramento.

The California waiver has a complicated history.  CARB (the California Air Resources Board) originally filed its waiver request with EPA in late 2005, claiming that the state had a uniquely compelling need to control atmospheric CO2 levels.  (The fact that the alleged problem at issue is global warming, not California warming, apparently didn’t faze CARB.)  After deliberating for more than two years, EPA denied CARB’s request, finding that it hadn’t demonstrated any extraordinary conditions to justify the waiver.

But in January 2009, one day after President Obama was sworn in, CARB resubmitted its request, and EPA granted the waiver several months later.  Then, in April 2010, the Administration, California and the auto industry struck a deal which imposed a higher set of federal fuel economy standards through model year 2016.  During that time, California agreed to merge its own newly-approved standards into the federal program, giving the auto industry the national uniformity in standards that it dearly wanted.

As part of the deal, the automakers agreed not to litigate the California waiver.  The Chamber of Commerce and NADA (the National Auto Dealers Association), however, filed their own lawsuit, and it was this case that the D.C. Circuit dismissed last week.  The court did not reach the merits of the case, ruling instead that neither party had standing to bring the action because they had not shown injury to their members.

The court’s ruling is somewhat of a shocker.  Fuel economy standards clearly affect vehicle marketing and design in ways that run counter to consumer demand; that, in fact, is the very rationale for these government regulations.  And so the notion that auto dealers can’t litigate the legality of this impact on the products they sell seems strange.  It also appears to run counter to the fuel-economy cases that CEI and Consumer Alert brought in 1989 thru 1995, challenging the federal CAFE standards on the grounds that they increased traffic deaths by restricting the availability of larger, more crashworthy cars.

The court based its ruling on several points:  the fact that the carmakers had agreed to the deal and had indicated they could meet the higher standards with no adverse effects on their products; the amount of time which had already passed since the waiver’s approval; and the specifics of NADA’s affidavits on standing and the agency record.  And the court went into a detailed comparison of those specifics with the evidence that was presented in the CEI/Consumer Alert litigation.

I’m pleased to see CEI’s old CAFE cases discussed so approvingly in a current court decision.  Nonetheless, I wonder how this latest ruling may impact the ability of retailers, and the public, to challenge the regulations that affect our lives.

“California is experiencing the fastest rate of of companies relocating to out-of-state or out-of-country locations since a specialized tracking system was put into place two years ago,” reports business relocation coach Joseph Vranich. Seventy companies completely or partly moved their operations out of California since Jan. 1, 2011 for reasons other than business expansion. 

Vranich says the 70 “disinvestment events” understate the exodus of capital and jobs from California: ”It’s estimated that only one out of five losses becomes public knowledge, if that.”

Why are companies leaving the Golden State? As you might expect, California’s out-of-control spending, high taxes, and burdensome regulations figure among the top 10 reasons. Vranich, however, recently added high energy costs to the list:

The #10 Reason (New!) – Unprecedented Energy Costs: The California Manufacturers and Technology Association states that commercial electrical rates here already are 50% higher than in the rest of the country. However, a law enacted in April 12, 2011 requires utilities to get one-third of their power from renewable sources (e.g., solar panels, windmills) within nine years. Look for costs to increase by another 19% in many places to a whopping 74% in Los Angeles. Such new burdens along with upcoming regulations stemming from the “California Global Warming Solutions Act” set potentially overwhelming obstacles to companies here as they try to meet competition based in other states and in foreign nations.

 For many years, California Democrats — notably Rep. Henry Waxman and Sen. Barbara Boxer — have been at the forefront of congressional efforts to enact cap-and-tax and promote EPA’s greenhouse power grab. Waxman and Boxer have worked tirelessly to export California’s energy (or anti-energy) policies to the rest of the nation. They continue to push the “California model” as the path to a “clean energy future.” Vranich’s report is a sobering reminder of how foolish it would be for the nation to take their advice.

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.

I’ve been a vehement critic of the Department of Energy’s Loan Guarantee Program (see here and here). In a nutshell, I argue that the DOE has no business starting a bank from scratch. Even if it could cobble together the necessary expertise and infrastructure, the U.S. government has a long history of picking losers in the energy market (see: breeder reactors, synfuels).

My case against the DOE’s green bank has been made persuasively by the Government Accountability Office, the top federal watchdog. In 2007, 2008, and 2010, the GAO released reports concluding that the program is being not being run well.

My case was further made by the pending collapse of the first recipient of a loan guarantee. In September 2009, the DOE issued a $535 million loan guarantee to Solyndra, a company that you may recall from reports of it being a total financial disaster. It canceled an IPO after a PriceWaterhouse Cooper audit found that the company’s shaky finances “raise substantial doubt about its ability to continue as a going concern.” Evidently, Solyndra already has lost $557 million. In November, the company announced that it would shutter a plant and lay off 170 employees.

Cutting the fat from the federal budget is more politically popular than ever, and the green bank’s troubled history suggests it’s a risky bet better made when the budget isn’t far in the red. Accordingly, House Republicans axed the program in its proposed budget.

The House’s decision to eliminate the loan guarantee program prompted California Senator Dianne Feinstein to take to the pages of the LA Times to plead on the DOE’s behalf. Most of her argument is green jobs boilerplate, but one sentence in particular struck me. According to Senator Feinstein, “The loan guarantee program was created in 2005 with strong bipartisan support and has had a significant impact on the industry.”

She is referring to the 2005 Energy Policy Act. And she’s right—the legislation  was passed by a strong bipartisan majority in the Congress. However, Sen. Feinstein voted against it.

In an earlier post, I listed the top five worst governors on energy policy. Alas, four of the five were lame ducks, which means that my original list had a very limited shelf life. With that in mind, I made a new list. This one is limited to sitting governors and governors-elect, so it should remain relevant for the foreseeable future.

And so, without further ado, THE TOP FIVE WORST GOVERNORS ON ENERGY POLICY….[cue drum roll]…

5         Kansas Governor-elect Sam Brownback

Sam Brownback has yet to serve a day as Governor, but he earned a place on this list for a particularly egregious mistake he recently committed while representing Kansas in the U.S. Senate.  It happened late last July. At the time, with an election looming, Senate majority leader Harry Reid decided that to drop debate on a Soviet-style renewable energy production quota, known as a Renewable Electricity Standard. Cap-and-trade had already died in the Senate, and the Congressional calendar was nearing its end, so Reid’s decision to abandon a RES meant that the 111th Congress would avoid the worst ideas in energy policy. Then, Sen. Sam Brownback, in an apparent effort to snatch defeat from the jaws of victory, announced that he would introduce aRES. Thankfully, Brownback’s proposal was ignored.

4.       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.

3.       Massachusetts Governor Deval Patrick

For Massachusetts Governor Deval Patrick, climate policy is all about style over substance. In one sense, that’s a good thing, because Patrick (like me) has no interest in expensive energy policies.  In 2008, for example, Gov. Patrick championed the Global Warming Solutions Act, which, according to the Governor’s press release, requires emissions reductions 25% below 1990 levels by 2020. That sounds like a big commitment, but when you read the fine print, it turns out that the legislation mandates emissions reductions of only 10% below 1990 levels. Moreover, the State’s business-as-usual future is projected to reduce emissions 3% below 1990 levels by 2020. And when you account for federal and state policies already in place, Massachusetts is on track to reduce emissions 18% below 1990 levels by 2020. The upshot is that the Governor’s climate plan is pointless, which is probably the reason why his website’s “key priorities” page makes no mention of global warming. While I appreciate the Massachusetts Governor’s aversion to expensive energy climate policies, by enacting  long term, legally binding emissions reductions targets, he created a powerful tool with which environmentalist lawyers can gum up economic activity.

2.       Maryland Governor Martin O Malley

Governor Martin O Malley wants his constituents to believe that they can have their cake and eat it, too, when it comes to climate change mitigation. In 2009, Governor O Malley sponsored the Greenhouse Gas Reductions Act, which requires emissions reductions 25% below 2006 levels by 2020. Yet the law requires that any emissions reductions strategy also, “produce a net economic benefit to the State’s economy and a net increase in jobs in the state.” Of course, these are mutually exclusive propositions. No matter how much politicians blather on about “green jobs,” the fact remains that the price of “doing something” about climate change is forsaken economic growth. To be sure, O Malley ensured that he wouldn’t be the one to square this circle. The law postpones any meaningful requirement until after the Governor is safely out of office.

1.       California Governor-elect Jerry Brown (the #1 worst by a landslide)

Californians will rue the day they elected Jerry Brown for a second stint in the Governor’s mansion. He is exactly the wrong person at the exact worst time. The start of Brown’s term coincides the implementation phase of the 2006 Global Warming Solutions Act, which grants the state executive virtually unlimited authority to reduce greenhouse gas emissions 20% below 1990 levels by 2020. Governor-elect Brown has given every indication he will use this unprecedented expansion of authority in an imprudent manner. In the 1970s, when he was last governor, Brown refused to allow new generation resources to be built in the State, claiming instead that energy efficiency regulations would so diminish energy demand that no new power plants would be needed. Of course, he was wrong, and the policies he put in place led directly to the California energy crisis in 2000/2001. During the Schwarzenegger Administration, Jerry Brown served as Attorney General, and in that capacity he sued California counties for failing to take climate change mitigation into account in their long term growth strategies. It is difficult to overstate what trouble lies ahead for California.

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.

Green activists and allied rent seekers like to portray themselves as the underdogs against big business in their environmental causes.  The battle over Proposition 23 – the California ballot measure to suspend the state’s global warming law until unemployment is under control – is certainly no exception.    But they have David and Goliath backwards here; those spending to defeat the measure and keep California cap and tax in place have outgunned supporters of reform by at least 3 to 1.

Compared to the $9 million or so in favor of Prop 23, including most from oil companies, the $28 million to kill this measure has gotten relatively little attention.   Only a minor percentage of this amount has come in the form of small contributions from regular Californians – little wonder since it is defending a global warming policy that would drive up fossil fuel costs and kill jobs just as a similar policy has done in Spain. In fact, most of the money has come in the form of six and seven figure contributions from big environmental groups, Hollywood bigshots, and, most disturbingly, opportunists like venture capitalists John Doerr and Vinod Khosla, who hope to secure a guaranteed market selling alternative energy and vehicles far too expensive to compete otherwise.

So, we read that Hollywood, Al Gore’s group, rent-seeking industry and other green groups have been joined by the rest of the usual suspects-Google, Bill Gates-in opposing Proposition 23, a ballot initiative to delay their state’s energy rationing law which will soon take effect. That is, barring voter intervention putting a temporary stay on this economic suicide pact until the state’s economy recovers somewhat.

I should think that’s about all one needs to know about Proposition 23.

Still, all of that money to protect the global warming industry’s gravy train seems to be having an effect among telephone survey respondents. But it remains a close one. And that’s why they suit up and play the game.

The people who will be hurt most by this costly gesture by elites who for the most part will not feel the pinch of California sinking further down the drain, particularly Hispanic voters, support reclaiming voter sovereignty on an issue the political class has proven an inability to responsibly manage.

I suppose this is just fodder for so much more hand-wringing by the Left about the regular voter being too stupid for the elites to stomach. How dare those imbeciles not wildly fall for it! Remember, AB 32 was passed as a global warming law. When it began to dawn on people that now was not the time for foolish gestures, even in California, and since no one actually posits that AB 32 would ‘do something’ to the climate in any detectable way (or even close, accepting all of the alarmists’ assumptions), the party line promptly switched to it being a jobs bill. Yeah, that’s it.

And, now, as the truth is making the rounds that this “world’s first” scheme has in fact proven to be a job-killing bog in many places already, the global warming industry has now done its usual late-hour race to the bottom. One pressure group is blitzing the airwaves with shameful ads saying this is about (of course) childhood respiratory function. Not a word in the ad about global warming. Huh. This comes from the California chapter of a group long having had a difficult relationship with being straight on such matters (including, as Reason’s Joel Schwartz has pointed out on many occasions, about California-specific issues and, as I detailed in Red Hot Lies, about global warming).

Which begs the question, unless they are just torturing the facts and being alarmist (again), why wasn’t that the reason AB 32 was passed to begin with? Instead, it was (risible) state-specific computer-modeled scenarios of doom unless the people allowed the political class to strip them of ever more freedoms. It was the faddish “global warming” pony they sought to ride to the long-held desire to price energy out of the reach of the same average voters whose proliferation and attainment of automobility, vacations and the like the elites just couldn’t tolerate.

You will know them by their deeds, and the global warming industry’s have a pretty miserable record.

I’ve blogged before on the LA Times’s one sided coverage of AB 32, California’s first-in-the-nation climate change mitigation law. In a nutshell, the LA Times is a big cheerleader for the legislation, with a record of publishing favorable stories and ignoring negative ones.

Case in point: Today, the Times ran an opinion piece, “A Green Jobs Generator,” by two economists who claim that their economic analysis of AB 32 is being distorted by opponents of the legislation. The LA Times allowed them the space to set the record straight, and thus its editorial page again reassured readers that “doing something” about climate change will be easy because it will reduce energy costs and create “green jobs.”  Of course, this is baloney-in fact, “doing something” about climate change will make energy more expensive and thereby kill jobs-but the LA Times has an agenda to push, so why sweat the details.

Also today, E&E ClimateWire broke the news that Larry Goulder, the lead author of a recent AB 32 economic analysis commissioned by the state, is on the board of directors of a non-profit that has given money to a political campaign to defeat a ballot initiative that would suspend AB 32. So it’s not surprising that he concluded that AB 32 would create jobs. Naturally, the LA Times covered Goulder’s favorable economic analysis when it was released a few weeks ago. But it has yet to report on his association with a pro-AB 32 political organization. Perhaps it will tomorrow, but I doubt it.

Goulder told ClimateWire that nothing is amiss, but it sure seems like a conflict of interest to me. If an Exxon staffer punched up an economic report suggesting that AB 32 would harm California’s economy, environmentalists would throw a hissy-fit. And the LA Times, no doubt, would try to discredit the report as “industry funded.”

Richard Morrison, William Yeatman and Ryan Young join forces to bring you Episode 74 of the LibertyWeek podcast. We talk about the COP-15 post-game and China’s changing reputation with the climate change crowd starting around (7:00).