Powerful dissenting opinions can sometimes persuade a higher court to review a lower court’s ruling. Massachusetts v. EPA (2007), the Supreme Court decision empowering the EPA to act as a super legislature and ‘enact’ climate policy, is a prime example.

In 2005, the D.C. Circuit Court of Appeals held that the Bush administration EPA properly exercised its discretion when it denied a petition by eco-litigation groups to regulate greenhouse gas (GHG) emissions from new motor vehicles under §202 of the Clean Air Act (CAA). I remember feeling relieved but disappointed. The 2-1 majority ducked the central issue, namely, whether the CAA authorizes the EPA to regulate GHGs as climate change agents. In contrast, Judge David Tatel’s dissent made a strong argument that the EPA does have the power to regulate GHGs and, consequently, has a duty to determine whether GHG emissions endanger public health or welfare. Tatel’s opinion was a key factor persuading the Supreme Court to hear the case.

The Court in Massachusetts ruled in favor of petitioners, setting the stage for the EPA’s ongoing, ever-expanding regulation of GHG emissions from both mobile and stationary sources.

The EPA’s greenhouse regulatory surge, however, is not yet ‘settled law.’ Recent strong dissenting opinions by two D.C. Circuit Court of Appeals judges may persuade the Supreme Court to review one or more of the agency’s GHG rules — or even reassess its ruling in Mass. v. EPA.

Mass. v. EPA and its Aftermath: A Refresher

In Mass. v. EPA, the Supreme Court ruled that: (1) GHGs are “air pollutants” for regulatory purposes under the CAA; (2) the EPA must determine whether GHG emissions endanger public health and welfare (unless the agency provides statutory reasons why it cannot or will not undertake such an analysis); and (3) the agency must regulate GHG emissions from new motor vehicles if it determines such emissions endanger public health or welfare.

The rest, as they say, is history. The EPA issued its endangerment determination in December 2009, compelling itself to regulate GHG emissions from new cars, and in May 2010, issued its GHG tailpipe rule. The EPA has long held that once any air pollutant from any source is regulated under any part of the CAA, major stationary sources become “subject to regulation” under the Act’s Title I Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. The EPA reaffirmed that interpretation in its April 2010 triggering rule.

Those rules, however, threatened to create a politically-explosive administrative quagmire. Literally millions of non-industrial facilities emit enough carbon dioxide (CO2) to qualify as “major” sources under the Act’s statutory definitions (250 tons per year for PSD, 100 tons per year for Title V). The EPA estimated that applying the Act’s permitting programs to GHGs under the statutory definitions of “major” source would require the EPA and its state counterparts to process an estimated 81,000 PSD permits annually (instead of 280) and 6.1 million Title V permits annually (instead of 15,000). To handle this workload, agencies would have to hire an additional 320,000 full-time employees at a cost of $21 billion per year. Otherwise, ever-growing bottlenecks and delays would paralyze environmental enforcement and economic development alike.

To avoid such “absurd results,” the EPA in July 2010 issued a tailoring rule exempting small CO2 emitters from the permitting programs. The rule decrees that for GHGs, a “major” source is one that emits 100,000 tons per year, not 100/250 tons per year, as specified for “air pollutants” in the statute. Although agencies should have some interpretative discretion when statutory language is ambiguous, there is nothing unclear about “100 tons” or “250 tons”. Tailoring is bureauspeak for amending. The irony, of which the EPA seems unaware, is that tailoring is itself an “absurd result,” because agencies have no power under the U.S. Constitution to amend statutes.

In 2011 a coalition of industry groups, states, and non-profits petitioned the D.C. Circuit Court of Appeals to overturn all four GHG rules: endangerment, tailpipe, triggering, and tailoring. In June 2012, a 3-judge panel decided the case, Coalition for Responsible Regulation v. EPA, in favor of the agency, upholding all four GHG rules. In August, coalition members petitioned for an en banc (full court) rehearing. On December 20, the court voted 5-2 to deny the petitions. However, the dissenting opinions of Judges Janice Rogers Brown and Brett Kavanaugh are so cogently argued that the Supreme Court may decide to review the case. The Court might even reassess its ruling in Mass. v. EPA.

In a future post, I will discuss Judge Kavanaugh’s dissent. For now, let’s look at Judge Brown’s opinion.

Judge Brown’s Opinion

Judge Brown begins her dissent by noting that, although bound by the Supreme Court’s ruling, she is skeptical of its reasoning:

Bound as I am by Massachusetts, I reluctantly concur with the Panel’s determination that EPA may regulate GHGs in tailpipe emissions. But I do not choose to go quietly. Because the most significant regulations of recent memory rest on the shakiest of foundations, Part I of this statement engages Massachusetts’s interpretive shortcomings in the hope that either Court or Congress will restore order to the CAA.

Congress never intended the CAA to be an “environmental cure-all.” The Act’s actual statutory purposes are much more limited:

It was targeted legislation designed to remedy a particular wrong: the harmful direct effects of poisoned air on human beings and their local environs. This is what Congress understood as “air pollution which may reasonably be anticipated to endanger public health” in the tailpipe emissions provision, 42 U.S.C. § 7521(a)(1). The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), however, concluded otherwise.

Congress’s intent is visible in the very title of the statute:

It was no happy accident that congressional draftsmen titled the legislation the “Clean Air Act.” Ambient air quality was the point, purpose, and focus of the CAA. Congress had set its sights on the “dirty, visible ‘smokestack’ emissions” [citation omitted].

The CAA Amendments of 1990 “expanded the Act beyond its singular emphasis on urban air quality to address hazardous — i.e., toxic — air pollutants, acid rain, and stratospheric ozone,” Brown acknowledges. However, “the very particular way in which Congress handled these exceptions goes a long way toward proving the rule: Congress only expands the CAA through considered legislative acts.” Congressional intent is discernible in Congress’s consistent practice:

Simply put, when Congress became aware of new dangers, it acted judiciously in crafting workable remedies that, when they obtained the necessary political support, were worked into their own discrete provisions under the Act. Neither Congress nor the EPA attempted to force these distinct problems into existing, ill-suited regulatory schemes.

From which Judge Brown draws the common-sense conclusion:

Where our Representatives have acted with such caution, any suggestion that Congress has — through a single word — conferred upon EPA the authority to steamroll through Congressional gridlock, upend the Senate’s rejection of the Kyoto Protocol, and regulate GHGs for the whole of American industry must necessarily fail. The legislature, recall, does not “hide elephants in mouseholes.” Whitman v. Am. Trucking Assocs., 531 U.S. 457, 468 (2001).

Specific legislative history also argues against the cure-all interpretation of the CAA:

In drafting the 1990 Amendments, Congress considered — and expressly rejected — proposals authorizing EPA to regulate GHGs under the CAA. . . . The Executive’s critique noted that “unilateral action aimed at addressing a global problem” through a standard limiting tailpipe emissions would not be an effective means of safeguarding the global environment and would “necessarily punish national interests.”

Brown goes on to note that in all the years since the 1990 amendments, Congress has “never deviated from its decision not to regulate GHGs under the CAA” — and “not for lack of opportunity.” Indeed, “By one estimate, Congressmen have proposed more than 400 bills pertaining to GHGs between 1990 and 2009.”

None of this is to suggest, in the words of the Massachusetts Court, that “post-enactment congressional actions and deliberations” repeal powers previously delegated to the EPA by the CAA. The point, rather, is that more than a selective and dubious reading of the CAA definition of “air pollutant” is needed to establish that, in 1970, Congress did in fact delegate the truly awesome power to de-carbonize the U.S. economy to an administrative agency. Or, as Judge Brown more delicately puts it:

Congress’s inability to break this nearly quarter-century long deadlock is incredibly suggestive: this is not an area of policymaking where the legislature has acted rashly or unthinkingly in delegating authority to agencies.

Judge Brown also questions whether, per CAA §202, the EPA can actually show that “air pollution” from GHG emissions ”may reasonably be anticipated to endanger public health or welfare.” It is one thing to establish a nexus between traditional air pollutants and the harm done to people who inhale them. It is quite another to demonstrate endangerment from GHGs, because “any harm to human health and welfare flowing from climate change comes at the end of a long speculative chain.”

The EPA had to make assumptions about future emissions, future emission concentrations, climate sensitivity, the impact of warming on weather patterns, the impact of those on agriculture and other economic activities, and, finally, the impact of those on human health and welfare. Brown worries that if the EPA can find endangerment where ”there can be this much logical daylight between the pollutant and the anticipated harm, there is nothing EPA is not authorized to do.”

Next, Brown takes up the tailoring rule. She seems to suggest that the litany of absurd results arising under the PSD and Title V programs is itself reason to doubt that GHG regulation falls within “the literal meaning” of the CAA. In any event, she views the tailoring rule as a clear case of administrative overreach: ”Faced with the choice of reconsidering the legitimacy of an endangerment finding that sets in motion such a cluster of chaos or rewriting the statute, the agency has blithely done the latter. This is an abuse of the absurdity and administrative necessity doctrines as neither can be invoked to preempt legislative prerogatives.”

Determining climate policy, she suggests, is above any administrative agency’s pay grade: ”Congress should not be presumed to have deferred to agencies on questions of great significance more properly resolved by the legislature. If there was ever a regulation in recent memory more befitting [more guilty of?] such a presumption than the present, I confess I do not know of it.”

Next, Brown examines the relevance of FDA v. Brown & Williamson (1999), in which the Supreme Court struck down the FDA’s attempt to assert regulatory control beyond its statutory authority by classifying cigarettes as drug delivery devices. The Court distinguished the issues in Massachusetts from those in Brown & Williamson, but Brown shows how with “only slight modifications” one could rework the text of Brown & Williamson to apply to GHGs.

The Court argued that whereas FDA regulation of tobacco products under the Food, Drug, and Cosmetic Act (FDCA) logically entails an outright ban on the sale of cigarettes, an endangerment finding would “lead to no such extreme measures,” only a cost-constrained regulation of emissions from vehicles already regulated under §202 of the Act. “But,” observes Brown, “the Court spoke too soon.” The Court never considered whether or how motor vehicle GHG regulation would trigger regulation of stationary sources. It did not consider how regulation of GHGs as air pollutants would “radically expand the universe of covered entities far beyond Congress’s intentions.”

I would put the point as follows. Expanding the PSD and Title V programs to affect millions of non-industrial facilities — at an estimated compliance cost of up to $60,000 per facility — is the very definition of an extreme measure. Fixing the problem by amending the statute via administrative action is another extreme measure. Brown concludes: “The Supreme Court in Massachusetts simply did not have occasion to consider this absurd and ‘counterintuitive’ outcome, but we do — and we must.”

Another extreme measure waiting in the wings (although not an issue in Coalition for Responsible Regulation and so fittingly not a topic of Judge Brown’s dissent) is GHG regulation via the national ambient air quality standards (NAAQS) program. As discussed previously on this blog, because the EPA finds endangerment in the “elevated concentrations” of GHGs in the atmosphere, the agency has implicitly committed itself to establish NAAQS for GHGs set below current atmospheric concentrations. Two eco-litigation groups, the Center for Biological Diversity and 350.0rg, petitioned the EPA more than three years ago to establish NAAQS for CO2 at 350 parts per million (~40 ppm below current concentrations) and for other GHGs at pre-industrial levels. Given the premises established by Massachusetts and the EPA’s endangerment rule, it is difficult to find fault with petitioners’ reasoning.

CAA §108 requires the EPA to initiate a NAAQS rulemaking for “air pollution” from “numerous or diverse mobile or stationary sources” if such pollution “may reasonably be anticipated to endanger public health and welfare.” Carbon dioxide obviously comes from numerous and diverse mobile and stationary sources, and the EPA has already determined that the associated “air pollution” – the “elevated concentrations” of atmospheric GHGs – endangers public health and welfare.

To my knowledge, the Obama administration has addressed the NAAQS issue only once — in a brief submitted to the Supreme Court in American Electric Power v. Connecticut (2010). The Obama Justice Department described §108 as one of the provisions making the CAA a “comprehensive regulatory framework” for climate change policy.

This is worrisome because not even a worldwide depression that permanently lowers global economic output and emissions to, say, 1970 levels, would stop CO2 concentrations from rising over the remainder of the century. Yet the CAA requires States to adopt implementation plans adequate to attain primary (health-based) NAAQS within five or at most 10 years. The level of economic sacrifice required to implement a CO2 NAAQS set at 350 parts per million would far exceed anything contemplated by the Waxman-Markey cap-and-trade bill or the Copenhagen climate treaty, which seek to stabilize CO2-equivalent GHG concentrations at 450 parts per million by 2050.

Congress did not pass the Waxman-Markey bill and the Senate did not ratify the Copenhagen treaty. They did not do so despite more than 20 years of global warming advocacy. So it would be the height of absurdity to suggest that when Congress enacted the CAA in 1970, years before global warming was even a gleam in Al Gore’s eye, Congress authorized the EPA to establish NAAQS for GHGs. Yet the ‘logic’ of Massachusetts and the EPA’s endangerment rule would appear to demand the agency do just that.

How could the Massachusetts Court overlook the possibility that its decision would tee up the Mother of All Extreme Measures? Perhaps because petitioners gave the Court a bum steer.

Petitioners argued that the EPA’s authority to regulate GHGs under Title II is “separate” from Title I and “entirely separate” from the EPA’s Title I authority to promulgate NAAQS. As is now evident to all, Title II regulation of GHG mobile sources triggered Title I PSD permitting requirements for major stationary sources. The EPA touts its Title II endangerment finding as the scientific basis for the proposed GHG new source performance standards (NSPS) for fossil-fuel power plants under §111, also a Title I authority. Finally, as argued above, the EPA’s Title II endangerment finding creates a precedent for a §108 NAAQS rulemaking. Title I and Title II may be “separate” but they are not “entirely separate”; they are linked.

Near the conclusion of her opinion Brown writes: ”Congress simply did not intend for EPA to convert the ‘Clean Air Act’ to the ‘Warm Air Act’ writ large. But that is exactly what the federal courts have done.” Yes, exactly. In both Mass. v. EPA and Coalition for Responsible Regulation v. EPA, federal judges facilitated and protected the EPA’s climate coup.

Is it reasonable then to seek redress from those very judges?

Perhaps so if the EPA’s many critics begin to hold courts responsible for agency’s greenhouse power grab and the associated damages to our economy and constitutional self-government.

Note: A nearly identical version of this column appeared last week in Forbes Online. I am reposting it here with many additional hyperlinks so that readers may more easily access the evidence supporting my conclusions.

The November 2012 elections ensure that President Obama’s war on coal will continue for at least two more years. The administration’s preferred M.O. has been for the EPA to ‘enact’ anti-coal policies that Congress would reject if such measures were introduced as legislation and put to a vote. Had Gov. Romney won the presidential race and the GOP gained control of the Senate, affordable energy advocates could now go on offense and pursue a legislative strategy to roll back various EPA global warming regulations, air pollution regulations, and restrictions on mountaintop mining. But Romney lost and Democrats gained two Senate seats.

Consequently, defenders of free-market energy are stuck playing defense and their main weapon now is litigation. This is a hard slog because courts usually defer to agency interpretations of the statutes they administer. But sometimes petitioners win. In August, the U.S. Court of Appeals struck down the EPA’s Cross State Air Pollution Rule (CSAPR), a regulation chiefly targeting coal-fired power plants. The Court found that the CSAPR exceeded the agency’s statutory authority. Similarly, in March, the Court ruled that the EPA exceeded its authority when it revoked a Clean Water Act permit for Arch Coal’s Spruce Mine No. 1 in Logan County, West Virginia.

A key litigation target in 2013 is EPA’s proposal to establish greenhouse gas (GHG) “new source performance standards” (NSPS) for power plants. This so-called carbon pollution standard is not based on policy-neutral health or scientific criteria. Rather, the EPA contrived the standard so that commercially-viable coal plants cannot meet it. The rule effectively bans investment in new coal generation.

We Can Win This One

Prospects for overturning the rule are good for three main reasons.

(1) Banning new coal electric generation is a policy Congress has not authorized and would reject if proposed in legislation and put to a vote. Once again the EPA is acting beyond its authority.

The proposed “carbon pollution” standard requires new fossil-fuel electric generating units (EGUs) to emit no more than 1,000 lbs of carbon dioxide (CO2) per megawatt hour (MWh). About 95% of all natural gas combined cycle power plants already meet the standard, according to the EPA. No existing coal power plants come close; even the most efficient, on average, emit 1,800 lbs CO2/MWh.

A coal power plant equipped with carbon capture and storage (CCS) technology could meet the standard, but the levelized cost of new coal plants already exceeds that of new natural gas combined cycle plants, and “today’s CCS technologies would add around 80% to the cost of electricity for a new pulverized coal (PC) plant, and around 35% to the cost of electricity for a new advanced gasification-based (IGCC) plant,” the EPA acknowledges.

In short, the EPA has proposed a standard no economical coal plant can meet. Not surprising given President Obama’s longstanding ambition to “bankrupt” anyone who builds a new coal power plant and his vow to find other ways of “skinning the cat” after the 2010 election-day slaughter of 29 cap-and-trade Democrats. But the big picture is hard to miss: Congress never signed off on this policy.

The only time Congress even considered imposing GHG performance standards on power plants was during the debate on the Waxman-Markey cap-and-trade bill. Section 216 of Waxman-Markey would have established NSPS requiring new coal power plants to reduce CO2 emissions by 50% during 2009-2020 and by 65% after 2020 – roughly what the EPA is now proposing. Although Waxman-Markey narrowly passed in the House, it became so unpopular as “cap-and-tax” that Senate leaders pulled the plug on companion legislation.

Team Obama is attempting to accomplish through the regulatory backdoor what it could not achieve through the legislative front door. The “carbon pollution” rule is an affront to the separation of powers.

(2) The “carbon pollution” standard is regulation by misdirection – an underhanded ‘bait-and-fuel-switch.’

In Massachusetts v. EPA (April 2007), the Supreme Court held that GHGs are “air pollutants” for regulatory purposes. This spawned years of speculation about whether the EPA would define “best available control technology” (BACT) standards for “major” GHG emitters so stringently that utilities could not obtain pre-construction permits unless they built natural gas power plants instead of new coal power plants.

In March 2011, the EPA published a guidance document assuring stakeholders that BACT for CO2 would not require a permit applicant “to switch to a primary fuel type” different from the fuel type the applicant planned to use for its primary combustion process. The agency specifically disavowed plans to “redefine the source [category]” such that coal boilers are held to the same standard as gas turbines.

The EPA reiterated this assurance in a Q&A document accompanying the guidance. One question asks: “Does this guidance say that fuel switching (coal to natural gas) should be selected as BACT for a power plant?” The EPA gives a one-word response: “No.”

This bears directly on the legal propriety of the “carbon pollution” standard. In general, NSPS are less stringent than BACT. NSPS provide the “floor” or minimum emission control standard for determining an emitter’s BACT requirements. BACT is intended to push individual sources to make deeper emission cuts than the category-wide NSPS requires.

Yet despite the EPA’s assurance that BACT, although tougher than NSPS, would not require fuel switching or redefine coal power plants into the same source category as natural gas power plants, the “carbon pollution” rule does exactly that.

In April 2011, the House passed H.R. 910, the Energy Tax Prevention Act, sponsored by Rep. Fred Upton (R-Mich.), by a vote of 255-172. H.R. 910 would overturn all of the EPA’s GHG regulations except for those the auto and trucking industries had already made investments to comply with. Sen. James Inhofe’s companion bill (McConnell Amdt. 183) failed by one vote. In June 2010, Sen. Lisa Murkowski’s (R-Alaska) Congressional Review Act resolution to strip the agency of its Mass v. EPA-awarded power to regulate GHGs failed by four votes. One or both of those measures might have passed had the EPA come clean about its agenda and stated in 2009 that it would eventually propose GHG performance standards no affordable coal power plant can meet.

(3) The “carbon pollution” rule is weirdly contorted, flouting basic standards of reasonableness and candor.

Under the Clean Air Act, an emission performance standard is supposed to reflect “the degree of emission limitation achievable through the application of best system of emission reduction” that has been “adequately demonstrated.” The EPA picked 1,000 lbs CO2/MWh as the NSPS for new fossil-fuel EGUs because that is the “degree of emission limitation achievable through natural gas combined cycle generation.”

But natural gas combined cycle is not a system of emission reduction. It is a type of power plant. The EPA is saying with a straight face that natural gas combined cycle is an emission reduction system that has been adequately demonstrated for coal power plants. By that ‘logic,’ zero-carbon nuclear-, hydro-, wind-, or solar-electric generation is an emission reduction system that has been adequately demonstrated for natural gas combined cycle.

A coal power plant could meet the standard by installing CCS, but, as the EPA acknowledges, CCS is too costly to qualify as “adequately demonstrated.” The only practical way for utilities to comply is to build new gas turbines instead of new coal boilers. This is the first time the EPA has defined a performance standard such that one type of facility can comply only by being something other than what it is.

The EPA sets performance standards for specific categories of industrial sources. A coal boiler is different from a gas turbine, and up to now the agency reasonably regulated them as different source categories, under different parts of the Code of Federal Regulations – Subpart Da for coal boilers, Subpart KKKK for gas turbines. The EPA now proposes to regulate coal boilers and gas turbines as a single source category — “fossil-fuel EGUs” — under a new subpart numbered TTTT. But only for CO2! Coal boilers and gas turbines will continue to be regulated as separate source categories for criteria and toxic pollutants under Subparts Da and KKKK.

Why hold coal boilers and gas turbines to different standards for those pollutants? The EPA’s answer: “This is because although coal-fired EGUs have an array of control options for criteria and toxic air pollutants to choose from, those controls generally do not reduce their criteria and air toxic emissions to the level of conventional emissions from natural gas-fired EGUs.”

The same reasoning argues even more strongly against imposing a single GHG standard on coal boilers and natural gas turbines. Coal boilers do not have an “array of control options” for CO2 emissions, and have no “adequately demonstrated” option for reducing CO2 emissions to the level of gas-fired EGUs. Subpart TTTT is an administrative contortion concocted to kill the future of coal generation.

Why Care Even If You Don’t Mine or Combust Coal for a Living

At this point you may be wondering why anyone outside the coal industry should care about this cockamamie rule. There are several reasons.

First and most obviously, banning new coal generation could increase electric rates and make prices more volatile. For generations, coal has supplied half or more of U.S. electricity, and still provides the single largest share. The “carbon pollution” standard is risky because coal’s chief competitor, natural gas, has a history of price volatility and a future clouded by the environmental movement’s hostility to hydraulic fracturing, the technology transforming gas from a costly shrinking resource to an affordable expanding resource.

The “carbon pollution” standard itself could put the kibosh on new gas-fired generation if the EPA concludes, as Cornell researchers contend, that fugitive methane emissions from hydraulic fracturing make gas as carbon-intensive as coal.

The EPA is also developing GHG performance standards for refineries. “Unconventional” oil production from shale and oil sands is booming in North America, creating thousands of jobs, generating billions of dollars in tax revenues, and reducing U.S. dependence on OPEC oil. But unconventional oil production is energy-intensive and therefore carbon-intensive. It is unknown whether or how the forthcoming GHG standard for refineries will address the carbon intensity of unconventional oil. What we do know is that the environmental groups who litigated the EPA into proposing these standards are arch foes of unconventional oil.

In any event, the “carbon pollution” standard for power plants is just the start of a regulatory trajectory, not its end point. The EPA’s settlement agreement with environmental groups and state attorneys general obligates the agency to extend the standard to “modified” coal power plants and establish emission “guidelines” for non-modified units.

Moreover, the standard sets a precedent for promulgating NSPS for other GHG source categories, and for contriving new source categories (e.g. “electric generating units”) to hammer natural gas. As indicated above, if gas can set the standard for coal, then wind and solar can set the standard for gas. And at some point the refinery standard could undermine the profitability of unconventional oil. Although initially directed against new coal, the standard puts all fossil-energy production in an ever-tightening regulatory noose.

Pandora’s NAAQS

Taking a longer view, the “carbon pollution” rule moves the U.S. economy one step closer to the ultimate environmental policy disaster: national ambient air quality standards (NAAQS) for GHGs.

In December 2009, the EPA issued a rule under Section 202 of the Clean Air Act declaring that GHG emissions from new motor vehicles endanger public health and welfare. The endangerment rule was both prerequisite and trigger for the agency’s adoption, in January 2011, of first-ever GHG motor vehicle standards. The agency now claims that it need not issue a new and separate endangerment finding under Section 211 to adopt first-ever GHG performance standards for power plants, because subsequent science confirms and strengthens its Section 202 finding.

An implication of this argument is that the EPA need not make a new endangerment finding to promulgate NAAQS for GHGs under Section 108, because the Section 202 finding would suffice for that as well.

Section 108 of the Clean Air Act requires the EPA to initiate a NAAQS rulemaking for “air pollution” from “numerous or diverse mobile or stationary sources” if such pollution “may reasonably be anticipated to endanger public health and welfare.” Carbon dioxide obviously comes from numerous and diverse mobile and stationary sources, and the EPA has already determined that the associated “air pollution” – the “elevated concentrations” of GHGs in the atmosphere – endangers public health and welfare. Logically, the EPA must establish NAAQS for GHGs set below current atmospheric concentrations.

Eco-litigants have already put this ball in play. The Center for Biological Diversity and 350.Org petitioned the EPA more than two years ago to establish NAAQS for CO2 at 350 parts per million (roughly 40 parts per million below current concentrations) and for other GHGs at pre-industrial levels.

The potential for mischief is hard to exaggerate. Not even a worldwide depression that permanently lowers global economic output and emissions to, say, 1970 levels, would stop CO2 concentrations from rising over the remainder of the century. Yet the Clean Air Act requires States to adopt implementation plans adequate to attain primary (health-based) NAAQS within five or at most 10 years. A CO2 NAAQS set at 350 parts per million would require a level of economic sacrifice vastly exceeding anything contemplated by the Waxman-Markey cap-and-trade bill or the Copenhagen climate treaty, which aimed to stabilize CO2-equivalent emissions at 450 parts per million by 2050.

The EPA has yet to decide on the CBD-350.Org petition. Perhaps this is another case of punting unpopular regulatory decisions until Obama’s second term. The one instance where the administration addressed the issue is not reassuring. In a brief submitted to the Supreme Court in American Electric Power v. Connecticut, the Obama Justice Department described Section 108 as one of the provisions making the Clean Air Act a “comprehensive regulatory framework” for climate change policy.

Ultimately, only the people’s representatives can protect coal generation, hydraulic fracturing, and unconventional oil from hostile regulation. But nixing the “carbon pollution” standard would be a big setback to both the EPA and the eco-litigation fraternity, and would help safeguard America’s energy options until a future Congress reins in the agency.

Last month, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) suspended wildlife biologist Charles Monnett, who is being investigated by the Department of Interior’s (DOI’s) inspector general (IG). Monnett is the lead author of a 2006 study (linking loss of Arctic sea ice to the first documented finding of drowned polar bears.  The paper helped galvanize support for DOI’s listing of the bear as a threatened species under the Endangered Species Act. Al Gore touted the study in An Inconvenient Truth.

Public Employees for Environmental Responsibility (PEER) condemned the IG investigation as a “witch hunt” (Greenwire, Aug. 10, 2011, subscription required). Last week, the Center for Biological Diversity (CBD) and Greenpeace sent a letter to DOI Secretary Ken Salazar accusing BOEMRE of trying to muzzle scientists whose research may impede the granting of permits to drill for oil and gas in the bear’s Arctic habitat.

The transcript of the IG’s February 23, 2011 interrogation of Monnett shows that the IG “sent agents with no scientific training to ask decidedly unscientific questions about bizarre allegations relating to the polar bear paper,” CBD and Greenpeace contend. I can’t help but agree. What’s going on?

DOI officials say the investigation has nothing to do with drilling permits or the scientific integrity of Monnett’s research. As Greenwire reported last week:

BOEMRE spokeswoman Melissa Schwartz in an email said that the investigation has nothing to do with drilling. “There is absolutely no connection between any aspect of our review and approval of Shell’s Exploration Plan and Dr. Charles Monnett,” she said. “As we stated last week, the agency placed Dr. Monnett on administrative leave for reasons having nothing to do with scientific integrity, his 2006 journal article, or issues related to permitting. Any suggestions or speculation to the contrary are wrong.”

According to yesterday’s Greenwire, “a leaked memo to Monnett from the IG referenced possible procurement violations related to an ongoing study at the University of Alberta called Populations and Source of Recruitment in Polar Bears: Movement Ecology in the Beaufort Sea.”

But during the Feb. 23 interrogation, the IG agents do not discuss procurement issues. Rather, they claim to be investigating “allegations of scientific misconduct,” which one agent describes as “basically, uh, wrong numbers, uh miscalculations” (p. 83). Most of the questions relate to the polar bear study — the Monnett team’s observational M.O., their data, and assumptions.

I see no signs of scientific misconduct in Monnett’s study, and the Feb. 23 interview brought none to light. Monnett and his team observed four drowned bears after an abrupt wind storm, three within the “transect” surveyed by their aircraft. Since the transect covers one-nineth (11%) of the total study area (640 square kilometers), the team concluded it is “likely that many other bears also drowned but were not seen.” How many? Well, 9 x 3 = 27.

This is the source of Al Gore’s claim, in An Inconvenient Truth (p. 146), that “A new scientific study shows that, for the first time, polar bears have been drowning in significant numbers.” Gore, naturally, indulges in rhetorical license. ”Shows” suggests empirical proof. Monnett’s team made clear that a “likely” body count of 27 drowned bears depends on the assumption that the transect they surveyed was typical of the larger study area. “Have been drowning” suggests an ongoing process. Monnett’s team observed four drowned bears on one day in September 2004. 

Surely it was inevitable that zealots like Gore would ignore the qualifications and exaggerate the certainity and magnitude of the drowning polar bear problem. Maybe Monnett hoped this would happen. Nonetheless, it is not scientific misconduct to present research that politicians and activists exploit for their own agendas. This was in fact the first recorded observation of drowned polar bears. It coincided with the biggest decline in polar sea ice coverage during the study period (1979-2004). It was worth reporting in a scientific study, and scientists are supposed to draw properly caveated inferences from what they observe.

Could BOEMRE or DOI’s IG be a hotbed of climate change skeptics or a cabal of “drill baby drill” advocates out to punish Monnett for his influential polar bear study? I have no idea. This much is abundantly clear:

• The IG agents’ claim to be investigating “allegations of scientific misconduct” flatly contradicts the DOI spokesperson’s claim that the investigation has “nothing to do with scientific integrity.”
• The IG agents in the Feb. 23 interview bumble and stumble over basic algebra and utterly fail to reveal evidence of scientific misconduct.
• If the transcript is indicative of the larger IG investigation, we may infer that Monnett is “likely” a target of political harassment.
• If that proves to be the case, climate change skeptics, many of whom have been on the receiving end of threats and bullying, should roundly condemn the abuse.

Can the Endangered Species Act (ESA) compel America to de-industrialize?

My colleague William Yeatman alludes to this question at the end of his post on yesterday’s Heritage Foundation symposium, “Saving the Polar Bear or Obama’s CO2 Agenda?”

The short answer is yes and no. Yes, because once the Fish and Wildlife Service (FWS) listed the polar bear as a “threatened species” on the supposition that carbon dioxide (CO2) emissions are melting the bear’s Arctic habitat, the Endangered Species Act (ESA) logically requires that people stop engaging in CO2-emitting activities. This is worrisome, because CO2 emissions come from energy use, which in turn derives from economic activity. There is hardly any economic activity in the modern world that does not, directly or indirectly, cause or contribute to CO2 emissions. Hence, almost any economic activity can be deemed to threaten the bear and, thus, violate the ESA!  

On the other hand, there are political limits to how far eco-activists can push this logic. The American people will not tolerate being regulated back into the dark ages. Al Gore and his allies know this, which is why they continually try to dress up their anti-growth agenda as a “green jobs” program.

But this means that, at a minimum, the ESA is a specter haunting our economic future, its potential for mischief held in check only by the vigilance of citizens and the political calculus of regulatory zealots.  

On May 14, 2008, when the FWS listed the polar bear as threatened, then Secretary of Interior Dirk Kempthorne claimed the agency’s action “should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources.” Why not? Well, Congress never intended for the ESA to be used as a framework for climate policy. It is not designed for that purpose. The same can be said however about the Clean Air Act, yet in Massachusetts v. EPA, the Supreme Court, unable to resist the temptation to legislate from the bench, authorized and, indeed pushed EPA to begin regulating greenhouse gases (GHGs). EPA is now busy promulgating GHG regulations and setting climate policy for the Nation.

In short, former Secy. Kempthorne was whistling past the graveyard. From day one, regulating GHGs via the ESA was the objective of the eco-litigation groups who petitioned and sued the FWS into listing the polar bear. How do I know? They said so.

CBD Playbook

The Center for Biological Diversity (CBD) was the lead group petitioning the FWS and suing the Department of Interior to list the polar bear under the ESA. Along with Greenpeace and Natural Resources Defense Council, CBD filed the petition on “Kyoto Day” — February 16, 2005, the day the Kyoto Protocol went into effect. In the fall 2007 issue of Natural Resources & Environment, CBD’s Senior Attorney (Brendan Cummings) and Climate Program Director (Kassie Siegel) plainly stated their intent to use the ESA to suppress U.S. fossil energy use.

Consider this excerpt:

In the seminal ESA case, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the Supreme Court held that the ESA’s unequivocal mandate that federal agencies “insure” that their actions do not “jeopardize” any species protected by the statute meant that a multimillion dollar dam project already near completion could not proceed because its completion threatened the existence of the snail darter, a small endemic fish of no know economic value. . . . In the nearly three decades since TVA was decided, courts enforcing the ESA have halted such activities as logging to protect threatened owls, commercial fishing and military activities to protect marine mammals, oil and gas development to protect wolves and grizzly bears, pesticide authorizations to protect imperiled salmon, and numerous other habitat-damaging activities that threatened a particular protected species. Whether GHG emissions can be halted to protect polar bears will be a test of the statute’s continuing relevance in the twenty-first century. [Emphasis added]

Ominously, Cummings and Siegel don’t say that the continuing relevance of the ESA depends on its ability to reduce or limit GHG emissions, but to “halt” them.

The authors go on to discuss Sections 7 and 9 of the ESA, and how those provisions can be used to block energy projects and control energy use.

Section 7 directs all federal agencies to consult with the FWS to ensure that “all actions authorized, funded, or carried out by such agencies are ‘not likely to jeopardize the continued existence’ or ‘result in the destruction or adverse modification of habitat’ of any listed species.” This means that “if the project [authorized, funded, or carried out by an agency] is determined to jeopardize a listed species or adversely modify its critical habitat, the statute can trigger modification or cancellation of the project so as to avoid such impacts.”

Quoting from the Code of Federal Regulations, Cummings and Siegel explain that “jeopardize” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species.” Hence, if an action “appreciably” contributes to the GHG emissions believed to cause global warming, “that action could then be found to jeopardize a listed species.”

So which agency actions appreciably contributing to GHG emissions might be controlled or stopped under the ESA? The setting of fuel economy standards and the granting of offshore oil and gas leases are prime candidates, Cummings and Siegel opine, but many others would also come under carbon discipline:

The GHG emissions from numerous other actions present in the approval of new coal-fired power plants, oil shale leasing programs, limestone mines for cement manufacturing, and dozens perhaps hundreds of other projects are individually and cumulatively having an appreciable effect on the atmosphere. These are all agency “actions” as defined by the ESA, which “may affect” listed species, and therefore trigger the consultation requirements of Section 7.

The authors conclude: “There is no reason GHG emissions, which jeopardize polar bears, should be treated any differently than pesticides that harm salmon or logging that harms owls.”

Eventually, the ESA would also impose carbon discipline on the private behavior of firms and individuals. Section 9 of the ESA prohibits “any person,” including private individuals and corporations, from “taking” any endangered or threatened species. “Take” has several meanings, including “harass,” “kill,” and “harm.” “Harm” includes “significant habitat modification or degradation where it . . . injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Polar bears breed, feed, and shelter on ice floes. If GHG emissions are melting the ice, then GHG emissions are “taking” polar bears. To repeat, almost any economic activity by almost any private entity directly or indirectly causes GHG emissions.

Finally, Cummings and Siegel argue, “The ESA requires that a recovery plan for the polar bear be prepared and implemented. There is no hope for recovery, much less survival, of the polar bear absent substantial reductions in GHG emissions. Any legally adequate recovery plan must therefore include mandates to reduce such emissions” (emphasis added).

So there you have it, straight from the source. The objective of listing the polar is to set the predicate for “mandates” to reduce GHG emissions.

What Next?

Under the ESA, a “threatened” species is one that is expected to become “endangered” in the future whereas an “endangered” species is one that currently faces extinction in part or all of its range. Although the ESA prohibits “takings” of both threatened and endangered species, if the species is listed as “threatened,” FWS has the option, under ESA Sec. 4d, “to relax the normal ESA restrictions to reduce conflicts between people and the protections” provided by the Act. On the same day that Secy. Kempthorne listed the polar bear as threatened, he issued a 4d rule that allows both “subsistence” hunting by native Alaskans and “environmentally sound” development of natural resources by oil and gas companies.

In May 2009, Obama Administration Interior Secretary Ken Salazar reaffirmed Kempthorne’s 4d rule, explaining that, “The Endangered Species Act is not the proper tool to deal with a global issue — with global warming,” adding: “We need to move forward with a comprehensive climate change and energy plan we can be proud of.” In addition to preferring “comprehensive” climate legislation à la Waxman-Markey, Team Obama may have wanted to protect EPA’s newly won power to call the shots on climate policy.

As you might expect, the CBD is challenging the 4d rule in the D.C. Circuit Court of Appeals, arguing that the Department of Interior should have listed the polar bear as “endangered.” Greenwire (subscription required), the online news service, comments: “If they [the polar bears] were reclassified as endangered, the 4(d) rule would no longer have any bearing and environmental groups would have greater leverage to argue that the government should require reduced greenhouse gas emissions in order to protect the bears.”

Several business groups (American Petroleum Institute, the U.S. Chamber of Commerce, National Mining Association, National Manufacturers Association, American Iron and Steel Institute)  and the State of Alaska have intervened in support of the 4d rule, arguing that the ESA should not be used to regulate GHGs. They may prevail, but it is entirely possible that, by listing the polar bear as threatened, the Department of Interior has painted itself into a legal corner.

Nonetheless, I see a bright future ahead. Recall that on June 10, all 41 Senate Republicans and six Democrats voted to overturn EPA’s Endangerment Rule, the trigger and precedent for a cascade of GHG regulations under the Clean Air Act. The resolution of disapproval lost by a mere four votes (47-53), and only because Senate Majority Leader Harry Reid (D-NV) promised fence-sitters an opportunity to vote on Sen. Jay Rockefeller’s competing legislation to prohibit EPA regulation of GHGs from stationary sources for two years. It is a promise the Honorable Mr. Reid has not yet kept, though there might be a vote in the lame duck.

My point, though, is that the next Congress is expected to include many more members opposed to cap-and-trade and other stealth energy taxes. ESA regulation of GHGs is potentially much more costly than cap-and-trade proposals like Waxman-Markey. So in all likelihood, the next Congress will have even less patience than the current one with climate hysteria-inspired regulatory excess.

This afternoon I attended an informative panel, “Saving the Polar Bear or Obama’s CO2 Agenda?,” on how the Endangered Species Act is easily manipulated by environmentalist lawyers intent on gumming up economic activity. The panel was videotaped, so you can see it for yourself at the Heritage Foundation’s website. If, however, you don’t have an hour, then here are the highlights:

• Robert Gordon of the Heritage Foundation cited the Iowa Pleistocene snail. Seemingly, the snail is a smashing success story. It was listed as an endangered species in 1978, and after implementing protections, the snail recovered. Indeed, it far-exceeded the criteria first set out to de-list. Nonetheless, the Obama administration upgraded its peril. Why? Because, the Obama administration says, the snail is threatened “in the long term” by global warming! This example supported Mr. Gordon’s conclusion, that the Endangered Species Act is a “tool for those that wish to constrict economic activity.”
• The Competitive Enterprise Institute’s R.J. Smith questioned which section of the Constitution authorizes the government to favor animals and insects over humans. He joked that the 3^rd amendment prohibits the government from forcing Americans to quarter soldiers, yet the Endangered Species Act can force Americans to give quarter to snails.
• I asked Reed Hopper of the Pacific Legal Foundation to flesh out the regulatory consequences of listing the polar bear as an endangered species due to climate change, and his response was sobering. According to Mr. Hopper, a citizen suit provision of the Endangered Species Act means that anyone could sue anyone for harming the polar bear by emitting greenhouse gases. He said it would be “unprecedented.”