Clean Air Act

On the California Waiver, Auto Dealers Get Left out in the Cold

by Sam Kazman on May 5, 2011

in Blog, Features

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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.

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The Whole, Depressing Truth: Colorado’s Regional Haze Plan

by William Yeatman on April 29, 2011

in Blog, Features

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I travelled to Denver twice in the last 7 days to testify before the Senate State Affairs Committee on HB 1291, Colorado’s State Implementation Plan to meet the Regional Haze provision of the federal Clean Air Act.

I told the Committee that HB 1291 is illegal. And I rebutted the distortions peddled by its proponents, who also testified. Illegality and disingenuousness are huge accusations, and I made them twice, in testimonies a week apart, so the bill’s proponents had time to conjure a response. But no one disputed my assertions. Because they were true.

Nonetheless, the Plan passed out of Committee, due to the fact that it enjoys the support of two of Colorado’s richest special interests, for which billions of dollars were at stake. Today, HB 1291 was enacted by the full Senate, by a 25-10 vote. Two weeks ago, by a 58-7 vote, it was passed by the House of Representatives. If there’s one thing a bipartisan, bicameral majority can agree on these days, it’s the importance of currying favor with the deepest pockets.

This is a long blog about the who, what, why, and when of Colorado’s Regional Haze State Implementation Plan, the most outrageous rip-off you’ve never heard of.

The Back Story

Colorado’s Regional Haze State Implementation Plan originated not in the Centennial  State, but in Oklahoma.  It owes its form to Aubrey McClendon, CEO of Chesapeake Energy, a natural gas company headquartered in Oklahoma City.

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Arnold Revisits Judgment Day

by Brian McGraw on April 21, 2011

in Blog, Features

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Depending on where you live, April 21, 2011 may have already faded into yet another non-apocalyptic win for humanity. If not, you may still have about 12 hours to be worried.

Arnold Schwarzenegger has taken to The Wall Street Journal op-ed pages to warn of the potential future termination of humanity:

Today, I have tears in my eyes again, but for a very different reason. Some in Washington are threatening to pull the plug on this success. Since January, there have been more than a dozen proposals in Congress to limit enforcement of our clean-air rules, create special-interest loopholes, and attempt to reverse scientific findings. These attacks go by different names and target different aspects of the law, but they all amount to the same thing: dirtier air.

This is not an abstract political fight. If these proposals are passed, more mercury, dioxins, carbon pollution and acid gases will end up in the air our kids breathe. More Americans will get sick, end up in the hospital, and die from respiratory illness.

Don’t cry, Arnold! Much of this is an abstract political fight. The major push back and political grandstanding against the proposed EPA rules is what, if anything, should be done about the release of carbon dioxide into the atmosphere. The only proposal floated by Congress was found to be horribly ineffective, even by many environmentalists. During that fight, the Obama administration threatened opponents to accept it, because EPA regulations would follow if the legislation didn’t pass, and the EPA wasn’t capable of providing efficient or even effective “solutions.”

And here we are, with the EPA moving forward on costly regulations (during a recession) that, according to their own estimates, will reduce temperatures in 2100 by anywhere from 0.0015 to 0.006 degrees centigrade. Remember, Arnold, whatever your opinion on the historical benefits of the EPA, past performance is no guarantee of future success.

Finally, Arnold points to California as a model economy:

And, as I know from California’s experience, clean-air rules have led to innovation and new technologies that have created hundreds of thousands of new jobs and billions in clean-energy investment.

I’m not sure California ought to be cited as the model of anything, given their inability to budget and the steady exodus of business from the state.

 

Congressional Update: Votes Likely for Energy Tax Prevention Act of 2011 [Updated 5:45 PM]

by Myron Ebell on April 6, 2011

in Blog, Features

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The House of Representatives is scheduled to debate and vote on final passage of H. R. 910, the Energy Tax Prevention Act.  The Rules Committee is allowing the Democrats to offer twelve amendments to weaken or gut the bill.  (It is worth recalling that on 26th June 2009, the Democrats allowed only one Republican amendment and couldn’t even provide an accurate copy of the bill, since 300 pages had been added in the middle of the night, but the new sections hadn’t been put in their proper places in the 1200 page bill that had been released four days before.)  No Republican amendments to strengthen to the bill will be allowed.  The rule can be found here.  It is quite possible that the vote on final passage will be delayed until tomorrow.

Senate Majority Leader Harry Reid (D-NV) has scheduled votes on amendments offered by Sens. Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Max Baucus (D-MT), and Debbie Stabenow (D-MI) amendments to S. 493, a re-authorization bill for small business subsidies, for some time after 4 PM today.  The McConnell amendment is the Senate version of the Energy Tax Prevention Act, S. 482.  The other amendments are attempts to give some ground without blocking EPA regulation of greenhouse gas emissions permanently (that is, until Congress authorizes such regulations).  This shows how far the debate has shifted.  It appears that the three straddling amendments may each get fifteen to thirty votes.  It appears that the McConnell amendment (#183) will get 51 or perhaps even 52 votes, but will not be adopted because it is not a germane amendment and therefore requires 60 votes to survive a point of order.  All 47 Republicans are expected to vote for it plus Sens. Joe Manchin (D-WV), Mary Landrieu (D-LA), Ben Nelson (D-NE), and Mark Pryor (D-AR).  Maybe one more Democrat, such as Sen. Claire McCaskill (D-MO).  Senate Majority Leader Harry Reid could of course still change his mind.

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S. 482: A Skeptical Review of Boxer’s Tirade

by Marlo Lewis on March 31, 2011

in Blog, Features

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Yesterday, Sen. Barbara Boxer (D-Calif.) mounted a tirade (Congressional Record, pp. 1955-57) against the McConnell amendment (a.k.a. S. 482, the Inhofe-Upton Energy Tax Prevention Act) to the small business reauthorization bill (S. 493). The amendment would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act (CAA), a statute enacted in 1970, years before global warming emerged as a public policy issue.

The Senate is expected to vote later today on S. 493, so it worthwhile examining Boxer’s speech, which opponents of the bill will undoubtedly recycle in today’s debate.

I discuss the rhetorical traps S. 482 supporters should avoid in an earlier post. Stick to your moral high ground, namely, the constitutional premise that Congress, not an administrative agency with no political accountability to the people, should make the big decisions regarding national policy. The fact that Congress remains deadlocked on climate and energy policy is a compelling reason for EPA not to ‘enact’ greenhouse gas (GHG) controls. It is not an excuse for EPA to substitute its will for that of the people’s representatives.

Okay, that said, let’s examine Boxer’s rant. It is lengthy, repetitive, and often ad homonym, so I’ll try to hit just the main points. [click to continue…]

EPA Provides the Cash, American Lung Association Hits Upton and the Energy Tax Prevention Act

by Myron Ebell on March 24, 2011

in Blog, Features, Politics

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The American Lung Association is right up there with the Union of Concerned Scientists as a leftist activist organization pretending to be a professional association with high-minded objectives.  In fact, the American Lung Association is a bunch of political thugs.  Their latest hit job is putting up billboards in Rep. Fred Upton’s district in Michigan that urge him to “protect our kids’ health. Don’t weaken the Clean Air Act (PDF).” The billboard has a photo of an adolescent girl with a respirator.

The American Lung Association is opposing a bill, the Energy Tax Prevention Act (H. R. 910), that is sponsored by Rep. Upton, the Chairman of the House Energy and Commerce Committee.  Upton’s bill, which is expected to be debated on the House floor in early April, does nothing to weaken the Clean Air Act.  It simply prevents the Environmental Protection Agency from using the Clean Air Act to regulate greenhouse gas emissions.

Congress never intended the Clean Air Act to be used to enforce global warming policies on the American people.  As my CEI colleague Marlo Lewis recently noted, attempts to add provisions to the Clean Air Act Amendments of 1990 that would allow the EPA to regulate greenhouse gas emissions were defeated in the Senate.  A similar attempt in the House went nowhere.

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Primer: EPA’s Power Plant MACT for Hazardous Air Pollutants

by William Yeatman on March 16, 2011

in Blog, Features

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Today, the Environmental Protection Agency proposed a major rule to regulate power plants under the Hazardous Air Pollutants (HAP) Section 112 of the Clean Air Act.

This post is a primer on this consequential and controversial decision.

Section 112 of the Clean Air Act

  • In 1970, the Congress added Section 112 to the Clean Air Act, requiring that the EPA list and regulate Hazardous Air Pollutants (HAPs) that could “cause, or contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness.” The Congress ordered the EPA to establish standards for HAPs that provided “an ample margin of safety to protect public health.”
  • Due to difficulties interpreting what should constitute “an ample margin of safety,” the EPA largely ignored Section 112 for two decades.
  • In 1990, the Congress, frustrated with the slow pace of HAP regulation, amended the Clean Air Act to remove much of EPA’s discretion over the implementation of Section 112. Lawmakers listed 189 pollutants for regulation. They also legislated HAP pollution controls, known as Maximum Achievable Control Technology (MACT) standards. The Clean Air Act amendments set a “MACT floor” (i.e., a minimum HAP pollution control) at “the average emission limitation achieved by the best performing 12 percent of the existing sources.”
  • Section 112 MACT standards apply to both new and existing stationary sources.
  • Notably, the Congress required the EPA to proceed with caution before it regulated Electricity Generating Units (“EGUs,” or power plants). The 1990 Clean Air Amendments mandated a study on the public health threats posed by EGU HAP emissions, and the EPA Administrator was authorized to proceed with the regulation of HAPs from EGUs only after evaluating the results of this study, and concluding that “such regulation is appropriate and necessary.”

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President Obama’s War on Western Coal Demand

by William Yeatman on March 15, 2011

in Blog, Features

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The Environmental Protection Agency is using an obscure aesthetic regulation in the Clean Air Act to run roughshod over western states.

East of the Mississippi, President Barack Obama’s regulatory crackdown on coal threatens to shutter up to 40 gigawatts of electricity generation. Yet due to a variety of factors (the low sulfur content of western coal, low population density, and newer plant stock), coal-fired plants west of the Mississippi are in a much better position to withstand the regulatory onslaught .

In order to target western coal, the Environmental Protection Agency is leveraging a long ignored provision of the Clean Air Act designed to improve visibility, known as the Regional Haze rule. Notably, this is an aesthetic regulation, not a health-based regulation. In practice, eastern states are exempt from Regional Haze requirements, because the EPA allows states to meet this aesthetic regulation in the course of complying with health-based regulations.

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Update on CEI’s Lawsuit against the EPA over Climate Regulations

by William Yeatman on March 13, 2011

in Blog, Features

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This post was written by Competitive Enterprise Institute General Counsel Sam Kazman

EPA’s global warming regs are being challenged in a complex set of cases pending in the U.S. Court of Appeals for the D.C. Circuit.  At issue are rules ranging from EPA’s underlying endangerment ruling to its decrees on stationary and vehicle greenhouse gas emissions.  A number of petitions for reconsideration were filed with the agency as well, several of them based on the Climategate materials.  EPA denied those petitions last summer in a voluminous document which is also part of the litigation.

Among those suing EPA are states, trade associations, public interest groups (including CEI) and individual companies. If you count each separate action brought by each petitioner (including CEI) against each rule, there are 85 cases.

The petitioners tried to have the regulations put on hold until the court decides the cases, but their motion was denied back in December.  Both sides have filed suggestions on how the briefing of the cases should proceed, since the court will require almost everyone to file joint briefs.  Once the court issues its schedule and format for the briefs, the cases will start moving forward again.

Inside the Beltway

by Myron Ebell on March 12, 2011

in Blog, Features

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The House of Representatives took the first step on Thursday toward reclaiming its authority to regulate greenhouse gas emissions.  The Energy and Power (yes, that really is its name) Subcommittee of the Energy and Commerce Committee marked up and passed H. R. 910, the Energy Tax Prevention Act, which is sponsored by Committee Chairman Fred Upton (R-Mich.) and Subcommittee Chairman Ed Whitfield (R-Ky.).  H. R. 910 would pre-empt EPA from regulating greenhouse gas emissions using the Clean Air Act unless and until explicitly authorized to do so by Congress.

Actually, there was no marking up.  The Democrats opposed to the bill offered no amendments, and the bill was passed on a voice vote.  The full Committee has scheduled a mark-up of the bill next Monday and Tuesday. That means H. R. 910 could come to the House floor by early April.  There is no doubt that it will pass the House by a wide margin.  The only question is how many Democrats will end up voting for it.  My guess is that quite a few Democrats are worried about getting re-elected and will therefore vote for it.

The subcommittee meeting was one long whine by minority Democrats.  Rep. Henry Waxman (D-Beverly Hills), the ranking Democrat on the full committee and chief sponsor of the Waxman-Markey cap-and-trade bill that failed in the last Congress, said that H. R. 910 would codify science denial.  Rep. Ed Markey (D-Mass.) chimed in that he was worried the Republicans would try to repeal the law of gravity.  Rep. Jay Inslee (D-Wash.) instead thought that Republicans were trying to repeal the first law of thermodynamics and cause children all over the world to get asthma.

Preventing asthma is now the principal reason brought forward by the global warming alarmists in Congress to cripple the U. S. economy with energy-rationing regulations.  Here is what I learned from a ninety-second internet search: “The majority of people with asthma notice that cold, dry air causes more symptoms than mild-temperature or hot, humid air.” Of course, some of the world’s most eminent climate scientists have recently found that global warming is causing a lot of cold weather.

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