Cato Institute scholars Patrick Michaels and Chip Knappenberger have produced a layman-friendly yet thoroughly referenced draft report summarizing “the important science that is missing from Global Climate Change Impacts in the United States,” a U.S. Government document underpinning the EPA’s December 2009 endangerment rule, the foundation of all of the agency’s greenhouse gas (GHG) regulations.

Pat and Chip’s draft report, titled Addendum: Climate Change Impacts in the United States, is a sober antidote to the climate fear-mongering patronized by the Obama administration, mainstream media, the U.N., corporate rent seekers, and the green movement. Among the best features are the numerous graphics, some of which I will post here.

Taking these in no particular order, let’s begin with the scariest part of Al Gore’s “planetary emergency”: sea-level rise. Is the rate of sea-level rise dangerously accelerating? No. Over the 20th century, there was considerable decadal variation in the rate of sea-level rise but no long-term trend.

Decadal rate of sea level rise from satellites (red curve) appended to the decadal rate of global sea level rise as determined from a nine-station tide gauge network for the period 1904–2003 (blue curve) and from a 177-station tide gauge network for the period 1948–2002 (magenta). Adapted from Holgate, S.J., 2007: On the decadal rate of sea level change during the 20th century. Geophysical Research Letters, 34, doi:10.1029/2006 GL028492

The UN IPCC Fouth Assessment Report (2007) famously concluded that “most of the observed increase in global average temperature since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.” However, recent studies attribute components of the observed warming to other factors. Adding up those contributions, Pat and Chip calculate that greenhouse gas concentrations account for less than half of the observed warming since 1950.

“Observed” global average temperature anomalies from 1950–2010 (red) and “adjusted” global temperature anomalies after accounting for non-greenhouse gas influences from a cold bias in sea surface temperatures, a warm bias in land temperatures, increases in stratospheric water vapor, and revised estimates of the warming effect from black carbon aerosols (blue). The trend through the adjusted temperature anomalies is less than half the trend in the original “observed” data series. [Sources provided in footnotes 67-73 on p. 34.] 

Climate models typically overestimate actual warming, indicating that they overestimate climate sensitivity (the amount of warming resulting from a given increase in GHG concentrations).

During the 15 year period from 1997-2011, the observed rate of global warming as derived from the five major compilations of global average surface temperatures (GISS (red), NOAA (green), Hadley Center (dark blue), MSU satellite—University of Alabama version (yellow) and MSU satellite (Remote Sensing Systems version (light blue) falls out in the left-hand tail of the distribution of model projected trends of the same length (grey bars).

Is the recent Midwest drought evidence that our fuelish ways are destabilizing the climate system? No. There is no long-term trend in U.S. soil moisture such as might be correlated with the increase in atmospheric GHG concentrations.

The Palmer Drought Severity Index (PDSI) shows no trend in the area of the nation experiencing drought or excessive wetness over the period of record that begins in 1895.

In fact, throughout the U.S., soil moisture in the 20th century increased in more areas than it declined.

Source: Andreadis, K.M., and D.P. Lettenmaier, 2006: Trends in 20th century drought over the continental United States. Geophysical Research Letters, 33, L10403, doi:10.1029/2006GL025711

Okay, but as the world warms (and as urban heat islands expand), there are going to be more heat waves, and more people will die, right? Yes and no. “Mortality from heat waves declines as heat wave frequency increases, and deaths from extreme cold decline dramatically as cold air preferentially warms.” Cities with the most frequent hot weather, such as Phoenix, AZ and Tampa, FL, have virtually no heat-related mortality.

 Average heat-related mortality in U.S. urban areas has declined nationwide; subsequent research shows this trend continues into the 21st century. [Sources: Davis RE, et al., 2003. Changing Heat-Related Mortality in the United States. Environmental Health Perspectives 111, 1712–18. Kalkstein, L.S., et al., 2011. An evaluation of the progress in reducing heat-related human mortality in major U.S. cities. Natural Hazards 56, 113-129.]

Is global warming spinning up ever more powerful tropical cyclones? In the Atlantic Basin, there has been no long-term trend in the accumulated cyclone energy (ACE) index (which combines the duration and intensity of each storm into a seasonal total).

Accumulated Cyclone Energy (ACE) index for the Atlantic Basin from 1851 through 2010. There is obviously no relationship to long-term temperature rise or GHG concentrations. Data available at http://www.aoml.noaa.gov/hrd/tcfaq/E11.html.

Nor has there been a long-term increase in ACE globally since 1970.

Global hurricane activity as measured by the ACE index has been in general decline since the early 1990s and as of 2011 was near its 40-year low. Source: Maue, R.N., 2011: Recent historically low global tropical cyclone activity. Geophysical Research Letters, 38, L14803, doi:10.1029/2011GL047711

Is global warming altering wind patterns such that more hurricanes are striking the U.S.? There has been no long-term trend in the number of hurricanes and major (category 3-5) hurricanes making landfall in the U.S.

U.S. landfalling decadal hurricane counts reached their maximum in the 1940s. Source: Blake, E.S., C.W. Landsea, and E.J. Gibney, 2011: The deadliest, costliest, and most intense United States tropical cyclones from 1851 to 2010 (and other frequently requested hurricane facts). NOAA Technical Memorandum NWS NHC-6, National Weather Service, National Hurricane Center, Miami, FL, http://www.nhc.noaa.gov/pdf/nws-nhc-6.pdf

Okay, but apart from hurricanes, has the area of the U.S. experiencing extreme weather expanded as GHG concentrations have increased? The National Climate Data Center’s Climate Extremes Index (CEI) plots the ”fraction of the area of the United States experiencing extremes in monthly mean surface temperature, daily precipitation, and drought.” The CEI has increased since 1970 but the current weather regime “clearly resembles that of the early 20th century, long before major greenhouse gas emissions.”

Climate extreme index, not counting tropical storms and hurricanes, 1920-2010. Source: Gleason, K.L., et al., 2008: A revised U.S. Climate Extremes Index. Journal of Climate, 21, 2124-2137.

But surely, tornadoes are more frequent now than ever, and what else can explain this except the increase in GHG concentrations? Actually, it’s the ability to detect small tornadoes that has increased. If we consider just the large tornadoes (F3-F5) that have been detectable for decades, there is no trend.

Number of strong U.S. tornadoes, 1950–2011. Source: NCDC, U.S. Tornado Climatology, 7 March 2012, at http://www.ncdc.noaa.gov/oa/climate/severeweather/tornadoes.html, visited 11 May 2012.

But tornadoes are killing more people, right? Nope.

U.S. tornado death rate, 1900–2011. Sources: Updated from Goklany (2009a), using USBC (2011); NWS, Hazard Statistics at http://www.weather.gov/os/hazstats.shtml, accessed May 11, 2012; NWS, Storm Prediction Center, Annual U.S. Killer Tornado Statistics, at http://www.spc.noaa.gov/climo/torn/fataltorn.html, accessed May 11, 2012.

The same holds for mortality rates and extreme weather generally:

For the U.S., the cumulative average annual deaths from extreme weather events declined by 6% from 1979–1992 to 1993–2006 (despite a 17% increase in population), while all-cause deaths increased by 14%. [Source: Goklany, I.M. 2009. Deaths and Death Rates from Extreme Weather Events: 1900-2008. Journal of American Physicians and Surgeons 14, 102-09]

Hurricane damages keep going up and up, but that’s due to the ongoing rise in population and development in coastal areas. When hurricane damage is adjusted for changes in population, wealth, and inflation, there is no long-term trend.

U.S. tropical cyclone damage adjusted for inflation, population growth and wealth, 1900-2012 [Note - I am using a more updated graph than the one appearing in Addendum. Source: Pielke et al. 2008. Normalized Hurricane Damage in the United States: 1900-2005, Natural Hazards Review, DOI: 10.1061/1527-6988, 9:1(29), updated 12/31/2012].

Okay, but warmer temperatures mean more photo-chemical smog and worse air pollution, right? Only if air pollutant emissions stay the same, but emissions have declined on average by 67% since 1980. Further declines are projected as auto fleets and capital stock are replaced by newer, cleaner models.

Despite an increasing population, energy consumption, and economic productivity, U.S. pollution emissions declined by 67% since 1980. [Source: U.S. Environmental Protection Agency, Air Trends, http://epa.gov/airtrends/index.html]

Whatever risks climate change may pose to U.S. agriculture in the future, warming historically has not been associated with reductions in crop yield.

U.S. Cotton, corn and wheat yields, 1866–2010 [Source: National Agricultural Statistics Service, QuickStats 1.0 (2010), available at http://www.nass.usda.gov/Statistics by_Subject/index.php?sector=CROPS, downloaded December 26, 2010]

Remember the U.N. Environment Program’s (UNEP) November 2005 prediction that there would be as many as 50 million climate refugees by 2010? Not only did those displaced populations fail to materialize, some of the areas UNEP supposed would be hardest hit by climate change impacts experienced rapid population increases. Something similar is going on right here in the USA. Decade by decade, millions of Americans vote with their feet to live in warmer climates.

U.S census data show that the largest percent increases in population are in the relatively dry and hot Pacific Southwest, the moist and hot southeast Texas, and the Florida peninsula.

But ‘everybody knows’ that global warming is the worst threat facing humanity. Okay then explain this: Why do U.S. (and global) population, per capita income, and life expectancy keep rising along with carbon dioxide emissions?

U.S. carbon dioxide emissions, population, GDP per capita (affluence) and life expectancy at birth, 1900-2009. [Source: Goklany, I.M. 2009. Have increases in population, affluence and technology worsened human and environmental well-being? The Electronic Journal of Sustainable Development 1(3), updated using the Statistical Abstract of the United States 2011, and National Vital Statistics Report 59 (4): 1; CDIAC (2010); GGDC (2010)]

Well, that should be enough to whet your appetite to read Addendum. I’ll conclude this post by reproducing the draft report’s ”key findings.”

Key Findings:

1. Climate change is unequivocal, and human activity plays some part in it. There are two periods of warming in the 20th century that are statistically indistinguishable in magnitude. The first had little if any relation to changes in atmospheric carbon dioxide, while the second has characteristics that are consistent in part with a changed greenhouse effect. (p. 17)
2. Climate change has occurred and will occur in the United States. U.S. temperature and precipitation have changed significantly over some states since the modern record began in 1895. Some changes, such as the amelioration of severe winter cold in the northern Great Plains, are highly consistent with a changed greenhouse effect. (pp. 38–56, 187–92)
3. Impacts of observed climate change have little national significance. There is no significant long-term change in U.S. economic output that can be attributed to climate change. The slow nature of climate progression results in de facto adaptation, as can be seen with sea level changes on the East Coast. (pp. 48–49, 79–81, 155–58, 173–74)
4. Climate change will affect water resources. Long-term paleoclimatic studies show that severe and extensive droughts have occurred repeatedly throughout the Great Plains and the West. These will occur in the future, with or without human-induced climate change. Infrastructure planners would be well-advised to take them into account. (pp. 57–71)
5. Crop and livestock production will adapt to climate change. There is a large body of evidence that demonstrates substantial untapped adaptability of U.S. agriculture to climate change, including crop-switching that can change the species used for livestock feed. In addition, carbon dioxide itself is likely increasing crop yields and will continue to do so in increasing increments in the future. (pp. 102–18)
6. Sea level rise caused by global warming is easily adapted to. Much of the densely populated East Coast has experienced sea level rises in the 20th century that are more than twice those caused by global warming, with obvious adaptation. The mean projections from the United Nations will likely be associated with similar adaptation. (pp. 173–74)
7. Life expectancy and wealth are likely to continue to increase. There is little relationship between climate and life expectancy and wealth. Even under the most dire climate scenarios, people will be much wealthier and healthier in the year 2100 than they are today. (pp. 139–45, 158–61)
8. Climate change is a minor overlay on U.S. society. People voluntarily expose themselves to climate changes throughout their lives that are much larger and more sudden than those expected from greenhouse gases. The migration of U.S. population from the cold North and East to the much warmer South and West is an example. Global markets exist to allocate resources that fluctuate with the weather and climate. (pp. 154–69)
9. Species and ecosystems will change with or without climate change. There is little doubt that some ecosystems, such as the desert West, have been changing with climate, while others, such as cold marine fisheries, move with little obvious relationship to climate. (pp. 119–38, 208)
10. Policies enacted by the developed world will have little effect on global temperature. Even if every nation that has obligations under the Kyoto Protocol agreed to reduce emissions over 80 percent, there would be little or no detectable effect on climate in the policy-relevant timeframe, because emissions from these countries will be dwarfed in coming decades by the total emissions from China, India, and the developing world. (pp. 28, 211)

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.

Did EPA exercise independent judgment, as required by Sec. 202 of the Clean Air Act (CAA), when it determined that greenhouse gas (GHG) emissions endanger public health and welfare? Or did the agency improperly outsource its judgment to third-party assessment reports, such as those produced by the UN Intergovernmental Panel on Climate Change (IPCC)?

This is a key bone of contention in Coalition for Responsible Regulation v. EPA, a case before the D.C. Circuit Court of Appeals, in which petitioners seek to overturn EPA’s GHG regulations.

Tonight (September 30), the Coalition for Responsible Regulation filed a motion asking the Court to “take judicial notice” of the EPA Inspector General’s (IG’s) recent report, Procedural Review of EPA’s Greenhouse Gas Endangerment Finding Data Quality Processes, and EPA’s comments thereon (Appendix G). Those comments appear to contradict EPA’s legal position that, in developing the Technical Support Document (TSD) for its Endangerment Rule, EPA conducted an independent review of the science, as required by the statute. 

In its brief to the Court and elsewhere, EPA unequivocally rejects the criticism that the only judgment it exercised was to trust the judgment of non-agency scientific “authorities.” For example, in denying petitions for reconsideration of the Endangerment Rule, EPA asserted (p. 49581):

EPA did not passively and uncritically accept a scientific judgment and finding of endangerment supplied to it by outsiders. Instead, EPA evaluated all the scientific information before it, determined the current state of the science of greenhouse gases, the extent to which they cause climate change, how climate change can impact public health and welfare, and the degree of the scientific consensus on this science. . . .EPA properly and carefully exercised its own judgment in all matters related to the Endangerment Finding.

Similarly, in its brief before the Court, EPA stated (p. 54):

Although the scientific assesments reviewed by EPA provided the principal source materials for the Endangerment Finding, the Administrator exercised her own judgment in making that finding.

However, EPA’s comments to the IG put the TSD is a different light. The IG faulted EPA for not following the strictest standards of peer review in developing the TSD. Specifically, EPA failed to publicly report the views of the agency’s 12-member peer review panel. More critically, one member of the panel was an EPA employee, compromising the panel’s independence. EPA argued that publication of panelists’ views and full independence were unnecessary, because the TSD was not a “highly influential scientific asssessment.” Indeed, according to EPA, the TSD was not even an assessment. From the IG report (p. 23):

EPA stated that the TSD is not a scientific assessment, but rather a document that summerized in a straightforward manner the key findings of NRC [National Research Council], USGCRP [United States Global Change Research Program], and IPCC [Intergovernment Panel on Climate Change].

The IG concluded, on the contrary, that the TSD was not only a scientific assessment, it was also ”highly influential.” The Office of Management and Budget’s (OMB’s) Peer Review Bulletin defines “scientific assessment” as “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (p. 2). The TSD synthesizes the findings, conclusions, and other information in the IPCC, USGCRP, and NRC assessments. So is a synthesis of other organizations’ assessments an assessment or not?

The IG asked OMB “whether a document summarizing existing findings or conclusions of other peer-reviewed scientific assessments, but not offering any new analysis or conclusions, would meet OMB’s definition of scientific assessment. . .” OMB replied (p. 17):

An annotated bibliography would generally not be considered a scientific assessment; however, a document summarizing the “state of the science” would be, as it implicitly or explicitly weighs the strength of the available evidence.

OMB’s Peer Review Bulletin states that a scientific assessment is ”highly influential” if it ”could have a potential impact of more than $500 million in any one year on either the public or private sector,” or ”is novel, controversial, or precedent setting, or has significant interagency interest.” Greenhouse gas regulations based on the TSD could easily exceed $500 million in annual costs. The associated Endangerment Rule is among the most novel, controversial, and precedent setting rules in recent history. It has significant interagency interest, since the Endangerment Rule positions EPA to regulate fuel economy, a responsiblity Congress delegated to the Department of Transportation.

Yet EPA maintains that the TSD is not an assessment. EPA told the IG (p. 54):

No weighing of information, data, or studies occurred in the TSD. That had already occurred in the underlying assessments, where the scientific synthesis occurred and where the state of the science was assessed. The TSD is not a scientific assessment, but rather summarized in a straightforward manner the key findings of the NRC, the USGCRP, and IPCC. [Emphasis added].

It seems that EPA, to avoid fessing up to a procedural foible, has unwittingly acknowledged a serious statutory breach, leaping from the frying pan into the fire. EPA cannot reasonably tell the Court that the Endangerment Rule is based on a genuinely independent scientific review if, as petitioners put it, the agency ”had not weighed and sifted the science, but simply assembled a literature review compiled by others wherein such weighing and sifting had ‘already occurred.’”

What EPA told the IG inadvertently casts doubt on the Endangerment Rule’s scientific and legal bona fides. Indeed, petitioners ask:

But if EPA is correct that it did not weigh and sift data, as the Act requires, since that work had already been performed outside EPA, then what position is the Agency in to assert that the underlying science is substantively or procedurally sound? How could it know?

EPA, it would seem, has flouted both OMB’s information quality standards, which require rigorous peer review for “highly influential scientific assessments,” and the CAA, which requires independent judgment in producing such assessments.

Petitioners comment:

Depending on whether it is communicating with the Court or the IG, EPA has taken diametrically opposing positions on whether weighing and sifting the science was performed inside or outside the Agency and by the Administrator or by unaccountable domestic and foreign officials.

It will be interesting to see how EPA tries to reconcile its claim to the IG that it did not weigh the information, data, or studies summarized in the TSD with its claim to the Court that the Administrator exercised her own judgment in making the endangerment finding.

* Full disclosure: The Competitive Enterprise Institute is a petitioner in Coalition for Responsible Regulation, Inc. et. al. v EPA.

A staple of climate alarmism is the claim that snow pack in the arid West is shrinking and melting earlier in the spring season, diminishing supplies of water needed for irrigated agriculture in the hot summer months. But this year, snow pack is at record highs. Indeed, snow is piled so high that the big worry is not about summer drought but flash floods.

Declining snow pack figured prominently in both EPA’s and the California Air Resource Board’s (CARB’s) climate change regulations.

EPA’s Endangerment Rule [p. 66532], which obligated the agency to establish greenhouse gas (GHG) emission standards for new motor vehicles, states:

Climate change is causing and will increasingly cause shrinking snowpack induced by increasing temperature. In the western United States, there is already well-documented evidence of shrinking snowpack due to warming. Earlier meltings, with increased runoff in the winter and early spring, increase flood concerns and also result in substantially decreased summer flows. This pattern of reduced snowpack and changes to the flow regime pose very serious risks to major population regions, such as California, that rely on snowmelt-dominated watersheds for their water supply.

Similarly, CARB’s Initial Statement of Reasons [pp. 12, 17] for regulating GHG motor vehicle emissions declares:

In California, large accumulations of snow occur in the Sierra Nevada and southern Cascade Mountains from October to March. Each winter, at the high elevations, snow accumulates into a deep pack, preserving much of California’s water supply in cold storage. If the winter temperatures are warm, more of the precipitation falls as rain instead of snow, and water directly flows from watersheds before the spring snowmelt. Thus, there is less buildup of snow pack; as a result, the volume of water from the spring runoff is diminished. . . .If the climate shifts toward a severe drought, not only will more irrigation be needed, but also the snow pack at higher elevations will be lacking. This can be disastrous for producers that grow fruit trees and vines that will require years to reestablish production.

Of course, one or even several years of heavy snowfall do not a climate trend make, and the climate crusaders at EPA and CARB do not deny that natural variability can dominate weather patterns from year to year. Nonetheless, it’s safe to say that neither agency anticipated anything like the snow pack that’s been piling up this year.

“Thanks to a blizzard-filled winter and an unually cold and wet spring,” reports the New York Times, “90 measuring sites from Montana to New Mexico and California to Colorado have record snowpack totals on the ground for late May, according to a federal report released last week.” Come June, the giant snow packs could melt “mildly if weather conditions are just right, or wildly and catastrophically if they are not,” says the Times. But, “No matter what happens, the snows of 2011, especially their persistence into late spring, have already made the record books.”

Although the Times article focuses on flood risk and the preparations disaster officials are making, it also notes an important upside:  

Hydrologists, meanwhile, are cheering what they say will be a huge increase in water reservoir storage for tens of millions of people across the West. Lake Mead and Lake Powell, two huge dammed reservoirs on the Colorado River battered in recent years by drought, are projected to get 1.5 trillion gallons of new water between them from the mammoth melt. 

Today at Pajamas Media.Com, I discuss the latest stratagem of the greenhouse lobby to protect EPA’s purloined power to dictate national climate and energy policy: Sen. Max Baucus’s (D-Mont.) amendment to the small business reauthorization bill.
 
The Baucus amendment would essentially codify EPA’s Tailoring Rule, which exempts small greenhouse gas (GHG) emitters from Clean Air Act (CAA) permitting requirements.
 
That may seem innocent enough. However, if enacted, the Baucus amendment would also codify the ever-growing ensemble of EPA climate initiatives of which the Tailoring Rule is only a small piece.
 
EPA’s current and probable future climate regulations include GHG/fuel-economy standards for all categories of mobile sources (cars, trucks, marine vessels, aircraft, non-road vehicles and engines) and GHG/energy-efficiency standards for dozens of industrial source categories. 
 
Congress, however, never authorized EPA to determine fuel economy standards for motor vehicles, much less dictate national policy on climate change. The Baucus amendment would put Congress’s legislative stamp of approval on EPA’s end-run around the legislative process.
 
The amendment has almost no chance of passing in the GOP-led House of Representatives. However, it does not need to pass to perpetuate EPA’s shocking power grab. All it has to do is peel off enough votes in the Senate to prevent passage of the Inhofe-Upton Energy Tax Prevention Act. That bill, which is almost certain to pass in the House, would overturn most of EPA’s current GHG regulations and stop the agency permanently from promulgating climate change policies Congress never approved.
 
Whether the Baucus amendment is adopted or just blocks passage of Inhofe-Upton, the U.S. economy will be exposed to the risk that EPA will be litigated into establishing national ambient air quality standards (NAAQS) for GHGs, and to the risk that EPA will use BACT (“best available control technology”) determinations and NSPS (New Source Performance Standards) to restrict America’s access to affordable, carbon-based energy.
 
With the possible exception of Michigan Rep. John Dingell, who chaired the House-Senate conference committee on the CAA Amendments of 1990, nobody on Capitol Hill should know better than Sen. Baucus that Congress never authoried EPA to regulate GHGs for climate change purposes. During congressional debate on the CAA Amendments, Baucus tried and failed to persuade the Senate to adopt language requiring EPA to set CO2 emission standards for motor vehicles. He also tried and failed to persuade House-Senate conferees to adopt language establishing GHG emission reduction as a national goal and requiring EPA to regulate manufactured substances based on their “global warming potential.”
 
EPA today is exercising the very powers that Baucus tried and failed to persuade Congress to grant the agency in 1989. Hence the title of my column on the Senator’s amendment: “EPA’s Greenhouse Power Grab: Baucus’s Revenge, Democracy’s Peril.”
 
Sadly, more than a few Members of Congress today seem to believe that the greenhouse agenda is more important than any constitutional principle that might interfere with it. How Senators vote on the Baucus amendment will be a test of their respect for the Constitution.

Yesterday (Feb. 16), House Energy and Power Subcommittee Chairman Ed Whitfield (R-KY) engaged in a colloquy with Interior and Agriculture Subcommittee Chairman Mike Simpson (R-ID) on Sec. 1746 of H.R. 1, the One-Year Continuing Appropriations Act of 2011.

Sec. 1746 of H.R. 1 states:

None of the funds made available to the Environmental Protection Agency by this division or any other Act may be expended for purposes of enforcing or promulgating any regulation (other than with respect to section 202 of the Clean Air Act) or order, taking action relating to, or denying approval of state implementation plans or permits because of the emissions of greenhouse gases due to concerns regarding possible climate change.

Sec. 1746 would block EPA regulation of greenhouse gases from stationary sources for the remainder of fiscal year 2011, which ends on September 30. “The funding limitation will allow Congress to carefully and thoroughly debate a permanent clarification to the Clean Air Act to ensure it remains a strong tool for protecting public health by regulating and mitigating air pollutants, and that it is not transformed into a vehicle to impose a national energy tax,” explains Chairman Whitfield’s press release. Whitfield is a co-sponsor of the Energy Tax Prevention Act, which would overturn the legal force and effect of EPA’s Endangerment Rule, Tailoring Rule, and other rules imposing greenhouse gas permitting requirements on state governments and stationary sources.

In the colloquy, Chairman Simpson states: ”EPA’s GHG regulations need to be stopped in their tracks, and that’s what section 1746 does – it provides a timeout for the balance of the fiscal year, during which time EPA will be prohibited from acting on them or enforcing them.” In Whitfield’s words: “This CR [Continuing Resolution] provision is Congress hitting the pause button during the very brief period of the CR, allowing time to go through regular order and pass the Upton-Inhofe bill.”

Whitfield spotlights the constitutional principle at stake: “EPA’s regulations are an attempt by unelected bureaucrats to slip in through the regulatory backdoor what Congress has thus far wisely blocked from coming in through the front door.” The Energy Tax Prevention Act takes no position on climate science. As Simpson remarks, one need not be a global warming skeptic to be an ”EPA GHG [greenhouse gas] regulation skeptic.”

The political benefits of Congress passing Sec. 1746 are obvious. It would be a clear rebuke to EPA’s shocking power grab. It would put Team Obama on notice that Congress is determined to defend the separation of powers. It would energize congressional and public support for a more permanent solution to the ’EPA problem.’ It would draw a big bright line in the sand helping the public identify which Members of Congress want to raise energy prices and which do not.

This defunding, or appropriations rider, strategy, as it is sometimes called, however, is not without economic risk.

“Rider striking funds for EPA regs could cause unintended consequences for industry,” yesterday’s Greenwire (subscription required) reports. The article explains:

The rider does nothing to nullify the 2009 finding that greenhouse gases endanger human health, or to reverse EPA’s final rules, including its prevention of significant deterioration guidelines or the tailoring rule, which lays out the agency’s timetable for regulating greenhouse gases from large stationary emitters.

By simply defunding the agency’s greenhouse gas permitting programs, Congress would do nothing to remove EPA’s obligation to address greenhouse gases through the permitting process, the [unidentified industry] attorney said.

“It doesn’t change the fact that those rules and regulations are final,” the attorney said.

Which means, notes Rep. Jim Moran (D-VA):

“The legislation is there, you’re not repealing the legislation, so EPA has a legal responsibility to implement the Clean Air Act, the Clean Water Act, other pieces of legislation that are still on the books,” he said yesterday. “That’s their responsibility, and they really can’t shirk that responsibility just because Congress doesn’t provide them the resources. The Congress has to either repeal the law, or be it reluctantly, they’re just going to have to fund the resources to carry out the law.”

Both Moran and Greenwire miss a more important point. The Clean Air Act imposes obligations not just on EPA but also on regulated entities such as power plants, refineries, factories, and other emission sources.

Under the Act, before a firm may build or modify a “major emitting facility,” it must undertake a “best available control technology” (BACT) analysis and, on that basis, apply for and obtain a “prevention of significant deterioration” (PSD) pre-construction permit. Similarly, before a firm may operate a major emitting facility, it must obtain a Title V operating permit.

EPA has issued regulations applying PSD and Title V to greenhouse gases. Those are already on the books, and they impose legal requirements on private entities as well as on EPA and state permitting agencies. Thus, even if EPA lacks the funds to administer PSD and Title V for greenhouse gases, major greenhouse gas emitting facilities must still obtain PSD and Title V permits or they cannot lawfully build, modify, or operate.

Moreover, even if EPA lacks the funds to prosecute firms for failing to obtain permits, eco-litigation groups could still drag those firms into court under Clean Air Act citizen-suit provisions. Trial lawyers could have a field day as affected firms find themselves in a Catch-22. On the one hand, the law (the Clean Air Act as interpreted by EPA rules) would require firms to obtain PSD and Title V permits for greenhouse gases. On the other hand, the law (the appropriations rider) would prevent them from doing so.

It’s not even clear that Sec. 1746 would stop the government from enforcing EPA’s greenhouse regulations. The language says nothing about withholding funds from the Department of Justice, so DOJ prosecutors could enforce EPA’s regs even if EPA couldn’t.

The side effects of this bizarre situation are potentially serious. Construction projects might have to be mothballed or cancelled for lack of proper permits. Otherwise healthy firms facing novel litigation risks might be unable to obtain financing or venture capital.

Considerations of this sort led Alaska Sen. Lisa Murkowski to abandon an appropriations rider strategy she had been exploring in late 2009 and instead introduce legislation to overturn EPA’s Endangerment Rule — the headwaters of EPA’s greenhouse regulatory surge.

The question for opponents of EPA’s power grab, therefore, is whether the political benefits of a defunding strategy outweigh the economic risks. This is a prudential matter about which reasonable people may disagree. I will hazard two observations.

(1) The best way to minimize the potential collateral damage to regulated entities is to quickly enact legislation that overturns EPA’s greenhouse gas rules. If passage of Sec. 1746 galvanizes congressional action toward that end, then it would likely do more good than harm. (2) However, if enactment of Sec. 1746 leads to construction bottlenecks and an upsurge of anti-business litigation while Congress is still debating the Energy Tax Prevention Act or similar measures, the rider strategy could damage the credibility of EPA’s congressional critics.