The Natural Resources Defense Council (NRDC) Action Fund commissioned a poll from a Democratic pollster finding that voters in Rep. Fred Upton’s district disapprove of the GOP congressman’s efforts to overturn EPA’s climate change regulations. Hold the presses! Man bites dog! I mean, what are the odds that a poll conducted by Public Policy Polling and commissioned by NRDC would reach that conclusion?

Actually, what’s surprising is that Greenwire (May 19, 2011, subscription required) would bother covering the NRDC poll as if it were news.

Some background to put things in context. House Energy and Commerce Chairman Fred Upton (R-Mich.) is the lead sponsor of H.R. 910, the Energy Tax Prevention Act. H.R. 910 would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act — a statute enacted years before Al Gore ever heard of global warming. Although opponents defeated companion legislation in the Senate on a 50-50 vote, Upton and his allies won big in the House with a vote of 255-172.

The NRDC poll supposedly finds that voters in Michigan’s 6th District ”have reservations” about Upton’s plan to rein in EPA. The poll reveals “significant disappointment” among constituents with Upton’s “current policy choices,” according to Matt Howes, a spokesman for the group.

The poll has not yet been released to the general public, but judging by Greenwire‘s description, it’s not worth the recycled paper it’s printed on. The questions posed employ rhetorical tricks to elicit a predetermined conclusion, namely, Upton is out of step with his constituents and risks electoral defeat in 2012.

The survey, says Greenwire, ”asked residents their views on whether EPA should do more to regulate air pollutants in general. Fifty-three percent of respondents answered in the affirmative, while 33 percent said they opposed the idea and 14 percent had no opinion.” 

The opening question is almost meaningless. It’s equivalent to asking residents whether they want the air to be cleaner or dirtier. The pollster might as well ask whether Upton’s constituents think schools should do more to teach math and science, drug companies should do more to cure cancer, or the Department of Homeland Security should do more to secure the borders. 

Most people reflexively say they want more of any perceived public good in the abstract. The NRDC-sponsored poll tells us nothing about how much Upton’s constituents are prepared to pay — in higher energy prices, fewer jobs, higher taxes, or lower GDP, for example — to achieve how much incremental improvement in air quality.

Note also that by starting with a question about unspecified “air pollutants,” the poll implicitly identifies ”carbon dioxide” — the topic of the next question — with air pollution. Because most people try to give logically consistent answers, anyone who answered yes to the first question will feel obliged to answer yes to the second question.

The second question, as described by Greenwire, is “whether constituents supported EPA’s taking steps to limit carbon dioxide and other heat-trapping emissions, rather than waiting for Congress to pass a new climate change law.” Greenwire elaborates: 

“The Head of the American Petroleum Institute says Congress should decide when and how greenhouse gases should be regulated. But others say Congress should let EPA do its job,” the question read. “The head of the American Public Health Association says that blocking the EPA’s work to reduce carbon dioxide could mean the difference between a healthy life for many Americans or chronic debilitating illness. Which opinion do you support?” The survey showed that 59 percent of respondents chose the answer “Congress should let the EPA do its job,” more than twice the 28 percent who said the agency should wait for Congress to act.

Several rhetorical tricks are at work here. First, rather than just state opposing opinions and ask the respondent to choose between them, the poll identifies one position with the head of the American Petroleum Institute and the other with the head of the American Public Health Association. The question thus appeals to a widespread prejudice — propagated by groups like NRDC – that Big Oil is bad and self-described ‘public health’ advocates like, well, NRDC, are good.

If the poll is going to name names and it aims to tell us something about Fred Upton’s district, then why not identify Upton’s policy with Upton rather than the head of API? Very likely, because the information that Upton is the key proponent of the policy would sway responses in favor of it. This poll, ostensibly about voter attitudes towards Upton’s policy choices, never mentions him by name, as far as we can tell from the Greenwire article.

Second, the API head simply says Congress should decide when and how greenhouse gases should be regulated without giving a reason. In contrast, the APH head gives a reason why he thinks EPA should act — the unsupported but scary assertion that stopping EPA “could mean the difference between a healthy life for many Americans or chronic debilitating illness.”

Third, the pro-Upton answer is to “wait for Congress to act.” Not very appealing, as it calls to mind the negative phrase ”do-nothing Congress.”

Fourth, and most importantly, the other possible answer, “let EPA do its job,” is Orwellian. EPA’s job is to implement policy, not legislate it. H.R. 910 aims to relimit EPA to the job it’s supposed to perform under our constitutional system of separated powers and democratic accountability.

Try this thought experiment. Suppose that Massachusetts v. EPA had never been litigated. Suppose also that Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.), instead of introducing a cap-and-trade bill in 2009, sponsored legislation authorizing EPA to regulate GHG emissions via the Clean Air Act as it sees fit. How many votes would it have gotten? Far fewer than the narrow majority that voted for the Waxman-Markey cap-and-trade bill, which subsequently died in the U.S. Senate. A bill authorizing EPA to do exactly what it is doing today would have no chance of passage notwithstanding the global warming movement’s 15-plus-year campaign to persuade Congress and the public of the necessity of curbing GHG emissions.

It is absurd to suppose that in 1970, years before the advent of the global warming scare, Congress, when it enacted Clean Air Act, also authorized EPA to regulate greenhouse gases. Determining climate policy is not EPA’s job. Deciding when and how greenhouse gases should be regulated is above EPA’s pay grade.

The NRDC poll, in short, pushes respondents to draw a stupendously false conclusion.

In yesterday’s Greenwire (subscription required), reporter Paul Voosen reviews of the efforts of various firms to develop commercially competitive motor fuel from two types of single-celled photosynthetic bugs — algae and cyanobacteria.

For several years, biofuel entrepreneurs and alt-energy gurus touted oil extracted from algae as the next big thing — abundant, cheap, home grown, hi-tech, carbon neutral. In addition, unlike corn-ethanol production, growing algae in ponds or bioreactors would not inflate grain prices or divert food from hungry mouths into gasoline tanks.

But this narrative increasingly looks like hype. Voosen summarizes:

Often ignorant of algae’s biology, these companies stumbled into major physical and engineering hurdles that can derail most of their lofty goals, industry and government experts say. Even the most promising approaches are a decade or more away, experts say. By then, many firms will have failed.

He elaborates:

Most of these problems were predicted — and ignored. Algae are speedy growers, but they are also greedy, preventing sunlight from penetrating even moderately dense concentrations. The most popular algae varieties, which resemble single-celled plants, remain difficult to bioengineer. Water requirements are vast. And while pond scum are prolific in building up oily fats, they surrender their dearly built energy stores only if they are killed and broken apart.

Experts interviewed in this article include MIT biochemical engineer Greg Stephanopoulos:

“They make fuels from free CO2,” Stephanopoulos said. “It’s a no-brainer, right? They’ve got it all. So where’s the problem with that? The problem is that you cannot cultivate [algae] at high enough densities to make this a worthwhile process.”

For every gallon of oil made from algae in a pond, hundreds of gallons of water need to be circulated, he said. The algae cannot grow in dense concentrations, because they do an excellent job of blocking sunlight, even when they don’t use it for energy, instead wasting it as heat.

“The issue is not one of designing a better reactor,” Stephanopoulos said. “That’s not going to solve this problem. The issue is not of doing better molecular biology. Even if you make all the algal cell full of oil, still you’re going to have a [low] concentration of oil.”

Voosen titles his column “As algae bloom fades, photosynthesis hopes still shine,” because companies like Joule Unlimited are developing biofuel from cyanobacteria, which are easier than algae to decode and modify genetically. Also, production does not require breaking apart the cells to extract oil, as in the case of algae, because the cyanobacteria excrete ethanol.

So is ethanol from cyanobacteria the next big thing? Joule is holding its economic data close to the vest:

What irks Joule’s competitors and scientific peers is that the company remains vague in backing up its claims, even in its patent applications. No hard economic or production rates have been released — not an uncommon trait for a private firm — and even theoretical papers assessing the cost of industrial photosynthesis, including one recently published in Photosynthesis Research, provide little to the technically inclined reader.

Voosen comments: “Independent scientists find the short path to commercial production proposed by Joule to be optimistic at best. It is more likely that cost-competitive fuel production won’t arrive for another 10 or 15 years, if at all.”

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.