Gina McCarthy — President Obama’s nominee to succeed Lisa Jackson as EPA Administrator — is often described as “straight shooter” and “honest broker.” Is that reputation deserved?

Last week, Sen. David Vitter (R-La.) released a 123 page document containing McCarthy’s responses to hundreds of questions on a wide range of issues. Part 1 of this series examined McCarthy’s responses to Vitter’s questions about the agency’s regulation of greenhouse gases from stationary sources. The key points were:

1. McCarthy and the Air Office over which she presides gave Congress and the electric power sector false assurances that the EPA would not require utilities planning to build new coal-fired power plants to “fuel switch” and build natural gas combined cycle (NGCC) power plants instead.
2. Such misinformation undercut the credibility of critics who warned that the EPA, if left to its own devices, would use greenhouse gas regulation to prohibit the construction of new coal electric generation.
3. The EPA’s dissembling on fuel switching may have swayed votes against measures sponsored by Sen. Lisa Murkowski (R-Alaska) in 2010 and Sen. James Inhofe (R-Okla.) in 2011 to reclaim Congress’s authority to determine climate policy.

Agencies are not supposed to provide false or misleading information to influence how Members of Congress vote. Banning new coal generation — the inexorable effect of the EPA’s ‘Carbon Pollution’ Rule – is a policy Congress would reject if proposed as legislation.

Part 1 concluded that confirming McCarthy as Administrator would reward the EPA’s duplicitous pursuit of an agenda Congress has not authorized. Breaking news of the EPA’s grossly unequal treatment of groups seeking information under the Freedom of Information Act (FOIA) — based on whether the groups support or oppose a bigger, more intrusive EPA — leaves no doubt that this out-of-control agency deserves a kick in the butt, not a pat on the back.

Even the Society of Environmental Journalists – hardly a hotbed of libertarians, conservative Republicans, or fossil-fuel industry lobbyists — recently complained that the Obama administration “has been anything but transparent in its dealings with reporters seeking information, interviews and clarification” on environmental, health, and public lands issues, and that, ”The EPA is one of the most closed, opaque agencies to the press.” 

Today’s post examines McCarthy’s responses to Vitter’s questions about the administration’s motor vehicle mandates. As in Part 1, I begin with an overview of the issues and political back story. For more detailed analyses, see the House Government Oversight and Reform Committee report, A Dismissal of Safety, Choice, and Cost: The Obama Administration’s New Auto Regulations, and my article, EPA Regulation of Fuel Economy: Congressional Intent or Climate Coup?

Background

McCarthy, testifying under oath before the House Government Overight and Reform Committee in October 2011, denied that motor vehicle greenhouse gas emission standards are “related to” fuel economy standards. Yet anyone with her expertise has to know that greenhouse gas motor vehicle standards implicitly and substantially regulate fuel economy.

Why does this matter? The Energy Policy and Conservation Act (EPCA) expressly preempts state laws or regulations ”related to” fuel economy standards. Yet in July 2009, the EPA granted a waiver authorizing California to implement the State’s motor vehicle greenhouse gas emissions statute, AB 1493. McCarthy could not give truthful testimony without casting doubt on the legality of the waiver, AB 1493, and the administration’s motor vehicle greenhouse gas/fuel economy program.

Perhaps as important, the waiver gives the administration power to threaten and intimidate the auto industry — an asset of immense value in global warming politics. The falsehood that motor vehicle greenhouse gas emission standards are not related to fuel economy standards is, therefore, an unshakeable tenet of Team Obama’s company line.

EPCA delegates the power to prescribe fuel economy standards solely to the National Highway Traffic Safety Administration (NHTSA). The waiver did more than authorize the California Air Resources Board (CARB) to poach NHTSA’s statutory authority. It also authorized other states to opt into the AB 1493 program. Consequently, the waiver ginned up the scary prospect of a market-balkanizing, state-by-state, fuel-economy patchwork.

This is somewhat paradoxical, because only two sets of standards are permissible under the waiver: federal and California. However, each automaker would have to reshuffle the mix of vehicles sold in each “California” state to attain the same requisite fleet-average MPG or grams CO2/mile. If all 50 states opted into the AB 1493 program, each auto maker would have to manage 50 separate fleets. A more chaotic fuel-economy regime — and one more repugnant to the letter and spirit of EPCA — would be hard to imagine.

There was, alas, method to CARB and the EPA’s madness. The waiver positioned the White House to demand political fealty from the auto industry in return for protection from the “patchwork.” In May 2009, negotiations led by then-White House environment czar Carol Browner culminated in what President Obama dubbed the “historic agreement.” California and other states agreed to deem compliance with the EPA’s greenhouse gas emission standards as compliance with their own – but only if automakers pledged to support a “national” motor vehicle program jointly administered by EPA, NHTSA and CARB.

Circumstantial evidence suggests that access to bailout money was also tied to auto makers’ support for the “national” program, making the “historic agreement” an offer the auto industry could not refuse. We may never know for sure, because, defying the Presidential Records Act, Browner conducted the negotiations under a vow of silence. “We put nothing in writing, ever,” CARB Chairman Mary Nichols told the New York Times.

The political payoff for the EPA came in June 2010. The auto industry lobbied against Sen. Murkowski’s resolution (S.J.Res.26) to overturn the EPA’s Endangerment Rule, the prerequisite for all the agency’s global warming regulations. The resolution fell four votes short (47-53), allowing the greenhouse gas regulatory cascade to proceed unchecked. The Endangerment Rule triggered the Tailpipe Rule, which in turn triggered Clean Air Act permitting requirements for major stationary greenhouse gas emitters. The Endangerment Rule also underpins the EPA’s proposed ‘Carbon Pollution’ Rule for fossil-fuel power plants and potentially a host of future greenhouse gas emission standards for petroleum refineries, other industrial source categories, marine vessels, aircraft, non-road engines, and fuels. Ultimately, the Endangerment Rule may compel the EPA to establish national ambient air quality standards (NAAQS) for greenhouse gases.

Congress has not approved any of those specific policies, and none would pass if proposed as legislation and put to a vote. All depend, politically if not substantively, on the false pretense that greenhouse gas emission standards are not related to fuel economy standards.

Let’s now examine McCarthy’s responses to Vitter’s questions on auto regulations. Vitter’s questions are in bold type. McCarthy’s responses are indented. My comments are in blue. To make it easier for readers to check facts and sources, I occasionally insert citations and hyperlinks into the text.

Automobile Mandate:

The basic fuel economy statute, the Energy Policy Conservation Act (EPCA), expressly preempts state laws or regulations “related to” fuel economy standards. This is a very broad statement of preemption. It prohibits states not only from adopting fuel economy standards, but also from adopting laws or regulations “related to” fuel economy standards. Do you agree?

Response: EPA can only deny a waiver of the express preemption provision in CAA section 209(a) based on one of the criteria listed in section 209(b).  EPA’s waiver decisions under section 209(b) are based solely on an evaluation of those criteria, and evaluation of whether California emission standards are preempted under EPCA is not among those specified criteria. As a result, in making waiver decisions EPA takes no position regarding whether or not California’s GHG standards are preempted under EPCA.

Comment: Nothing in the Clean Air Act authorizes the EPA to ignore the intent of Congress as embodied in other statutes. McCarthy argues as if the Clean Air Act must expressly prohibit the EPA from flouting the letter and spirit of EPCA or else the EPA is free to connive with CARB to restructure the statutory program Congress created.

Even if one dons statutory blinkers and considers only the criteria contained in section 209(b), the EPA should still have denied California’s request for a waiver, as Bush EPA Administrator Stephen Johnson did in February 2008. Section 209(b)(1)(B) states that “No waiver shall be granted” if the State does not “need” the waiver to meet “compelling and extraordinary conditions.” The waiver provision addresses the historic reality that California’s geography,  meteorology, and automobile culture create “extraordinary” conditions with respect to photochemical smog. In contrast, greenhouse gas concentrations are essentially uniform throughout the globe, and are not affected by California-specific circumstances. In addition, climate change risks are not evidently more “compelling” in California than in other states. As my colleague Sam Kazman quipped, “They call it global warming, not California warming.” 

Moreover, unlike other motor vehicle emission standards California has adopted, which measurably improve air quality in the State, the AB 1493 standards will make no discernible difference to climate change risk in California. The State cannot ”need” purely symbolic emission standards.

Given the strength of Johnson’s argument, why haven’t courts overturned the AB 1493 waiver? To challenge the waiver, petitioners must have standing. In April 2011, the D.C. Circuit Court of Appeals held that the National Automobile Dealers Association and the U.S. Chamber of Commerce do not have standing. Since auto makers are directly subject to the AB 1493 standards, they would clearly have standing to sue, at least during the early phase of the “national” program. However, auto companies forfeited their legal right to challenge the waiver as part of the “historic agreement.”

For the sake of argument, let’s assume that greenhouse gas motor vehicle standards, like those based on California’s motor vehicle emissions law, AB 1493, are “related to” fuel economy standards. I know you don’t think they are, but for now, let’s assume there is a relationship to fuel economy standards. If there was, would it be lawful for California to implement AB 1493? Would it be proper for the EPA to grant California a waiver to implement it?

Response: EPA can only deny a waiver based on one of the criteria listed in section 209(b) of the Clean Air Act. EPA’s waiver decisions under section 209(b) are based solely on an evaluation of those criteria, and evaluation of whether California emission standards are preempted under EPCA is not among those specified criteria. As a result, in making waiver decisions EPA takes no position regarding whether or not California’s GHG standards are preempted under EPCA.

Comment: McCarthy evades the question. Logically, her response implies that even if the Supreme Court ruled that EPCA preempts California’s greenhouse gas motor vehicle standards, the EPA would still have granted the waiver, since (according to McCarthy) the EPA may consider only criteria specified in 209(b) and nothing else. 

Key agency documents and even AB 1493 itself imply that motor vehicle greenhouse gas emission standards and fuel economy standards are closely related. EPA and NHTSA acknowledge in their May 2010 Tailpipe Rule [75 FR 25324, 25424, 25327] that no commercially available technologies exist to capture or filter out carbon dioxide (CO2) emissions from motor vehicles. Consequently, the only way to decrease CO2 per mile is to reduce fuel consumption per mile — that is, increase fuel economy. Carbon dioxide constitutes 94.9% of vehicular greenhouse gas emissions, and “there is a single pool of technologies … that reduce fuel consumption and thereby CO2 emissions as well.” What this analysis tells me is that greenhouse gas motor vehicle emission standards inescapably and primarily regulate fuel economy. Do you agree?

Response: The two are closely aligned but they are different. EPA must follow the language of section 202(a) of the Clean Air Act; the Supreme Court rejected the argument that EPA does not have authority to regulate CO2 from vehicles because it would impact fuel economy. The Supreme Court concluded that, “the two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”

Comment: Another evasive response. The fact that the two types of standards are “different” is irrelevant. Two brothers are different people; they are nonetheless related. The Court’s statement — “there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency” — is also irrelevant. The Court was referring to two federal agencies — the EPA and NHTSA. The Court did not affirm that state-level regulations “related to” fuel economy are consistent with EPCA.   

The framework document for the Obama administration’s model year 2017-2025 fuel economy program, the September 2010 Interim Joint Technical Assessment Report published by the EPA, NHTSA, and the CARB, considers four fuel economy standards, ranging from 47 mpg to 62 mpg. Each is the simple reciprocal of an associated CO2 emission reduction scenario. The 54.5 mpg standard for model year 2025, approved by the White House in August 2012, is a negotiated compromise between the 4% per year (51 mpg) and 5% per year (56 mpg) CO2 reduction scenarios. If fuel economy standards derive mathematically from CO2 emission reduction scenarios, and CO2 accounts for 94.9% of all greenhouse gas emissions from motor vehicles, are not the two types of standards related?

Response: The two are closely aligned but they are different. EPA must follow the language of section 202(a) of the Clean Air Act; the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), rejected the argument that EPA does not have authority to regulate CO2 from vehicles because it would impact fuel economy. The Court concluded that, “the two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”

Comment: A third evasive response. No matter what substantive information Vitter provides, McCarthy repeats the same boilerplate. See previous comment for a rebuttal.

Nearly all of CARB’s recommended technologies for reducing greenhouse gas emissions (Table 5.2-3 in CARB’s 2004 Staff Report on options for implementing AB 1493) were previously recommended in a 2002 National Research Council study on fuel economy (Tables 3-1, 3-2). CARB proposes a few additional options, but each is a fuel-saving technology, not an emissions-control technology. These facts tell me that greenhouse gas emission standards inescapably and primarily regulate fuel economy. What conclusion do you draw?

Response: The two are closely aligned but they are different. EPA must follow the language of section 202(a) of the Clean Air Act. The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), rejected the argument that EPA does not have authority to regulate CO2 from vehicles because it would impact fuel economy. The Court concluded that, “the two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”

Comment: McCarthy sounds like a broken record. She is clearly unwilling to engage the issue on the merits. 

In AB 1493 itself, CARB’s greenhouse gas standards are to be “cost-effective,” defined as “Economical to an owner or operator of a vehicle, taking into account the full life-cycle costs of the vehicle.” CARB interprets this to mean that the reduction in “operating expenses” over a vehicle’s average life must exceed the expected increase in vehicle cost (Staff Report, p. 148). Virtually all such “operating expenses” are expenditures for fuel. CARB’s implementation of AB 1493 cannot be “cost effective” unless CARB substantially boosts fuel economy. Do you agree?

This question would be best addressed by CARB since it is directed at the state standard.

Comment: No, this question is best addressed to top EPA officials, who presumably formed an opinion about the content and purpose of AB 1493 before authorizing CARB to implement it. Again, an evasive response.

How does the “national” program created in the wake of this backroom deal comport with congressional intent? Under the statutory scheme Congress created, one agency – NHTSA – regulates fuel economy under one statute – EPCA as amended by the Energy Independence and Security Act (EISA) – through one set of rules – corporate average fuel economy. Today, three agencies – NHTSA, the EPA, and CARB – make fuel economy policy under three statutes – EPCA, the Clean Air Act, and AB 1493 – through three sets of regulations. Where does EPCA as amended authorize this triplification of fuel economy regulation?

Response: In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court rejected the argument that EPA does not have authority to regulate CO2 from vehicles because it would impact fuel economy and concluded that, “the two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.” The National Program approach has garnered widespread support from a broad range of stakeholders including the automobile industry, for this joint, harmonized effort.

Comment: More irrelevancies. As noted above, in Mass. v. EPA, the Court did not rule on the appropriateness of CARB adopting greenhouse gas emission standards or implicitly regulating fuel economy.

The fact that the auto industry supports the “National Program” only proves that regulated industries are vulnerable to intimidation and bankrupt industries can be bribed with corporate welfare. Because no notes were taken, we may never know who said what in the negotiations producing the “historic agreement.” But the available evidence suggests the White House made the auto industry an offer it could not refuse. A docudrama re-enacting Browner’s sales pitch to the auto execs might go something like this:

Are yous guys gonna come along quietly, or do I have to let the California Air Resources Board muss ya up? Shame, too, if you waz to go broke. Look, everybody needs prodection. Play ball wit us and nobody gets hoit, and yous can walk outta here knowin’ your companies will get doze bailout checks.

Conclusion

McCarthy’s responses to Vitter’s questions are not those of a “straight shooter.” She serves up evasion after evasion, irrelevancy after irrelevancy. Almost the only ‘reason’ she provides is an argument from authority, invoking the Supreme Court’s opinion in Mass. v. EPA to justify an EPA action – approval of the California waiver – that the Court did not address.

McCarthy’s evasions are of a piece with the agency’s well-known transparency problems, which at bottom are separation of powers problems. Congress’s ability to hold the EPA accountable is impaired when the agency stonewalls FOIA requests, bases regulations on secret science, conducts official business through private channels, and negotiates regulations with friendly litigants behind closed doors. Oversight is also impaired when EPA officials prevaricate under oath. As House Government Oversight and Reform Chairman Darrell Issa put it in a letter to McCarthy following her testimony at the October 2011 hearing:

Your statements under oath misled the Subcommittee in understanding the relationship between fuel economy standards and greenhouse gas regulations. The difference between regulating greenhouse gases and regulating fuel economy is a distinction without a difference. . . . By obstinately insisting that greenhouse gas regulation and fuel economy regulation are separate and unrelated endeavors . . . you impede the Committee’s important oversight work.

Why did she ‘mislead’ and ‘impede’? To avoid having to admit that the EPA turned the EPCA preemption into a practical nullity and, in cahoots with CARB, restructured the fuel economy program Congress created. Such changes are of a legislative nature and, thus, should be beyond an administrative agency’s pay grade to effect.  

Referring to the agency’s greenhouse gas regulations, D.C. Circuit Appeals Court Judge Janice Rogers Brown recently observed that the EPA acts as if its job is to ”steamroll through legislative gridlock” and “upend the Senate’s rejection of the Kyoto Protocol.”

The central issue in the McCarthy nomination debate is not her personal qualifications but the EPA’s record of dissembling, obfuscation, and overreach during her four years of service as one of the agency’s highest ranking officials.

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.

An opinion survey commissioned by the Sierra Club supposedly shows that Oklahoma voters overwhelmingly favor the expansion of wind and solar power and the phase out of coal-fired power plants. An obvious implication is that Oklahoma Sen. James Inhofe, the Senate’s leading critic of the Obama administration’s anti-coal policies, is out of step with his constituents.

This is an old trick (see my post on a similar, NRDC-sponsored poll of Michigan voters in House Energy and Commerce Chairman Fred Upton’s district). When a pollster asks leading questions, he can usually elicit the answers his client is paying for.

In the Sierra Club-sponsored survey of 500 registered Oklahoma voters, 78% of those polled said they generally support expanded use of renewable energies like wind and solar power, and 62% said they would support phasing out some of the State’s coal-fired power plants.

The Sierra Club’s polling strategist waxed enthusiastic about the results, Greenwire reports:

“The results of this poll are remarkable,” Sierra Club polling strategist Grace McRae said in a statement.

“Across the nation, support for clean energy is high, but in Oklahoma, nearly 8 out of 10 voters support expanding use of clean energy resources like wind and solar. Oklahoma’s leaders and utilities should take note: Oklahomans want clean energy.”

Okay, let’s look at how the survey reaches those ”remarkable” results.

The first question sets the predicate for the rest. It reads:

Q1 In Oklahoma there are a number of different energy sources that we could use to meet our growing energy needs. Generally speaking, do you support or oppose the expanded use of renewable energy sources such as solar energy and wind energy?

The content of this question largely predetermines the answer. The question refers to Oklahoma’s “growing energy needs” and a “number of different energy sources” available to the State. The question evokes the familiar bipartisan pablum that America needs an inclusive, “all of the above,” policy to meet the nation’s energy needs. By definition, all-of-the-above includes wind and solar. And Voilà, you get 78% of respondents saying they “generally” want more wind and solar.

Here’s the next question dealing with voter attitudes:

Q 3 Currently, there are six coal-fired power plants in Oklahoma. Would you strongly support, somewhat support, somewhat oppose, or strongly oppose phasing-out some of these coal-fired power plants and replacing them with clean, renewable energy sources such as wind and solar?

This question employs two tricks. First, because most people feel they must give consistent answers, those who said they “generally” favor expanded use of wind and solar may now feel they have to support ”replacing” some coal plants with wind and solar. The second trick is to combine ”renewable energy” with a term of praise: “clean.” Who doesn’t want energy to be cleaner, other things being equal?

The problem, of course, is that other things are not equal. Wind energy is inferior to coal-generated electricity in many respects. It is intermittent, often unavailable when most needed (hot summer days when the wind doesn’t blow), costs more per unit of output, occupies much more land per unit of output, requires the construction of new transmission lines (because the best wind sites are typically distant from population centers), and kills far more birds than coal power plants do. Few wind farms would be built absent Soviet-style production quota (“renewable portfolio standards”), a special tax break (wind energy production tax credit), and billions in outright taxpayer-funded grants. Solar power, for its part, is even more costly than wind, and does not generate any electricity when the Sun isn’t shining.

Sixty-two percent of respondents said they support replacing some coal with wind and solar. But how many would give the same responses if, instead of describing renewable energy as “clean,” the question described renewables as “intermittent, unreliable, costly, sprawling, and corporate-welfare-dependent,” or described wind turbines as ”dangerous to migratory fowl”?

The next question:

Q 4 According to the American Wind Energy Association, Oklahoma ranks eighth in the country for installed wind energy capacity. And according to the National Renewable Energy Laboratory, wind in Oklahoma could provide more than 31 times the state’s current electricity needs. After hearing this, do you believe Oklahoma utility companies should invest more in wind power, or not?

That 69% of respondents answered yes is unsurprising. The question is one-sided. The only experts cited are the lobbying arm of the wind-energy industry and a federal agency whose budget critically depends on the extent of public support for renewable energy. No experts opposed to wind energy mandates are mentioned, nor is any information they might provide included.

Worse, the question presents impressive-sounding numbers apart from any practical economic context. How much viewshed degradation would Oklahoma sustain if the State were actually to obtain half of its electricity from wind, let alone all or 31 times the amount of electricity it currently consumes? How much natural gas generation would have to installed to backstop all those additional wind facilities? How many new miles of transmission would have to be built to deliver the wind power to customers? What would it all cost? What would be the impacts on electric rates, the cost of doing business in Oklahoma, and employment rates in non-wind-related firms? Mentioning those concerns might have changed dramatically the responses to the question.

Oklahoma, the survey claims, ranks 8th in the country for installed wind energy capacity, and has enough wind resources to meet more than 31 times the State’s current electricity needs. The implication is that much of the State’s electricity already comes from wind, which could easily provide even more. Let’s look at Oklahoma’s electricity consumption in a high-demand month.

Source: Energy Information Administration

In July 2011, only 3.5% of the State’s electric generation came from wind, compared to 37% from coal and 58% from natural gas. Those percentages reflect the well-known economic and technical disadvantages of wind compared to coal and natural gas. By presenting big-sounding numbers out of context, the survey leaves the false impression that the only barrier to greater reliance on wind is lack of political will rather than wind’s inherent shortcomings.

Another question from the survey:

Q 5 Because Oklahoma’s coal is hot-burning and high in sulfur, most of the utilities don’t burn Oklahoma coal at their facilities, and instead ship in coal from Wyoming to burn in their coal plants. This sends $494 million dollars out of state every year – money that could be invested in Oklahoma. After hearing this information, do you strongly support, somewhat support, somewhat oppose, or strongly oppose utilizing more of Oklahoma’s natural energy resources, like wind, to keep money in the state?

Seventy-six percent of respondents said they support using more Oklahoma resources, “like wind,” to keep money in State.

This question appeals to the protectionist fallacy that buying goods from outsiders is a “wealth transfer” and money down the drain. In fact, the gains from trade are mutual (otherwise it would not occur). If imports did not also benefit the importer, there would be no global marketplace, most of us would not be alive, and those who remained would be stuck in Medieval squalor. If the ‘logic’ underpinning this question were valid, each State — indeed each village and household — would be better off boycotting all goods and services produced in national and international commerce so as to have more money to invest in itself.

Consumers benefit when they get a good buy, regardless of whether the seller lives next door or in Timbuktu. The fact that most States mandate the sale of renewable electricity is prima facie evidence that wind is not a good buy. If wind energy delivered more bang for our electricity buck than coal or natural gas, there would be no need to shield it from market competition.

If the survey were balanced, the question would also mention that ramping up wind energy would force Oklahomans to pay for large quantities of steel, rare earths, and components produced out of State and overseas. But again, where parts and materials are sourced is irrelevant from a consumer perspective. By implying that Oklahoma consumers are better off buying wind power, simply because it is not imported, the question again biases respondents in favor of the Sierra Club’s preferred answer.

The survey is curiously silent about natural gas, the main source of Oklahoma electric power in periods of peak demand. Oklahoma has significant conventional and shale natural gas plays. Should policymakers allow more hydraulic fracturing to expand shale gas production and keep more dollars in State? You won’t find that question in the survey because the Sierra Club wants to ban hydro fracking and would not like the result.

In short, the Sierra Club-sponsored poll is rubbish. It is designed not to reflect public opinion but to manufacture it for the purpose of advancing an agenda that would benefit one industry — wind developers — at the expense of Oklahoma consumers and the State’s overall economy.

Bait-and-switch is one of the oldest tricks of deceptive advertising. The used-car dealer “baits” you onto the lot with an ad promising low interest payments on the car of your dreams. When you get there, the dealer regretfully informs you the car has already been sold. But, no, you haven’t wasted your time, because he’s got this other great car – the “switch” — which has so many superior features and it will only cost you a little more per month.

An even less ethical variant of this tactic is employed in politics. Party A in a negotiation gives an assurance or promise to obtain Party B’s support for a law or regulation. Party A then reneges on the deal once the policy is on the books. EPA’s recently proposed “Carbon Pollution Standard” Rule is a posterchild for this tactic.

EPA is proposing a carbon dioxide (CO2) “new source performance standard” (NSPS) for fossil-fuel power plants under section 111 of the Clean Air Act (CAA). EPA has developed NSPS for numerous industrial source categories such as municipal waste combustors, solid waste landfills, medical waste incinerators, cement plants, nitric oxide plants, copper smelters, steel plants, pulp mills, coal utility boilers, auto and truck surface coating operations, and natural gas turbines.

For each source category, the NSPS ”reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”

Okay, what does this have to do with bait and switch?

In general, NSPS are less stringent than “best available control technology” (BACT) standards — the individually-tailored emission control requirements owners or operators must meet to obtain a CAA permit to build or modify a major emitting facility. NSPS establishes the minimum emission control standard or “floor” for determining a facility’s BACT requirements. Under CAA sec. 169(3), application of BACT may not result in emissions that exceed those allowed by the applicable NSPS. The point of BACT is to push individual sources to make deeper emission reductions than the category-wide performance standard requires. In EPA’s words:

The NSPS are established after long and careful consideration of a standard that can be reasonably achieved by new source anywhere in the nation. This means that even a very recent NSPS does not represent the best technology available; it instead represents the best technology available nationwide, regardless of climate, water availability, and many other highly variable case-specific factors. The NSPS is the least common denominator and must be met; there are no variances. The BACT requirement, on the other hand, is the greatest degree of emissions control that can be achieved at a specific source and accounts for site-specific variables on a case-by-case basis.

Since an applicable NSPS must always be met, it provides a legal “floor” for the BACT, which cannot be less stringent. A BACT determination should nearly always be more stringent than the NSPS because the NSPS establishes what every source can achieve, not the best that a source could do.

As EPA interprets the CAA, new and modified major emitting facilities became subject to BACT for CO2 on Jan. 2, 2011 — the day EPA’s motor vehicle greenhouse gas emission standards took effect, making CO2 a “regulated air pollutant.” A big concern of the electric power industry was whether EPA might define BACT so stringently that a coal-fired power plant seeking to build a new unit or modify an existing unit would have to switch from coal to natural gas. (Natural gas power plants emit only about half as much CO2 per megawatt hour as coal power plants do.)

There was much angst and speculation about this in 2009 and 2010 but no definitive statement from EPA until March 2011, when the agency published a guidance document for ‘stakeholders.’ The document states that BACT for CO2 will not require fuel switching, nor will EPA ”redefine the source” such that coal boilers are held to the same standard as gas turbines:

The CAA includes “clean fuels” in the definition of BACT. Thus, clean fuels which would reduce GHG emissions should be considered, but EPA has recognized that the initial list of control options for a BACT analysis does not need to include “clean fuel” options that would fundamentally redefine the source. Such options include those that would require a permit applicant to switch to a primary fuel type (i.e., coal, natural gas, or biomass) other than the type of fuel that an applicant proposes to use for its primary combustion process. For example, when an applicant proposes to construct a coal-fired steam electric generating unit, EPA continues to believe that permitting authorities can show in most cases that the option of using natural gas as a primary fuel would fundamentally redefine a coal-fired electric generating unit.

EPA reiterates this assurance in a Q&A document accompanying the guidance:

12. Does this guidance say that fuel switching (coal to natural gas) should be selected as BACT for a power plant?

• No.
• BACT should consider the most energy efficient design and control options for a proposed source.
• BACT should also include consideration of “clean fuels” that may produce fewer emissions but does not necessarily require a different type of fuel from the one proposed, particularly when it can be shown that using another type of fuel would be inconsistent with the fundamental purpose of the facility.

Yet despite EPA’s assurance that BACT, which usually is more stringent than NSPS, will not require fuel switching or redefine coal power plants into the same source category as natural gas power plants, EPA’s “carbon pollution standard” does exactly that.

Under the proposed standard, new fossil-fuel power plants may emit no more than 1,000 lbs of carbon dioxide (CO2) per megawatt hour. About 95% of all natural gas combined cycle power plants already meet the standard (p. 115). No existing coal power plants come close; even the most efficient, on average, emit 1,800 lbs CO2/MWh (p. 134). Because carbon capture and storage (CCS) is prohibitively expensive, raising the cost of a conventional coal plant by 80% (p. 124), the only feasible way for a new coal power plant to comply is to be something other than what it is — a natural gas power plant.

As noted previously, EPA is pretending that natural gas combined cycle — a type of power plant — is a “system of emission reduction” that has been “adequately demonstrated” for coal power plants. That is absurd.

To make the “carbon pollution standard” seem reasonable, EPA proposes to redefine source categories so that coal boilers and gas turbines are both equally “fossil-fuel electric generating units.” But redefining coal power plants is exactly what EPA said it would not do in the BACT guidance document.

As should go without saying, Congress never voted to ban new coal generation. Indeed, Congress declined to adopt similar CO2 performance standards for coal power plants when Senate leaders pulled the plug on cap-and-trade. Section 116 of the Waxman-Markey bill (the American Clean Energy and Security Act) would have established NSPS requiring new coal power plants to reduce CO2 emissions by 50% during 2009-2020 and 65% after 2020. Congress did not adopt this agenda because the public rejected it. Waxman-Markey became politically radioactive soon after it narrowly passed in the House. In the November 2010 elections, 29 Democrats who voted for Waxman-Markey got the boot.

Congressional efforts to rein in EPA — particularly Sen. Lisa Murkowski’s Congressional Review Act resolution of disapproval to overturn EPA’s Greenhouse Gas Endangerment Rule and Sen. James Inhofe’s Energy Tax Prevention Act – would have gained more traction had EPA fessed up in 2009, 2010, or even 2011 that, come 2012, it would promulgate CO2 performance standards that no commercially viable coal plant could meet.

It’s an old story, but one that can’t be told too often. EPA is legislating climate policy – implementing an agenda the people’s representatives have not approved and would reject if put to a vote.

Sen. James Inhofe (R-Okla.) has vowed to kill the “carbon pollution standard” via a Congressional Review Act resolution of disapproval (Greenwire, subscription required). For those of us who still respect the separation of powers, ’tis a consummation devoutly to be wished.

The California Air Resources Board (CARB) boasts that its greenhouse gas (GHG) emission standards save more fuel than the National Highway Traffic Safety Administration’s (NHTSA) Corporate Average Fuel Economy (CAFE) standards – but denies that GHG standards are fuel economy standards. Huh?

Well, of course, CARB denies it, because the Energy Policy Conservation Act (EPCA) prohibits states from adopting laws or regulations “related to” fuel economy.

But CARB has to trumpet the fuel savings from its GHG standards to attack H.R. 910, the Energy Tax Prevention Act. H.R. 910, says CARB, would make America more dependent on foreign oil by prohibiting CARB and EPA from adopting tougher GHG standards.

H.R. 910 opponents talk as if policymaking were a game in which the regulatory option with the biggest fuel savings wins. By that criterion, why not just let EPA and CARB impose a de facto 100 mpg CAFE standard and declare America to be “energy independent”?

If Congress thinks NHTSA’s standards don’t go far enough, there is a simple fix. Pass a law! What H.R. 910 opponents want is for EPA and CARB to legislate in lieu of Congress. That is neither lawful nor constitutional.

EPA, NHTSA, and CARB claim that EPA’s GHG standards for model year (MY) 2012-2016 passenger cars and NHTSA’s CAFE standards for those same vehicles are “harmonized and consistent.” Yet they also contend that NHTSA’s standards de-coupled from EPA’s standards would result in 25% more oil consumption over the lifetimes of those vehicles. How is that possible?

That’s the question House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) asked California Air Resource Board (CARB) Executive Director James Goldstene regarding the latter’s testimony at a hearing on H.R. 910, the Energy Tax Prevention Act. (The House passed H.R. 910 by 255-172. Although the bill failed in the Senate, where it fell 10 votes shy of the 60 needed to overcome a filibuster, sponsors say they’ll try to force additional votes in the future.)

H.R. 910 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 was a gleam in Al Gore’s eye. H.R. 910 would overturn all of EPA’s GHG rules except for the agency’s current GHG standards for MY 2012-2016 passenger cars and the agency’s proposed GHG standards for MY 2014-2018 heavy trucks. However, H.R. 910 would preclude EPA from setting new, tougher GHG motor vehicle standards in later years. Similarly, it would prohibit EPA from granting waivers to CARB to set tougher standards. But that means, opponents argue, that H.R. 910 would have the effect of making America more dependent on foreign oil.

Are the opponents correct? And even if so, is that a valid reason for allowing CARB to determine the stringency of national fuel economy regulation or for allowing EPA to dictate climate policy?

As noted, H.R. 910 would not repeal EPA’s MY 2012-2016 GHG emission standards (a.k.a. Tailpipe Rule) nor EPA’s proposed GHG standards for MY 2014-2018 medium- and heavy-duty trucks (a.k.a. Heavy Truck Rule). It’s not that the bill’s sponsors — Rep. Upton and Sen. James Inhofe (R-Okla.) — have any great fondness for those rules. Nor is it the case that Congress would have adopted those standards anyway via legislation. H.R. 910 would leave EPA’s current and proposed GHG motor vehicle standards in place because automakers and engine manufacturers have already made plans and investments to comply with them.

But that just means EPA is using the regulatory process to preempt congressional deliberation and narrow Congress’s policy options. Congress must act soon before stationary sources (power plants, steel mills, pulp and paper factories, refineries, cement production facilities) also spend big bucks complying with GHG-related “best available control technology” (BACT) standards and New Source Performance Standards (NSPS).

A common argument by opponents of H.R. 910 is that, even though it would leave intact NHTSA’s Energy Policy Conservation Act (EPCA) authority to establish Coporate Average Fuel Economy (CAFE) standards for new motor vehicles, NHTSA-only regulation would do less than joint EPA-NHTSA regulation to reduce U.S. oil consumption. Typically, opponents cite CARB’s estimate that stripping EPA’s portion out of the Tailpipe Rule would reduce fuel savings by 25% over the lifetimes of MY 2012-2016 vehicles.

CARB is by no means a disinterested bystander. EPA’s GHG standards are none other than the GHG standards CARB developed and EPA approved (in May 2009) via a waiver from federal preemption of state emission standards.

Here’s the puzzle for which Upton sought clarification. EPA, NHTSA, and CARB claim that EPA and NHTSA’s portions of the Tailpipe Rule are “harmonized and consistent.” Yet the agencies also contend that NHTSA’s portion of the Tailpipe Rule would reduce oil consumption by 58.6 billion barrels over the lifetimes of MY 2012-2016 vehicles whereas the complete rule including CARB/EPA’s GHG standards would reduce oil consumption by 77.7 billion barrels. How can this be?

In a letter dated March 11, 2011, but just now making the email rounds, CARB executive director Goldstene offers this explanation:

That the National Program [NHTSA + EPA] achieves greater emissions reductions and fuel savings than the CAFE standards alone is a result of the different underlying statutory authority that results in different program components. The four key differences are: 1) unlike the Energy Policy Conservation Act (EPCA), the CAA allows for the crediting of direct emission reductions and indirect fuel economy benefits from improved air conditioners, allowing for greater compliance flexibility and lower costs; 2) EPCA allows Flexible Fuel Vehicle (FFV) credits through model year 2019, whereas the EPA standard requires demonstration of actual use of a low carbon fuel after model year 2015; 3) EPCA allows for the payment of fines in lieu of compliance but the CAA does not; and 4) treatment of intra firm trading of compliance credits between cars and light trucks categories. 

Difference 1) doesn’t get us anywhere near the additional 19.1 billion gallons in projected fuel savings. According to the Tailpipe Rule, (i) carbon dioxide (CO2) emissions related to air conditioner-related loads on automobile engines account for only 3.9% of total passenger car GHG emissions (p. 25427), and (ii) various technologies could reduce air conditioner CO2 emissions by 10% to 30% (p. 24528). Even a 30% reduction of the 3.9% of motor vehicle emissions associated with air conditioner engine load would reduce oil consumption by only 1.1% — nowhere near the additional 25% fuel savings that supposedly depend on EPA’s GHG standards.

Differences 2) and 3) are likely the big factors. Per difference 2), automakers cannot comply with EPA’s GHG standards by manufacturing flexible-fueled vehicles. And per difference 3), automakers cannot pay fines in lieu of compliance with EPA’s GHG standards. 

Why do those differences have the effect of tighening fuel economy standards? Because EPA’s GHG emission standards are basically fuel economy regulation by another name! As EPA acknowledges, 94-95% of motor vehicle GHG emissions are carbon dioxide from motor fuel combustion. And as both EPA and NHTSA acknowledge, “there is a single pool of technologies for addressing these twin problems [climate change, oil dependence], i.e., those that reduce fuel consumption and thereby reduce CO2 emissions as well” (Tailpipe Rule, p. 25327). 

Because of differences 2) and 3), EPA will always be able to make NHTSA’s fuel economy standards more stringent than they would be if administered under the statutory scheme Congress created.

What this means, of course, is that the Tailpipe Rule is “harmonized and consistent” only in the sense that EPA and CARB are now calling the shots. The consistency and harmony is that of the first mate saying “aye aye, sir” to the captain. That should trouble a Congress jealous of its constitutional prerogatives, because Congress delegated the power to prescribe fuel economy standards to NHTSA, not EPA — and certainly not CARB.

EPA’s authority to set motor vehicle emission standards, and to grant CARB waivers to regulate motor vehicle emissions, comes from the CAA. The CAA confers no authority on any agency to regulate fuel economy. EPCA authorizes EPA to monitor automakers’ compliance with CAFE standards, but it delegates to NHTSA only the authority to prescribe CAFE standards.

Moreover, EPCA prohibits states from adopting laws or regulations that are even “related to” fuel economy standards. CARB’s GHG standards are massively “related to” fuel economy standards.

EPCA Sec. 32919 states:

a) General. – When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.

In his letter to Upton, Goldstene tries to explain why EPCA does not preempt CARB’s GHG standards:

CARB has never claimed that there is no relation between the pollution [CO2] emitted by burning fossil fuels and the rate at which they are burned [gallons of fuel consumed per distance traveled, i.e. fuel economy].  CARB merely maintains the fact that pollution control and fuel economy are not identical — fuel economy and pollution control regulations have different policy objectives, utilize different incentive and flexibility features, and there are technologies that reduce pollution that are not counted under fuel economy measures, and some fuel economy improvements do not reduce emissions commensurately.

That doesn’t cut it. Let me count the ways.

1. A GHG standard does not have to be “identical” to a fuel economy standard to be “related to” it.
2. CARB is hardly one to maintain that fuel economy and GHG standards “have different policy objectives” when CARB’s big selling point for GHG regulation is that it saves more fuel than CAFE standards do! 
3. The fact that CARB/EPA’s GHG standards utilitize “different incentives and flexibility features” is irrelevant. Neither GHG regulation nor fuel economy regulation is defined by those features and incentives. The CAFE program, for example, would still be a fuel economy program even if it did not allow for payments of fines in lieu of compliance or award credits for flex-fuel vehicle sales. 
4. Just because some technologies — e.g., improved sealants for automobile air conditioning systems — “are not counted under fuel economy measures” does not mean that the Tailpipe Rule does not chiefly regulate fuel economy. Only 5.1% of motor vehicle GHG emissions are due to leakage of air conditioner refrigerants (Tailpipe Rule, p. 25424), which means CO2 from motor fuel combustion makes up 94.9% of all motor vehicle GHG emissions. To repeat, there is a “single pool of technologies . . . that reduce fuel consumption and thereby reduce CO2 emissions as well.” Almost 95% of EPA and CARB’s GHG reductions come from fuel economy enhancements.
5. Because 5.1% of motor vehicle GHGs are leaked air conditioner refrigerants, ”some fuel economy improvements do not reduce emissions commensurately.” But fuel economy improvements do reduce emissions commensurately for 94.9% of all motor vehicle GHG emissions.

H.R. 910 opponents talk as if policymaking were a game in which the regulatory option with the biggest fuel savings wins. By that criterion, why not just let EPA and CARB impose a de facto 100 mpg CAFE standard and declare America to be “energy independent”?

If Congress thinks NHTSA’s standards don’t go far enough, there is a simple fix. Pass a law! What H.R. 910 opponents want is for EPA and CARB to legislate in lieu of Congress. That is neither lawful nor constitutional.

Three of the Congress’s most influential energy policymakers this week “urged” the Environmental Protection Agency to delay an ultra-costly regulation targeted at coal-fired power plants, the source of 50 percent of America’s electricity generation.  For the sake of keeping the lights on, all Americans should hope the Obama administration heeds these Congressmen’s request.

Senate Environment and Public Works Ranking Member James Inhofe (R-OK), House Energy and Commerce Chair Fred Upton (R-MI), and House Energy and Power Subcommittee Chair Ed Whitfield (R-KY) yesterday sent a letter to Environmental Protection Agency Administrator Lisa Jackson demanding a longer comment period for a proposed regulation known as the Utility HAP MACT

[The HAP stands for “Hazardous Air Pollutant,” and the MACT stands for "Maximum Achievable Control Technology"; to learn what these terms entail, read this summary of the regulation, Primer: EPA’s Power Plant MACT for Hazardous Air Pollutants.]

The EPA issued the Utility HAP MACT in mid-March, and it gave the public 60 days to comment. The Congressmen “urge the agency [to] extend the comment period to a minimum of 120 days to allow adequate time for stakeholders to assess and comment on the proposal.”

The extended comment period is well warranted. For starters, the EPA included a number of “pollutants” in the proposed regulation that shouldn’t be there. The EPA’s authority to regulate hazardous air pollutants from power plants is derivative of a study on the public health effect of mercury emissions. The EPA’s proposed regulation, however, would regulate acid gases, non-mercury metals, and organic air toxins, in addition to mercury. Yet the EPA’s evidence only pertains to mercury. The EPA’s authority to regulate these non-mercury emissions, despite their not having been a part of the aforementioned study, will be challenged, and the DC Circuit Court ultimately will decide.

Why would the EPA include these non-mercury emissions into its proposed regulation? My guess is that the agency wanted to leave no stone unturned in its war on domestic coal demand. Thanks to an emerging technology known as “sorbent injection,” removing mercury from post-combustion emissions could be achieved at many power plants without having to install flue gas desulphurization equipment, a.k.a. “scrubbers,” which are far more expensive, and which had been the primary method of mercury control. But the EPA wants all power plants to install these “scrubbers.” Consider the title of slide 8 of this EPA presentation on the proposed Utility HAP MACT rule, “Many Exiting Coal Units Lack Advanced Controls.” The only way to ensure that ALL plants have to install expensive “scrubbers” was to include non-mercury “pollutants” into the regulation.

As Inside the EPA reported on March 18,

Despite the focus on mercury emissions, the major upcoming fight over the rule could center on the proposed limits for emissions of other hazardous air pollutants (HAPs) including hydrogen chloride (HCl). EPA is proposing to set a “conventional” MACT limit for HCl that will act as a surrogate for limiting acid gases.

The HCl limit could set such strict limits on acid gases that even the smallest coal-fired power plants with the lowest emissions levels might have to install expensive “scrubber” technology to cut their emissions, an industry source has said, boosting concerns from mining and other industries about the rule’s potential costs…

…The National Mining Association (NMA) is warning that the HCl limit has the biggest potential for opposition from industry because it could require almost every coal-fired power plant in the country to invest in expensive scrubbers to reduce acid gas emissions.

The EPA’s Utility MACT overreach engenders serious reliability concerns. Many utilities will find it cheaper to shutter older, smaller units, rather than to install “scrubbers.” According to a study by Bernstein & Associates, mandating scrubbers, which is essentially what the EPA proposes, would result in the premature closure of almost 33,000 megawatts of coal fired power capacity. Moreover, most of that capacity is located east of the Mississippi, and this geographical concentration accentuates the regional threat to grid reliability. To put it another way, if you live in the Ohio Valley, you should be very concerned.

Then there’s the cost. “Scrubbers” entail huge capital expenditures, usually $100 million to $200 million per power plant. The EPA concedes that its proposed Utility HAP MACT regulation would cost $10 billion a year by 2015, making it one of the most expensive regulations, ever. This is likely a low ball. According to the Electric Reliability Coordinating Council, the price tag is as much as $100 billion a year.

If Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) in the House, or Sens.  Barbara Boxer (D-Calif.) and Harry Reed (D-Nev.) in the Senate, were to introduce legislation authorizing EPA to use the Clean Air Act (CAA) as it sees fit to regulate greenhouse gases (GHGs), would the bill have any chance of passing in either chamber of Congress?

No. Aside from a few diehard global warming zealots, hardly any Member of Congress would vote for such a bill. Most lawmakers would run from such legislation even faster than the Senate last year ditched cap-and-trade after its outing as a hidden tax on energy. 

Now consider what that implies. If even today, after nearly two decades of global warming advocacy by the United Nations, eco-pressure groups, ’progressive’ politicians, left-leaning media, corporate rent-seekers, and celebrity activists, Congress would not pass a bill authorizing EPA to regulate GHGs, then isn’t it patently ridiculous for EPA and its apologists to claim that when Congress enacted the CAA in 1970 — years before global warming was a gleam in Al Gore’s eye — it gave EPA that very power?

These simple questions cut through the fog of sophistry emitted by the likes of Waxman, Markey, and Boxer to defend EPA’s hijacking of legislative power. As I have explained elsewhere in detail (here, here, here, and here), EPA, under the aegis of the Supreme Court’s poorly-reasoned, agenda-driven decision in Massachusetts v. EPA, is using the CAA in ways Congress never intended and never subsequently approved. EPA is defying the separation of powers. It should be stopped.

Last Thursday, 50 Senators voted for S. 482, the Energy Tax Prevention Act, a bill to stop EPA from ‘legislating’ climate policy under the guise of implementing the CAA. The bill did not pass because 60 votes were required for passage. The House, on the other hand, passed H.R. 910, an identical measure, by a vote of 255 to 172.  

Every Member of Congress should have voted for both measures, because every Member should resist attempts by other branches to encroach on Congress’s constitutional prerogatives. Article I, Sec. 1 of the Constitution vests “all legislative Powers” in Congress. Not in EPA. Not in the Supreme Court. In Mass. v. EPA, however, a 5-4 majority decided to ‘legislate’ from the bench, positioning EPA to ‘legislate’ from the bureau.

Sen. Boxer summed up the attitude of EPA’s apologists during last year’s debate on Alaska Sen. Lisa Murkowski’s resolution of disapproval (S.Res.26) to overturn EPA’s Endangerment Rule, the trigger and precedent for EPA’s ever-growing ensemble of GHG regulations. Boxer complained that if the public has to wait for Congress to enact controls on GHG emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Yes, but how in the world does that authorize EPA to substitute its will for that of the people’s representatives? The fact that Congress remains deadlocked on climate policy is a compelling reason for EPA not to act, not a license for EPA to elevate itself into Super Legislature.

The legislative process is often slow and frustrating. It is so by constitutional design! The slow process of legislative deliberation moderates out politics, fosters continuity in law and policy, and, more importantly, forces elected officials to take responsibility for policy decisions so that ordinary citizens can hold them accountable at the ballot box.

Every Member of Congress should know from Civics 101 that the legislative process is more valuable than any policy outcome an administrative agency might achieve by circumventing and undermining it. Regrettably, the 50 Senators who voted ‘no’ on S. 482 seem to think that EPA’s climate agenda is more valuable than any constitutional scruple that might interfere with it.

Defending the separation of powers becomes all the more urgent as America slouches towards insolvency. If the next economic crisis is worse than the present one, Congress will be hard put to resist the clamor for an Imperial Executive to make the trains run on time. Now is no time to turn a blind eye to — or cheerlead for — an executive agency’s court-abetted seizure of legislative power.

The Senate may get another chance to vote on S. 482. Nonetheless, the sad fact remains that 50 Senators just voted to trash the separation of powers. They fiddle while the Republic burns.

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.

Boxer: S. 482 would “stop the Environmental Protection agency forever from enforcing the Clean Air Act as it relates to carbon pollution.”

She begs the question. How does the CAA “relate” to carbon pollution? The CAA never mentions “greenhouse gases,” “greenhouse effect,” or “global climate change.” It mentions carbon dioxide (CO2) only once — Sec. 103(g) — a provision authorizing EPA to “develop, evaluate, and demonstrate non regulatory strategies for air pollution prevention” (emphasis added). Lest any trigger-happy EPA regulator see the words “carbon dioxide” and go off half-cocked, Sec. 103(g) concludes with an admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.”

Boxer: “This [S. 482] is a first of a kind. It has never been done. It is essentially a repeal of the Clean Air Act as it involves one particular pollutant, carbon, which has been found to be an endangerment to our people.”

Again, the only provision in the CAA “as it involves” CO2 admonishes EPA not to regulate.

Boxer: “I guess the question for us as a body is, Whom do we stand with, the biggest polluters in America or the American people, 69 percent of whom said in a bipartisan poll: ‘EPA should update Clean Air Act standards with stricter air pollution limits.’’’

The folks Boxer is pleased to call “polluters” are also energy producers and job creators.

The poll she invokes is meaningless. Everybody is for cleaner air in the abstract. That tells us nothing about how much they are willing to pay for it, or what other public priorities (e.g. affordable energy, job creation) they are willing to sacrifice or put at risk. Far more relevant for Congress is the November 2010 elections. Voters punished lawmakers who supported the stealth energy tax formerly known as cap-and-trade. By threatening to sic EPA on CO2 emitters if Congress did not enact cap-and-trade, Team Obama tacitly acknowledged that EPA’s GHG regulations are less efficient, less predictable, and potentially more costly than the Waxman-Markey bill they could not sell to Congress and the public.

[Update: In a Mar. 27-29, 2011 survey by the Tarrance Group of 800 likely registered voters, 64% agree that "no new expensive regulation of business should be allowed without first getting approval from Congress," and a majority (53%) say that the level of environmental regulation should remain where it is now (25%) or there should be less (28%).]

Boxer: “Mr. President, 69 percent believe ‘EPA scientists, not Congress, should set pollution standards.’ But we have Senators playing scientist, putting on their white coats, deciding what EPA should do, when it ought to be based on science.”

S. 482 takes no position one way or the other on climate science. Nor would it put Congress in charge of setting pollution standards. Rather, S. 482 simply affirms that Congress, not EPA, should decide national policy on climate change.

Note also the biased phrasing (“EPA scientists”) of the poll question Boxer quotes. EPA and its apologists would have us believe that the agency is an apolitical honest broker — a gathering of scientific elders who seek only truth and care not for their agency’s power, prestige, and budget, and act in splendid isolation from the policy preferences and agendas of the environmental movement. Dream on!

Although there are surely honest people at the agency, EPA is not an honest broker. EPA is a major stakeholder, a big dog in the fight. Boxer ignores the massive conflict of interest that Congress, wittingly or otherwise, built into the CAA. The same agency that makes endangerment findings gets to regulate based on such findings. EPA therefore has an organizational interest in interpreting the science in ways that expand its power. This ethically flawed situation was tolerable when EPA confined itself to regulating substances that Congress authorized EPA to regulate (ambient air pollutants, toxic air pollutants, acid rain precursors, ozone depleting substances). But, to repeat the obvious fact that Boxer studiously avoids, Congress never told EPA to regulate the class of substances known as “greenhouse gases.”

Boxer: “What is the science telling us? That it is dangerous to breathe in air pollution with lots of carbon in it.”

Got that? In the same breath that Boxer scolds her GOP colleagues for not heeding science, she demonstrates her ignorance of science.  Carbon dioxide, like water vapor, the atmosphere’s main greenhouse gas, is an essential constituent of clean air.

S. 482 supporters please note: The oft-repeated phrase “carbon pollution” is meant to mislead the public. It embodies one of the oldest rhetorical tricks in the book, which is to call something benign or even beneficial by a name commonly given to something odious. When EPA’s apologists deliberately confuse CO2 with air pollution and denounce S. 482 as the “dirty air act,” they tacitly confess that they cannot sell global warming policy on its own merits.

Boxer: “Every single time we try to rein in pollution, special interests say: No, no, no, a thousand times no. We will stop growth. We will stop jobs. We will kill the economy. It is awful, awful, awful. Let me give one economic fact: If you can’t breathe, you can’t work. Here is a picture of a little girl suffering, struggling. I urge my colleagues who support Senator McConnell to look at this. They are not here, but maybe on TV they will. Look at this picture. Is that what we want for her future?”

This is either sheer demagoguery or invincible ignorance. Let me count the ways: (1) Boxer provides not one scrap of evidence that the child in the picture would not have asthma or would not have to wear a respirator if EPA adopts tougher controls on air pollution. (2) S. 482 in no way restricts EPA from issuing regulations targeting ozone, particulate matter, or other pollutants that affect respiratory function. (3) Air pollution will continue to decline even if EPA were to freeze current regulations in place because newer, cleaner vehicles and equipment will continue to replace older models and capital stock. (4) Air pollution at today’s historically low levels is not likely a major factor in childhood asthma. As Joel Schwartz and Stephen Hayward observe (see Chapter 7 of their book, Air Quality in America), air pollution has declined as asthma has been rising, and hospital visits for asthma are lowest in July and August, when ozone levels are highest.

Boxer: “If I went up to you and I said: If you know something worked perfectly well, would you mess with it? Would you change it? No. Why would you, if it is working well?”

The CAA may not be perfect, but it was certainly working better before EPA started to mess with it. As EPA itself confesses, regulating GHGs via the CAA leads to “absurd results” — policy outcomes that conflict with and undermine congressional intent. EPA and its state counterparts would have to process an estimated 81,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.

To avoid such “absurd results,” EPA issued its so-called Tailoring Rule, which revises CAA definitions of “major emitting facility” to exempt all but very large CO2 emitters from the permitting programs. But this just substitutes one absurdity for another.

“Tailoring” is bureaucrat-speak for “amending.” To avoid breaking the CAA beyond repair, EPA must play lawmaker, flout the separation of powers, and effectively rewrite portions of the statute. Nothing in the CAA authorizes EPA to revise the text in order to avoid an administrative debacle of its own making.

One would think that a Senator might be jealous of the authority exclusively vested in Congress by the Constitution. But no, Boxer is eager to have EPA ‘legislate’ climate policy and ‘amend’ the CAA provided the agency implements an anti-carbon agenda the Senate has repeatedly declined to pass.

Tomorrow, the Senate is scheduled to vote on the Inhofe-Upton Energy Tax Prevention Act (S. 482) to overturn EPA’s Endangerment Rule and most of the agency’s other greenhouse gas (GHG) regulations. The bill is based on 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 reason for EPA not to act — not an excuse for the agency to substitute its will for that of the people’s representatives.

I am a huge fan of the Inhofe-Upton bill. But even a good thing can be improved. S. 482 should be amended to preempt public nuisance litigation against GHG emitters under federal common law. Indeed, in its current form, S. 482 could actually increase the risk that the Supreme Court will empower trial lawyers and activist judges to ‘legislate’ climate policy. 

To belabor the obvious, trial lawyers and activist judges are even less accountable to the people than is the EPA, which at least depends on Congress for its annual appropriations.

The Supreme Court is currently reviewing State of Connecticut v. American Electric Power, a case in which six states, New York City, and three conservation groups are suing five large coal-burning electric utilities for their alleged contribution to climate change-related “injuries.” Plaintiffs claim the utilities’ carbon dioxide (CO2) emissions are a “public nuisance” under federal common law. They seek a remedy whereby the utilities would be required to reduce their CO2 emissions by a “specified percentage each year for at least a decade.” A new Congressional Research Service (CRS) report, Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance (March 25, 2011), provides a useful overview of the case and the associated legal issues.

A win for plaintiffs would endanger the economy and further erode our constitutional system of separated powers and democratic accountability.

Plaintiffs say they just want to compel the nation’s biggest coal-burning utilities to cut their emissions. However, once the precedent is established, there can be no principled basis for shielding any class of emitters from lawsuits. If state, municipal, or private parties can sue large utilities for emitting CO2, they can also sue smaller utilities and manufacturers. In principle, they can sue almost anyone. Utilities, after all, only emit CO2 in the process of serving customers who use electricity. People lighting their homes, running their businesses, and using their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else — which implies that everybody has standing to sue everybody else. Plaintiffs may preach “green peace,” but they sow the seeds of a war of all against all.

If plaintiffs win in Connecticut v. AEP, firms large and small could face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. A victory for plaintiffs could destroy for many firms the legal predictability essential to business planning. 

In August of last year, the Obama administration filed a brief on behalf of the utilities, clearly laying out the absurdities of attempting to determine climate policy via common law nuisance litigation. Not only are there no “judicially discoverable and manageable standards” for balancing the public’s  undeniable interest in reliable and affordable energy with the public’s hypothetical interest in climate change mitigation, but the potential pool of plaintiffs and defendants whose interests would be affected literally number in the billions.

Strangely, the Obama brief failed to state the conclusion implied by its argument, namely, that climate policy is a non-justiciable “political question.” Instead, the brief argued that EPA’s ever-growing ensemble of GHG regulations “displaces” the federal common law of nuisance. Implication: All that stands between the U.S. business community and climate litigation chaos is EPA’s newfound career as GHG regulator.

The Court set the stage for EPA’s climate policy initiatives, and very likely wants to protect EPA’s greenhouse agenda from S. 482 and other legislative challenges. The Court may then be tempted to reach a decision blocking CO2 nuisance litigation solely on displacement grounds, so that Congress would arguably be exposing U.S. businesses to an even greater peril by overturning EPA’s policies.

The CRS report alludes to this problem:

Also interesting in the case before the Supreme Court is how EPA’s GHG-related actions under the Clean Air Act since the Second Circuit’s decision in 2009 (and further actions being discussed at the agency) will be seen to affect whether the federal common law of nuisance has been displaced. The Second Circuit explicitly noted this future possibility. Not surprisingly, petitioners-utilities argue that EPA’s actions do require displacement. On the other hand, should any of several bills before the 112th Congress eliminating EPA authority to regulate GHG emissions be enacted, the argument that federal common law has been displaced would be weakened. (Emphasis added).

 None of the foregoing is to suggest that the Senate should not pass S. 482. The point rather is that S. 482 should be amended to ensure that the Court cannot use the prospect of litigation chaos to intimidate opponents of EPA’s power grab. What would an appropriate amendment look like?

S. 228, the Barrasso-Walberg Defending America’s Affordable Energy Act, has a provision that would keep the climate ambulance chasers on ice, allowing Congress to nix EPA’s climate rules without fear of getting something even worse:

ACTIONS AT LAW.—No cause of action, whether based on common law or civil tort (including nuisance) or any other legal or equitable theory, may be brought or maintained, and no liability, money damages, or injunctive relief arising from such an action may be imposed, for— (1) any potential or actual contribution of a greenhouse gas to climate change; or (2) any direct or indirect effect of potential or actual atmospheric concentrations of a greenhouse gas.

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.