Directly below, I’ve posted an issue brief whose purpose is to investigate the constitutionality of EPA’s Clean Power Plan, a subject that has been at the center of a lively public debate between Harvard Professors Laurence Tribe, Richard Lazarus, and Jody Freeman. While undoubtedly edifying, this professorial skirmish has occurred on a conceptual basis that is largely removed from the nuts and bolts of how the Clean Air Act actually works in practice. In the working paper that follows, my intention is to fill this analytic lacuna by exploring the constitutionality of the Clean Power Plan against a backdrop of how the rule would be implemented in the real world. Specifically, I address the constitutionality of EPA’s range of statutory options to effectuate the Clean Power Plan in a State that refuses to comply with the rule.
Investigating the Constitutionality of EPA's Clean Power Plan
Wish I had posted this on April 1st, but the good news just popped into my in-box last night.
Over at CO2Science.Org, Craig Idso reviews two extensive studies of the impacts of rising carbon dioxide (CO2) concentrations on trees in the Northern Hemisphere.
First, Idso reviews Soulé and Knapp (2015), a study of the growth and water-use efficiency of ponderosa pine and Douglas fir trees in the U.S. Forest Service’s Northern Rockies region since 1850.
The two researchers “collected tree-ring data from 14 different locations, from which information they were able to determine yearly changes (from AD 1850 to the present) in basal area increment (BAI) and intrinsic water-use efficiency (iWUE), the latter of which parameters they derived from yearly stable carbon isotope ratios (δ13C) of the trees’ annual layers of new-wood production.” Note: BAI means the area of a tree-trunk cross section at ground level.
What did Soulé and Knapp find? Both species experienced “exponentially increasing iWUE rates during AD 1850-present, suggesting either increased net photosynthesis or decreased stomatal conductance [i.e. decreased moisture loss via the stomatal pores of needles and leaves], or both.” In addition, “both species experienced above-average BAI in the latter half of the 20th century despite no favorable changes in climate.” The increase in BAI was observed “at all sites, suggesting a pan-regional effect.” Idso helpfully provides a chart illustrating the gains in water-use efficiency and growth.
Ah, but surely in Europe, where enlightened statesman demand draconian cuts in CO2 to save the biosphere, things are different. Nope.
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Judicial review of EPA’s Mercury and Air Toxics Standards (a.k.a., the absurd “Utility MACT”) has run a course all the way to the Supreme Court. The case is Michigan v. EPA; briefs and a transcript of oral arguments may be found here at the invaluable SCOTUSblog.
The issue at hand is: “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”
Below, I’ve posted the briefest of recaps (ignore the following paragraph if you are already up to speed): [click to continue…]
At a March 4 Senate Environment and Public Works (EPW) committee hearing, Sen. Jeff Sessions (R-AL) queried EPA Administrator Gina McCarthy about climate change impacts, global temperatures, and climate models. McCarthy opined that droughts and storms are becoming more frequent worldwide, but had no data to back up her opinion when Sen. Sessions cited conflicting evidence.
In addition, although apparently unaware of the growing divergence between climate model predictions and observations, McCarthy was confident it is irrelevant to EPA’s assessment of climate change risks (i.e. the scientific rationale for the administration’s climate policies). She did, however, promise to provide written answers to Sen. Sessions “within a few days.” See 1:30-6:17 of this video clip.
On April 1, Sessions and three other EPW Republicans (Inhofe of Oklahoma, Wicker of Mississippi, and Barrasso of Wyoming) sent a letter reminding McCarthy of her promise and stating their questions in more detail.
Citing the latest Intergovernmental Panel on Climate Change (IPCC) assessment and other information, the Senators challenge McCarthy to substantiate her views with respect to drought, storms, global temperatures, and the accuracy of climate models.
Sen. Sessions’s press release, which includes the text of the letter, follows. [click to continue…]
The National Environmental Policy Act (NEPA), enacted Jan. 1, 1970, requires federal agencies to consider the environmental effects of “any major project — federal, state, or local — that involves federal funding, work performed by the federal government, or permits issued by a federal agency” (Wiki). NEPA also established the White House Council on Environmental Quality (CEQ), which issues guidelines to federal agencies for proper preparation of environmental impact analyses.
On December 14, 2014, CEQ published a Draft Guidance on NEPA review of project-related greenhouse gas emissions and climate change effects. Today (Mar. 25, 2015) is the deadline for submitting comments on the Guidance. On behalf of the Competitive Enterprise Institute, 14 other pro-market organizations, and one university professor, I submitted a joint comment letter critiquing CEQ’s proposal.
In brief, we argue that:
- NEPA review is an inappropriate framework for making climate policy.
- Project-related greenhouse gas emissions should not be a factor determining whether agencies grant or deny permits for individual projects.
- Requiring agencies to consider project-related greenhouse gas emissions will make the pointless sturm und drang over the Keystone XL Pipeline the ‘new normal’ in NEPA review, further empowering NIMBY and anti-energy activists to block development projects with immense economic benefits and immeasurably small, hypothetical climate effects.
- The Guidance will feed the hubris of those who believe government exists to bankrupt businesses and industries they dislike.
- CEQ should withdraw the Guidance.
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In a word, New York University School of Law Professor Richard Revesz is brilliant.
Indeed, this blog is a big fan of the Professor’s seminal 1992 law review, “Rehabilitating Interstate Competition,” which persuasively puts the lie to the theoretical foundations of the “Race to the Bottom” thesis of environmental regulation.
Nonetheless, no jurist–no matter how brilliant–can cure EPA’s Clean Power Plan of its legal infirmities. So when Professor Revesz testified in support of the rule a week ago before the House Energy and Commerce Committee, he was necessarily in a bind because he had to try to defend the indefensible.
In this post, my purpose is to respectfully rebut one of Professor Revesz’s most consequential claims made during his testimony. The claim at issue regards the ongoing debate over whether the plain terms of the Clean Air Act forbids EPA from promulgating the Clean Power Plan. [click to continue…]
In a recent column in Politico, former EPA Administrator Christine Todd Whitman scolds Senate Majority Leader Mitch McConnell (R-Ky.) for an op-ed urging states to ‘just say no’ to EPA’s Clean Power Plan (CPP) — the agency’s proposal to cap carbon dioxide (CO2) emissions from state electric power sectors.
In a nutshell, Whitman accuses McConnell of urging States to break the law. Nonsense. Declining to submit a plan to implement EPA’s regulation is a lawful option under the Clean Air Act. Indeed, the right of States to keep their fingerprints off regulations they regard as unlawful or simply as misguided is basic to the “cooperative federalism” concept on which the Clean Air Act is based. Whether or not states should be complicit in the Clean Power Plan is a prudential question. McConnell argues (correctly, IMO) that the most prudent course for States is to let EPA bear sole responsibility for implementing an unlawful rule.
Although Whitman quotes two sentences from McConnell’s essay, she never engages any of his arguments. Instead, she tut-tuts about the rule of law without apparently understanding what it means.
I reproduce Whitman’s column below and offer commentary on each part. Her text is indented in blue, my comments are standard width in black.
Whitman: Sen. Mitch McConnell earlier this month encouraged states to defy federal environmental regulations by simply ignoring them. This was not some quote taken out of context by a pesky reporter; it was an op-ed he wrote in the Lexington Herald-Leader. The Republican Senate majority leader is protesting the Environmental Protection Agency’s proposal to cut greenhouse gas emissions from coal plants. The agency plans to finalize the rule this summer, after which states will have a chance to submit their own plans to meet the EPA’s specific goal for the state. He writes:
“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism. Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”
None of this is surprising from the senator who said shortly after his reelection that his top priority was “to try to do whatever I can to get the EPA reined in,” but it is extremely disappointing and has the possibility to undermine our nation’s entire rule of law.
ML Comment: It’s also not surprising that a prominent EPA alumna sides with her alma mater. Just as the value of your diploma is affected by your school’s subsequent academic standing, so the prestige of a former Administrator is affected by the public perception, regulatory reach, and economic importance of the agency she once ran. [click to continue…]
You know or suspect that the administration’s war on carbon energy is either a costly exercise in futility or a humanitarian disaster, depending on how aggressively they pursue it. You may also know or suspect that “all of the above” is Washington-speak for dispensing more corporate welfare to under-performing energy companies.
So what would a genuine pro-market energy agenda look like? Sen. Ted Cruz (R-Texas) and Rep. Jim Bridenstine (R-Okla.) put it all together in a bill titled the American Energy Renaissance Act. The bill would “remove federal impediments to energy exploration, development, and trade.” It would increase U.S. GDP, economic opportunity, and geopolitical influence by reducing federal interference with market-driven energy investment.
Sen. Cruz’s press release presents the two lawmakers’ energy policy perspective and summarizes the bill’s key provisions. The policy summary is reproduced below. [click to continue…]
Although President Obama describes his administration as “the most transparent in history,” a new analysis by the Associated Press (AP) finds that, “The Obama administration set a record again for censoring government files or outright denying access to them last year under the U.S. Freedom of Information Act.”
FOIA failings identified by AP include:
- The government took longer to turn over files when it provided any, said more regularly that it couldn’t find documents and refused a record number of times to turn over files quickly that might be especially newsworthy.
- It also acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law – but only when it was challenged.
- Its backlog of unanswered requests at year’s end grew remarkably by 55 percent to more than 200,000. It also cut by 375, or about 9 percent, the number of full-time employees across government paid to look for records. That was the fewest number of employees working on the issue in five years. [click to continue…]
Debate Obama didn’t care about AGW and loved coal
VICE News, which is somehow valued at $2.5 billion (10 times the 2013 price of the Washington Post), recently conducted a sycophantic interview with President Obama. As I understand it, VICE News reporters are supposed to be too-cool-for-school iconoclasts. However, instead of suspicion of “the man,” VICE News founder Shane Smith performed the interview with an evident thrill up his leg.
The first segment addressed environmental policy. Smith started by asking the president, “How do you deal with the negativity? Are you a masochist?” Then he complemented President Obama for having a “rational, sane” plan for dealing with climate change. Finally, after referencing Senate Republicans, he asked why “we’re not acting in a sane and rational way” on global warming (presumably like the President is). Hard hitting stuff.
Today, my purpose is to shatter VICE’s naivety by introducing them to 2012 debate Obama. Debate Obama—the guy trying to get elected by the American people—staked out a position to the right of Republican Mitt Romney on environmental and energy policy. This guy didn’t say a word about climate change. Rather, Debate Obama was all about oil, gas, and even (gasp!) *dirty* coal. Indeed, Obama never once mentioned AGW in any of the 2012 debates. During the VICE interview, by contrast, the President claimed that global warming was among his top priorities.
I humbly submit that Debate Obama demonstrates that the President doesn’t give a hoot about AGW, aside from its legacy-building potential or value in terms of partisan positioning. In short: He’s pulling the wool over your eyes, Mr. Smith.
Debate transcript here; debate video below; writeup here. [click to continue…]
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