William Yeatman

Living green

It’s been an uncomfortable news-cycle for sustainable living, as both the New York Times and Wired have penned reports in the last 24 hours on the practical difficulties of the eco-lifestyle. Below, I’ve posted the titles and key pull quotes from both stories.

• New York Times, “Exhausted by a House That Saves Energy,” 12/3/2014
  Key quote: “I was an idiot and built a house that was way too complicated and labor-intensive. Only a masochist could enjoy it.”

• Wired, “A Two-Day Battle to Charge My Car Convinced Me We’re Not Ready for EVs,” 12/4/2014
  Key quote: “When I set up a loan for an electric Nissan Leaf last month, I didn’t expect a 35-mile trip from San Francisco to Mountain View to lead to two of the most stressful days I’ve experienced this year.”

Opponents of EPA’s Clean Power Plan have made a powerful legal argument that the agency lacks authority to issue the rule. It turns out that EPA used to make the same case. Talk about your all time flip flops!

Read the section immediately below for the background; it’s been formatted in a long block quote in order to isolate what is a complex line of reasoning:

The Clean Air Act establishes two regulatory regimes for industrial categories of existing sources of air pollution: §111(d), for “designated pollutants” and §112 for “hazardous air pollutants.” “Designated pollutants” are defined as any harmful pollutant that isn’t a “criteria” pollutant (i.e., subject to nation-wide National Ambient Air Quality Standards regulations under §§108-110) nor a hazardous air pollutant.

 As originally enacted in 1970, §111(d) included an exclusion that prohibited EPA from prescribing §111(d) regulations for any hazardous air pollutant already regulated under §112 of the Clean Air Act. The idea behind this “§112 Exclusion” was to avoid duplicative regulation.

In 1990, Congress amended the Clean Air Act. If you’ll recall the ‘how a bill becomes a law’ jingle, the House and Senate each pass a version of the bill. Often, the texts of these bills are different. Any differences between the House and Senate versions are then reconciled in a Conference Committee.

The House of Representatives passed a bill that fundamentally changed the nature of the §112 exclusion. Before the 1990 Clean Air Act Amendments, the exclusion from 111(d) applied to hazardous air pollutants regulated under §112; under the House bill, this exclusion applied to §112 source categories (rather than §112 pollutants).

Unlike the House bill, the Senate bill left unchanged the pre-1990 §112 Exclusion. That is, the Senate version maintained a prohibition on EPA’s issuance of 111(d) regulations for §112 hazardous air pollutants. However, in order to harmonize the pre-1990 §112 Exclusion with the language of the 1990 Clean Air Act Amendments, the Senate passed a “conforming” amendment to 111(d). Thus, the Senate’s amendment was a ministerial change meant to keep continuity with the existing §112 Exclusion (dating from 1970).

Ultimately, the Conference Committee adopted the House’s substantive amendment rather than the Senate’s version. Logically, the adoption of the House language rendered moot the Senate clerical language. However, the Conference Committee failed to remove the Senate’s conforming amendment. As a result, the Statutes at Large contain both the House’s substantive amendment and the Senate’s conforming amendment.

For obvious reasons, proponents and opponents of the Clean Power Plan disagree on whether the House or Senate amendment is controlling.

Opponents of the Clean Power Plan want to give effect to the House amendment because it would outlaw EPA’s Clean Power Plan. This is due to the fact that the agency, in February, 2012, published a regulation (the ridiculous Utility MACT) that subjects power plants to §112 requirements. Therefore, pursuant to the House version of the 1990 Clean Air Amendments, power plants are a “source category” excluded from §111(d) regulations.

EPA, on the other hand, wants to give effect to the Senate version, because this would allow the agency to regulate power plants under §111(d).

In a previous post, I summarized a persuasive analysis that originated in the office of West Virginia Attorney General Patrick Morrisey, which argues that the Senate amendment is, in fact, a drafting error (also known as a “scrivener’s error”) of a common sort that has never been accorded interpretative force by reviewing courts. The House amendment, by contrast, is a substantive amendment, and therefore controls. And if the House amendment controls, then the Clean Power Plan is an impermissible exercise.

All of this brings me to the point of this post: namely, that EPA previously made the same argument that the West Virginia AG’s office is now making! [click to continue…]

…On which EPA did not publish a single regulation in the Federal Register. It happens about once a year, from what I can tell. Below, I re-posted the section from today’s FR where EPA isn’t.

Yesterday, the Natural Resources Defense Council hosted a press conference call to discuss the group’s opposition to the American Legislative Exchange Council, a nonpartisan public-private partnership of America’s state legislators, members of the private sector and the general public. This week, ALEC is having its annual Washington, D.C. meeting, which occasioned NRDC’s conference call. Full disclosure: I participate in ALEC on behalf of CEI and I’m very much looking forward to this week’s conference.

Formerly at NRDC

NRDC aired all of its grievances in a press release; see that for the full story. In a nutshell, NRDC disagrees with ALEC’s efforts to organize opposition to the Obama administration’s illegal and illegitimate climate policy. (The modifiers to “climate policy” aptly impart how I feel about the President’s regulatory regime for climate change mitigation). In fact, NRDC’s argument is all boilerplate stuff, including all the familiar shibboleths (“climate-science denying,” “pro-pollution,” etc.), but I nonetheless was struck by the extent to which NRDC stressed that ALEC received membership fees from corporations (in addition to its public and non-profit sector members).

That got me thinking: Does NRDC accept corporate donations? As it turns out, the answer to this inquiry is absurd.

According to NRDC’s webpage,

NRDC will not seek or accept contributions from corporations in the following categories: utilities, oil industry, forest products industry, automobiles, agribusiness, chemical industry, waste industry, appliance manufacturers, mining and minerals companies, tobacco industry and the defense industry.

This is quite silly. The list of businesses NRDC opposes includes raw materials, energy, chemicals, and manufacturing which are, of course, the four “building blocks” (pun intended) of every corporation whose money NRDC deigns to take. This being capitalism, profits of all industries—even the ones condoned by NRDC—are reinvested into growing the business, which, of course, necessitates more raw materials, energy, manufacturing, and chemicals. ​Alas, NRDC’s take on EPA’s Clean Power Plan is as convoluted and backwards as its take on philanthropy, as I explain here.

Yesterday, the top right fold of the Grey Lady was given to ongoing efforts by jet-setting (and, therefore, carbon spewing) diplomats to craft a global climate change mitigation treaty. According to the Times, “scientists” agree that the doomsday clock is ticking, as is imparted in the article excerpts below:

• “Without a deal, they [“scientists”] say, the world could eventually become uninhabitable for humans.”

• “While a breach of the 3.6 degree threshold appears inevitable, scientists say that United Nations negotiators should not give up on their efforts to cut emissions. At stake now, they say, is the difference between a newly unpleasant world and an uninhabitable one.”

•  “Without a deal, scientists say, eventual human extinction is possible.”

Remarkably, the Times failed to identify the “scientists” who’ve warned of global warming- induced “human extinction,” absent a legally binding treaty to control global greenhouse gas emissions. The only scientist interviewed in the article was Michael Oppenheimer, a Princeton professor of geosciences and international affairs, and who previously spent two decades working for the green advocacy group Environmental Defense Fund. Below, I’ve reposted his full reported comments.

“I was encouraged by the U.S.-China agreement. [However] What’s already baked in are substantial changes to ecosystems, large scale transformations. [Still, absent a deal] Things could get a lot worse. [Beyond the 3.6 degree threshold, the aggregate cost] to the global economy—rich countries as well as poor countries—rises rapidly.”

Professor Oppenheimer’s reported comments make no mention of human extinction. Moreover, he’s the sole scientist identified in the piece, which would seem to contradict the plural use of “scientists” who supposedly agree that human extinction is likely absent a climate change mitigation treaty.

So who are these “scientists”? Undoubtedly, alarmism is the “newsiest” element of the story; that’s why its title reads: “Optimism Faces Grim Realities as Climate Talks.” As such, one would think that identifying the “scientists” warning of climate-caused “human extinction” would qualify as being among “all the news that’s fit to print.” [click to continue…]

Midnight marked the deadline for commenting on EPA’s proposed Clean Power Plan. Below, I’ve posted 2 comments submitted by CEI.

In the first, my colleague Marlo Lewis explains that the proposal is illegitimate and illegal. His is a comprehensive case, and I recommend it highly if you’re interested in getting up to speed on this monstrous regulation. My comments are narrower, and argue that even if the courts were to somehow conclude that this rule does not violate the Clean Air Act, the Constitution, and canons of statutory construction, it nonetheless violates the EPA’s own implementing regulations. The Clean Power Plan, therefore, runs afoul of a key administrative law principle: namely, that an extant regulation carries the force of law. Because it is inconsistent with its underlying regulation, EPA’s Clean Power Plan is an impermissible exercise of authority.

Marlo Lewis CLean Power Plan Comment