Cooler Heads Digest 16 May 2014
William Yeatman
By 1970, it was commonly held that New Deal era regulatory agencies had been “captured” by the industries they were supposed to oversee. According to this influential school of thought, industry’s political spending and also its close cooperation with regulators led to cozy relationships that undermined effective oversight. The most conspicuous manifestation of regulatory capture was a “revolving door” of employment between regulatory agencies and industry.
The 1970 Clean Air Act was supposed to be the antidote to regulatory capture. The law was unusually long and detailed; it was, moreover, replete with deadlines, which were then a novel legislative tool. Most consequential of all, Congress empowered environmental special interests to litigate in order to enforce the law’s many duties. By so crafting the statute, Members of Congress intended to supplant agency discretion with legislative direction and public oversight, and thereby curtail the possibility of regulatory capture.
Since the enactment of the Clean Air Act, environmental special interests have prospered, primarily by leveraging the unique authorities they were accorded in the statute. In 2012, for example, NRDC and Sierra Club had revenues of approximately $100 million and $80 million, respectively. Thus enriched, both organizations now operate sophisticated campaign to influence political outcomes.**Moreover, by employing a legal strategy known as “sue and settle,” these environmental groups have seized EPA’s regulatory initiative. (Paradoxically, “sue and settle,” which is a means of contemporary regulatory capture, is made possible only by virtue of the Clean Air Act’s many deadlines—i.e., the supposed “solution” to regulatory capture in 1970.) In short, environmental special interests are exhibiting virtually all of the behaviors that defined regulatory capture 40 years ago…
…including a revolving door. Consider the following, non-comprehensive list of current and recent EPA political appointees that have come from green litigation groups (and vice-versa): [click to continue…]
Two teams of scientists released papers this week that rendered the same conclusion: Thanks to global warming, the West Antarctic ice sheet will melt sometime between 200 to 900 years from now, and there’s nothing we can do to stop it. The ice sheet’s demise would lead to 4 feet of sea level rise.
The New Yorker called the research “terrifying.” Mother Jones described it as being a “a holy shit moment for global warming.”
For the purposes of putting this “terrifying,” “holy shit moment” research in perspective, allow me to simply approximate the difference between 200 and 900 years, and assume that the ice sheet completes its unstoppable melt in 500 years. Now, consider what America looked like half a millennium ago:
America, 500 years ago.
My how times have changed!
I’ve employed this simple thought experiment in order to highlight how yawning a temporal gap is 500 years, in terms of the human experience. Is it really “terrifying” to imagine that citizens of the globe, in five centuries, will have to contend with a world bereft of the West Antarctic ice sheet? The thought experiment also aptly demonstrates the technological advance of human civilization over the last half millennium, and, by extension, our capacity for adaptation. [click to continue…]
On Monday, in draft comments to EPA’s “Second Draft Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards,” the Clean Air Scientific Advisory Committee (CASAC) endorsed the agency’s decision to set the lower bound of a national ozone standard at 60 parts per billion.
CASAC’s finding could have terrible consequences for the U.S. economy. As I’ve explained in a previous post, the D.C. Circuit Court gives controlling weight to CASAC’s assertions. As such, these draft comments legitimize an ozone standard—i.e., one set at 60 ppb—that EPA estimates would cost $90 billion annually. Such a standard would plunge 97% of the country into “non-attainment,” which triggers ultra-stringent controls.
Given the stakes, you’d think EPA and CASAC would rely on only the latest, most independent science, right? Alas, that isn’t the case. Instead, all of the clinical studies cited by CASAC in support of the 60 ppb standard were created by the EPA—the organization that proposed the limit. Thus, the science on which the economy’s fate hinges suffers from a troubling absence of independence. Moreover, all of the non-EPA literature (on health impacts of 60 ppb ozone) cited by CASAC does NOT support a 60 ppb standard. This dichotomy is further disconcerting.
Last Friday, May 9th, the Competitive Enterprise Institute submitted a set of comments on EPA’s “Carbon Pollution Standards.” The regulation, which was proposed January 8th, would effectively ban the construction of new coal-fired power plants, by requiring the installation of carbon capture and sequestration, an exorbitantly expensive technology that isn’t yet market viable. EPA Administrator Gina McCarthy concedes the rule would have no impact on global temperatures.
My colleague Marlo Lewis made the following points,
- The current proposal is a de facto fuel-switching mandate, which Congress clearly never intended.
- A leaked OMB document and environmental group analyses indicates that the real purpose of the regulation is to establish the legal predicate for suppressing existing coal power plants via carbon cap-and-trade programs.
- Public trust in government is in free fall. EPA cannot continue to steamroll through congressional gridlock and dictate climate policy without de-legitimizing itself.
And my comments included the following points:
- The Carbon Pollution Standards would actually increase greenhouse gas emissions. To be precise, a typical coal plant in compliance with EPA’s Carbon Pollution Standards would emit 1.3 million more kilograms of CO2 annually.
- Carbon capture and sequestration is neither “adequately demonstrated” nor “achievable,” and is, therefore, an impermissible basis for the Carbon Pollution Standards.
Finally, in a separate comment, I collaborated with Darin R. Bartram and Justin J. Schwab, of BakerHostetler in Washington, D.C., to rebut EPA’s argument that the Carbon Pollution Standard doesn’t conflict with the 2005 Energy Policy Act. Below, I’ve posted each of the comments in full. [click to continue…]
Reports the LA Times,
President Obama capped a weeklong focus on climate change with a push for greater energy efficiency, a pitch particularly attuned to reaching two groups: big-dollar donors in the green movement and activists once inspired by his 2008 ambition to heal the planet. Both groups will play a role in turning out Democratic voters in November, a crucial factor for the party’s hope to retain control of the Senate.
The President’s green pivot is, in fact, the essence of political cynicism. It should put the lie, once and for all, to any notion that “Hope” and “Change” were ever anything more than empty campaign slogans.
Remember, President Obama wouldn’t touch green politics with a ten-foot pole when he was running for reelection in 2012. During the second debate, the President actually argued that he was to the right of Mitch Mitt Romney on energy policy. That Obama—the one trying to win the general public—loved fossil fuels (including coal!), global warming be damned. Indeed, he—the guy debating Mitt Romney—didn’t even mention global warming. Of course, that’s what he had to do to win. Poll after poll demonstrates that the preponderance of Americans give high priority to economic growth and low priority to global warming.
Present-day Obama doesn’t have to win a national election. Instead, he’s got to motivate his base for a mid-term election, for which his party’s odds are long. So he’s desperate. And what does he do? He goes green, in order to get millionaire & billionaire environmentalists to spend money in support of candidates fielded by the Democratic Party. (Citizens United, Picketty, and all that be damned!). It is, therefore, evident that the President’s energy/environment beliefs are wholly dependent on the immediate politics at hand. Again, this is the apotheosis of political cynicism.
My colleague Chris Horner appeared on Cavuto last night to talk about the politics of climate change and green energy. Video below.
On April 30th, New York magazine’s Jonathan Chait authored an uninformative article about environmental cases before the Supreme Court, in which he penned this whopper: “In 2007, the Court not only allowed but actually ordered the EPA to regulate heat-trapping gasses.”
By erroneously claiming that the Supreme Court directed EPA to regulate greenhouse gases under the Clean Air Act, Chait commits a mistake commonly rendered by cheerleaders of the President’s climate agenda. (As an aside, this is the second occasion of late that we’ve taken the time to correct an energy/environment policy mistake by Chait.)
Here’s the background: During the Bush administration, States and environmentalists petitioned the EPA to regulate greenhouse gases under the Clean Air Act. EPA refused, claiming that it didn’t have the authority to do so, because greenhouse gases do not constitute a “pollutant” as defined by the Act. The States and green groups then sued, and the case ultimately went before the Supreme Court. In a 2007 ruling, Massachusetts v. EPA, the Court found that greenhouse gases are indeed Clean Air Act “pollutants” and, therefore, that the agency possesses the authority to regulate.
However, the Supreme Court did NOT “order the EPA to regulate heat-trapping gases.” Regarding whether to proceed with a Clean Air Act regime for greenhouse gases, the Massachusetts v. EPA Court concluded:
[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.
I’ve formatted the key part: EPA doesn’t have to act on greenhouse gases if it provides some reasonable explanation as to why it cannot. The agency’s rationale, moreover, must be grounded in the statute.
Finding a “reasonable explanation” in the Clean Air Act for not regulating greenhouse gases isn’t difficult, because the statute wasn’t written with global warming in mind. Rather, Members of Congress drafted the law to mitigate conventional pollution, like nitrogen oxides or sulfur dioxide. Greenhouse gases, on the other hand, are an entirely different problem; their ubiquity (relative to conventional pollution) does not comport well with the means established by the Clean Air Act. As a result, if one earnestly applied the letter of the law to greenhouse gases, EPA would have to regulate the construction of every edifice larger than a mansion. Taken to its logical conclusion (i.e., a National Ambient Air Quality Standard for greenhouse gases), climate change regulations under the Clean Air Act would necessitate de-industrialization. [click to continue…]
As I write this post, White House energy and environment adviser John Podesta is speaking at a conference held by Columbia University’s Center on Global Energy Policy, and he just said that carbon capture and sequestration (CCS) technology is “a ways off in my opinion,” as tweeted by Amy Harder of the Wall Street Journal. This is a significant concession because one of the Obama administration’s top priorities, a proposed regulation known as the Carbon Pollution Standard, would require all new coal-fired power plants to install CCS. However, under the Clean Air Act, EPA is not authorized to impose pollution control technologies that are not yet “adequately demonstrated.” As we’ve long argued, EPA’s Carbon Pollution Standard, which is due to be finalized this summer, is illegal as proposed, because CCS is not yet market viable. It’s nice to hear that Obama’s top climate adviser agrees.
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