William Yeatman

In a post yesterday, I explained that the Supreme Court’s 6-2 ruling in EPA v. EME Homer City Generation denied States a broad right to be a “first implementer” under the cooperative federalism scheme established by the Clean Air Act. While EPA v. EME Homer City Generation is undoubtedly an important federalism case, there is a cert petition before the Supreme Court with implications far more profound for the balance of power between States and EPA under the statute. In the petition, which I’ve reposted at the bottom of this post, the State of Oklahoma has appealed to the Supreme Court to answer the following question: Which sovereign merits judicial deference when State and Federal governments disagree over factual findings in the course of implementing the Clean Air Act?

Recently, I described this supremely consequential matter:

The Clean Air Act is a “cooperative federalism” arrangement, which establishes a State-Federal partnership to improve the nation’s air quality. Because both sovereigns carry a congressional grant of authority, both possess legitimate claims to judicial deference. Complicating matters further, the State, in exercising its share of congressionally delegated authority pursuant to the Clean Air Act, funds its own implementing agency, which establishes its own administrative code. As a result, each sovereign that is responsible for executing the Clean Air Act can claim a congressional delegation, agency expertise, and political accountability—i.e., all the trappings of deference. So what happens when State and Federal Governments, in the course of implementing their respective delegations of authority, disagree on factual findings, with billions of dollars in compliance costs at stake? To which sovereign should the courts defer?

It’s a tricky question, and much depends on the answer. For starters, the principle of deference to agency fact findings, discretionary determinations, and statutory interpretations is a powerful shield for agency decisions running the gauntlet of judicial review. Whichever sovereign carries this defense is much more likely than not to win the day when a court reviews a federalism conflict pursuant to the Clean Air Act….Both state and federal agencies could render reasonable, yet different decisions on the same matter. In the case of such a federalism dispute, a reviewing court is in no position to split the difference. It must choose which sovereign merits respect, and which doesn’t.

Those are the stakes. And here are the details behind the cert petition that, if granted by the Supreme Court, would lead to a reckoning over these stakes: [click to continue…]

Per SNL,

UBS Securities LLC has downgraded Southern Co. shares to “sell”from “neutral” after the company disclosed cost overruns have pushed the in-service date for the Plant Ratcliffe project in Mississippi to mid-2015.

The news provides further evidence that one of the Obama administration’s top climate policy priorities is illegal.

Allow me to briefly explain. The Plant Ratcliffe project is the only carbon capture and sequestration system currently being constructed in the U.S. Last January, the EPA proposed the Carbon Pollution Standard, which would mandate that all new coal-fired power plants install carbon capture and sequestration. In the proposal, EPA relied on the Plant Ratcliffe project to demonstrate that CCS technology is “adequately demonstrated” as is required by the Clean Air Act.

However, the Clean Air Act forbids EPA’s imposition of a technology that is “exorbitantly” expensive. And the Plant Ratcliffe project, with a price tag of $5.5 billion for 582 megawatts capacity, is well more than 500 percent costlier than a comparably-sized conventional coal fired power plant outfitted with the latest environmental controls. A 500 percent price increase is excellent evidence that EPA’s Carbon Pollution Standard is “exorbitantly” expensive and, as a result, is illegal. The breaking news relayed above is further evidence. Thanks to the incredible costs of CCS at a single power plant, financial analysts are downgrading an entire utility’s stock. [click to continue…]

Last Friday afternoon, my colleague Chris Horner spoke about the EPA’s war on coal on The Blaze:

In the past month, federal watchdogs have raised two red flags over the Department of Energy’s green bank, a.k.a. the Loan Programs Office.

In April, the Energy Department Inspector General reported that the Loan Programs Office had failed to heed the advice of its solar energy expert, who had warned against the issuance of a stimulus-funded loan guarantee to Abound, a Colorado-based solar panel manufacturer that went bankrupt, costing taxpayers scores of millions of dollars.

Last week it was the Government Accountability Office’s turn. On May 1, the GAO released a report titled, “DOE Should Fully Develop Its Loan Monitoring Function and Evaluate Its Effectiveness.” The opening of the executive summary does not inspire confidence regarding the Energy Department’s ability to play the role of green energy investment banker:

“The Department of Energy (DOE) has not fully developed or consistently adhered to loan monitoring policies for its loan programs. In particular…policies for evaluating and mitigating program-wide risk remain incomplete and outdated.”

Lest you think that GAO was picking at needless details, consider: Included among the “loan policies” that the Energy Department has “not fully developed” are the credit reports (!!!) on the loan applicants. That’s a pretty glaring problem for a LOAN Programs Office that already has a $30 billion portfolio. Report reposted below.

GAO Report on DOE Loan Guarantee Program

In a 6-2 ruling rendered last Tuesday, Environmental Protection Agency  v. EME Homer City Generation, 572 U.S. __(2014), the Supreme Court addressed the scope of the EPA’s authority to regulate interstate pollution under the “Good Neighbor” provision of the Clean Air Act.

There are two parts to the ruling. In one part, the Supreme Court permitted the use of costs to define an upwind state’s contribution to downwind states’ pollution problems. In a previous post, I explained how this section of the ruling clarified more than a decade of confusing case law out of the D.C. Circuit Court of Appeals.

In today’s offering, I will analyze briefly the second part of the ruling in EPA v. EME Homer City Generation, in which the Supreme Court permitted the Agency define the States’ Good Neighbor obligations and, at the same time, impose a compliance regime. Simply put, the Court denied States a broad right to be a “first implementer” under the cooperative federalism scheme established by the Clean Air Act.

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Americans United for Change, a liberal group that seeks to “create a groundswell for a return to the traditional progressive values that have defined America,” plastered the airwaves during this Sunday morning’s political talk shows with a jingoistic ad that tries to tar opposition to ethanol by linking it to Saudi Arabia (below).

For the life of me, I can’t imagine why any self-proclaimed “progressive” group would back ethanol, a motor fuel manufactured from corn that increases the price of food and gasoline. By rendering food & fuel costlier, America’s ethanol policy hurts the poor the most, due to the fact that these basic necessities constitute a larger part of poor peoples’ income. Bluntly put, support for ethanol is regressive.

But that’s an aside to my main point: The advertisement is disgusting, if you’re the sort, like me, that doesn’t begrudge human beings for not being American. It’s clearly a play on anti-Arab sensibilities. Opposition to ethanol is a terrible thing, the ad tells us, because it is associated with evil Saudi Arabia, a.k.a., “the Kingdom.” Period. In the ad’s universe, if it’s Saudi, it’s bad.

This is, alas, the second lefty, xenophobic energy TV spot that recently has aired. In January, billionaire hedge fund environmentalist Tom Steyer produced an equally appalling public (dis)service announcement in opposition to Keystone XL. In Steyer’s over-the-top ad, the bogeyman was China.  Keystone is a “sucker’s deal” for America, the narrator avers, because the pipeline’s real beneficiary is allegedly China (below).

Washington Post gave the ad 4 Pinocchios, the paper’s highest possible condemnation of untruthfulness. In addition to being full of lies, the ad is tasteless. Indeed, it took an identical tack as the Americans for United Change spot, except the Saudis were replaced by the Chinese. That is, in the Steyer ad’s universe, if it’s Chinese it’s bad. Classy stuff!

To be sure, I understand why Americans United for Change and Tom Steyer would resort to such dirty politics. Their policy prescriptions–more ethanol, less Canadian oil–are awful for the public at large, for reasons that are detailed here, here, and here by my colleague Marlo Lewis. Because they can’t back their respective positions with a rational argument, Steyer et al. descend to the gutter, and appeal to the basest instincts.

The National Science Foundation reportedly spent $700,000 to produce an off-Broadway dramatization of global warming alarmism. It’s titled, “The Great Immensity,” and it sounds dreadful.

Per the New York Times review:

Written and directed by Steve Cosson, “The Great Immensity” stuffs thick binders of information about man’s trampling of nature into a pulpy story about a documentary filmmaker’s mysterious disappearance…

As it leaps between song and story, and past and present, “The Great Immensity” sometimes feels as if it were constructed by an impassioned college student with a brain full of facts and a fierce determination not to turn to Big Pharma to control that pesky attention-deficit problem. The show jumps around like a jittery monkey …

Hot-button topics fly by: the disappearing rain forests, the increasingly hungry polar bears, and so on …

Other highlights include a saucy song about the allure of “charismatic megafauna” (“I want a cute strong predator to fawn upon”)…

As it winds toward a somewhat preposterous conclusion, Mr. Cosson’s text is pocked with speeches about the urgent necessity of mending man’s rapacious ways…

“The Great Immensity” sounds very stupid, to be sure, yet it’s not even the stupidest waste of NSF dollars on climate alarmism that was brought to the public’s attention this week. Today, ClimateWire reports that the National Science Foundation has funded a 3 month role-play game of the “Cli-Fi” genre, i.e. the science fiction of global warming.* According to ClimateWire,

FutureCoast is a three-month-long climate fiction, or “cli-fi,” project created by Columbia University’s Polar Partnership with funding from the National Science Foundation. One part of the game involves participants hunting for physical chronofacts that have been planted in cities across the United States. The other involves people calling in from around the world to leave their own “voice mail from the future,” which is added to the FutureCoast website.

You can’t make this stuff up! I know that $1 million or so is a drop in the bucket relative to federal spending, but, yowsers, these stories do not inspire confidence in the stewardship of public monies at the National Science Foundation.

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