William Yeatman

My colleague Chris Horner appeared on Fox News’s Hannity last night to discuss the cause of the big chill that’s gripped much of the nation. His debate with clean tech investor Howard Gould starts about four minutes in.

Inside EPA’s Dawn Reeves reports this afternoon that EPA tomorrow will publish in the Federal Register a proposal of the agency’s signature climate policy, the Carbon Pollution Standard. To much fanfare, EPA Administrator Gina McCarthy last September 20 unveiled a pre-publication version of the proposal, but the measure takes affect only after it’s been published in the Federal Register. It remains unknown why the rule was held up for an unusually long three and a half month delay, but last week I speculated that the agency was having difficulty adopting a legal justification for its proposed determination that all new coal-fired power plants must install carbon capture and sequestration (CCS). In order for the Carbon Pollution Standard to pass judicial review, CCS technology must be “commercially viable.” As I’ve written repeatedly, legal precedent together with market realities strongly indicate that CCS has not been adequately demonstrated, and is, therefore, an impermissible basis for the proposed regulation.

I’ve not yet had the time to read the final proposal, a copy of which is available here, but InsideEPA’s Reeves reports that it has not changed significantly from the pre-publication version. Instead, sources tell Reeves that the agency has bolstered its explanation that CCS is (supposedly) commercially viable in supporting documentation, which isn’t yet publicly available. That material should be posted online tomorrow, at which time I’ll pour over it and report back to you. Stay tuned!

The New Yorker’s humorist Andy Borowitz has penned a pugilistic piece of satire, about all the people who’ve been punched out because they remarked in public that the freezing cold temperatures currently gripping much of the nation are incongruent with global warming. Hilarious! Read the short, smug note here.

Presumably, Borowitz’s antipathy for “deniers” in this instance is based on their having mistaken weather for climate. Indeed, it’s a common error. Consider, for example:

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John McLaughlin, the eponymous host of the wonderful roundtable show The McLaughlin Group, gave global warming alarmism both barrels during last week’s broadcast, much to the delight of this regular viewer. The occasion was the 32nd annual McLaughlin Group year-end awards, 2013, part one.

The first salvo came during a segment given to the “most original thinker award of 2013.” The American Conservative’s Pat Buchanan gave this to Peter Higgs; Newsweek’s Eleanor Clift awarded Jeff Bezos; U.S. World & Report’s Mort Zuckerman recognized Pope Francis; and the Chicago Sun Times’s Clarence Page identified Google’s driver-free cars as the recipient of his most original thinker award of 2013. Finally it was John McLaughlin’s turn, and here’s what he said:

The most original thinker is Michael Fumento, an investigative writer and attorney living in Colombia. Fumento has painstakingly documented the unfulfilled and erroneous predictions of climate-change computer models. Now a growing list of scientists reject the so-called consensus that manmade climate change is real. Fumento’s patient debunking of the prevailing orthodoxy makes him the most original thinker of 2013.

Presumably, McLaughlin based this award on Fumento’s recent NY Post op-ed, Global Warming Proof Is Evaporating.

The second shot came shortly thereafter, during the “enough already award for 2013” segment. Buchanan chose Alec Baldwin; Clift went with the Tea Party; Zuckerman identified the Kardashian brood; and Page selected Anthony Weiner. On his turn, McLaughlin said,

The enough, already award goes to global warming, the theory that now masquerades under the pseudonym of climate change. Even its most honest supporters now admit that there has been no increase in the earth’s surface temperatures for 15 years. It’s time to admit the theory is flawed.

Hear, hear!

Watch the whole video below.

Today marks three months and ten days since EPA transmitted the proposed Carbon Pollution Standard, a regulation that would effectively ban coal-fired power plants, to the Office of Information and Regulatory Affairs (OIRA) for review. The unusual delay suggests that EPA’s signature climate policy is enduring the bureaucratic equivalent of a spanking. And if OIRA indeed is taking EPA to the woodshed over the agency’s flawed Carbon Pollution Standard, there’s a distinct possibility that the rule might change significantly when it is (finally) published in the Federal Register.

OIRA was created by the Congress with the enactment of the Paperwork Reduction Act in 1980. At the time, the American public was wary of intrusive government regulations. This widespread sentiment (best captured by pop culture in the form of Walter Peck, pictured left) was in part a natural reaction to stagflation, but a decade’s experience of the Great Society getting mugged by reality also played a big role. In this political context, OIRA’s broad mandate was help alleviate the paperwork burdens imposed by the federal regulatory state on American businesses and private individuals.

In 1981, President Ronald Reagan substantially increased OIRA’s authority with the promulgation of Executive Order 12291, which required that federal agencies submit their proposed and final regulations to OIRA for review. Thus, OIRA became a primary means by which the President could affect regulatory policy. President Clinton updated the terms of OIRA’s regulatory review in 1993 with the issuance of Executive Order 12866. The two Orders did not engender materially different procedures.

The exact authority exerted by OIRA’s regulatory review is somewhat murky. OIRA’s mandate, according to its authorizing executive order, is to review “significant” agency regulations, in order to ensure that they are consistent with the “applicable law” and “the President’s priorities.” The Office’s power is limited to returning flawed regulations to agencies, which must then reformulate the measures, presumably to better comport with “applicable law” and “the President’s priorities.” Yet Congress usually delegates regulatory authority to specific agencies, not to a certain agency AND the Office of Information and Regulatory Affairs. A Congressional delegation of rule-making authority is not akin to a “plus one” party invitation that affords the White House the opportunity to add a second rule-maker to an existing regulatory regime. It follows that if OIRA’s input were to alter the substance of a regulation, which it almost certainly does, such influence would likely be an impermissible encroachment on the exclusive regulatory power delegated to the agency in question. Nonetheless, the legal authority of OIRA’s regulatory reviews remains unclear, due to the simple fact that OIRA’s input is shrouded in secrecy. Rare is the instance when OIRA’s draft comments during regulatory review are leaked to the public. Even in the case when OIRA’s input becomes public knowledge, it’s still extremely difficult, if not impossible, to prove that OIRA’s unduly influenced the rule. (A regulatory agency must be afforded the discretion to speak for itself, so as long as the agency head does what the White House asks, there’s no way to prove that OIRA was the cause of any aspect of a final rule).

Putting aside for a moment OIRA’s utter lack of transparency, there is ample reason to believe that OIRA is scrutinizing EPA’s proposed Carbon Pollution Standard.

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Regardless the ongoing environmental impacts of the Fukushima Daiichi nuclear event in March 2011, which no doubt remain significant, the forced evacuation of more than a hundred thousand people in the region proximate to the power plant was an unmitigated disaster. As reported by the Wall Street Journal, there are a possible 194 excess cancers among the Fukushima population, while 1,600 persons died from the forced evacuation. That’s a terrible cost benefit ratio.

In fact, this was a policy mistake; only by government design were 130,000 people moved from their homes. To be sure, these measures were taken in the grip of hysteria. But that’s the point: hysteria seemingly always carries the day when it comes to policies that pertain to nuclear radiation, not just in Japan, but everywhere.  According to Reason’s Jon Utley, “Irrational fear of radiation permeates Washington’s civil defense and nuclear regulatory guidelines.”

Utley recently wrote an informative post about the extent to which unfounded alarmism permeates U.S. nuclear policy. In it, he elaborates on the costs of this misplaced fear. He also identifies environmentalist special interests as a key conduit through which is disseminated misinformation about the dangers of radiation. Of course, it will come as no shock to readers of this blog that green groups manufacture alarm as a means of expanding their own influence (See: Warming, Global). Read Utley’s entire, excellent post here.

The plot is thickening with regard to EPA Administrator Gina McCarthy’s role in l’affaire Beale, the case of the phony spy who duped the agency out of almost a million dollars in undeserved bonuses and reimbursements.

John C. Beale—if that is his real name—will be sentenced this week in a federal court. He’s looking at a minimum of thirty months in prison, a stiff punishment that reflects the gravity of his crime. According to EPA’s press shop, Mr. Beale “went to great lengths to deceive and defraud the U.S. government.” The agency’s account, however, is belied by the evidence.

In fact, Mr. Beale fooled the EPA without much effort. He took fancy trips, and then charged EPA for reimbursements, and no questions were asked. He took paid leave time off, claiming that he was moonlighting for the CIA, and no questions were asked. These are not the devices of a criminal mastermind; rather, they are the markings of negligent oversight.

Imagine if you were a manager, and a high ranking official in your shop was receiving thousands of dollars of paid time while claiming to be working for the CIA. Wouldn’t you think: ‘Why isn’t he billing the CIA?’ That’s an obvious question, yet no one at EPA asked it. Again, this is oversight so lax that it borders, if not crosses into, negligence.

Absent spin, the Beale situation is an unfavorable mark on his superior’s record. Mr. Beale was a high ranking official at the EPA office of Air and Radiation. From February 2009 to February 2013, Beale’s boss was Gina McCarthy, who has since been promoted to EPA Administrator. Logically, Administrator McCarthy is where the buck stopped. As Beale’s boss, she shouldered some responsibility for his getting away with this outrageous ruse.

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Over at Master Resource, I debunk the myth that EPA’s proposed Carbon Pollution Standard is no different than the agency’s sulfur dioxide mandates for new coal-fired power plants in the 1970s. This false analogy, which is being peddled by high ranking EPA officials and influential Members of Congress, is based on the mistaken assertion that sulfur “scrubber” technology then was similar in development to carbon capture and sequestration now. In fact, there were two sulfur dioxide NSPSs in the 1970s. For the first, in 1971, “wet” scrubbers were deemed “adequately demonstrated.” For the second, in 1979, “dry” scrubbers were deemed NOT to be “adequately demonstrated.” To see how scrubber technology in the 1970s actually stacks up against CCS technology, see the chart below. Read the part 1 of the post here. In part 2 of the post, I demonstrate how proponents of the Carbon Pollution Standard undercut their legal case when they make the inapt CCS-scrubber comparison.

Last week the Office of Management and Budget Office of Information and Regulatory Affairs published the Fall 2013 Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, a twice-yearly summary of regulatory priorities as determined by each executive agency.

EPA’s Fall 2013 Statement of Priorities is notable for what makes the list, but especially so for what is left off it. The agency’s priorities are:

• making a visible difference in communities across the country;
• addressing climate change and improving air quality;
• taking action on toxics and chemical safety;
• protecting water: a precious, limited resource;
• launching a new era of state, tribal and local partnership; and
• working toward a sustainable future.

The first priority—“making a visible difference in communities across the country”—sounds scary to me. I’d rather not encounter EPA meddlers like Walter Peck. Keep the green police out of my neighborhood.

EPA’s second priority—“addressing climate change and improving air quality”—is misleading, because the agency itself concedes that its climate change regulations won’t engender a discernible difference,** due to the fact that the preponderance of present and future emissions originate in other countries where EPA has no authority.

The third priority—“taking action on toxics and chemical safety”—also is cause for suspicion, given that EPA’s foremost action on toxics to date, the 2012 Mercury and Air Toxics Standard, was an absurd, politically motivated regulation that cost $10 billion/year, in order to protect a supposed population of fisherwomen who consume 200 pounds of self-caught fish, from exclusively the most polluted freshwater bodies, during their pregnancies.

The fourth priority—“protecting water: a precious, limited resource”—is, in fact, a raw power grab.

The fifth priority—“launching a new era of state, tribal and local partnership”—is Orwellian boilerplate, as it imparts the opposite of reality. In fact, this administration’s EPA has seized the States’ rightful priorities under the cooperative federalism scheme of environmental regulation created by Congress.

And the sixth priority—“ working toward a sustainable future”—is empty enviro’ mumbo-jumbo.

So, EPA’s 2013 Statement of Priorities is a mess, establishing goals that range from frightening to pointless. However, the truly noteworthy aspect of the list is what it omits: Namely, an EPA priority along the lines of “doing our job.” As I explain in a recent paper, EPA has a woeful record meeting statutory deadlines for regulatory action, which are the agency’s priorities as dictated by Congress. Since 1993, for example, 98 percent of EPA regulations (196 out of 200) pursuant to three core Clean Air Act programs were promulgated late, by an average of 2,072 days after their respective statutorily defined deadlines.

Rather than abide by the mushy list enumerated in the Unified Agenda, it would be far better if the agency gave priority to effectuating the will of the nation’s elected representatives. That is, it would be ideal if the agency deigned to do its job.

** Consider the following exchange between Rep. Mike Pompeo (R-Kansas) and EPA Administrator Gina McCarthy during a September 18 House Energy and Commerce Committee hearing, in which she concedes that none of EPA’s climate regulations will have a discernible impact on the climate.

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