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Regulating ozone became much more confusing yesterday, as the EPA’s Clean Air Scientific Advisory Committee (CASAC) leaned on a muddled mandate from the D.C. Circuit Court to introduce even more uncertainty into the standard setting process.

Under the Clean Air Act, EPA must establish, and periodically review, a national standard for ambient air concentrations of ground-level ozone at a level “requisite to protect public health” with an “adequate margin of safety.” And in 1977, the Congress established CASAC to provide “independent” advice to EPA on the setting of national standards for pollutants like ozone. CASAC’s seven member board is nominated annually, primarily from the ranks of epidemiologists and public health officials.

Setting an ozone standard at a level that protects public health with a margin of error sounds simple enough, but in practice it is an impossible task. There is, in fact, no threshold at which ambient air concentrations of ozone ceases to have an effect on human health. To be sure, we’re not talking about mortality (at least, not in the U.S.). Instead, there’s evidence that ozone can be a non-mortal irritant to sensitive populations in rough proportion to air concentrations.

Because there’s no threshold below which there is zero impact, it’s absurd to require, as does the Clean Air Act, EPA to choose a specific level of ozone that is “requisite to protect public health” with an “adequate margin of safety.” Such levels simply don’t exist. In light of this inherent contradiction between the directives of the Clean Air Act and the physical realities of ozone pollution, courts are put in an unenviable position when they try to determine whether the agency’s ozone NAAQS adheres to the statute. The D.C. Circuit Court of Appeals has exclusive jurisdiction to hear a challenge to an ozone NAAQS promulgated by EPA, and the Court’s current approach to such a review can be located in a ruling that was delivered last summer, in Mississippi et al. v. EPA.

The Mississippi ruling introduced a dichotomy between “science” considerations and “policy” considerations. The former (science considerations) is construed as pertaining to the component of the ozone NAAQS that is “requisite to protect public health.” The latter (policy considerations) is the component of the NAAQS that represents an “adequate margin of safety.”

For “science” considerations, the Court reasoned that CASAC’s recommendations are basically controlling. I’ve written before about the troubling ramifications of giving such a broad power to an unelected group of technocrats.

For “policy” considerations, the Court determined that EPA has a much greater degree of discretion. So, for these considerations, which pertain to establishing a margin of error beyond an ozone standard that is “requisite” to protect public health, CASAC’s advice is not controlling.

As I explained at the time, the difference between “science” and “policy” considerations was less than clear cut as articulated by the Court. To my eyes, it looked like a “judgment call.”

Yesterday morning, CASAC convened to decide upon its first ozone NAAQS recommendation since Mississippi et al. v. EPA. Currently the ozone standard is set at 75 parts per billion (ppb). At the outset of yesterday’s meeting, all CASAC members agreed that the standard should be set at least as stringent as 70 ppb. However, the panel was divided on how stringent  an ozone standard to recommend. Some members supportted a standard near 60 ppb, while others supported a standard closer to the upper limit (i.e., 70 ppb).

In order to achieve a compromise and attain consensus, CASAC panelists agreed to get lawyerly. According to InsideEPA’s Lea Radick, they will recommend an upper limit of 70, “given that the [the recommendation] to [EPA Administrator Gina] McCarthy is modified to indicate [that] 70 ppb has a “limited” or “inadequate” margin of safety.” Also, BNA’s Patrick Ambrosio reported that CASAC will identify a “policy preference” for an ozone standard set between 60 to 65 ppb.

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President Obama, the Environmental Protection Agency, and their allies are laying it on really thick with the use of children in general, and asthmatic children in particular, as political props in promotion of the agency’s just-released climate plan. In fact, the rule has nothing to do with either (1) children or (2) asthmatic children, because (1) the rule won’t impact global temperatures and (2) greenhouse gases don’t trigger asthma. Such inconvenient truths haven’t stopped proponents of the rule from running every cheap “it’s for the kids” trick in the political playbook. [click to continue…]

Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes. Whitman v. American Trucking Associations 531 US 457, 468 (2001)

During the last month, both Politico and the New York Times have published reports on the origins of Clean Air Act §111(d), the statutory provision that authorizes a major climate change regulation for existing power plants that EPA rolled out this week. Notably, both of these major media outlets chose the word “obscure” to describe §111(d).

The modifier is apt. At 291 words, §111(d) is a relatively tiny provision in the Act, a proportion that befits its limited purpose (as intended by the Congress). In fact, §111(d) is defined primarily by what it isn’t. The foundational air quality regulatory regime established by the Clean Air Act is the National Ambient Air Quality Standards program; NAAQS addresses 6 “criteria” pollutants. The other major air quality program for stationary sources in the Act targets hazardous air pollutants from industrial categories. The objective of §111(d) is to regulate existing sources of pollution that IS NOT a “criteria” pollutant (i.e., subject to a NAAQS) or a hazardous air pollutant.

Not surprisingly, applications of this catch-all provision have been few and far between. Since implementing regulations were first promulgated in 1975, EPA has used §111(d) to regulate four pollutants from five source categories: (1) sulfuric acid mist emissions from sulfuric acid production plants; (2) fluoride emissions from phosphate fertilizer plants; (3) fluoride emissions from primary aluminum production plants; (4) total reduced sulfur from kraft pulp mills; and (5) landfill gases from solid waste landfills. All told, these regulations have affected maybe 80 sources (and that’s a very conservative estimate).

So…§111(d) has been employed by EPA a handful of times to a few score sources during the last 40 years. Moreover, it has never been controversial. Indeed, many of EPA’s approvals of state plans to meet §111(d) requirements were promulgated as “direct final rules,” which the agency only uses when it’s confident the matter is ultra-mild and no one will object. The length of EPA approvals of State plans averages 2 pages in the Federal Register. This is truly an obscure provision.

And yet…§111(d) is, today, the basis of an EPA regulation that would overhaul electricity oversight in 50 States. Costs no doubt will be significant, but more important is the gross expansion in federal power, a subject that I explain here and here (audio). Eighty years ago, Congress explicitly barred federal energy regulators from interfering with State management of the electricity sector within that State’s borders.* Now, for the first time ever, EPA is claiming such powers over States—authority, again, that has long been denied the Federal Energy Regulatory Commission (and it precursors). And the legal foundation of this unprecedented (and expensive) growth of the federal government is…an “obscure” provision of the Clean Air Act. To my eyes, this is the quintessential elephant in a mousehole. [click to continue…]

Today on E&E TV, Roger Martella, a partner at Sidley Austin and former EPA general counsel, discussed some of the legal and economic issues raised by EPA’s carbon “pollution” rule for existing power plants, which the agency released Monday (June 2, 2014).

The rule requires states, on average, to achieve a 30% reduction in power-plant carbon dioxide (CO2) emissions below 2005 levels by 2030. It allows states to meet their respective targets through four main strategies: increase the efficiency of coal electric generation, substitute natural gas generation for coal generation, substitute renewable and nuclear generation for fossil-fuel generation, and reduce electric demand by industry and other end-users. To implement those strategies, states may use various policy options including cap-and-trade, renewable electricity mandates, and demand-side management programs.

In this brief post, I will state the gist of some of interviewer Monica Trauzzi’s questions and excerpt from Martella’s responses.*

Q: How much flexibility is EPA actually giving states to comply with the rule?

RM: On the one hand, the word that was probably used the most during Administrator McCarthy’s presentation [on Monday] was “flexibility,” and she kept her promise to give the states as much flexibility as possible. And from one perspective that’s true. I think EPA’s basically saying any way you want to reduce greenhouse gas emissions, we’ll find a way to make it work. But what she didn’t discuss as much was the other side of that coin, which is the numeric targets that EPA’s set for individual states, now, I think 49 states, state-by-state numeric targets. In some cases those are extremely aggressive, not flexible, and EPA makes it very clear these will be mandatory, binding targets on these states. [click to continue…]

Today I was a guest on the Liberty Week podcast, hosted by my CEI colleague Ryan Young. The subject of the show is EPA’s new climate plan for existing power plants. Click here for a listen.

Cap and trade was just one way of skinning the cat; it was not the only way.  It was a means, not an end.  And I’m going to be looking for other means to address this problem. – President Barack Obama, Nov. 3, 2010

President Obama uttered those words the day after Democrats lost the House — a defeat in no small part due to their support for the American Clean Energy and Security Act (H.R. 2454), better known as the Waxman-Markey cap-and-trade bill.

The President did look for other ways of “skinning the cat.” For example, in his 2011 State of the Union Speech, he called on Congress to enact a national clean energy standard. By some strange coincidence, the policy would have restructured the electric power sector very much along the lines of the “basic” case in the Energy Information Administration’s analysis of the Waxman-Markey bill.

What President Obama neglected to mention, though, is that he – or his EPA – would also attempt to skin the cat in the same old ways.

EPA’s carbon “pollution” rules put back into play the potpourri of anti-fossil fuel policies that were core strategies of the Waxman-Markey bill.

Team Obama’s political chutzpah is off-the-charts.

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The controversy over the Keystone XL pipeline is totally artificial, a fabrication of green politics.

Something like 2.5 million miles of oil and gas pipelines already crisscross the lower forty-eight.

How in the world would adding another 875 miles (the orange line in the map below) to that vast network push it over some kind of national interest ‘tipping point,’ endangering the economy or ecology of the U.S.? [click to continue…]

During yesterday’s roll out of the EPA’s climate plan for existing power plants, Administrator Gina McCarthy said something alarming, and I’m not talking about her global warming spiel. Rather, I’m referring to her evident flippancy regarding the potential for EPA’s rules to turn out the lights. Below, I’ve reposted the passage that raised my eyebrow:

The critics are wrong about reliability, too. For decades, power plants have met pollution limits without risking reliability.* If anything, what threatens reliability and causes blackouts is devastating extreme weather fueled by climate change. I’m tired of people pointing to the Polar Vortex as a reason not to act on climate.

Here, Administrator McCarthy is referring to the fact that coal saved much of the country’s bacon during last winter’s polar vortex. Due to logistical constraints, there weren’t adequate supplies of natural gas for both space heating and electricity generation in many areas of the northeast when temperatures plummeted. So coal power had to save the day. However, 90% of the coal capacity that was called into action to avert an energy crisis—only months ago(!)—will be retired next spring due to EPA’s outrageous, ultra–political Utility MACT.

According to FERC Commission Philip Moeller, rolling blackouts will be a “possibility” thanks to EPA’s nonsensical Utility MACT. But don’t bother Gina McCarthy about it! She’s “tired” of hearing about it.

Notably, an informal FERC analysis shredded EPA’s reliability analysis for the Utility MACT, which has since proven so unreliable. With this in mind, it shouldn’t be comforting to learn that the agency’s just-unveiled climate plan also was subjected to an EPA reliability analysis, and the rule passed with flying colors.

*This statement–“For decades, power plants have met pollution limits without risking reliability”–fails to account for the fact that the EPA has never been as politicized (ie, captured by green special interests) and power hungry as it has been since 2009.

In her speech today announcing EPA’s plan to cut power-sector carbon dioxide (CO2) emissions 30% below 2005 levels by 2030, EPA Administrator Gina McCarthy said agency critics who warn of dire economic impacts “sound like a broken record.” But what is more repetitive — or more misleading — than trying to sell EPA’s power grab as a childhood asthma remedy?

McCarthy began her speech as follows:

About a month ago, I took a trip to the Cleveland Clinic. I met a lot of great people, but one stood out—even if he needed to stand on a chair to do it. Parker Frey is 10 years old. He’s struggled with severe asthma all his life. His mom said despite his challenges, Parker’s a tough, active kid—and a stellar hockey player.
 
But sometimes, she says, the air is too dangerous for him to play outside. In the United States of America, no parent should ever have that worry. . . .Rising temperatures bring more smog, more asthma, and longer allergy seasons. If your kid doesn’t use an inhaler, consider yourself a lucky parent, because 1 in 10 children in the U.S. suffers from asthma.

According to the Centers for Disease Control, 1 in 11 children in the U.S. had asthma in 2010. That is a remarkable fact. I had severe asthma as a child, so was sensitized to the issue. Throughout elementary, middle, and high school, lots of other kids knew I had asthma — because hardly anyone else had it. In six years of summer camp in the New Hampshire woods, I had frequent asthma attacks — and was the only camper so afflicted. That was in the 1960s.

What happened since then? For one thing, childhood asthma rates increased dramatically. But during the same period, the air got dramatically cleaner.

Source: EPA

Yes, heat is a factor in turning ozone precursors into smog. But despite global warming — and, perhaps more importantly, the expansion of urban heat islands — urban air quality keeps improving. So whatever has increased childhood asthma rates, it’s not outdoor air pollution or whatever small increment of it might be attributable to global warming.

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