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Missing in Action: Constitutional Environmentalism

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Missing in Action: Constitutional Environmentalism

The most important thing the Obama administration could do in its second term to promote public health is terminate its regulatory war on affordable energy.

The state of the economy is a public health issue. Numerous stud¬ies show that poverty and unem¬ployment increase the risk of illness and death. Loss of employment, income, and economic opportunity can damage a household’s health and welfare more than all the emis-sions from the local power plant.

Affordable energy is critical to prosperity. Inconvenient truth: Without affordable energy, most labor and capital in a modern economy would be idle or not even exist. The administration’s envi¬ronmental agenda deserves failing marks because its central objective is to restrict the production and use of the carbon-based fuels that supply 83 percent of U.S. energy.

To be sure, President Obama claims to be a big booster of oil and gas production. His campaign web site boasted that U.S. oil produc¬tion in 2010 reached its highest level since 2003 and natural gas production its highest level in 30 years. Those figures are correct but misleading. All the increases in U.S. oil and gas production occurred on state and private lands. On federal lands, oil and gas production de¬creased due to declines in leasing, the Gulf of Mexico drilling morato¬rium, and permitting delays.

Obama’s aversion to affordable energy is long-standing. In January 2008, then-Senator Obama told the San Francisco Chronicle that under his plan for a cap-and-trade program, electricity prices would “necessarily skyrocket.” He also said anyone who builds a new coal power plant would go “bankrupt.”

When cap-and-trade was exposed as a stealth energy tax, the Ameri¬can people turned against it, oust¬ing in the mid-term elections 29 House Democrats who voted for the Waxman-Markey bill. Undeterred, Obama told the Washington press corps that cap-and-trade “was just one way of skinning the cat,” and vowed to seek other means to the same end.

In his 2011 state of the union address, Obama called for a “clean energy standard” roughly equivalent to Waxman-Markey in its projected adverse impact on coal-based power. However, Obama’s chief M.O. for skinning the cat has been to “enact” climate and energy policy via ad¬ministrative action.

The administration’s anti-coal agenda employs a pincer strategy, attacking coal both where it is combusted and where it is mined. EPA’s Utility MACT (for Maximum Achievable Control Technology) and “carbon pollution” rules would each effectively ban the construction of new coal power plants. The MACT rule establishes emission limits below levels that can accurately be monitored, denying potential inves¬tors the assurance that new units installing costly state-of-the-art con¬trols will be in compliance. Facing likely defeat by industry petitioners, the EPA agreed in July to reconsider the rule and set less stringent stan¬dards.

The proposed carbon pollution rule sets a performance standard (1,000 pounds of carbon dioxide per megawatt hour) that no com¬mercial coal plant can meet. EPA picked that number because it is the emission rate of a typical natural gas combined cycle (NGCC) power plant. Performance standards are supposed to reflect the “best system of emission reduction” “adequately demonstrated” for a given source category. But NGCC is a type of power plant, not an emission reduc¬tion system. The proposal absurdly assumes that a gas turbine is a pollu¬tion control device for a coal boiler. Congress never authorized the EPA to mandate fuel switching and would reject both the MACT and carbon pollution rules if introduced as legislation and put to a vote.

In 2010, EPA proposed saline effluent standards for mountaintop mining operations that Administra-tor Lisa Jackson acknowledged “no or very few” valley fills could meet. In 2011, the Department of the In¬terior interpreted the 1977 Surface Mining Control and Reclamation Act — a law adopted to authorize surface mining — as requiring a stream buffer rule that effectively prohibits surface coal mining. In the same month, EPA for the first time revoked a Clean Water Act permit granted by the Corps of Engineers to a coal mining project. The D.C. Court of Appeals struck down the effluent standards on procedural grounds and the permit revoca¬tion as exceeding EPA’s authority. The fate of the stream buffer rule remains to be determined. Needless to say, legislation embodying those policies would be D.O.A. on Capi¬tol Hill.

So not only does the administra¬tion’s environmental team not ap¬preciate the importance of affordable energy to public health, it also does not respect the separation of powers. Constitutional environmentalism is unlikely to fare any better under the second Obama administration.