February 10, 2016 11:02 AM
In an unexpected and unprecedented decision, the Supreme Court last evening granted an application by more than two dozen states to stay implementation of the Clean Power Plan during pendency of petitions for review.
Absent a stay, the imminent danger was that EPA could effectively escape judicial review in implementing the rule, which is President Obama’s marquee climate policy. Last year, for example, the Supreme Court checked EPA’s absurd Utility MACT, but not before 80 percent of utilities spent billions of dollars implemented the rule during the three years that it took for the legal challenge to run its course through federal courts. So, EPA had already won, even before the Court ruled the rule was impermissible.
The Clean Power Plan posed the same threat. Capital-intensive businesses like utilities must plan on a multi-year horizon, at least five years out. Indeed, power plants take years to build. The electric sector simply cannot wait for the slow wheels of justice to turn. As such, utilities likely would have locked in compliance during judicial review, regardless whether the regulation was determined to be illegal.
With last evening’s decision, the Court avoided a repeat of the Utility MACT injustice and, in so doing, scored a win for the rule of law, the Constitution, and common sense. Regarding the rule of law, I explained yesterday that the Clean Air Act plainly prohibits EPA’s Clean Power Plan, and the agency’s argument to the contrary is a “monument to disingenuousness.” From a constitutional perspective, the Court’s stay prevents EPA from “commandeering” states—in violation of the Tenth Amendment—by forcing them to spend significant administrative resources implementing federal climate policy they oppose. And from a common sense standpoint, the Court’s decision arrests EPA’s attempt to overhaul the nation’s electricity sector in order to achieve climate “benefits” that are too small to be measured.
The states submitted their application in late January to Chief Justice Roberts, who, in turn, sought counsel from his peers. As per usual, Justice Kennedy was the swing vote in the 5-4 decision. Justice Kennedy has a history of being solicitous of states’ “dignity” within American federalism, so I suspect he was impressed by the number of states that opposed the Clean Power Plan.
Where do we go from here?
In Defending Clean Power Plan before the Supreme Court, EPA/DOJ Misrepresent Clean Air Act with Lame Editing TricksFebruary 9, 2016 2:44 PM
Lawyers for the EPA and the Department of Justice (DOJ) are trying to pull a fast one on the Supreme Court. Through creative formatting, they are misrepresenting the text of the Clean Air Act such that it omits a major constraint on federal power.
At issue is Clean Air Act §7411(d)(1), which is a regulatory program to control emissions from existing stationary sources. Section §7411(d)(1) allegedly authorizes Obama’s marquee climate policy (known as the Clean Power Plan). Below, I’ve reposted the text of the provision in full.
§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title but (ii) to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance.
To help you unpack this provision, I’ve ordered it below in an outline format that comports with the express structural instructions in the provision’s text:
§7411(d)(1) The Administrator shall prescribe regulations which shall establish a procedure … under which each State shall submit to the Administrator a plan which
(A) establishes standards of performance for any existing source for any air pollutant
(i) for which air quality criteria have not been issued or which is not included on a list published under §7408(a) of this title or emitted from a source category which is regulated under §7412 of this title but
(ii) to which a standard of performance under this section would apply if such existing source were a new source, and
(B) provides for the implementation and enforcement of such standards of performance.
For challengers of the rule, the crucial language is in subsection §7411(d)(1)(A)(i), which acts to limit the EPA’s authority under the provision. Opponents of the rule argue that this subsection, by its plain terms, sets forth three independent disqualifying factors that constrain EPA’s authority:
- EPA can’t issue §7411(d) regulations (i.e., the Clean Power Plan) for pollutants for which air quality criteria have been issued;
- EPA agency can’t issue §7411(d) regulations for pollutants on the §7408 list;
- EPA can’t issue §7411(d) regulations for sources subject to §7412.
January 28, 2016 12:50 PM
“It is still three minutes to midnight,” proclaims The Bulletin of the Atomic Scientists in their latest “Doomsday Clock” report. The Atomic Scientists welcome the Iran nuclear deal and the Paris climate agreement as “incremental moves” towards a more “sustainable” planet. Nonetheless, they warn, “the hands of the Doomsday Clock must remain at three minutes to midnight, the closest they've been to catastrophe since the early days of above-ground hydrogen bomb testing.”
The notion that men in white lab coats can calculate the imminence or likelihood of global apocalypse is almost too ludicrous to entertain. Nonetheless, let us proceed as if the Atomic Scientists were engaged in legitimate research rather a propaganda exercise.
Way back in 1953, citing the first H-bomb tests by the United States and the Soviet Union, the Atomic Scientists said the world was only two minutes to midnight—the fateful hour, at the end of the countdown, when, supposedly, all hell breaks loose. Today, they claim the world is three minutes from midnight. That’s loopy. How can the world be minutes from destruction for more than 60 years?
Since 1949, the Doomsday Clock has never been more than 17 minutes from the Stroke of Doom. The driving factors in every case were nuclear testing, the arms race, and the success or failure of arms control negotiations.
Clearly, the Atomic Scientists have been exaggerating the likelihood of nuclear conflagration for decades. Indeed, one could even argue that the very arms race they have decried for the past 67 years actually helped limit armed conflict by making a third world war unacceptably costly to the Soviet Union and Mao’s China.
What’s novel about the latest iteration of the Doomsday Clock is that the Atomic Scientists now include climate change along with nuclear weapons as “humanity’s two most pressing existential threats.” But how can climate change be pushing us ever closer to the Eve of Destruction when the state of the world keeps improving?
January 26, 2016 3:18 PM
Last week, Bloomberg News’s Toluse Olorunnipa tweeted from a Detroit auto show that President Obama “slammed” Republicans for having predicted high gas prices during his administration. According to Olorunnipa, the president said, “I don't know what y'all paying right now, but it ain't no $6.50.”
Only one year before, in a virtually identical context, President Obama was singing the exact opposite tune. Then, as now, gas prices were low. Then, as now, Americans were flocking to SUVs and light trucks, resulting in record sales for domestic car manufacturers. Then—last January, in an exclusive interview with The Detroit News—the president warned that it would be foolish to expect gas to stay cheap forever. His overall point was to admonish Americans who, spurred by low gas prices, were buying new SUVs instead of smaller cars that better comport with his administration’s CAFE standards.
To recap: Last week, Obama lampooned Republicans for predicting high gas prices. Last year, Obama predicted high gas prices in the course of lecturing American car consumers.
January 21, 2016 12:48 PM
Today, January 21, 2016, is the final day for submission of comments on the Environmental Protection Agency’s (EPA) notice of proposed rulemaking concerning a Model Federal Implementation Plan (FIP) for compliance with the Clean Power Plan.
In other words, this is the opportunity for states who will be impacted by the Obama administration’s Clean Power Plan to voice questions and concerns about what implementation will mean for their state in terms of cost and legitimacy.
CEI’s William Yeatman compiled comments for submission as part of an effort driven by numerous nonprofits around the country and in Washington, D.C.
January 13, 2016 9:55 AM
PRESIDENT OBAMA: “Look, if anybody still wants to dispute the science around climate change, have at it. You’ll be pretty lonely, because you’ll be debating our military, most of America’s business leaders, the majority of the American people, almost the entire scientific community, and 200 nations around the world who agree it’s a problem and intend to solve it.”
RESPONSE: President Obama has the politics all wrong. In fact, Obama ran to the right of Romney on energy policy in 2012. That Obama, the one trying to get elected by the American people, was pro-fossil fuel (even coal), and he avoided talking about climate change. Only after he was elected to a second term did Obama make climate change a legacy issue. Now, he’s claiming that the “majority of the American people” want him to implement climate policies. Of course he is being disingenuous. If he believed this was true, he would have run on the issue in 2012. Instead, he ran from it.
October 15, 2015 12:42 PM
Controversy continues to swirl around the September 1 letter from 20 climate scientists to President Barack Obama, Attorney General Loretta Lynch, and White House science adviser John Holdren requesting a RICO (Racketeer Influenced and Corrupt Organizations) investigation of “the fossil fuel industry and their supporters.” The scientists allege that the aforementioned interests “knowingly deceived the American people about the risks of climate change, in order to forestall America's response to climate change.” In May, Senator Sheldon Whitehouse (D-R.I.) called for a RICO investigation of “fossil fuel companies and their allies.” The scientists “strongly endorse” Sen. Whitehouse’s proposal.
What boggles the mind is not that 20 climate scientists would attempt to stifle debate, drive the market out of the marketplace of ideas, and punish those who do not worship at the altar of “consensus.” There’s no shortage of “progressive” intolerance in these times. Using RICO to silence opponents is fairly tame compared to environmental activist Robert F. Kennedy, Jr.’s demand that fossil-fuel executives be tried for treason (the usual punishment for which is death).
What’s noteworthy about the RICO 20 is the scientists’ lack of self-awareness—their inability to judge themselves by criteria they invoke to condemn others. They have no clue how easily they can be hoist on their own petard.
What is it, exactly, that fossil-fuel interests conspire to hide from Congress and the public, according to the RICO 20?
The stability of the Earth’s climate over the past ten thousand years contributed to the growth of agriculture and therefore, a thriving human civilization. We are now at high risk of seriously destabilizing the Earth’s climate and irreparably harming people around the world, especially the world’s poorest people.
Well, the “stability of the Earth’s climate over the past 10,000 years” is not all it’s cracked up to be. The planet has been through three cycles of cooling and warming in the past 2,600 years, and experienced a major cooling event 8,200 years ago (see pp. xiv-xv of this book). In addition, substantial evidence indicates that humanity suffered in cold periods and prospered in warm periods. But let that pass.
The core issue in the global warming debate is not whether climate change risks exist but how much is really known about them (EPA’s climate change impacts report, for example, is rife with flimflam) and whether the usual set of “climate solutions” would actually make the world a better place or would instead be a cure worse than the alleged disease.
The RICO 20—and indeed all educated climate campaigners—have to know several key facts they never mention in their advocacy campaigns:
(1) Affordable, reliable, scalable carbon-based energy has made, and continues to make, indispensable contributions to human health and well-being. Over the past 250 years, global average life expectancy more than doubled, global per capita GDP increased nearly eightfold, and global population increased more than sevenfold. Those positive trends, which are the best overall indicators of human health and welfare, are strongly correlated with rising carbon dioxide (CO2) emissions from fossil fuels. Fossil energy-supported economic development has vastly improved the health, welfare, and sustainability of the human species.
October 6, 2015 12:01 PM
Democrats have developed a cottage industry in ridiculing and condemning Republicans as Luddites. How can any “reasonable” person deny that increased greenhouse gas concentrations in the atmosphere pose a global threat? Certainly dramatic shifts in average global temperatures will have dramatic consequences within a century for many nations?
But, of course, few skeptics base their arguments on science alone. Critics oppose policies that would restrict current fossil fuel use on a global basis, noting the positive link between energy use and growth and the drastic consequences restricting supplies would pose, especially to already energy-starved regions of the world. Critics suggest a risk/risk approach to the climate change issue: consider the consequences of restricting fossil fuels today versus the consequences of continuing current energy use (with its attendant growth and innovation gains), while relying on those wealth and knowledge gains to make possible adaptations, if needed, at lower costs and pain.
I outlined that approach long ago (see “The Role of Opportunity Costs in the Global Warming Debate” from the 1997 book Costs of Kyoto). Rational analysis always faces those three options: act now to minimize the threat, act now to reduce the impacts of the threat, and delay while knowledge and wealth increase. Note that most of us delay employment while we acquire greater life skills—do Democrats critique that choice for young people?
Republicans, noting how past “crises” have been botched by a rush to act, rather than thinking, view the putative risks of climate change as but one of the many risks. The uncertainties of science, economics, and politics—all relevant if a rational, effective policy is to exist—should suggest to critics (some of them running for president), that rather than damaging our economy, as is happening in Germany and other European nations, we should aggressively seek to remove the regulatory and tax distortions that are slowing entrepreneurial growth.
September 24, 2015 12:17 PM
Pope Francis in his speeches at the White House on Wednesday morning and to a joint session of Congress on Thursday morning toned down his rhetoric on climate change and modern industrial civilization. Way down.
Here are the Pope’s key remarks on climate change at the White House:
Mr. President, I find it encouraging that you are proposing an initiative for reducing air pollution. Accepting the urgency, it seems clear to me also that climate change is a problem which can no longer be left to a future generation. When it comes to the care of our “common home”, we are living at a critical moment of history. We still have time to make the changes needed to bring about “a sustainable and integral development, for we know that things can change” (Laudato Si’, 13). Such change demands on our part a serious and responsible recognition not only of the kind of world we may be leaving to our children, but also to the millions of people living under a system which has overlooked them.
I don’t think many people are going to get excited about the Pope’s tepid support of President Obama’s energy-rationing agenda.
September 18, 2015 4:10 PM
On Thursday of next week, Pope Francis will address a joint session of the U.S. Congress. He will be the first Pope in history to do so.
As reported in ClimateWire (subscription required), Thomas Reese, a commentator for National Catholic Reporter, opines that the Pope is coming as both pastor to American Catholics and as a prophet who seeks to “comfort the afflicted and afflict the comfortable.” Another commentator described the Pope’s mission as “speaking truth to power.”
We won’t know what Francis has to say until he says it, but he is widely expected to reiterate themes from his recent Encyclical, which calls for “changes in lifestyle, production and consumption, in order to combat [global] warming,” and for drastic greenhouse gas emission reductions based on the assessment that fossil-fueled economic growth is “unsustainable” and “can only precipitate catastrophes.”
If so, then Francis also unwittingly comes to comfort the comfortable and afflict the afflicted, because few are as comfortable as the elites leading the international climate agenda, and few so afflicted as the billions of people in developing countries who lack access to affordable, reliable, carbon-based energy.
Speaking truth to power is noble, but to actually do it one must know what the truth is. On climate and energy, there are many fundamentals Francis does not seem to grasp.
One is simply that anthropogenic global warming is not per se a crisis or planetary emergency. What matters is how much warming there will be and with what impacts. Big, scary warming predictions come from climate models that increasingly overshoot observed warming.