By Dr. Larry Bell, Forbes Reprinted with permission of author
What potential consequences will result now that the Supreme Court announced in October that it will review the June 2012 D.C. Circuit of Appeals decision in Coalition for Responsible Regulation v. EPA which upheld four of the agency’s main greenhouse gas rulings. In the new case, Utility Air Regulatory Group v. EPA, the Court will limit its review to one question: “Whether EPA permissibly determined that greenhouse gas emissions from new motor vehicles triggered requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”
So what does this really mean? What impact will such a ruling have depending upon whichever way it goes? I have asked my good friend Marlo Lewis, a senior fellow at the Competitive Enterprise Institute in Washington, D.C., to discuss the implications regarding whether petitioners win or lose.
Marlo, first of all, what potential significance does this Supreme Court decision to review the case have? Does it indicate evidence of a shift within the Court with regard to statutory boundaries of the EPA’s regulatory authority?
Larry, only time will tell. The Court’s grant of “certiorari” to reassess the lower court’s ruling could simply mean that some of the Justices want to end litigation attempting to roll back or limit the regulatory consequences of the Supreme Court’s earlier finding in Massachusetts v. EPA that the agency could determine that CO2 was a pollutant subject to regulation under the Clean Air Act. Accordingly, the EPA then claimed regulatory authority premised upon claimed climate impacts asserted in its Endangerment Rule.
My hunch, though, is that the Court agreed to review the case because some Judges do have serious concerns about the legality of EPA’s regulation of greenhouse gas emissions from stationary sources.
Bear in mind that this reassessment explicitly won’t address EPA’s May 2010 “Tailpipe Rule” which established first-ever greenhouse gas emission standards for motor vehicles, much less the December 2009 Endangerment Rule which represents the fountainhead of all greenhouse gas regulations. Still, a determination that nullifies EPA’s authority to regulate stationary sources can represent a major political and policy setback for EPA.
Overturning the Timing Rule would limit the EPA’s greenhouse regulations mostly to mobile sources, at least for the next few years. EPA would have to mothball its big plans to impose greenhouse permitting requirements on modified power plants as well as new steel mills, cement production facilities, paper and pulp factories and other large industrial installations. That would validate criticism that the agency is bent on expanding its power regardless of the law.
I’m not sure how much overturning the rule would help the economy, but it certainly would not hurt! It would avert regulatory burdens that hinder job creation and make U.S. firms less competitive. It would avoid at least some higher energy and production costs that regulated entities would pass on to consumers.
If the Court decision goes against the plaintiffs, does this mean “game over” insofar as future challenges to EPA’s greenhouse gas regulatory binge?
No, I don’t believe that is necessarily true. While many global warming crisis skeptics and limited government advocates continue to be terribly disappointed that the Court has declined to review either the Endangerment Rule or subsequent Tailpipe Rule, the case could still rekindle public and policymaker support for legislative action to rein in the agency and contain fallout from Mass v. EPA.
Even if the Court upholds the Timing Rule, petitioners and their allies can extract some political capital from the case. A decision favorable to the EPA would confirm the urgency of ending “regulation without representation.” As you know, many constitutionalists and free-marketers view the EPA’s takeover of climate policy as a breach of the separation of powers. If the President submitted EPA’s greenhouse gas regulations to Congress as a legislative package, it would be dead on arrival. Congress should have to approve major regulatory actions before they can become binding on the public.
Marlo, will overturning the Timing Rule have other legal consequences?
Maybe. If the Court overturns the Rule, several other EPA rules compelling States to include greenhouse gases in their permitting programs would become unenforceable or vulnerable to legal challenges. The decision might then create momentum for other litigation to roll back the EPA’s takeover of State environmental programs.
If the Court upholds the Timing Rule it will have lots of explaining to do. The Timing Rule is what triggers the “absurd results” and “administrative impossibility” that the EPA attempts to “tailor” away by playing lawmaker and amending the Clean Air Act’s Prevention of Significant Deterioration (PSD) pre-construction and Title V operating permits programs. If the Court upholds the Rule, it will have to explain how the Clean Air Act can be the statutory scheme Congress intended to regulate greenhouse gases, its conclusion in Mass. v. EPA and yet lead to extreme measures and absurd results when used for that purpose. Logically, the Court has to choose between Mass. v. EPA and the Timing Rule, unless it wants to take ownership of the bizarre notion that the Clean Air Act was wired from the start to self-destruct four decades later.
In your view, will the case re-open any issues in Mass. v. EPA even though the Court’s review narrowly focuses on the Timing Rule?
Maybe. It’s hard to imagine how the Court can review a rule that leads to “absurd results” and “administrative impossibility” without examining its opinion in Mass v. EPA opinion that an Endangerment Finding under Section 202 of the Clean Air Act won’t lead to “extreme” or “counterintuitive” measures, but only to a cost-constrained modification of the motor vehicle emission standards.
It’s not at all surprising that the Court drew that conclusion after petitioners assured them that mobile source provisions of the Clean Air Act (Title II) are separate from stationary source provisions (Title I). What the petitioners didn’t tell the Court is that, although separate, Title I and Title II are linked especially as EPA reads the statute.
Marlo, please explain how they are “linked”.
Here’s where some more of that background history comes into the picture. Under EPA’s long-standing interpretation of the statute, reaffirmed in the Timing Rule, once any “air pollutant” is regulated under any part of the Act, “major” stationary sources are automatically “subject to regulation” under the Title I PSD preconstruction permit program and Title V operating permit program. Thus, when EPA’s Tailpipe Rule took effect on January 2, 2011, “major” greenhouse emitters became subject to PSD and Title V regulation. This leads straight to the extreme and counter-intuitive measures the Court assumed would not occur. Here’s why.
A source is defined as “major” under PSD if it has a potential to emit 250 tons per year of an air pollutant, and also “major” under Title V if it has a potential to emit 100 tons per year. Whereas only large industrial facilities emit 100-250 tons per year of smog-producing chemicals or particulate matter, literally millions of small non-industrial facilities office buildings, hospitals, schools, restaurants, heated agricultural facilities, etc. emit enough CO2 to qualify as “major” sources.
EPA estimates that applying permit programs as written to greenhouse gases would increase the number of PSD applications from 280 to 81,000 (a 300 fold increase), and Title V permit applications from 14,700 to 6.1 million per year (a 400-fold increase). In order to process these applications, permitting agencies would have to spend an extra $21 billion annually to hire an additional 230,000 full-time employees. Otherwise, ever-growing bottlenecks would paralyze environmental enforcement and freeze economic development.
Apparently that seemed to be a bit of an expansionary stretch even for EPA. And then what did they do?
To avert administrative disaster and a political firestorm, the EPA adopted its June 2010 Tailoring Rule which exempts all but the largest greenhouse emitters from PSD and Title V permitting. It does so by revising the “major” source applicability thresholds from 100-250 tons per year to 75,000-100,000 tons per year. In other words, to avoid a debacle of its own making, the agency effectively re-wrote the statute.
So, contrary to the Court’s expectation, the Endangerment Rule teed up several “extreme measures”: 1) an orders-of-magnitude increase in the number of firms subject to Clean Air Act permitting programs; 2) the application of complex and costly permitting requirements to small non-industrial facilities, contrary to congressional intent; 3) an overloaded permitting system that blocks construction activity throughout he land; 4) a multi-billion dollar expansion of environmental agencies that State governments can ill-afford, or alternatively, 5) EPA amendment ("tailoring") of unambiguous statutory language, a blatant exercise of legislative power.
So what’s the legal solution to this dilemma if the Court is not going to disavow its opinion that Congress authorized the EPA to regulate greenhouse gases?
Petitioners in Utility Air Regulation Group v. EPA argue that the PSD and Title V programs apply only to pollutants that affect public health and welfare by virtue of their local concentration, toxicity, or air quality impact. Since the harm allegedly posed by greenhouse gas emissions has nothing to do with local concentration or exposure, the permitting programs do not apply to them.
Whether petitioners win or lose, the review should occasion debate not only about the specific legal issues in the case, but also about the larger constitutional issue of whether an administrative agency should be dictating national policy on a legislatively-unsettled issue like climate change. The Court would not even be hearing this case if we had an accountable regulatory system in which the people’s representatives, not non-elected bureaucrats or activist judges appointed for life, make policy decisions.
Thanks Marlo. This ultimately puts the ball in the court of informed voters who will determine who those representatives are, and will expose them to some true human-caused heat.
In our 060811 Amicus brief to the D.C. Court attached, on pages 39 -56, we dealt with this matter and ended the section with the following statement:
In fact, there is reason to believe that the sun may now move into another “minimum” state, like the Maunder or Dalton Minimums (page 28). After all, three out of the 20 years with the highest spotless days since 1849 occurred in 2007, 2008, and 2009. How nuts is the action by the SC to not take the EF!!! ?
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Solar Activity Drops To 100-Year Low, Puzzling Scientists
A leading British climate scientist claims the current rate of decline in solar activity is such that there is now a real risk of a ‘Little Ice Age’. The severe cold went hand in hand with an exceptionally inactive sun, and was called the Maunder solar minimum. Now a leading scientist from Reading University has told me that the current rate of decline in solar activity is such that there’s a real risk of seeing a return of such conditions. Following analysis of the data, Professor Lockwood believes solar activity is now falling more rapidly than at any time in the last 10,000 years. Based on his findings he’s raised the risk of a new Maunder minimum from less than 10% just a few years ago to 25-30%. Paul Hudson, BBC Weather, 28 October 2013
The sun is ‘quietening’ really rapidly. We think it is actually quietening more rapidly than at any time in the last 10,000 years. So this is a major change. We think lower solar activity does seem to tie up with more cold winters in central Europe and the UK. Professor Michael Lockwood, BBC TV 28 October 2013
Britain faces a new mini-Ice Age with decades of severe Siberian winters and washout summers, an expert has warned. Professor Mike Lockwood, of Reading University, said erratic and extreme weather patterns could be the norm in 20 years. He said the risk of harsh winters and wet miserable summers has gone up to 25 to 30 per cent compared with 10 per cent a few years ago. Weakening sunspot activity is to blame for a “major change” in the UK’s weather he told BBC TV. Climatologist Dr Dennis Wheeler from Sunderland University, said: “When we have had periods where the sun has been quieter than usual we tend to get these much harsher winters.” Nathan Rao, Daily Express, 28 October 2013
The previous lengthy period of low solar activity was the so-called Maunder Minimum that occurred between about 1640 and 1710. This was coincident with a cold climatic spell called the Little Ice Age. This was once thought to be confined to North West Europe, then the Northern Hemisphere. However recent research is showing this cold spell to be a global phenomenon. It would be fair to say that no one knows why the Little Ice Age took place… It may be no coincidence that estimates of the turn-around in solar activity from grand maximum to decline might have occurred between 1985 - 95, and that global annual average surface temperatures have been flat since 1997. David Whitehouse, The Global Warming Policy Foundation, 30 October 2013
Predictions that 2013 would see an upsurge in solar activity and geomagnetic storms disrupting power grids and communications systems have proved to be a false alarm. Instead, the current peak in the solar cycle is the weakest for a century. Subdued solar activity has prompted controversial comparisons with the Maunder Minimum, which occurred between 1645 and 1715, when a prolonged absence of sunspots and other indicators of solar activity coincided with the coldest period in the last millennium. The comparisons have sparked a furious exchange of views between observers who believe the planet could be on the brink of another period of cooling, and scientists who insist there is no evidence that temperatures are about to fall. In all fairness, Russian scientists have warned over a decade ago that the Earth will enter a mini ice age period. MINA News, 19 September 2013
The sun is acting bizarrely and scientists have no idea why. Solar activity is in gradual decline, a change from the norm which in the past triggered a 300-year-long mini ice age. The fall-off in sunspot activity still has the potential to affect our weather for the worse, Dr Elliott said. Research by Prof Mike Lockwood at the University of Reading showed how low solar activity could alter the position of the jet stream over the north Atlantic, causing severe cold during winter months. This was likely the cause of the very cold and snowy winters during 2009 and 2010, Dr Elliott said. “It all points to perhaps another little ice age,” he said. “It seems likely we are going to enter a period of very low solar activity and could mean we are in for very cold winters.” Dick Ahlstrom, The Irish Times, 12 July 2013
The Little Ice Age appears to have affected the climate powerfully. IPCC-leaning scientists, however, say that the Little Ice Age couldn’t have been caused by solar variability - not even solar variability combined with sky-darkening volcanic eruptions as the effects would have been too weak. A Swiss team of researchers now say that in fact the Little Ice Age most certainly could have been triggered by variations in the Sun. Lewis Page, The Register, 1 October 2013
No More Lies Blog
We have been brainwashed about carbon dioxide
Some scientists were handsomely paid for decades to vilify this useful gas. Many others, directly or indirectly dependent from governments, supported the official line so as not to harm their careers.
This way, over-endebted governments would be able to launch a (crippling) new tax, the “carbon tax”, while crony-capitalists, which contribute in a big way to election campaign funds left and right, could stuff their bank accounts with huge subsidies for installing thousands of essentially useless wind turbines.
But finally, the truth has come out, confirming what the Carbon Sense Coalition had been saying all along:
Carbon Dioxide Enhances Food Production
Indeed, a new study reveals with scientific precision what climate skeptics knew all along: CO2 is a good guy, not Public Enemy #
Here is the new study by Craig D. Idso, Ph.D., Center for the Study of Carbon Dioxide and Global Change – 18 October 2013
The Positive Externalities of Carbon Dioxide:
Estimating the Monetary Benefits of Rising Atmospheric CO2 Concentrations on Global Food Production
ABSTRACT:
:Advancements in technology and scientific expertise that accompanied the Industrial Revolution initiated a great transformation within the global enterprise of agriculture. More efficient machinery and improved plant cultivars, for example, paved the way toward higher crop yields and increased global food production. And with the ever-burgeoning population of the planet, the increase in food production was a welcomed societal benefit. But what remained largely unknown to society at that time, was the birth of an ancillary aid to agriculture that would confer great benefits upon future inhabitants of the globe in the decades and centuries to come. The source of that aid: atmospheric carbon dioxide (CO2).
“Several analyses have been conducted to estimate potential monetary damages of the rising atmospheric CO2 concentration. Few, however, have attempted to investigate its monetary benefits. Chief among such positive externalities is the economic value added to global crop production by several growth-enhancing properties of atmospheric CO2 enrichment.
“As literally thousands of laboratory and field studies have demonstrated, elevated levels of atmospheric CO2 have been conclusively shown to stimulate plant productivity and growth, as well as to foster certain water-conserving and stress-alleviating benefits. For a 300-ppm increase in the air’s CO2 content, for example, herbaceous plant biomass is typically enhanced by 25 to 55%, representing an important positive externality that is absent from today’s state-of-the-art social cost of carbon (SCC) calculations.
“The present study addresses this deficiency by providing a quantitative estimate of the direct monetary benefits conferred by atmospheric CO2 enrichment on both historic and future global crop production. The results indicate that the annual total monetary value of this benefit grew from about $20 billion in 1961 to over $160 billion by 2011, amounting to a total sum of $3.5 trillion over the 50-year period 1961-2011. Projecting the monetary value of this positive externality forward in time reveals it will likely bestow an additional $11.6 trillion on crop production between now and 2050.
“The incorporation of these findings into future SCC studies will help to ensure a more realistic assessment of the total net economic impact of rising atmospheric CO2 concentrations due to both negative and positive externalities. Furthermore, the observationally-deduced benefits of atmospheric CO2 enrichment on crop production should be given premier weighting over the speculative negative externalities that are projected to occur as a result of computer model computations of CO2-induced global warming. Until this is done, little if any weight should be placed on current SCC calculations.”
Center for the Study of Carbon Dioxide and Global Change © 2013 http://www.co2science.org