Archive for December, 2010

Courts blocks EPA from Texas takeover

December 31, 2010

From Bloomberg:

A federal appeals court temporarily blocked the U.S. Environmental Protection Agency from taking control of Texas’s carbon-emission rules while it considers the state’s bid to fend off federal intervention.

Texas filed a petition with the U.S. Court of Appeals in Washington yesterday, saying the EPA didn’t give adequate notice or allow for comments on a proposed federal takeover of the state’s air permitting program on Jan. 2. Last night, the court ordered the agency to hold off on its plan while the court considers whether to delay the move until the case is resolved.

The appeals court ordered the EPA to respond to Texas’s motion by Jan. 6. Challenges to federal rules are brought directly to appeals courts.

Because Texas had not adopted a plan for implementing the EPA’s climate rules, the EPA was all set to take charge of greenhouse gas permitting in Texas starting Jan 2. This takeover has been blocked at least temporarily. So for the time being, emissions will not be regulated in Texas. The rest of the country, however, is screwed.

Court deals Blow to Upton’s EPA strategy

December 30, 2010

The U.S. Court of Appeals for the Fifth Circuit dealt a blow yesterday to Rep. Fred Upton’s hope-the-litigation-works strategy for fending off EPA’s imminent climate regulation. The court denied the state of Texas’ bid to block the EPA’s rules from taking effect next week.

So barring some holiday season miracle, the EPA will soon further oppress an already-strained economy and euthanize more of our freedoms for absolutely no purpose (other than the advancement of Comrade Obama’s agenda).

It’s looking like Upton and the rest of the often jello-y GOP leadership may actually have to develop a spine. Shall we hold our collective (but not collectivized!) breath?

GOP all set to wimp out on EPA?

December 28, 2010

A key Republican is already laying the groundwork for the 112th Congress’ surrender on the EPA’s climate rules. More surprising is the complicity of a tea party group.

Rep. Fred Upton, the chairman-designate of the House Energy and Commerce Committee, co-authored an op-ed in today’s Wall Street Journal with the promising title, “How Congress Can Stop the EPA’s Power Grab.”

Now that we face the prospect of flagrantly illegal, arbitrary, expensive and pointless regulation of greenhouse gases by the EPA, I was eager to read how the new Congress was going to, say, slash the EPA’s budget to prevent it from implementing the climate rules or perhaps shutdown the federal government if the Obama administration proceeded with its plan to dictate energy policy in order to control the economy.

Instead, Upton offered a mere two sentences of action that are better described pusillanimity rather than pugnacity:

The best solution is for Congress to overturn the EPA’s proposed greenhouse gas regulations outright. If Democrats refuse to join Republicans in doing so, then they should at least join a sensible bipartisan compromise to mandate that the EPA delay its regulations until the courts complete their examination of the agency’s endangerment finding and proposed rules.

Earth to Upton, it will be impossible to overturn or delay the EPA rules because:

  • There will likey be more than 40 Democrat senators to filibuster any effort to overturn or delay the rules. Likely filibuster-ers include Begich (AK), Feinstein (CA), Boxer (CA), Bennet (CO), Lieberman (CT), Blumenthal (CT), Carper (DE), Coons (DE), Nelson (FL), Akaka (HI), Inouye (HI), Durbin (IL), Harkin (IA), Cardin (MD), Mikulski (MD), Kerry (MA), Levin (MI), Stabenow (MI), Franken (MN), Klobuchar (MN), Tester (MT), Reid (NV), Shaheen (NH), Lautenberg (NJ), Menedenz (NJ), Bingman (NM), Udall (NM) ,Schumer (NY), Gillibrand (NY), Hagan (NC), Brown (OH), Merkley (OR), Wyden (OR), Casey (PA), Reed (RI), Whitehouse (RI), Johnson (SD), Leahy (VT), Warner (VA), Webb (VA), Cantwell (WA), Murray (WA), and Kohl (WI). Most of these senators already voted last June against the Murkowski amendment to rollback the EPA rules under the Congressional Review Act.
  • Even if a bill to overturn/delay the rules managed to get out of Congress, President Obama would veto it — and it’s unlikely that Republicans could muster the two-thirds majorities needed to overturn the veto.

The wimpiness, here is breathtaking. Aside from the total ineffectiveness of the plan, Upton fails to support his preferred solution (overturning the rules) with a more aggressive, less-palatable-to-Democrats alternative (defunding the EPA or shutting down the government). Instead, Upton’s alternative course is weaker (delaying the rules) and is offered from the position of a supplicant (“at least” do the “sensible, bipartisan compromise” — pretty please?).

I hope EPA administrator Lisa Jackson doesn’t hurt herself rolling on the floor.

Upton expresses high hopes, if not expectations, that ongoing litigation will curb the EPA. But an appellate court recently held that the EPA can wreak its havoc on our economy while the litigation is ongoing. And who knows how long it will take to get a final ruling from the Supreme Court? Keep in mind that the current Court is philosophically unchanged from the one ruling in 2007 that EPA could regulate greenhouse gases.

Moreover, while the portion of the EPA’s climate rules that is flagrantly illegal is likely to be overturned (i.e., the so-called “tailoring rule” under which EPA unilaterally amended the Clean Air Act to  limit regulation of greenhouse gases from 100-ton emitters to 75,000-ton emitters), it is unlikely that the Court will overturn the EPA’s so-called “endangerment funding” (which declares that greenhouse gases are a threat to the public welfare). Under the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, it is extremely difficult to show that an agency has acted arbitrarily and capriciousily in violation of the Administrative Procedures Act.

No profile in courage, Upton is wishing for a litigation miracle so that he doesn’t have to get down in the mud and wrestle with the Obama administration.

Also of note is Upton’s co-author, Tim Phillips of Americans for Prosperity (AFP) — a nationwide conservative grassroots group that has tried to blend in with the tea party movement. But AFP may be risking its tea party credentials by signing on to Upton’s exercise in bipartisan futility  —  where liberal/socialist Democrats get what they want and the rest of us get the shaft. That may be standard Washington, DC fare, but it is not what tea partiers voted for in November.

I’m not surprised by Upton’s wimpiness — that’s why conservatives wanted Joe Barton (R-TX) to be chairman of Energy and Commerce, not the light-bulb-banning Upton — but I am surprised by AFP’s. Shame on them.

Here’s the bottom line. Since the new Congress will not rubber stamp Obama’s socialist legislative agenda, the President will seek to socialize us via regulation — regardless of legality. The EPA’s climate regulation plan is unconstitutional on its face (only Congress, not federal agencies, can change laws). Another example of the coming socialization-by-regulation is the Federal Communications Commission’s recent party-line vote to implement net neutrality rules despite the a federal appellate court ruling that it lacks the statutory authority to do so.

“Every battle is won before it is fought,” said Sun Tzu. Upton, according to his op-ed, has already surrendered to Obama. Oh well, at least election night was fun.

Lugar: From START to ‘Stop!’

December 23, 2010

Fresh off selling us out on the START treaty, Indiana Sen. Richard Lugar is poised to introduced a “clean energy” bill in the 112th Congress, according to Carbon Control News. According to CCN,

A number of policy provisions have already been floated for inclusion in such legislation, including a “clean energy standard” that would include renewables as well as coal with carbon capture and sequestration, along with nuclear [loan guarantees], energy efficiency standards and support for natural gas vehicles and infrastructure.

Renewable electricity and energy efficiency standards hurt consumers by raising electricity prices. Carbon capture and sequestration (CCS), and natural gas vehicles/infrastructure hurt taxpayers since they will be paying the upfront costs. Significant CCS isn’t even possible. Nuclear loan guarantees don’t guarantee that new nukes will be built so much as they guarantee that failure will be borne in large part by taxpayers.

None of this will improve the environment in any discernible way. None of this will make us more energy secure/independent than we already are. These policies are just flat-out rentseeking by utilities like Indiana’s Duke Energy, Exelon, and NextEra, and a certain Texas oilman.

The 78-year old Lugar is up for reelection in 2012. He ought to be primaried and hopefully put to pasture in 2013 — where he can ruminate over whether it really made sense to surrender America’s right to missile defense in return for worthless promises from the diabolical Vladimir Putin.

End of an hysteri-era? Frigid weather not blamed on ‘climate change’

December 22, 2010

ExxonMobil-caused-global-warming-cum-climate-change, we hardly knew ye.

Though we have become accustomed to any and every change in the weather being blamed on the much-dreaded ExxonMobil-caused-global warming-cum-climate-change, we now have a sentinel indicator — yes, the proverbial canary in a coal burning power plant — that the days of wanton media attribution of weather change to manmade carbon dioxide emissions may be nearing an end.

In the Daily Mail (UK) article “How a freak diversion of the jet stream is paralysing the globe with freezing conditions,” Niall Firth reports,

Experts are still unsure why [the jet stream has been diverted] but suspect it may be related to the EL Nino weather system as well as changes in sea temperatures and solar activity.

‘Tis the season of miracles, indeed.

Hook ’em Horns: Texas sues EPA anew on climate

December 22, 2010

The state of Texas has filed a new lawsuit against the EPA and the climate rules slate to take effect on Jan. 2.

Following the rejection of a request for a stay of the EPA rules by the U.S. Court of Appeals for the District of Columbia Circuit, Texas has filed its new effort to stay the rules in the U.S. Court of Appeals for the Fifth Circuit.

In petitioning the court to review the EPA’s action, Texas claims:

The GHG SIP Call is contrary to both the Clean Air Act and the Constitution. Recognizing the proper role of the States, the Clean Air Act declares pollution prevention to be “the primary responsibility of States and local governments,” and not the federal government. 42 U.S.C. § 7401(a)(3). EPA rejects that approach and seeks to deprive Texas of its right to manage its air resources. It does so by unlawfully replacing a properly-approved Texas SIP, despite Texas’ strong track record of reducing pollution and improving air quality in the State. The United States Constitution also denies the federal government the authority to commandeer the States to carry out its ends, but here EPA attempts just that by threatening Texas with severe economic harm unless the State adopts, on an unrealistic timeline, EPA’s greenhouse gas regulations, which are themselves unlawful.

The GHG SIP Call is arbitrary and capricious and is contrary to the Clean Air Act. The State of Texas is directly and immediately harmed by the GHG SIP Call because it purports to rescind the State of Texas’ permitting authority under the Prevention of Significant Deterioration program, 42 U.S.C. § 7470 et seq., and, thereby, to impose a construction moratorium on greenhouse gas sources. This action causes Texas and its citizens great and immediate injury, in the form of forgone business investment, lost jobs, lost tax revenues, and administrative expenses. By contrast, this regulation accomplishes no discemable environmental benefit. The amount of greenhouse gas emissions that would be avoided under this regulation is miniscule; indeed, it is impossible to even measure. The State of Texas therefore reserves the right to request that the Court stay the GHG SIP Call pending resolution ofthe instant Petition.

The EPA responded that Texas is merely forum-shopping, looking for a sympathetic court in the wake of the D.C. Circuit decision.

Stayed tuned and… Remember the Alamo!

EWG pulls an ‘Erin Crockovich’

December 19, 2010

Group funds ‘Erin Brockvich’ chemical in D.C., Bethesda Water” was this morning’s scary Washington Post headline. The comrades at the Environmental Working Group reportedly found hexavalent chromium (Cr-6) in drinking water across the country at levels up to 200 times greater than the goal proposed by California (0.06 ppb). Cr-6 reportedly is associated with increased cancer risk in laboratory mice.

Before you swear off tap water, run to your doctor, join a class action lawsuit or do anything other than simply roll on the floor laughing at Ken Kook and his fellow EWG Krazies, here’s a few things to consider:

  1. Outside of a hotly disputed study of a 1970s-era Chinese population, epidemiologic studies have not associated Cr-6 exposure with increased risk of cancer. Even the EPA acknowledges this (See p. 207 of April 2010 EPA review document). Then there’s this comment from a review of the Cr-6 epidemiology:

    The weight of scientific evidence supports that Cr-6 is not carcinogenic in humans via the oral route of exposure at permissible drinking-water concentrations. [J Toxicol Environ Health A. 2002 May 24;65(10):701-46.]

  2. Mice are not little people. So who cares whether lab mice poisoned with Cr-6 got cancer or did cartwheels?
  3. No violations of the EPA drinking water standard for chromium were reported. While there are no specific drinking water standards for Cr-6, the EPA oral reference dose (RfD) for Cr-6, which includes a monster safety factor of 300, is way above the levels of Cr-6 detected by EWG.
  4. The proposed California standard for Cr-6 is not science-based.
  5. The EWG specializes in efforts to scare people about the mere presence of chemicals and metals in drinking water. The group seems to be impervious to Paracelsus’ 450-year-old basic toxicology principle that “the dose makes the poison.”
  6. Reporter Lyndsey Layton is apparently the radical environmental movement’s new stenographer at the Washington Post, following in the embarrassing tradition of Juliet Eilperin, Joby Warrick, Gary Lee and others. Layton is also assisting the left in its jihad against bisphenol A (BPA).

So that just about covers it for EWG’s hexavalent chromium scare — junk science manufactured by radical leftists and trumpeted by a media stooge.

Why Media Matters Doesn’t

December 16, 2010

The George Soros-funded, out-to-get-Fox-News and generally-lamebrained Media Matters is claiming that Fox editor Bill Sammon committed the grave felony of urging climate skepticism to Fox staff in a December 2009 e-mail. Sammon, of course, did nothing of the sort. The e-mail in question reads:

“Given the controversy over the veracity of climate change data we should refrain from asserting that the planet has warmed (or cooled) in any given period without IMMEDIATELY pointing out that such theories are based upon data that critics have called into question. It is not our place as journalists to assert such notions as facts, especially as this debate intensifies.”

Rather than urging skepticism, Sammon merely advised reporters to treat claims about global warming as what they are — claims that are disputed. Sammon correctly noted that a journalist’s job is to report the facts rather than to decide what they are.

This is apparently too a subtle distinction for the comrades at Media Mutters.

Sadistic Judges Back EPA Climate Rules

December 15, 2010

by Steven Milloy
December 15, 2010, Human Events

Last Friday’s federal appellate court decision allowing the Obama administration’s greenhouse gas regulations to take effect Jan. 2 is an unnecessary travesty for taxpayers, consumers, businesses and states.

The ruling by the U.S. Court of Appeals for the District of Columbia Circuit is by no means the final word on whether the U.S. Environmental Protection Agency’s rules are legal, but it does allow them to take effect pending their litigation.

The court (Clinton appointee David Tatel, Bush appointee Janice Rogers Brown, and former-dope-smoking Reagan appointee Douglas Ginsburg presiding) held that the industry lawyers challenging the rules failed to show that “the harms they allege are certain, rather than speculative, or that the alleged harm[s] will directly result from [the EPA’s regulations].”

This is ridiculous.

On Jan. 2, the EPA will start writing permits for power plants and other large emitters of greenhouse gases. Overlooking for a moment the costs and hassles to emitters and consumers that will undoubtedly be caused by the rules, at the very least this permit-writing process will cost the EPA and state permitting authorities (read “already strapped taxpayers”) about $80 million per year.

And what environmental benefits will be gained by these expenditures? You don’t have to be a global warming skeptic to respond “none.”

Under the Clean Air Act, if the EPA decides to regulate a pollutant, the so-called “best available control technology” (BACT) must be used to reduce emissions. But, funny enough, there is no BACT for greenhouse gases like carbon dioxide (CO2).

Burying CO2 underground — so-called carbon capture and sequestration — is experimental, and so is not considered BACT. The Obama EPA would love to declare natural gas as BACT for electric power generation, but it is not yet willing to escalate its war against the coal industry.
Since there is no commercially available technology to reduce CO2 emissions from smokestacks, few will be avoided — even the EPA acknowledges that.

So at the very least, Judges Rogers, Tatel and Ginsburg have imposed huge costs on taxpayers for precisely nothing in return. Apparently there is nothing quite like a lifetime appointment away from the real world.

But the wasted $80 million is really only the tip of the iceberg. There remain a number of ways that the EPA’s rules can cause further harm, according to environmental consultant Rich Trzupek.

First and foremost, the permitting process is open to public comment, most of which tends to come from environmental activist groups who typically use the process to delay permits and harass applicants. There’s nothing speculative about this harassment; it will happen.

Next, the Clean Air Act allows states to charge permit holders fees based on the amount of emissions. This would essentially be a carbon tax passed on to consumers through higher prices.

The EPA is directing state permitting agencies to press for energy efficiency in permits, enabling regulators to meddle in business operations when it comes to equipment selection, for example. And since high-efficiency equipment tends to cost more money, consumers can expect to absorb those costs as well.

The EPA is also advising states that they can engage in emission trade-offs in permitting — allowing increases in some other regulated pollutants in exchange for cuts in greenhouse gas emissions. But such “backsliding,” as it is termed by environmentalist vigilantes, would merely provide another opportunity to harass permit applicants.

States say they will be harmed by the EPA rules. Texas, in particular, has said it isn’t ready, willing or able to regulate greenhouse gas emissions.

In a September filing, Texas’ attorney general told the court, “If Texas is unwilling or proves unable to accede to [the EPA’s] unlawful [rules], the [EPA] has threatened to impose a permit moratorium that would halt as many as 167 projects in its first year, costing the state jobs, business opportunities, and tax revenues. In effect, due to uncertainty resulting from the agency’s actions, a de facto construction ban is already in place.”

Demanding a showing of more harm than the foregoing is more sadistic than judicial in nature.

The EPA is out of control and the federal judiciary is out of touch. Let’s hope the new GOP-controlled House is up to the challenge of using its budget and investigative powers to get a grip on the EPA. Revamping the courts and the laws they interpret will have to wait until at least 2013.

Mr. Milloy is the founder and publisher of His columns and op-ed pieces have appeared in the Wall Street Journal, USA Today, Financial Times, and Los Angeles Times. He is the author of “Green Hell,” a book from Regnery Publishing.

Note: This column erred in originally reporting Judge Judith W. Rogers, rather than Judge Janice Rogers Brown, as member of the three-judge court. I regret the error.

Cap-and-trade rebranded as ‘clean energy standard’?

December 14, 2010

We now know how cap-and-trade will be rebranded for the start of the 112th Congress — and we also know the Republican weak spot in the Senate.

As reported today by Energy & Environment News,

[A] proposal for a clean energy standard, which has been batted around for years and introduced most recently by Sen. Lindsey Graham (R-S.C.), has created a buzz on and off Capitol Hill in recent weeks.

What is a “clean energy standard” (CES)?

Graham’s CES is essentially a national renewable electricity standard (RES), where nuclear power and so-called “clean coal” qualify to meet the RES. Reportedly, Sens. Mark Begich (D-Alaska) and Tom Carper (D-Del), and Energy Secretary Chu are open to it.

Why should a CES be opposed?

  1. A CES is a carbon cap. Like an RES, mandating that a certain amount of electricity is “renewable” means capping the amount of electricity that can be produced by burning fossil fuels. We just spent the last 12 years killing cap-and-trade — the last two years of which the beast had us by the throat — why would we now support just “cap”?
  2. CCS is a pipedream. So-called “clean coal” depends on the commerical viability of carbon capture and sequestration (CSS). As we have pointed out before, CCS is a technical and political pipedream. It will never happen on a significant scale — and everyone knows this except the fools on Capitol Hill who are being serenaded by unscrupulous electric utilities and too-stupid-for-words coal companies. The utilities are for CCS because they want the billions in taxpayer largesse that would be floated their way. The coal companies that are for CCS hope that it will buy them peace with politicians and the public. Though CCS may be promised in a CES bill, the enviros will work to make sure that CCS projects are never actually come into operation. Properly seen, CCS is little more than a bait-and-switch tactic to get coal-burning utilities and coal companies to agree to “cap.”
  3. Nuclear power is a pipedream. Environmentalists are committed to ending nuclear power — that’s why no new plants have been constructed in more than 30 years. While utilities, politicians and the public will be teased by the prospect of more nuclear power in a CES bill, crafty enviros will make sure that no law guarantees the construction of more nuclear plants. As now, the enviros will make sure that they can use the regulatory process and the courts to halt new nuke plant construction.

So here’s our problem. While the GOP-controlled House will have knee-jerk reaction to anything called “cap-and-trade,” members may not have the same reaction to an unfamiliar beast called a “clean energy standard.” The enviros, of course, will work to liken opposing a “clean energy standard” to opposing food and shelter for orphans. Then there’s the clean energy industry which will be working harder and throwing around more money than ever. The 112th Congress is do-or-die time for the wind and solar rentseekers.

Energy use in America is already clean. If the enviros need something to do, they ought to go pester their fellow communists in China, where energy use is anything but clean. We should be all in favor of the ChiComs “winning the race for clean energy.” Then they can put it to good use at home.