Climate Change, Part I: Catastrophe

Tomorrow and the day after, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Rogers, Sentelle, and Tatel) will hear oral arguments in a raft of cases challenging the Environmental Protection Agency’s rules on the regulation of carbon dioxide (CO2) and other greenhouse gases (GHG). In its scope and consequences, the EPA’s climate change program exceeds even ObamaCare and Dodd-Frank: it threatens to engulf any firm, facility, and product that emits CO2 above minimal threshold amounts. However, the EPA’s program in this case does not rest on a 2,000-page enactment by a temporarily deranged Congress, nor even on a unilateral bureaucratic power grab. Rather, it proceeds, with seeming and depressing inexorability, from a series of crabbed and tendentious judicial and administrative interpretations of a few stray provisions in the Clean Air Act (CAA)—a statute that long pre-dates the climate change crisis or obsession (take your pick) and, by uniform consensus, is designed to tackle local air pollution, not a global calamity.

What the D.C. Circuit is looking at is a fantastically expensive and convoluted regulatory program that is uniformly acknowledged to produce no discernible climate change benefit whatsoever. Yet that exercise in pointless social mortification—a kind of permanent socio-economic Lent without Easter—threatens to elude any of the ordinary checks and controls: cost-benefit comparisons; judicial arbitrary and capricious review and statutory limitations; congressional or presidential intervention.

Today’s post discusses the trajectory of the climate change train wreck and its principal legal questions. Tomorrow’s post will address the broader institutional questions.

Greenhouse Gasbags

Any attempt to prompt governments to command planet Earth to leave the climate where it is (or perhaps to spin westward for a change) confronts, among other difficulties, problems of government inertia and global coordination. Among environmentalists’ countless efforts to overcome those impediments was an EPA rulemaking petition, initially filed by a small environmental group but soon joined by the eco-stablishment and several states, that aimed to force the agency to make an “endangerment finding” with respect to GHGs. Such a finding would in turn force the agency to regulate GHG emissions from automobiles (“mobile sources,” in the terms of the trade). The EPA denied the petition, arguing (1) that it lacked statutory authority under the CAA to regulate GHGs as a pollutant and that (2) even if it had that authority, it would decline to exercise it for powerful reasons, such as the futility of regulating global emissions on a unilateral basis and the absurdity of adapting the Clean Air Act to a problem for which it wasn’t designed. The petitioners challenged the denial in court. The Bush administration, embarrassed by its “Halliburton” image and dominated by administrators eager to protect their post-bureaucratic employment opportunities as consultants and lawyers for regulated industries, mounted only a half-hearted defense. When the case reached the Supreme Court, the hopelessly compromised EPA got hammered.

 Supreme Error

Massachusetts v. EPA (2007) interpreted Section 202(a)(1) of the Clean Air Act, which provides in relevant part (emphases added):

The [EPA] Administrator shall by regulation prescribe … standards          applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.

In a 5-4 decision, the Court held, first, that CO2 is an “air pollutant.” It held, second, that the EPA administrator’s discretion (“judgment”) in making an “endangerment finding” extends to scientific matters but, contrary to the EPA’s position, not to questions of sound policy, international climate diplomacy, or regulatory feasibility. On remand, the Court said, the administrator did not have to find endangerment (and it certainly did not have to regulate GHGs). However, she would either have to make such a finding with respect to GHGs or else, explain a contrary decision without resort to “external” considerations.

Mass v. EPA is a deeply disingenuous decision. The majority clearly anticipated that its ostensibly modest “just answer the question (and append a scientific essay)” holding would inevitably produce an endangerment finding: the EPA could avoid that result only by joining the disreputable band of “climate change deniers.” The finding, in turn, would compel the EPA to regulate automobile CO2 emissions: the operative word in Section 202(a)(1) is “shall.”

Nor is this all. Once a mobile source standard is in effect for a pollutant, Section 165 of the CAA—as historically interpreted by EPA—requires the agency EPA to regulate stationary sources. Title I of the CAA applies to facilities that (potentially) emit in excess of 250 tons per year (tpy) of a regulated pollutant; Title V covers facilities above 100tpy. Such “major stationary sources” (such as factories and power plants) require elaborate pre-construction permits, and they are tightly regulated. For conventional pollutants, the 250/100tpy thresholds require permits for a few hundred truly “major” sources per year. For CO2, the thresholds would cover tens of thousands and potentially millions of facilities each year, all of which would then be subject to stringent GHG control technology requirements. We are talking about a wholesale, bureaucratically engineered re-invention of the entire American economy.

After Mass v. EPA

Nobody—not the EPA, not the environmental groups and states that cranked up Mass v. EPA, not the Supreme Court that decided the case—believed then or believes now that GHG regulation under the CAA makes much sense. The absurdity is most palpable with respect to stationary source regulation. Putting aside the vast expansion of covered facilities (more in a moment), the CAA is calculated to govern local air pollution. The EPA sets national ambient air quality standards (“NAAQS”) and timetables for their attainment; states submit implementation plans (“SIPs”) in conformity with federal requirements. The entire scheme presupposes that jurisdictions can actually do something to reduce local air pollution. That is manifestly not so with respect to global CO2 levels. What would it mean to set a national CO2 air quality standard? Where would one set it—and would it make sense to find Peoria out of compliance because the planet won’t behave?

The reason why the plaintiffs nonetheless pushed, and the Supreme Court embraced, the endangerment theory and its ensuing chain reaction was to provoke congressional intervention. Congress had consistently failed to enact “cap and trade” and other schemes of climate legislation. Surely, though, the prospect of an EPA-engineered “reinvent America” campaign would prompt action. ‘Twas not to be, though. In the midst of the financial crisis and the 2008 election, Congress did nothing of consequence at the GHG front. Post-election, the Obama administration and Congress busied themselves with re-making the economy at the health care front. Thus, the problem ended up with the EPA. Here, the change in administration produced a major shift in policy.

The Bush EPA proposed to handle the GHG problem in a single, unified rulemaking, on the sensible theory that an endangerment finding should take into consideration the downstream, potentially insane but statutorily mandated consequences. The Obama EPA (staffed with some of the enviro architects of the Mass v. EPA challenge) would have none of it. The first fateful step was the President’s intervention in a closely related environmental controversy.

The federal Energy Policy and Conservation Act (“EPCA”) preempts states from issuing any standard “relating to” automobile fuel efficiency: those standards are the exclusive business of the National Highway Traffic Safety Administration (“NHTSA”). However, California may apply for a waiver to impose more stringent requirements, which other states may then adopt. Having repeatedly failed to obtain a waiver, California seized on the clever idea of imposing a GHG emission standard for automobiles. That purported “pollution” standard does not simply “relate to” fuel efficiency: because increased fuel efficiency is the only conceivable way of reducing CO2 emissions, a GHG standard is a fuel efficiency standard by a different name. Nonetheless, in the wake of Mass v. EPA, federal courts rejected automakers’ challenges to California’s maneuver, reasoning that the Supreme Court’s decision had established a GHG exemption to well-established preemption rules (as for many other principles of American administrative law).

The President diffused the controversy by means of a grand compromise: EPA/NHTSA would impose a national GHG mobile source program that would satisfy California and its tag-along states; California would surrender its go-it-alone aspirations for the 2012-1016 model years; automakers would comply and dismiss their lawsuits. (Recall that GM and Chrysler were wards of the state and committed to producing “clean” cars that nobody wants. To that extent, the administration was negotiating with itself.) But there was no national GHG program, and the EPA had no legal authority to impose one unless it first made an endangerment finding. A pre-ordained result had become an entirely foregone conclusion.

EPA Rules

The EPA proceeded by breaking the formerly integrated GHG rulemaking into several separate rules, issued within a six-month span but carefully calculated to evade judicial review of the enterprise as a whole:

  • An “Endangerment Rule” (December 7, 2009), based on a review of the international and national climate change “literature” but divorced from any consideration of the regulatory consequences that would follow in its wake.
  • An “Auto Rule” (May 7, 2010), issued jointly with NHTSA, governing mobile sources in conformity with the President’s “historic” bargain with California et al. By the year 2100, EPA calculates, this rule will reduce global mean temperature by 0.006-0.015 degrees Celsius and reduce global sea level rise by about 0.06-0.14 centimeters. Disaster averted.
  • A ”Timing Rule” (April 2, 2010) and a “Tailoring Rule” (June 3, 2010), governing the CAA’s expansion to stationary sources of GHGs. To evade the admittedly insane consequence of applying the 250/100tpy thresholds to stationary sources of GHG’s, the EPA invoked a canon of  “absurdity avoidance” and creatively re-wrote the statute: with respect to CO2 and other GHGs, 250/100tpy means 100,000tpy. After a phase-in of the GHG requirements for these (current and prospective) major emitters, the EPA will issue GHG requirements for additional, smaller sources.

This row of regulatory dominoes is now before the D.C. Circuit (along with industry challenges to several earlier EPA rules that, according to the petitioners, now require revocation and revision). The petitioners mobilize a vast number of powerful, nuanced legal arguments against each of the rules. Those arguments and the EPA’s responses are good fun for AdLaw mavens. For purposes at hand, though, let’s make do with the basic structure of the litigants’ respective case.

Arguments

The petitioners start at the tail end: an administrative agency can’t simply re-write a federal statute. Whatever the bounds of permissible statutory construction, the revision of numerical thresholds contained in legislation has got to be beyond the pale. If an agency feels compelled to take that step to avoid confessed absurdity, chances are that something has gone wrong along the way; and that “something” was the decision to write the Endangerment Rule in a deliberately myopic fashion, in exclusive reliance on second-hand climate science and without any regard to the mobile source/stationary source cascade that would ensue. Given the structure of the CAA, an endangerment finding requires a coherent, integrated consideration of risks and regulatory response. Nothing in Mass v. EPA, say petitioners, requires an endangerment finding divorced from the statutory structure.

Not so, says the EPA. Mass v. EPA instructed the agency to base an endangerment finding on science alone. Petitioners’ statutory-structure arguments is a belated effort to lard up the finding with just the sort of “external” considerations that Mass v. EPA explicitly forbids. There is nothing “absurd” about a science-based endangerment finding—or, for that matter, about regulating GHG emissions from mobile sources. (Editorial comment: the EPA does not really care about that rule or its ludicrously small predicted effects a century hence. The point of the rule is to get the EPA from endangerment to stationary source regulation.) The “absurdity,” if any, arises only at the very end of the regulatory cascade. It affects only the administration of permitting requirements, not the regulatory project as such; and timing and tailoring (see above) take care of that awkwardness.

The D.C. Circuit

What’s the D.C. Circuit supposed to do? Accepting the petitioners’ claim that the endangerment finding was fatally flawed would likely block the long train of abuse for the time being. But it would also entail a return trip to the Supreme Court, whose Mass v. EPA majority (should it hold) might well view the petitioners’ theory, and any appellate ruling embracing it, as an endrun around its landmark ruling. Conversely, upholding the EPA’s rules across the board would allow the agency to move ahead for now—but only at the price of endorsing the as-yet unheard-of practice of agency re-writes of federal statutes. The Supreme Court might not look kindly on that proposition, either. Or, the judges could uphold the EPA’s “science only” endangerment position; let the Auto Rule (a done deal in any event) slide through; and mow down the stationary source rules as flagrantly inconsistent with the Clean Air Act.

For the petitioners (and for states that must administer permitting requirements), that looks like the worst possible outcome. However, it would mimic and in a way double down on the Mass v. EPA gambit of forcing congressional action.  If the EPA can’t re-write the Clean Air Act but must instead administer it on its terms and as applied to GHGs, the permitting process will collapse and the de-industrialization of America will begin in earnest. No permit, no new construction; and everyone will be out of GHG compliance.

Surely, that can’t happen: Congress won’t stand for it. Or will it?

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

Comments

  1. KorlaPundit says

    The EPA needs to be defunded and eliminated. They have become obsolete, and all obsolete bureaucracies retain only one purpose: the perpetuation of their existence. And the “scientists” and political hacks like Al Gore who have gotten us this far into the carbon-credit scam should be charged with fraud. Not that they will, but they should.

  2. Rod Quantock says

    Dear Michael,
    I understand that your connection to the American Enterprise Institute, preordains your attitude to regulation.
    However, it is obvious that this connection leaves you blinkered and biased.
    Climate change is an objective scientific reality. To take a stance that demeans or denies that science betrays an ignorance, deliberate or otherwise, and/or an intellectual incapacity to understand that the people that put the US on the moon are now telling us that we have so despoiled our earth and air that we leaving our children a place so inhospitable to them and all God’s creation that they will heap scorn upon all who impeded and opposed action (regulation) to moderate the outcome.
    We trust science to formulate your shampoo and dishwasher powder but our narrow self-interest and inability to imaging a tomorrow that does not look like today (and it won’t) will ensure that our children will despise those who sent them to hell.
    Be honest, be objective and be true and as a scientist from NASA or NOAA or the AAAS,
    Regards
    Rod

  3. McLovin says

    Dear Rod,

    “Climate change is an objective reality.”

    Well knock me over with a feather man of science!

    Has the earth been warmer than it is now? YES!
    Has the earth been colder than it is now? YES!
    What makes the warming, which by the way ended a decade ago, different? NOTHING!

    So before we knuckle under to a marxist cabal of unelected unaccountable officials who want to control every aspect of our economies and lives we are going to fight them tooth and nail on their anti-science and anti-capitalist agenda!

  4. McLovin says

    Dear Rod,

    QUESTION:Has the earth ever had a non-variable climate?
    ANSWER: NO.

    QUESTION: What point in earths past has the climate been optimal?
    ANSWER: Could not possibly be derived.

    QUESTION: Why wouldn’t warming, which by the way ended a decade ago, not lead to a more optimal global environment?
    ANSWER: More than likely would, as more land would be available for cultivation.

    QUESTION: What is the optimal global climate/temperature?
    ANSWER: Could not possibly be derived.

    Other will chime in with other questions I’m sure.

    • says

      Here is my take on all this, for what it’s worth.Dr. David Montgomery makes four important ptoins at the start of his written testimony:First, if the U.S. were to act without solid assurance of comparable efforts by China, India, and other industrialized countries, its efforts would make almost no difference to global temperature, especially if industrial production and associated emissions are simply exported to other countries.Second, even global action is unlikely to yield U.S. benefits commensurate with the costs it would incur in making steep GHG emission cuts.Third, globally, even with moderate emission reductions, benefits would not be much greater than costs and,Fourth, conflicting economic interests will make international agreements on mandatory limits unstable.Montgomery discounts the idea that regulations will cause companies to take actions to save money, which they would otherwise not do:Any claim that a regulation or standard will on balance save money should be regarded with a high degree of skepticism unless accompanied by a well researched and peer reviewed demonstration that the specific action will cure a market failure, and do so without administrative costs great enough to wipe out the gains.He ptoins out why climate policy will not promote a new clean energy export industry in the U.S., citing the experience of the past 10 years. This experience shows that they rather cause the loss of U.S. jobs with the possible addition of a few new jobs located outside the U.S.Montgomery then addresses the great uncertainties plus the “winners and losers” argument mentioned by Dr. Curry in her testimony before U.S. Congress:Even if the goal of industrial policy were accepted, mandatory reductions on greenhouse gas emissions are the wrong way to go about it.The most fundamental error is failing to admit how little is known about the direct causes of damage to human and economic systems that have been attributed to climate change.Some changes may be beneficial, such as increased growing seasons and carbon dioxide fertilization in high latitudes, and some are negative, such as drought or storms in tropical areas. But the range of possibilities and whether it adds up to a positive or a negative in any particular region is impossible to predict with confidence. Therefore, any economic evaluation of damages is equally uncertain.He ptoins out how cost/benefit analyses for specific actionable proposals are hardly ever made. Instead the whole palette of possible worst-case scenarios is presented as justification for action.In analyzing any particular policy the costs of that policy must be compared to the damage it avoids. It is shocking how rarely this fundamental economic principle is violated.Montgomery makes a good case for his conclusion that attempts to change our planet’s climate will neither change the climate perceptibly nor show cost effective economic benefits, such as creating jobs.He also ptoins out that they would be totally meaningless without world-wide cooperation, and this is highly unlikely to occur.{snip Baer, Heinz criticisms}I’d say the testimony of Montgomery is much more convincing than the rebuttals of either Baer or Heinz.But then, Montgomery had a lot of time to prepare his testimony, while Baer and Heinz were just “shooting from the hip” in response.Max

      • says

        Fantastic, there is something very spceail about watching something live of such global importance at the same time potentially as hundreds of thousands if not millions of people.Here in the UK the price of unleaded petrol is around a31.35 a litre( $2.21 US dollars)and it’s still going up and yet there is not any hint of a protest and only occasional media reporting. It is affecting the price of everything and inflation here is rising much faster than wages. I think people must know that something is up, not just the crisis in Libya. Deep sea oil and increased extraction from vast poor quality oil shales in Canada are 2 of the worrying signs that climate change is taking second priority to the economy. This approach is flawed not only because of the more damaging affect to the environment (and risk of disaster BP Deepwater Horizon oil spill in the Gulf of Mexico) but economically too, as the increased cost of extraction of these methods and growing need to extract more and more oil in this way can only lead to unsustainable fuel price increases.Now is the time to shift to renewable forms of energy, invest in energy efficiency for our homes and businesses and re-localise production of food and goods. This will reduce dependence on increasingly costly oil putting money back in peoples pockets and re-invigorate local economies. It will help reconnect local communities and help us to rediscover a simpler ( though still technologically enhanced) way of living that it is far more possible to sustain and which with further refinement over coming decades will hopefully become truly sustainable.I see a happier, healthier more equal and civilising way of living ahead of us, not the loss of so called freedoms that have more to do with lifestyle hype’ than real quality of life.To quote 1997 Booker Prize winner Arundhati Roy: “Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing.”

  5. Matt says

    Rod (above) is exhibit A of the brainwashed minds we have to deal with. He says “climate change” is a reality. Agreed, the climate constantly changes — always did, always will. From there he assumes AGW is a reality, or in his fuzzy thinking, doesn’t see any difference between the two. From there then he gets all mushy singing about God and children and love. Science is evoked but never cited.

  6. McLovin says

    @Matt

    It’s like they are an inversion of what science actually is.

    They never question, they only cite the “consensus.”

    Anyone that challenges their “assertions”, is branded anti-science when they clearly don’t have any, you know, actual science and un-compromised data to rely on.

    For instance, when they saw the data, flawed as it was previously when it showed warming, that showed that the slight warming trend we had seen ended, they quickly moved to climate change, by the way does anyone remember the Global Cooling scares from the 70’s. The earth warms and cools over time, who knew!

    Now it’s c02 which, by the way humans and plants expel at a greater rate than industry which has become the menace.

    These people are insane and want total control of our lives and economies.

    We must fight them. I believe the tide is turning against them as the mask is starting to slip as they reveal themselves for the marxist they are.

    I

    • says

      While the Copenhagen summit falied to get all countries on board on the issue of climate change, the Delhi Metro Rail Corporation (DMRC) claims to have carved out a green path for itself.The DMRC has submitted a Clean Development Mechanism (CDM) proposal to the Ministry of Environment and Forests to earn carbon credits for the ‘modal shift’ of Metro commuters. The logic: Metro commuters are preventing carbon emissions by using public transport, as opposed to private cars.The ministry is considering the project. If it comes through, it is likely to open doors for similar CDM projects for other public transport systems — the CNG-run Bus Rapid Transit system, for example, could be one.Another CDM project of the Delhi Metro — saving energy through ‘regenerative’ braking in trains — has also begun to rake in carbon credits. This makes Delhi Metro the first government agency in the Capital, and the first railway system in the world, to earn carbon credits. Under the same project, DMRC will now earn credits for its first phase of operation — between 2004 and 2007.

  7. Troy S says

    McLovin,

    I agree with you 100% but make sure you have your facts right. Plants ‘breathe’ in CO2 and produce Oxygen not the other way around. (which BTW is a major benefit of CO2, more CO2, more plants, higher crop yeilds) Second, humans by themselves do not produce more CO2 than industrial sources. It’s not even close. Just keepin it real Bro. I would suggest you read Anthony Watts blog: Watts Up With That. They get a pretty technical but an excellent resource for the fight against AGW warmists.

  8. McLovin says

    Troy S,

    I love Watts Up With That, read it almost daily.

    As for trees, during the day plants process CO2 (Carbon Dioxide) into O2 (Oxygen) through the process of photosynthesis. When sunlight is not present they respire (just like you and I) processing O2 into CO2.

    As for the claim of humans and plants putting more cO2 into the atmosphere than industry, well you’ll just have to take my word for it. :) I know I can get at least 1000 very smart people to agree with me.

    What if I could get 10,000 people to agree with me?

    What if I could get 50,000 people to agree with me?

    See where I’m going with this.

  9. Troy S says

    McLovin,

    Thanks for the info. I think I knew about plant respiration once but had probably forgotten that since I was in HS Biology class. That said, I believe the net effect for plants and trees is using more CO2 than is produced correct? Since they always refer to forests as CO2 ‘sinks’.

    • says

      It’s important to higglihht: The EPA Inspector General’s report does not question (or even address) the science used, or the conclusion reached by the EPA under this and the previous administration that greenhouse gas pollution poses a threat to the health and welfare of the American people. That conclusion, and the science behind it, stands firm. Read more see David Doniger’s Blog:“”

  10. says

    Like Mindi, I am also very concerned about miakng life better for humans. In contrast to Mindi, however, I understand that Earth is our home and that the overall quality of the Earth’s environment and that of each continent and country has a major impact on the quality of human life and well being. Everything, both living and non-living, is intimately interconnected and mutually interdependent, whether or not we know about and understand all the interconnections.We need overall organizations and agencies to help watch over all that we do and propose to do, and to help keep us from self destruction. These organizations and agencies must be free of vested business interests and they must be guided by the best consensus of scientifically based information and understanding we can come up with. They must also be guided by an awareness and understanding that we are all in this together, and that what we all share in common is of much greater significance than the distinctions and differences that seem to divide and separate us.In spite of its current imperfections, the EPA is one agency we definitely need to fund and empower so it can function in this capacity for us. At the same time, we need to help perfect its ability to function in an intelligent, compassionate and respectable manner for the greater good of all beings.

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