Center for Biological Diversity

Spinning the Defeat of Cap-and-Trade

by Marlo Lewis on August 11, 2010 · 1 comment

in Global Warming

Barring the trickery of a lame duck conference committee, cap-and-trade is dead in the 111th Congress. Some blame Obama for not taking a more hands-on role. Others blame environmental groups for waging a $100 million lobbying campaign without winning a single GOP convert to the Kerry-Lieberman cap-and-trade bill. Others blame the allegedly “well-funded denial machine,” even though proponents, who include major corporations like British Petroleum, must have outspent CEI and its free-market brethren by more than 100 to 1.

Today’s Climatewire (subscription required) features interviews with Exelon Corp. VP Betsy Moler and Phil Sharp, President of Resources for the Future, who lament that Republican lawmakers, the “inventors” of “market-based” environmental policy, have turned against their own “invention.” If I catch their drift, Moler and Sharp are trying to spin GOP opposition to cap-and-trade as self-contradictory, hence as unstable, hence as reversible. As Climatewire reports, Moler is not ready to “throw in the towel” and Sharp entertains the hope that a “new kind of coalition” will emerge in the next Congress.

Now, let’s look at this notion, peddled by Moler and Sharp, that Republicans betrayed themselves and besmirched their own legacy by blocking cap-and-trade. Here’s how it’s discussed in Climatewire:

In an interview, Moler said that her deep disappointment was the rejection by Republican leaders in Congress of a market-based strategy for raising the price of carbon emissions, to speed transitions by power plants, industry and consumers to cleaner energy.

The Democrats called it “cap and trade.” Republicans labeled it “cap and tax,” and the change in one word proved lethal.

“The thing that just amazes me, confounds me, surprises me is how successfully the Republican leadership and a lot of the people who would be potentially negatively impacted have been in vilifying what have historically been market-based solutions,” Moler said.

Inventors Turn on Invention

“Cap and trade is really a Republican instrument that grew out of a lot of the Republican thought leaders as a market-sensitive, market-friendly, anti-command-and-control mechanism” to reduce sulfur- and nitrogen-based air pollution in the 1990 Clean Air Act amendments. “Now, some of the same people who invented it have turned on it as an energy tax,” she said. “It’s a huge missed opportunity. I don’t know where you go next.”

Moler’sregret is seconded by Philip Sharp, president of Resources for the Future, who, as a Democratic House member from Indiana, stood with Moler in the 1990s in the energy deregulation campaign. Sharp was a pivotal factor in Congress’ adoption of the 1990 Clean Air Act amendments and the 1992 Energy Policy Act, which opened the way for FERC’s electricity market orders four years later.

“I’m not here to say cap and trade is the only way to do this,” Sharp said in an interview. “It worked magnificently with SO2 and a couple of other instances.” Scaling it up massively to deal with economywide carbon emissions is another question. “We don’t know we can manage it as effectively,” he said.

“But what is really unfortunate in the public debate is that the current Republican leadership has overthrown one of the great Republican successes in this country [under President George H.W. Bush], to capitalize on the flexibility of the marketplace” in achieving regulatory change, Sharp said.

“I don’t think people appreciate the extraordinary challenge that represented and the difficulty of getting it done” in the 1990s, he said. Now, with the demise of that approach, Congress has invited U.S. EPA to step in on the climate front “and regulate the living [daylights] out of everything and see how well a modern economy works doing that.”

Moler and Sharp miss several key points.

First, the Title IV acid rain cap-and-trade program enacted under President George H.W. Bush is not the “magnificent” success they suppose it is. As Kenneth Green, Steven Hayward, and Kevin Hasset of the American Enterprise Institute note, prices of tradable sulfur dioxide (SO2) emission permits have been highly volatile: “SO2 trading prices have varied from a low of $70 per ton in 1996 to $1500 per ton in late 2005. SO2 allowances have a monthly volatility of 10 percent and an annual volatility of 43 percent over the last decade.”

Second, utilities participating in the SO2 emissions trading program could meet all or part of their obligations by purchasing low-sulfur coal and/or installing scrubbers, a commercially-proven emission control technology. In contrast, there is no low-carbon coal, and no commercially-proven technology to “scrub” carbon dioxide (CO2) emissions out of power plant exhaust streams.

Third, unlike sulfur, which is an impurity or contaminant in coal and oil, carbon is intrinsic to the chemistry of fossil fuels. Consequently, whereas emission control requirements for SO2 do not logically entail an unlimited agenda aiming at total abolition of the fuel, emission control requirements for CO2 do imply abolition as the ultimate objective. Such extremism is reflected in the apocalyptic rhetoric of the global warming movement, in petitions demanding that EPA establish national ambient air quality standards (NAAQS) for CO2 at 350 parts per million and for other greenhouse gases at pre-industrial levels (not even a global depression lasting several decades would be sufficient to lower CO2 concentrations to 350 ppm), and in Al Gore’s campaign to “repower America“ with “zero-carbon energy” within “ten years.” More pertinently, pull-out-the-stops, sky-is-the-limit regulation lurks in the Waxman-Markey and Kerry-Lieberman bills’ escalator clauses, which all but ensure that the explicit emission reduction target (83% below 2005 levels by 2050) would be superseded by more aggressive requirements.

Fourth, just because a “market-based” approach is more efficient, in principle, than command-and-control regulation does not in any way obligate Republicans to support Waxman-Markey or Kerry-Lieberman if those same Republicans oppose all regulatory climate policies.

Fifth, every Republican in the Senate voted for the Murkowski resolution to block EPA regulation of greenhouse gases via the Clean Air Act. So it’s silly to say that Republicans “invited U.S. EPA to step in on the climate front ‘and regulate the living [daylights] out of everything. . .’” President Obama threatened to veto both the Murkowski resolution and the much weaker Rockefeller bill, which would merely postpone EPA regulation of stationary sources of greenhouse gases for two years. It’s the Democratic leadership, not the GOP, that has “invited” EPA to make climate policy through the regulatory back door.

Finally, Republicans betray themselves (ask President George “Read My Lips; No New Taxes” Bush) when they vote for rather than against higher taxes. Because carbon is intrinsic to the chemistry of fossil fuels, a carbon cap-and-trade scheme is a virtual broad-based energy tax. The same cannot be said of the SO2 program, which was merely a virtual pollution tax. Moler and Sharp would like GOP lawmakers to believe they can win elections by becoming the Party of Energy Taxes. Fortunately, most Republicans don’t need much coaching to realize that is complete bunk.

Thank You CBD: Another Reason to Nix EPA Endangerment Finding

by Marlo Lewis on June 3, 2010 · 2 comments

in Global Warming

Twice during the past six months, the eco-litigators at the Center for Biological Diversity (CBD) have underscored the political necessity for Congress to overturn EPA’s endangerment finding.

Yes, that is very far from CBD’s intention. CBD is a fervent defender of the endangerment finding, the December 2009 rulemaking in which EPA concluded that greenhouse emissions endanger public health and welfare.

The endangerment finding compels EPA to establish greenhouse gas emission standards for new motor vehicles, which in turn makes carbon dioxide (CO2) a “regulated air pollutant”  under the Clean Air Act, which in turn makes ”major” stationary sources of CO2 ”subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. CBD must be thrilled by the endangerment finding and the regulatory cascade it has triggered.

CBD wants EPA to follow through on all the regulatory commitments logically entailed by the endangerment finding and CO2′s new status as a “regulated air pollutant.” But that’s where things get dicey for President Obama and his congressional allies. Once the regulatory genie is out of the bottle, Obama officials may not be able to control it.

Even EPA acknowledges that applying the Act’s permitting programs to CO2 leads to “absurd results.” For example, EPA and its state counterparts would have to process 41,000 PSD permit applications per year (instead of 280) and 6.1 million Title V permits per year (instead of 14,700). The resulting administrative quagmire would paralyze environmental enforcement, slam the brakes on development, and force millions of firms to operate in legal limbo. A more potent anti-stimulus package would be hard to imagine. 

To avoid this red ink nightmare, EPA has issued a Tailoring Rule that exempts small CO2 emitters from the Act’s permitting programs for six years. However, nothing in the statute authorizes EPA to suspend or modify the permitting requirements. In reality, EPA’s Tailoring Rule is an amending rule. It’s anybody’s guess whether courts will uphold this breach of the separation of powers.

Even if they do, the endangerment finding will still endanger the U.S. economy and our constitutional system of separated powers and democratic accountability. Thank you, CBD, for bringing this peril to light!

Last December, CBD petitioned EPA to establish national ambient air quality standards (NAAQS) for greenhouse gases set below current atmospheric levels. CBD is only acting on the obvious implication of EPA’s assertion that endangerment comes from the “elevated concentration” of greenhouse gases in the atmosphere.

Why should Obama and congressional leaders worry? The Clean Air Act requires states to come into attainment with a primary (health-based) NAAQS within five or at most 10 years. Yet not even a global depression lasting several decades would suffice to lower CO2 concentrations from today’s level (390 parts per million) to the stabilization target (350 parts per million) demanded by CBD and its co-petitioners. Because EPA may not take compliance costs into account when establishing NAAQS, the endangerment finding sets the stage for eco-litigators to transform the Act into a de-industrialization mandate.  No elected official wants to take ownership of so crazy a policy. If CBD prevails, however, Obama and the Democrats — the Party of Endangerment — will be left holding the bag. 

Yesterday, CBD filed suit to overturn EPA Administrator Lisa Jackson’s reconsideration of her predecessor Stephen Johnson’s memorandum determining when a pollutant is “subject to regulation” under the PSD program. Jackson’s reconsideration held that a pollutant is subject to regulation not when EPA finalizes an emissions control rulemaking but when the rule takes effect. Since EPA’s greenhouse gas motor vehicle standards rule does not take effect until January 2011, Jackson concluded that EPA may not regulate greenhouse gases from stationary sources until then. CBD says EPA should have started already to regulate large emitters via PSD.

CBD’s lawsuit makes EPA regulation of greenhouse gases a real-time issue for this Congress, not just a post-election issue for the next Congress. It increases the pressure on Democrats to get the monkey off their back. If courts strike down Jackson’s reconsideration, they will be more likely to strike down the Tailoring Rule, which undeniably flouts statutory language. Courts will also be more likely to look favorably on CBD’s NAAQS petition, which simply demands that EPA, having made an endangerment finding, follow the letter of the law.   

Democratic Senators who don’t want to bet their political futures on EPA’s ability to control the cascading effects of greenhouse gas regulation under the Clean Air Act – or who simply believe that climate policy is too important to be made by non-elected bureaucrats, trial lawyers, and activist judges appointed for life – will soon get their opportunity.

On June 10, the Senate will vote on a resolution of disapproval (S.J.Res.26), sponsored by Alaska Sen. Lisa Murkowski, to nullify the legal force and effect of EPA’s endangerment finding. If enacted, S.J.Res.26 will:

  1. Avert the threat of an administrative meltdown under the PSD and Title V programs.
  2. Avert the threat of sky-is-the-limit, money-is-no-object regulation of greenhouse gases via the NAAQS program.
  3. Avoid the need for EPA to play lawmaker and ’amend” a statute it is supposed merely to administer.

Most importantly, enacting Sen. Murkowski’s resolution will ensure that the big decisions about the content and direction of national policy are made by the people’s representatives, as the Constitution requires.

Barton Or Bust! How to Stop Mass. v. EPA from Wrecking the Economy

by Marlo Lewis on December 17, 2009 · 1 comment

in Global Warming, Legal

Rep. Joe Barton (R-TX), ranking member of the House Energy and Commerce Committee, announced today that he plans to introduce a “resolution of disapproval” to overturn the Environmental Protection Agency’s (EPA’s) recently finalized endangerment finding on greenhouse gases.

This is  huge. It means that Republicans are going to insist that climate and energy policy be made by the people’s elected representatives rather than by non-elected judges, litigators, and bureaucrats. It means that EPA regulation of carbon dioxide (CO2) under the Clean Air Act (CAA or Act) will be an issue in the 2010 elections. It means that citizens will be able to hold accountable — and punish at the ballot box — any Member of Congress who votes against Barton’s resolution of disapproval and in favor of the compliance burdens, rising energy costs, and litigation risks to the economy that EPA regulation of CO2 unavoidably entails.

In a press release issued today, Barton stated:

“I want to announce that I and others on the Republican side will ask the House of Representatives to consider and pass a resolution strongly disapproving the discreditable decision by the Obama administration to outlaw carbon dioxide and with it, millions of jobs in America.

“The Environmental Protection Agency’s endangerment finding plainly was intended to make the president’s policies look good in advance of his visit to the Copenhagen global warming conference, not to advance any public good in America, but it also has policy implications that threaten serious damage to the economy for generations to come.

“The EPA’s finding accurately reflects the thousands of candid, outrageous e-mails that EPA’s allies in the global warming community sent to each other by demonstrating that public relations priorities rather than straightforward science are driving U.S. policymaking on global warming, and no where did anyone demonstrate a whiff of concern for who pays the bill or how they earn their living.

“Everybody also understands that the endangerment finding is supposed to prod Congress into resuscitating cap-and-trade legislation that is dying from overexposure to public scrutiny. The social cost of this public relations effort, however, will dwarf the hundreds of billions of dollars already spent by the most profligate administration in history.

“Worst of all, the policy envisioned by the Obama administration will treat the recession by committing the country to living with fewer jobs instead of more, and to taking even more money out of the pockets of those lucky enough to have jobs so that radical environmentalists can wage a war against nature.

“Congress has the right and the responsibility to nullify the decisions of the bureaucracy when they run counter to the people’s interests, and a formal Resolution of Disapproval is fully warranted in this instance.”

Why is EPA inaugurating a regime of global warming regulations that Congress never voted for or approved?  Because the Supreme Court, in Massachusetts v. EPA (April 2007), decided to legislate global warming policy from the bench.

In Mass. v. EPA, eco-litigation groups, led by a baker’s dozen state attorneys general, attempted to do an end run around Congress and impose Kyoto-like policies on the U.S. economy through judicial fiat. They found five willing accomplices on the Court, who essentially ruled that Congress authorized EPA to regulate GHGs for climate change purposes when it enacted the CAA in 1970 — decades before global warming became a public concern. The Court’s decision — an affront to common sense — all but ensured that EPA would issue an endangerment finding for greenhouse gases. That, in turn, would compel EPA, under CAA Sec. 202, to establish first-ever GHG emission standards for new motor vehicles.

However, what none of the principals in the case bothered to mention, is that once EPA adopts the GHG motor vehicle standards sought by plaintiffs, CO2 automatically becomes a pollutant “subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Under the CAA, firms must obtain a PSD permit in order to construct or modify a “major emitting facility,” and a Title V permit in order to operate such a facility. A facility is major under PSD if it is in one of 28 categories and has a potential to emit 100 tons per year (TPY) of a regulated pollutant, or 250 TPY if it is any other type of establishment. A facility is major under Title V if it has the potential to emit 100 TPY of a regulated pollutant. As it happens, millions of previously unregulated buildings and facilities — office buildings, apartment complexes, big box stores, enclosed malls, heated agricultural facilities, small manufacturing firms, even commercial kitchens — emit enough CO2 to meet these thresholds.

EPA estimates that if PSD and Title V are applied as written to CO2 sources, the number of PSD permit applications per year would jump from 280 to 41,000, and the number of Title V permit applications would jump from 14,700 to 6.1 million! The CAA permitting programs would crash under their own weight, putting a freeze on new construction, and thrusting millions of firms into legal limbo. Thanks to Mass. v. EPA, the CAA is about to become an economic wrecking ball aimed straight at small business.

EPA’s October 2009 proposed Tailoring Rule attempts to avoid these “absurd results” by suspending the PSD and Title V requirements for any source emitting less than 25,000 tons per year (TPY) of CO2-equivalent GHGs. EPA hopes in this way to have its cake (the power to regulate CO2) and eat it (avoid an uncontrollable regulatory cascade that would provoke a backlash against the Obama administration, the eco-litigation fraternity, and the Court). But in order to pull off this trick, EPA must play lawmaker, effectively amend the Act, and violate the separation of powers.

Rep. Barton is right not to put his trust in the efficacy of this solution to the regulatory nightmare the Court conjured up in Mass. v. EPA. For one thing, it is unclear whether the Tailoring Rule will survive judicial challenge, because it flouts clear statutory language. Secondly, to preserve the fiction that EPA is not amending the Act, the Agency claims in the Tailoring Rule that its goal is to apply PSD and Title V to smaller and smaller CO2 sources over time, eventually including sources emitting 250 TPY and 100 TPY. EPA proposes to spend five years developing “streamlined” permitting procedures for smaller sources, but the legality of such contrivances is dubious as well, and at best streamlining would reduce irrational regulatory burdens on small business, not avoid them.

Finally, and most importantly, the Tailoring Rule, even if upheld by courts, would provide no protection from the most “absurd result” of the endangerment finding: Imposition of national ambient air quality standards (NAAQS) for CO2 that essentially require the de-industrialization of the United States.

The endangerment finding that EPA has just finalized substantively satisfies the endangerment test in CAA Sec. 108 that governs the first phase of a NAAQS rulemaking. The endangerment finding asserts that current atmospheric CO2 concentrations endanger public health and welfare, so logically, a NAAQS for CO2 would have to be set below current levels. Two eco-litigation groups, the Center for Biological Diversity (CBD) and 350.org, have already petitioned EPA to establish NAAQS for CO2 set at 350 parts per million (PPM). Their motto is “350 or Bust!”

The present atmospheric CO2 level is 390 PPM. Even if the entire world met the emissions reduction target of the Waxman-Markey bill — 83% below 2005 levels by 2050 — this would only “stabilize” CO2 concentrations at 450 PPM. Not even a global depression lasting many decades would be enough to reduce CO2 concentrations to 350 PPM. Yet under established legal interpretation, EPA is prohibited from considering compliance costs when establishing NAAQS.

Clearly, the only solid protection against Mass. v EPA’s “absurd results” is to nip the regulatory mischief in the bud. Barton’s resolution of disapproval would do just that. CBD and its allies have their slogan, and now the friends of liberty have one too: Barton or Bust!

NAAQS Petition Confirms Mass v. EPA Is Bottomless Well of Absurd Results

by Marlo Lewis on December 3, 2009

in Global Warming, Legal

Yesterday, the Center for Biological Diversity (CBD) and 350.org petitioned the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for carbon dioxide (CO2) pegged at 350 parts per million (ppm). CO2 concentrations are currently about 387 ppm. The CBD is the eco-litigation group that successfully sued the Fish and Wildlife Service to list the polar bear as a threatened species under the Endangered Species Act.

I’ll have more to say about the specifics of the CBD-350.org petition (available here) in a later post. For now, I just want to note that the petition is additional confirmation that Massachusetts v. EPA, the April 2007 Supreme Court global warming case, is a bottomless well of absurd results that imperil both our economy and the U.S. Constitution.

CEI has been saying from day one – in our comment on EPA’s July 2008 Advanced Notice of Proposed Rulemaking, our comment on EPA’s April 2009 Endangerment Proposal, our comment on EPA’s September 2009 Motor Vehicle Greenhouse Gas Emissions Standards Proposal, and in columns about Mass. v. EPA when the case was still pending – that an endangerment finding under Sec. 202 of the Clean Air Act (CAA) would satisfy the endangerment test in CAA Sec. 108 and, thus, trigger a NAAQS rulemaking.

Not even a global economic depression sustained over many decades would be enough to stabilize atmospheric CO2 levels at 350 ppm — the goal of the CBD-350.org petition. For example, even if the world’s governments could somehow dial back global CO2 emissions to 1957 levels, when the global economy was smaller than one-third its present size, and then hold CO2 emissions constant for the next nine decades, global concentrations would still increase to 455 ppm by 2100.

Obviously, when Congress enacted the Clean Air Act, it did not authorize EPA to squash the U.S. economy. Indeed, one of the Act’s main purposes is to protect the “productive capacity” of the American people (CAA Sec. 101).

Nonetheless, by misreading the Act to include authority to regulate CO2 as an “air pollutant,” the Supreme Court set the stage for a regulatory chain reaction, including establishment of NAAQS for CO2 set below current atmospheric levels, which would effectively turn the CAA into a national economic suicide pact. 

This is not the only ”absurd result” that follows from the Court’s misreading of the Act in Mass. v. EPA. According to EPA’s proposed Tailoring Rule, “literal” (i.e. lawful) application of the CAA to greenhouse gases would annually require 41,000 small firms to apply for Prevention of Significant Deterioration (PSD) pre-construction permits and 6.1 million firms to apply for Title V operating permits. In other words, EPA and its state counterparts would have to process 140 times as many PSD permits and 400 times as many Title V permits per year as they do now. The permitting programs would crash under their own weight, construction activity would grind to a screeching halt, and millions of firms would suddenly find themselves operating in legal limbo. A more potent Anti-Stimulus Package would be hard to imagine.

To avoid these problems, EPA’s Tailoring Rule proposes, over the next six years, to exempt firms emitting less than 25,000 tons per year (TPY) of CO2-equivalent greenhouse gases, even though the statute specifies that PSD and Title V shall apply to sources with potential to emit 250 TPY and 100 TPY of any regulated pollutant, respectively. The Tailoring Rule is actually an Amending Rule. To prevent Mass. v. EPA from turning the CAA into an economic wrecking ball, EPA proposes to play lawmaker and suspend provisions it doesn’t like, violating the separation of powers.

Even if the Tailoring Rule survives judicial challenge, which is doubtful, because it flouts clear statutory language, it would in no way lessen the threat of economy-crushing NAAQS regulation of CO2.

There is only one sensible course for policymakers to take: Overturn Mass. v. EPA. Congress should enact legislation, such as H.R. 391 introduced by Rep. Marsha Blackburn (R-TN), clarifying that CO2 is not subject to regulation under the CAA for climate change purposes.

Is 350 the New 450?

by Marlo Lewis on September 28, 2009 · 3 comments

in Global Warming

In today’s New York Times, Lauren Morello of ClimateWire asks, “Is 350 [parts per million] the New 450 [ppm] When It Comes to Capping Carbon Emissions?”

The answer is yes, suggests Morello, a reporter with a keen eye for the shifting fashions of climate chic.

The older viewpoint was that if the world cuts back its CO2 emissions at least 50% by 2050, with industrial countries cutting their emissions by 80% or more, we could stabilize CO2 concentrations at 450 ppm, and that, in turn, would limit global warming to 2 degrees Celsius above pre-industrial levels.

But a 45o ppm stabilization target is increasingly regarded as too weak and unacceptably risky.  Twenty scientists, in an open letter to the President and Congress, contend that the Waxman-Markey legislation, with its emission reduction target of 83% by 2050, should be considered “only a first step.”

Then there’s the 350 or Bust campaign led by the Center for Biological Diversity. CBD and its comrades demand that U.S. environmental statutes be “fully implemented” to lower CO2 concentrations to 350 ppm. In June, CBD issued a report advising EPA to establish National Ambient Air Quality Standards (NAAQS) for CO2 set at 350 ppm.

Morello quotes Sanford University scientist Stephen Schneider on why 350 ppm is better than 450 ppm: “We’re betting the planet. There’s no such thing as a safe level [of CO2 concentrations]. There’s a level of very risky, versus mildly risky.”

This is the familiar rhetoric that we’re ”gambling with the only planet we have.” As should be obvious by now (alas, it isn’t), Schneider and other cap-and-traders propose to gamble with the only economy we have. They talk as if there are no risks of climate policy, only risks of climate change. I would paraphrase Schneider as follows: There’s economically hazardous (stabilization at 450 ppm by 2050) and there’s economically ruinous (stabilization at 350 ppm).

In “We Can’t Get There From Here” (Mar. 14, 2009), Newsweekcolumnist Sharon Begley describes what it would take to stabilize CO2 concentrations at 450 ppm by 2050:

[Cal Tech chemist Nate] Lewis’s numbers show the enormous challenge we face. The world used 14 trillion watts (14 terawatts) of power in 2006. Assuming minimal population growth (to 9 billion people), slow economic growth (1.6 percent a year, practically recession level) and—this is key—unprecedented energy efficiency (improvements of 500 percent relative to current U.S. levels, worldwide), it will use 28 terawatts in 2050. (In a business-as-usual scenario, we would need 45 terawatts.) Simple physics shows that in order to keep CO2 to 450 ppm, 26.5 of those terawatts must be zero-carbon. That’s a lot of solar, wind, hydro, biofuels and nuclear, especially since renewables kicked in a measly 0.2 terawatts in 2006 and nuclear provided 0.9 terawatts. Are you a fan of nuclear? To get 10 terawatts, less than half of what we’ll need in 2050, Lewis calculates, we’d have to build 10,000 reactors, or one every other day starting now. Do you like wind? If you use every single breeze that blows on land, you’ll get 10 or 15 terawatts. Since it’s impossible to capture all the wind, a more realistic number is 3 terawatts, or 1 million state-of-the art turbines, and even that requires storing the energy—something we don’t know how to do—for when the wind doesn’t blow. Solar? To get 10 terawatts by 2050, Lewis calculates, we’d need to cover 1 million roofs with panels every day from now until then. “It would take an army,” he says. Obama promised green jobs, but still.

The sacrifices required of developing countries would be immense, because 90% of the growth in global CO2 emissions is expected to occur in developing countries. Here’s a graph former CEQ Chairman Jim Connaughton prepared for the December 2007 major emitters conference:

co2-emissions-connaughton2

Stephen Eule of the U.S. Chamber of Commerce shows that to lower global emissions 50% below today’s levels by 2050 (the minimum reduction required to stabilize CO2 at 450 ppm), developing countries would have to reduce their emissions 62% below the baseline projection even if developed countries magically reduce their emissions to zero. They’d have cut emissions 71% below baseline if developed countries cut their emissions “only” 84% below current levels (essentially the Waxman-Markey reduction target).
eule-developing-country-emission-cuts-needed-to-cut-global-emissions-502

Absent technological miracles (which in their nature can’t be planned or predicted), lowering CO2 to 350 ppm by 2050 would probably require a global depression sustained over several decades.

Along with the push to make 350 the new 450, I detect a shift in climate alarmist rhetoric.

 If I’m not mistaken, there is a new and greater emphasis on the so-called precautionary principle. We don’t really know that limiting CO2 concentrations to 450 ppm would keep a safe lid on global warming, so we should err on the side of caution; 350 ppm is a more protective goal, argue NASA’s James Hansen and Gavin Schmidt. Again, this completely ignores the perils of the political interventions and fossil-energy restrictions required to achieve either of those targets. 

Another rhetorical shift is a subtle revision in the concept of climate sensitivity. Climate sensitivity used to mean how much global warming you get from a given increase in CO2 concentrations. However, since 2001, although CO2 concentrations have increased at an accelerating rate, global temperatures have been stagnant or even declined slightly. To my knowledge, no scientist in the late 1990s predicted a roughly 10-year period of no warming at the start of the 21st Century. This suggests that the climate is less sensitive (less reactive to CO2 emissions) than the alleged “scientific consensus” has been telling us.

That’s inconvenient if the only way to sell energy rationing to a reluctant populace is to claim, over and over again, that climate change is “even worse than scientists previously predicted.”

So the new rhetoric emphasizes the alleged damages of global warming — melting Arctic sea ice, drought in Australia, species migration. And we’re told that these impacts are occurring faster than climate models have predicted.  Dr. Brenda Ekwurzel of the Union of Concerned Scientists argued along those lines at a Ways and Means Committee hearing earlier this year on “Scientific Objectives in Climate Change Legislation.” 

Climate sensitivity is thus redefined to mean climate impacts per a given increment of warming rather temperature change per a given increment of CO2. In short, we’re supposed to believe that less warming than the IPCC predicts leads to worse impacts than the IPCC predicts. Hence the need to make 350 ppm the new 450 ppm.

All of which is obviously question-begging, because if the world isn’t warming, how do we know that, say, drought in Southern California is due to CO2 emissions rather than to ocean cycles or some other factor not related to the greenhouse effect? Indeed, if a change in weather or climatic conditions occurs faster than greenhouse climate models project, that is prima facie evidence that the change is not due to greenhouse gas emissions. 

The older view of climate sensitivity – that X amount of CO2 produces Y amount of warming — is the correct one, because it alone allows scientists to frame testable hypotheses. Scientists can measure CO2 concentrations, and they can measure global temperatures, and they can test whether a given increment in CO2 concentrations does or does not yield a hypothetical increase in global temperature.  

As discussed in a previous post, a recent observational study by Richard Lindzen and Yong-Sang Choi of MIT indicates that the actual climate is about six times less sensitive to CO2 emissions than the IPCC’s “best estimate.”

Rent-seeking utilities: you reap what you sow

by Marlo Lewis on September 22, 2009 · 3 comments

in Global Warming, Legal

Yesterday, in State of Connecticut et al. v. American Electric Power et al., the 2nd U.S. Court of Appeals decided that states and other plaintiffs have the right to sue five electric utilities – American Electric Power, Cinergy, Southern Co., Excel Energy, and the Tennessey Valley Authority – for creating a ”public nuisance” by emitting CO2 and, thus, contributing to global warming.

With regard to American Electric Power (AEP) and Cinergy, I am tempted to say, it couldn’t happen to a nicer bunch of guys. These utilities for years have lobbied for carbon cap-and-trade schemes. Instead of opposing climate alarmism, they have helped promote it. Boys, you reap what you sow!  How are you going to deny plaintiffs’ allegations that your CO2 emissions are a public nuisance, when you have repeatedly stated on the record that man-made global warming is a big, big problem?

In the 139-page decision, Judges Joseph McClaughlin and Peter Hall (appointed by Presidents George H.W. Bush and George W. Bush respectively) rejected the lower court’s opinion (and the utilities’ argument) that the relief sought by plaintiffs — a gradually decreasing cap on the utilities’ CO2 emissions — raised “non-justificiable political questions.”

In a sane universe, the Appelate Court would have upheld the lower court’s decision. Energy policy is manifestly a political question — perhaps the most politicized issue to come down the pike in decades. If courts and litigators can dictate energy policy (actually, anti-energy policy) to the nation, then constitutional self-government is at an end.

The Court held that granting plaintiffs’ proposed remedy would not “decide overarching policy questions such as whether other industries or emission sources not before the court must also reduce emissions or determine how across-the board emissions reductions would affect the economy and national security.” Rather, the Court said, granting the remedy sought would only require the lower court to “resolve the particular nuisance issue before it” involving just the five utilities in the case (p. 30).

Who do Judges McClaughlin and Hall think they’re fooling? If plaintiffs sue the utilities and win, the precedent they establish would have enormous policy consequences. That’s the whole point. Setting the precedent for additional “public nuisance” litigation to restructure energy markets and the economy is what the case is all about.

Nobody seriously believes that capping the five utilites’ emissions would in itself provide any measurable relief from climate change, or any damages allegedly resulting from climate change. The litigation is either political grandstanding  and ambulance chasing, or it is designed to set the stage for a broader, policy-changing, litigation campaign. 

Once a court actually determines that CO2 emissions are a public nuisance, the same plaintiffs — or others — could argue that nothing less than eliminating AEP and Cinergy’s emissions is adequate to avoid dangerous “tipping points” and reduce “injuries” to the public (p. 8). Logically, if lower emissions is better, zero emissions is best.

Surely there is no shortage of eco-litigation groups willing to press the legal logic as far as it will go. The Center for Biological Diversity, for example, leads a coalition calling itself 350 or Bust. The idea is to use all available legal means to bring atmospheric CO2 concentrations down to 350 parts per million (today’s level is about 387 ppm). Accomplishing that goal would likely require a global depression over many decades. Pardon me if I view the alliance of climate alarmism and judicial activism as one of the biggest public nuisances we face.

It’s easy to suppose that public nuisance litigation will target only major emitters such as coal-burning utilities. But remember, utilities emit CO2 only in the process of serving customers who consume electricity. People powering their factories, lighting their homes, and running their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else. So, shouldn’t everybody have the right sue everybody else?

I am reminded of the South Park Episode, Two Days Before the Day After Tomorrow – a parody of the preachy, global warming, Sci-Fi disaster film, The Day After Tomorrow. 

Stan and Cartman crash a speed boat into the world’s largest beaver dam, flooding the people of Beaverton out of their homes. Later that night, Stan, feeling guilty, asks his parents what’s being done to rescue the flood victims. Stan’s father says that’s not as important as finding out who deserves the blame. Some in South Park accuse George Bush; others accuse Al Qaeda. Stan’s father and other Colorado scientists announce they have found the real culprit: global warming.

Then comes the really bad news: Global warming will strike not the day after tomorrow, as scientists had previously thought, but two days before the day after tomorrow – today! There is panic in the streets, not just in South Park but all around the country. Fearing that global warming will shift the climate into an ice age, Stan’s father dons Arctic weather gear and nearly perishes in the summer heat. 

The Army rescues the Beaverton residents still stranded on their rooftops and ends the global warming panic — but only by blaming the flood on yet another bogeyman: Six-Legged, pincered, “Crab People.” Unable to live with the guilt any longer, Stan confesses to the people of South Park: ”I broke the dam.” One of the adults translates: “Don’t you see what this child is saying … we all broke the dam.” Another adult steps forward and says, “I broke the dam.” Then another and another.

We all emit CO2. We all consume electricity. Even if our utility generates juice from nukes or hydro, we drive CO2-emitting cars and consume goods and services made either directly or indirectly with CO2-emitting fossil energy. According to the “science” underpinning plaintiffs’ lawsuit, we’re all responsible for every damage and harm that anyone can plausibly (or implausibly) blame on global warming — every flood, every eroded beach, every summer dry spell, every tornado, and hurricane, etc. We have met the public nuisance, and it is us!

South Park explains the two-fold appeal of global warming hysteria. First, warmism feeds and legitimizes the desire to punish and blame. It justifies and focuses political indignation. It incites political and legal attack on coal-power plants and oil companies – key sources of our prosperity.

Second, warmism gratifies the need to feel connected to something really big and important, usually on the cheap. It feeds feelings of collective guilt (“we all broke the dam”) while offering a number of easy expiation rituals (“I recyle,” ”I voted for Obama,” “I support cap-and-trade”). 

In light of this, ahem, analysis, we should expect future common law CO2 litigation cases to (a) demand bigger penalties for major emitters and bigger cuts in their CO2 emissions than plaintiffs in State of Connecticut currently demand, and (b) target smaller and smaller entities as public nuisances.

How long will Sen. Barrasso’s “hold” on Regina McCarthy hold?

by Marlo Lewis on May 11, 2009

in Global Warming

Maybe forever! 

On April 30, Sen. John Barrasso (R-WY) placed a hold on the nomination of Regina McCarthy as Assistant Administrator of the EPA Office of Air and Radiation. “The nominee has failed to address serious concerns” about how the EPA would regulate greenhouse gases (GHGs) under the Clean Air Act, once the Agency finalizes its endangerment finding, Barrasso stated. 

The endangerment finding will compel EPA to establish GHG standards for new motor vehicles. This will make carbon dioxide (CO2) a pollutant “subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program. An estimated 1.2 million previously unregulated buildings and facilities emit enough CO2 each year (250 tons) to qualify as “major stationary sources” under the PSD program. All would become vulnerable to new controls, monitoring, paperwork, penalties, and litigation. In 2003, the average PSD permit cost each applicant $125,120 and 866 burden hours to obtain.

Last week, Sen. Barrasso asked Ms. McCarthy how she would protect small businesses from PSD lawuits. The nominee replied that she will “request that I be informed if any such notice is filed with regard to a small source, and I will follow up with the potential litigants.” Barrasso commented: “The solution to this problem is not to have government officials go around asking litigants not to sue. That is not a solution and entirely unrealistic. I expect more.”

Short of amending the Clean Air Act, however, there may be no solution–which means Sen. Barrasso may have to keep the “hold” on for a very long time. The law clearly states that an entity must obtain a PSD permit before it builds or modifies a facility with the potential to emit 250 tons per year (TPY) of a regulated air pollutant, and all kinds of non-industrial facilities–office buildings, big box stores, apartment complexes, enclosed malls, heated warehouses, even commercial kitchens–actually emit 250 TPY of CO2.

In his press release, Barrasso cites a Wall Street Journal article stating that Kassie Siegel, Director of the Center for Biological Diversity’s Climate Law Institute, plans to sue EPA if the Agency does not apply PSD requirements to small sources. Siegel denied this in an email to Greenwire (subscription required): “The Center for Biological Diversity is not going to sue the EPA to regulate small sources of carbon dioxide, nor is anyone else.” But she cannot possibly know that no NIMBY activist somewhere will not file a PSD suit to block or delay construction of new Wal-Mart stores, strip malls, fast food restaurants, etc.

Besides, as Borrasso pointed out in a press release last Friday, in its comment on EPA’s Advanced Notice of Proposed Rulemaking, the Center for Biological Diversity lauds the PSD program as “an effective tool for reducing GHG emissions” precisely because ”it applies to a wide array of sources that will emit in excess of the applicable statutory thresholds of 250 or 100 tons per year.”

The Center further comments that, “the asserted belief of EPA officials that the statutory requirements are burdensome or not ‘efficient’ as they should be simply does not excuse the agency from following the law. The EPA has no authority to weaken the requirements of the statute simply because political appointees don’t like the law’s requirements.”

The Center files lots of lawsuits, and they just established a $17 million litigation fund to ensure that U.S. environmental statutes are “fully implemented” to reduce GHG emissions. In keeping with this, the Center’s ANPR comment argues that EPA “must” establish National Ambient Air Quality Standard (NAAQS) for CO2 of no more than 350 parts per million. Even outright de-industrialization of the United States would likely be insufficient to meet that standard. Maybe that’s why the Center has no plan to sue EPA to regulate small sources. If the Center successfully sues EPA to set NAAQS for CO2 at 350 ppm, there won’t be many businesses left to regulate.

David Bookbinder, chief climate council for the Sierra Club, similarly dismissed Borrasso’s concerns about PSD regulation of small sources. Asked what his response to Borrasso would be, Bookbinder told BNA (subscription required): “Nothing you could print.”

Yet earlier this year, the Sierra Club decided not to put a stay on Bush EPA Administrator Stephen Johnson’s interpretative rule limiting PSD to air pollutants currently subject to emission controls–a category that does not include CO2. Bookbinder acknowledged to Greenwire that if Johnson’s rule were simply overturned, EPA would have to regulate small sources of CO2. He explained: ”The Clean Air Act has language in there that is kind of all or nothing if CO2 gets regulated, and it could be unbelievably complicated and administratively nightmarish for both EPA and the states if they were to yank the Johnson memo and not have something in place that makes it clear that we’re going after only the very large sources.”

The real nightmare would be for the firms regulated, not the regulators. Like Siegel, Bookbinder presumes to speak for all potential litigants. In reality, neither Sierra Club nor Center for Biological Diversity has a monopoly on Clean Air Act litigation. The law is clear–250  tons is the threshold for regulation. And all it takes is one NIMBY activist to file the citizen suit that forces EPA to follow the law.

President Obama could quickly fix the whole problem if he wanted to. All he’d have to do is offer legislation to preclude EPA regulation of greenhouse gases under the Clean Air Act. Nearly all Republicans and many Democrats in Congress would vote for it, because it would protect our ailing economy from litigation-driven regulatory excess.

But Obama will not do this, because he wants to use the threat of EPA regulation under the Clean Air Act as a legislative hammer to beat opponents of the Waxman-Markey cap-and-tax bill into submission. This is too clever by half, however, as I argue here and here. If EPA does bring the might and fury of the Clean Air Act down upon CO2 emitters, Obama will have to take major responsibility for the increase in energy prices, the lost jobs, and the shuttered businesses.