Lisa Murkowski

Republicans Filibuster Left-Wing Lawyer’s Nomination to Key Appeals Court; Block Confirmation of Goodwin Liu

by Hans Bader on May 20, 2011

in Economy, Healthcare, Legal, Nanny State, Personal Liberty, Property Rights, Regulation

“Goodwin Liu’s nomination to the Ninth Circuit Court of Appeals appears to be done for” thanks to a Republican filibuster, says David Freddoso of the Washington Examiner. The Senate has blocked his nomination to sit on the Ninth Circuit Court of Appeals, which has jurisdiction over the western fifth of the United States. By a 52-to-43 vote, the Senate failed to override a Republican filibuster. All Republicans except Lisa Murkowski of Alaska voted against Liu. All Democrats except Ben Nelson of Nebraska voted for Liu.

Liu, a Berkeley law professor, has many radical positions, and is a big user of politically-correct psychobabble designed to hide judicial activism.  For example, he has written that a judge is supposed to be a “culturally situated interpreter of social meaning” rather than an impartial umpire who interprets the law in accord with its plain meaning or its framers’ intent. Cato Institute’s Ilya Shapiro notes that Liu has suggested that the Constitution creates a right to welfare entitlements in areas like health care.

The defeat of Liu’s nomination could affect a great many high-profile cases.  As lawyer and former federal appeals court clerk Ted Frank notes,

“The Ninth Circuit is a court that was one vote away from striking down the Pledge of Allegiance; regularly abuses the law to disregard states’ wishes to impose capital punishment; has ordered California to release 25% of its prisoners; has forbidden Los Angeles from enforcing laws against sleeping on sidewalks; has said it has seen no reason why animals should not be allowed to sue the federal government; held an ex-police officer could sue his employer for firing him for running a porn site in his uniform; said that gun manufacturers could be held civilly liable for the shooting sprees of the mentally ill.”

[click to continue…]

Sen. Baucus, I Salute You! OK, I Will Salute You If…

by Marlo Lewis on October 7, 2010 · 1 comment

in Global Warming

In a message titled, ”EPA WILL REGULATE GLOBAL WARMING IN STATES WITH OR WITHOUT AUTHORITY,” the ever-vigilant Maryam Brown of the Senate Republican Policy Committee reports:

As you likely saw, Senator Baucus [D-MT] said yesterday that he would strip U.S. EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act: “That would put too much power into few hands.” (Source:  E&E News) Senator Baucus’s apprehension to EPA’s power over all activity is well placed.

On October 5th, EPA officials said that those states not cooperating come January 2nd would face a gap in permitting authority that could prevent sources from receiving the necessary permits.  [In plain English: If states don’t come along, the Obama EPA will hold up projects (and the jobs that go with) in your state.]  (Source:  BNA Daily)

Because these statements echoed states such as Texas’s fears that EPA has a “plan for centralized control of industrial development through the issuance of permits for greenhouse gases,” EPA issued a clarifying statement on October 6th: “EPA has a mechanism in place to ensure permitting can occur without disruption in any states that currently do not have authority to regulate GHG.”  [In plain English: Whether there is authority or not, the Obama EPA will regulate the states.] (Source:  BNA Daily)

Baucus’s opposition to EPA regulation of greenhouse gases is noteworthy for three reasons.

First, as E&E News observes, Sen. Baucus “is considered a key vote to obtain in order to pass any climate bill and a bellwether for many other moderate Democrats on the issue.” Second, Baucus voted against Sen. Lisa Murkowski’s resolution (S.J.Res.26) to overturn EPA’s Endangerment Rule — the trigger for a cascade of greenhouse gas regulation under the Clean Air Act. If he is a “bellwether,” then other opponents of S.J.Res. 26 may also have come to their senses and realize that Congress should not let EPA legislate climate policy.

Third, although Baucus may not acknowledge it, his “too much power into few hands” argument is tacit criticism of the Supreme Court’s ruling in Massachusetts v. EPA, which both authorized and pushed EPA to regulate greenhouse gases via the Clean Air Act. The Court authorized EPA to regulate greenhouse gases when it declared that “greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’” (they don’t, as I explain here).

In addition, the Court pushed EPA to regulate greenhouse gases by pre-judging EPA’s endangerment proceeding. The Court held that EPA must make a positive finding of endangerment if it decides that “greenhouse gases cause or contribute to climate change” — as if climate change per se = endangerment. Since greenhouse gases by definition have a greenhouse effect, the Court left EPA only one alternative — declare that “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” An impossible alternative for an agency that had been a certified member of the alleged “scientific consensus” for many years.

The key point regarding Mass. v. EPA, though, is that Sen. Baucus is almost uniquely qualified to rebut the claim that the Clean Air Act authorizes EPA to regulate greenhouse gases from new motor vehicles. During congressional deliberation on the Clean Air Act Amendments of 1990, Baucus  introduced legislation requiring EPA to do just that. As originally introduced on September 14, 1989, S. 1630, the Senate version of the 1990 Clean Air Act Amendments, contained a Section 216 on “Carbon Dioxide Emissions from Passenger Cars.” The provision would require the Administrator to establish tailpipe emission standards for CO2:

SEC. 216. (a) PROMULGATION OF REGULATIONS- The Administrator shall promulgate regulations providing for standards applicable to emissions of carbon dioxide from passenger automobiles (as defined in 15 U.S.C. 2001(2)). Such standards shall require that for model years 1995 to 2002, the average of such emissions from passenger automobiles manufactured by any manufacturer shall not exceed two hundred and forty two grams per mile, and for model year 2003 and thereafter, such average shall not exceed one hundred and seventy grams per mile.

However, the Senate declined to adopt that provision.  Another part of Baucus’s draft legislation, Title VII of S. 1630, would have made “global warming potential” a basis for regulating ”substances manufactured for commercial purposes,” such as chlorofluorcarbons and halogens. Although Title VII declared reductions in CO2 and methane emissions as a national goal, it did not explicitly provide authority to regulate those gases, which are byproducts of combustion and agricultural activity rather than “substances manufactured for commercial purposes.”

In any event, the House-Senate conference committee ultimately rejected even that limited basis for global warming regulation while also dropping Title VII’s goal of reducing CO2 and methane emissions. The only trace of Title VII’s climate language that survived is Section 602(e) of Title VI, which directs the Administrator to “publish” the “global warming potential”of ozone-depleting substances. To ensure that trigger-happy regulators would not go off half-cocked, the phrase “global warming potential” is immediately followed by this admonition: “The preceding sentence shall not be construed to be the basis of any additional regulation under [the CAA].”

So with the possible exception of Rep. John Dingell (see pp. 65-66 of this committee print), who chaired the House-Senate conference committee on the 1990 Clean Air Act Amendments, probably nobody on Capitol Hill knows better than Sen. Baucus that Congress never authorize EPA to regulate greenhouse gases for climate change purposes. Baucus tried to persuade the Senate to approve greenhouse gas emission standards for new motor vehicles — and failed. House and Senate conferees also rejected the other greenhouse gas regulatory provisions he had proposed. A lawmaker doesn’t forget stuff like that!

And now, 20 years later, Baucus is willing to break ranks with his own party leadership and incur the wrath of the green establishment because EPA is amassing powers that, in the last major re-write of the Clean Air Act, he tried and failed to confer on the agency via legislation. Sen. Baucus, I salute you! OK, I will salute you if you match your brave words with action and do something to stop EPA!

The Court in Mass. v. EPA ignored its own better judgment: “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio [by its silence] to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardozo-Fonseca, 480 U.S. 421, 442-43 (1983) It is not too late to correct the Court’s error. If Sen. Baucus is indeed a bellwether, that correction may not be long in coming.

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.

Rockefeller Bill – Is It Good Enough?

by Marlo Lewis on July 23, 2010

in Odds & Ends

Barring the trickery of a lame-duck conference committee, cap-and-trade is dead as a door nail in the 111th Congress. As you’d expect, there is much wailing and gnashing of teeth, with Obama officials, Democratic leaders in Congress, and environmental lobbyists all saying it’s all the other guy’s fault.

Columnist Darren Samuelsohn provides several juicy quotes in Politico today. My favorite is from an unnamed “exasperated Administration official who lambasted environmentalists — led by the Environmental Defense Fund — for failing to effectively lobby GOP senators”:

They spent like $100 million and they weren’t able to get a single Republican convert on the bill.

Sure, it was just a matter of poor lobbying skills! The fact that nobody knows how to power the economy with solar panels, wind turbines, and cellulosic ethanol had nothing to do with it! The fact that energy taxes kill jobs and jobless rates remain shockingly high had nothing to do with it! The blame gamers are in denial.

Having failed to snooker Senate Republicans into providing bipartisan cover for cap-and-tax, Democratic leaders must now take sole responsibility for EPA’s endangerment rule and the ensuing regulatory cascade. Waxman-Markey and most other cap-and-trade bills contained language preempting EPA regulation of greenhouse gases under various Clean Air Act provisions. The sponsors repeatedly tried to sell their bills as the only way to avoid heavier and more unpredictable regulation under the Clean Air Act.

This was always a lame sales pitch. Its success depended on Rs being too dumb to figure out that Democratic leaders were actually promising to commit political suicide rather than wielding a mighty legislative hammer. Colorado State University Prof. Roger Pielke, Jr. and the Breakthrough Institute’s Michael Shellenberger warned more than a year ago that threatening to sic EPA and eco-litigators on the economy unless Rs lined up behind cap-and-trade was a strategy that could easily backfire:

Pielke, Jr.: Republicans must be drooling over the possibility that EPA will take extensive regulatory action on climate change. Why? Because the resulting political fallout associated with any actual or perceived downsides (e.g., higher energy prices) will fall entirely on Democrats and the Obama Administration. Far from being an incentive for Congress to act on its own, the looming possibility that EPA will take regulatory action is a strong incentive for Republicans to stalemate Congressional action and a nightmare scenario for Democrats.

Shellenberger: In other words, the White House “threat” to Republicans and moderate Democrats to regulate carbon is the equivalent of threatening your enemy with suicide. (“Don’t make me raise energy prices! You’ll really be in trouble with your voters when I raise their energy prices!”)

On June 10, the Senate voted 53-47 against S.J.Res.26, Sen. Lisa Murkowski’s resolution of disapproval to overturn the legal force and effect of EPA’s endangerment rule. Had S.J.Res.26 become law, it would have stopped EPA and the trial lawyers from imposing unlegislated climate policy on the nation. President Obama threatened to veto the resolution. All 41 Senate Republicans and six Democrats voted for S.J.Res.26. It failed because 53 Democrats voted against it.

Thanks to the vote on S.J.Res.26, the Democratic leadership has become the Party of Endangerment — the party endangering America’s economic future by taking exclusive ownership of EPA’s endangerment rule and the regulatory chain reaction it has set in motion.

Unsurprisingly, congressional Democrats are now looking for a way to have their cake and eat it — claim to protect their constituents from regulatory excess while actually protecting EPA’s purloined power to make climate policy. “The time has come to prevent EPA from going forward next year with regulations on stationary sources [of greenhouse gases],” Rep. Rick Boucher (D.-Va.) told Energy and Environment News (subscription required). Other Ds are making similar noises.

Their vehicle of choice is a bill sponsored by Sen. Jay Rockefeller (D.-W.Va.), which would postpone EPA regulation of stationary sources of greenhouse gases for two years. Some key points to keep in mind.

  • Most energy-intensive investments have much longer planning horizons than two years. Thus, the Rockefeller bill would leave a cloud of regulatory uncertainty hanging over the economy, deterring many firms from starting new projects this year and next. 
  • To provide real protection, re-enacting the bill would have to become an annual ritual on Capitol Hill. That, however, is not something any of its sponsors indicate they intend or want to happen.
  • The bill would leave the endangerment rule intact, setting the stage for money-is-no-object regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program.

The Rockefeller bill’s chief purposes are not economic but political. It was designed to siphon off Democrat support from the Murkowski resolution, and it may well have provided the legislative margin of victory for the Party of Endangerment.

The bill’s main purpose now is to obscure what the vote on S.J.Res.26 made so clear — namely, which Members of Congress actually oppose regulatory excess and which do not, and which Members actually want politically accountable policymaking and which do not.

My unsolicited advice to the friends of democratic accountability in Congress is to safeguard and refresh the hard-won political clarity they achieved in the vote on S.J.Res.26. They can do this by seeking votes on amendments to toughen and improve the Rockefeller bill. Here are two obvious ideas:

  1. An amendment to suspend stationary source regulation of greenhouse gases until Congress votes to remove the suspension. A vote on this amendment would clearly distinguish those who want the people’s representatives to determine climate policy from those who want non-elected bureaucrats, trial lawyers, and activist judges to be in charge.
  2. An amendment to suspend stationary source regulation of greenhouse gases until the rate of unemployment falls to 5.5%.  A vote on this amendment would clearly distinguish those whose priority is to grow the economy from those whose priority is to grow EPA’s power.

What if the amendments are defeated? Congress could still pass the Rockefeller bill, which at least would put EPA on hold for two years. More importantly, even if defeated, such amendments would separate the real champions of prosperity and self-government from the pretenders.

Greenhouse Protection Racket

by Marlo Lewis on July 6, 2010 · 1 comment

in Odds & Ends

Climate policymaking in our Nation’s capital often resembles the heavy-handed dialogue of old-time mobster films.

“Are you gonna come along quietly, or do I have let the California Air Resources Board (CARB) muss ya up?” That was pretty much the line White House Environment Czarina Carol Browner took to obtain the auto industry’s support for the joint EPA/National Highway Traffic Safety Administration (NTSHA) greenhouse gas (GHG) emission/fuel economy standards rule. EPA is now in a position both to determine the stringency of fuel economy standards for the auto industry and to set climate policy for the nation. Yet the Clean Air Act provides no authority to regulate fuel economy and says nothing about greenhouse gases or global climate change. ”Badges? We don’t need no stinking badges.”  

Modus Operandi: Threaten in Order to Remove the Threat — for a Price

Here’s how the regulatory mugging went down. 

In February 2009, EPA Administrator Lisa Jackson commenced a rulemaking to reconsider Bush EPA Administrator Stephen Johnson’s denial of California’s request for a waiver to establish its own greenhouse gas emission standards program. Because the waiver would also allow other states to adopt the California program, because GHG emission standards are mainly fuel economy standards by another name, and because automakers would have to reshuffle the mix of vehicles delivered for sale in each “California” state to achieve the same average fuel economy in those states, Jackson’s proceeding threatened to subject automakers to inefficient, consumer-thwarting, regulatory patchwork.

In May 2009, Czarina Browner conducted secret negotiations with automakers, CARB Chairman Mary Nichols, and major environmental groups. Browner required participants to take a vow of silence and forbade anyone to take notes, violating the Presidential Records Act. The closed-door negotiations produced an “historic agreement” whereby automakers would support the EPA/NHTSA GHG/fuel economy standards rule and California and other states would deem compliance with the federal standards as compliance with their own.

In addition, observes Rep. Darrel Issa (R-Calif.), at the same time the Browner-led negotiations were taking place, ”the government was also engaged in bailout talks with General Motors (GM) and Chrysler,” resulting in “an ownership stake for the federal government of 61% of GM and 8% of Chrysler, respectively.” Whether Browner literally made the auto industry an offer it could not refuse, with the sweetener of financial assistance also contingent on the industry’s embrace of GHG regulation, we may never know.

This much is clear. By granting California’s request for a waiver, EPA created the threat of a regulatory patchwork, enabling the White  House to offer ”protection” in the form of the joint GHG/fuel economy standards rule. The protection “fee” was the auto industry’s unquestioning support for the joint rule and its prerequisite, EPA’s endangerment rule.

Thus, the Auto Alliance became the key industry lobby opposing Sen. Lisa Murkowski’s resolution to overturn EPA’s endangerment rule. The Alliance warned that if the endangerment finding were overturned, the “historic agreement” would unravel, confronting automakers with “the alarming possibility of having to comply with multiple sets of conflicting fuel economy standards.” 

That is correct, but only because EPA Administrator Jackson, reversing her predecessor’s decision, granted California a waiver to establish GHG emission standards for new motor vehicles. An obvious solution would be to overturn the waiver. After all, the Energy Policy and Conservation Act clearly prohibits states from adopting laws or regulations ”related to fuel economy,” and the California motor vehicle emissions program is basically a de facto fuel economy program. The waiver effectively repeals federal law, violating the separation of powers. Not that you’ll ever hear about that from Government Motors. Mum’s da woid.

Mirage of Regulatory Certainty

The auto industry is not the only target of the greenhouse protection racket. For years, the greenhouse gang has been saying that only cap-and-trade can end the intolerable ”regulatory uncertainty” facing the electric power sector, energy-intensive manufacture, and other CO2 emitters. But who created the uncertainty in first place if not the self-same advocates of cap-and-trade? If they were serious about relieving uncertainty, they would disavow the regulatory schemes for which they have been campaigning.

Businesses lobbying for cap-and-trade in the name of certainty should read the fine print. The Waxman-Markey and Kerry-Boxer bills, for example, have multiple escalater clauses setting the stage for dramatic increases in regulatory stringency well beyond the bills’ explicit emission reduction targets.  Similarly, the bills’ “findings” presenting the “scientific” rationale for cap-and-trade are not mere rhetorical fluff but precedents for litigation targeting emission sources considerably smaller than those explicitly identified as “covered entities.” Enact such legislation, and the only certainty is that regulatory burdens will grow unpredictably.

Too Clever by Half

Last but not least, cap-and-taxers sell their policy as protection from litigation-driven greenhouse gas regulation under the Clean Air Act.  The sales pitch goes something like this: “Pretty nice company you got deah, shame if sumpin’ bad waz to happen to it. Everybody needs protection. You need protection. It’s called Kerry-Lieberman.” Note the familiar pattern. The gang pushing cap-and-trade as protection from EPA are the same folks who sued EPA to regulate greenhouse gases and who vilified Sen. Murkowski and others for attempting to stop EPA.

This is all too clever by half. If cap-and-trade dies in the 111th Congress, which seems increasingly likely, the Obama administration and its allies on the Hill will take sole ownership of the compliance costs, job and GDP losses, and “absurd results“ arising from EPA regulation of greenhouse gases under the Clean Air Act. 

Democratic leaders may not recognize it yet, but they have painted themselves into a corner. They have become the Party of Endangerment — the party endangering the U.S. economy by championing the endangerment rule, with all its cascading regulatory effects.

Brava, Sen. Murkowski

by Marlo Lewis on June 14, 2010

in Global Warming

Last Thursday, by a vote of 53-47, the Senate rejected S.J.Res.26, Alaska Sen. Lisa Murkowski’s resolution of disapproval to overturn EPA’s endangerment rule.

Although Sen. Murkowski fell four votes short of achieving a legislative victory, she nonetheless won an important political victory. 

During the past four-plus months, despite vicious attacks by eco-pressure groups and preemptive cringing by the subsidy dependent auto industry, Sen. Murkowksi worked patiently, calmly, and indefatigably to clarify the real issues, which are: (1) “The sweeping powers being pursued by EPA are the worst possible option for reducing greenhouse gas emissions”; (2) “politically accountable members of the House and Senate, not unelected bureaucrats, must develop our nation’s energy and climate policies”; and (3) ”those policies must be able to pass on their own merits, instead of serving as a defense against ill-considered regulations.”

All 41 Republican Senators and six Democrats voted to stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door. This means Democratic leaders have become the Party of Endangerment — the party taking ownership of the regulatory consequences of EPA’s endangerment rule; hence the party taking responsibility for the economic fallout.

By denying President Obama bipartisan cover for greenhouse gas regulation under the Clean Air Act, Sen. Murkowski has made EPA’s endangerment rule a political liability for Democrats and a political asset for Republicans in an election year.

That should increase the pressure on moderate Dems and Republicans alike to distance themselves from Democratic leaders and eschew cap-and-trade, which, like EPA’s regulations, would increase consumer energy prices, killing jobs and growth.

Sen. Murkowski’s opening and closing statements in the floor debate clearly and cogently explain how the endangerment rule imperils our economy and representative democracy. Below are some noteworthy excerpts.

Excerpts from Sen. Murkowski’s Opening Statement

The sweeping powers being pursued by the EPA are the worst possible option for reducing greenhouse gas emissions. . . .It would amount to an unprecedented power grab, ceding Congress’ responsibilities to unelected bureaucrats, and move an important debate from our open halls to behind an agency’s closed doors.

* * *

The only similarity I see between the spill in the Gulf of Mexico and EPA’s regulations is that both are unmitigated disasters — one happening now, the other waiting in the wings if Congress fails to adopt this resolution.

* * *

No one is more aware of this uncomfortable fact [that EPA's regulatory net would expand by orders of magnitude] than the EPA itself. That’s why the agency has attempted to dramatically increase the thresholds for greenhouse gases in its so-called tailoring rule. Unhappy with the plain language of the Clean Air Act, the agency plans to lift its limits up to 1,000 times higher than Congress directed. It’s deeply disturbing that EPA did not accept that the Act is simply not structured for this task, and instead attempted to make it so by ignoring the plain language and unilaterally amending it.

* * *

I encourage my colleagues to think about the logic behind the tailoring rule. The EPA is asking us to accept that while greenhouse gases are not in the Clean Air Act, Congress clearly intended them to be regulated under it. At the same time, we’re expected to believe that while explicit regulatory thresholds are in the Act, Congress meant for EPA to ignore them.

* * *

To this day, the agency still has not provided anything close to a full projection of the economic impacts that its economy-wide climate regulations will have. There are two potential reasons why: the EPA either has no cost estimates, or knows they are too astronomical to calculate and release.

* * *

The problem is that BACT [best available control technology] remains completely undefined at this point. It could mean efficiency improvements, expensive add-on technologies, or even fuel-switching requirements. Over time, the EPA would have little choice but to impose all of those requirements and more, regardless of the consequences.

* * *

Again, it’s hard not to find this both surreal and deeply alarming. We need to be growing our economy, not paralyzing it.

* * *

This brings me to my final point: politically accountable members of the House and Senate, not unelected bureaucrats, must develop our nation’s energy and climate policies. And those policies must be able to pass on their own merits, instead of serving as a defense against ill-considered regulations.

* * *

Nor is it [S.J.Res.26] about fuel efficiency — the Department of Transportation is and has been in charge for 35 years, and we don’t need another agency and another standard thrown into the mix to do the same job . . . .The EPA does not need to take over this process, and it should not be allowed to do so under a law that was never intended to regulate fuel economy.

* * *

Bringing climate science, the oil spill, and fuel economy into this debate are attempts at misdirection — “green herrings” intended to convince members to oppose our resolution. But this debate has nothing to do with those topics. . . .It’s about maintaining the separation of powers between the legislative and executive branches, as our founding fathers intended, and rejecting an unprecedented overreach by the EPA into the affairs of Congress.

Excerpts from Sen. Murkowski’s Closing Statement

Most cynical are the efforts to link our resolution to the oil spill. That serves only to cheapen the horrible and ongoing tragedy in the Gulf of Mexico and distract from the reasons why 41 Senators sponsored this resolution. Here’s the real question: why is the EPA attempting to impose economy-wide regulations — regulations that will not help clean up or prevent future accidents — instead of focusing its resources on the spill?

* * *

We’ve heard that our resolution is anti-science. Some of our supporters agree with it [EPA's endangerment analysis], and some do not. The reality is that the science is what it is, and it is beyond the power of Congress to change. But this is an issue of the best way, and the most appropriate body, to respond to the conclusions being reached by members of the scientific community.

* * *

Threatening to disrupt our nation’s economy until we pass a bill by the slimmest of margins, regardless of its merits, won’t be much of an accomplishment. Nor is that approach worthy of the institutions and people we serve. It isn’t appropriate for a challenge of this magnitude. No policy that results from it will achieve our common goals or stand the test of time.

* * *

Today is the day for the Senate to take the threat of EPA climate regulations off the table once and fall all. . . .By passing our bipartisan resolution of disapproval resolution, we can return the debate over climate policy to its rightful home, here in Congress, where duly-elected representatives can represent the best interests of their constituents.

No, It’s Not About Oil; Besides, Oil Is Good!

by Marlo Lewis on June 10, 2010 · 7 comments

in Global Warming

It is a measure of the weakness of the case against Sen. Murkowski’s resolution of disapproval (S.J.Res.26) that opponents keep trying to change the subject.

They want to pretend that a vote for S.J.Res.26 is a vote for Big Oil in general and for BP’s oil spill and all the associated ecological and economic damage in particular.

To say it again, if they really think oil is so bad that America should pay any price, bear any burden, and endure any sacrifice to get “beyond petroleum,” then they should follow the Constitution and try to assemble legislative majorities capable of enacting their agenda.

They know they can’t, so they want EPA — an administrative agency — to enact their agenda for them. That this makes a mockery out of our constitutional system of separated powers and democratic accountability doesn’t seem to bother them one whit.

The vote on S.J.Res. 26 is not “about oil.” The endangerment rule, which the Murkowski resolution would overturn, would not create a single tool or authority that could have averted the BP oil spill. It would not tighten a single petroleum industry safety standard or improve a single emergency response program. It would not create a single incentive that might have made BP more diligent in implementing safety standards.

The only way greenhouse gas regulations could stop oil spills is by making deep water drilling unprofitable. That, however, would make America more dependent on IMPORTED oil (duh!). Is that want opponents of S.J.Res.26 want?

They’ll say, no, their goal is to ”set America free” from dependence on petroleum as such. But that is not possible at reasonable cost, which is why despite decades of anti-petroleum agitation, fuel economy standards, and government support for alternative technologies and fuels, U.S. petroleum consumption and imports continue to increase.

At most, EPA’s greenhouse gas emission standards can only decrease the rate at which U.S. petroleum consumption increases. More accurately, EPA’s standards would only complicate and reduce the efficiency of the fuel economy program Congress created and amended via the 1975 Energy Policy and Conservation Act and 2007 Energy Independence and Security Act. As the National Automobile Dealers Association explains in a letter in support of S.J.Res.26, overturning the endangerment rule would help restore a more efficient approach: “a single national fuel economy standard, with rules set by Congress.”

Finally, the notion that oil is bad and hence that government can’t do too much to restrict petroleum production is benighted. Members of Congress who espouse this view either deliberately mislead the public or are ignorant of oil’s historic and continuing massive contribution to the improvement of human health and welfare.

A recent post on a blog called The Intellectual Activist eloquently explains the common sense of the matter. I reproduce it below.

TIA Daily • June 4, 2010
FEATURE ARTICLE
Oil Is Good
by Jack Wakeland
I appreciated the pro-industrialism in last Friday’s edition of TIA Daily:

I also think that we need to return to a more old-fashioned attitude toward industrial accidents. Today, they are considered utterly unacceptable catastrophes for one reason: a large segment of the culture does not accept that it is legitimate for heavy industry to exist at all and has a particular animus toward industries that generate power—including oil and coal. So they exploit every accident to promote their pre-existing agenda of shutting down all oil exploration. But if we accept that the Industrial Revolution is a good thing—that it has roughly doubled the average lifespan and vastly increased our quality of life—then we accept that the oil industry has to exist and that occasional accidents are just part of the cost of living.

With continuous 24-hour headline news coverage of this supposedly “unprecedented” disaster—in fact, it was preceded by the 10-month-long, 140 million-gallon Ixtoc 1 blowout off the gulf coast of Mexico in 1979—Rob Tracinski and Sarah Palin are among a tiny minority of American commentators who have voiced the opinion that industrial development is essential for civilization. Unfortunately Sarah Palin and almost all conservatives agree 100% with conservationism—the pre-New-Left version of environmentalism. They say that energy development as a “dirty” business—a necessary evil—that produces “dirty” messes. But we must endure the ugly mess if we are to enjoy the benefits of living a civilized existence.

Of all of the hundreds of commentaries written about the BP oil spill, I can’t recall one single editorial that endorses oil drilling as good.

It is good for oil company stock holders. Good for industrial producers. Good for automobile and truck drivers. Good for people who travel by ship, railroad, or aircraft. Good for people who don’t want to be limited to living out their whole lives without ever traveling farther than 100 miles from the village in which they were born.

Oil is good for people who buy products that are shipped to them from out of town. Good for producers who buy parts and supplies that are shipped in from out of town. Good for the specialization of industrial production that is made possible by mass shipment of parts and materials. Good for the geometrical growth of world-wide industrial productivity made possible by the specialization of production and trade.

Oil is good for farmers who use machines to plant and reap and store and dry and ship and process all of the food we eat. Good for farmers who use fertilizer and other agri-chemicals made from oil to boost the productivity of the land. Good for anyone who doesn’t enjoy enduring bouts of malnutrition and starvation—and the occasional famine.

Oil is good for people who don’t want to endure freezing indoor temperatures in the winter. Good for all producers and end users of lubricants, paints, plastics and other petro-chemical-based products. (Half of the volume of a barrel of crude oil ends up going to make fertilizers and plastics.)

Oil is good for powering all of the ships, trucks, aircraft, helicopters, communications equipment and base electrical systems, and all of the fighting vehicles that the US military use for our national defense. (Ask yourself why it was that when the US Army Air Force decided to destroy the entire nation of Germany in 1944—why was it that they bombed the oil refineries? Why was it that they bombed all modes of transportation to limit shipment between factories of unfinished industrial products?)

Oil drilling isn’t a “dirty” business. It isn’t a necessary evil. It is good. It is a life-giving good. It is an unqualified good.

The problems of an occasional industrial accident in which fewer than a dozen men are killed fades to nothing in comparison with the great comfort and prosperity and scope of life—including the operation of the mechanized agriculture and industrial production upon which the bare survival of the vast majority of the 6.5 billion human beings currently living on this earth depends.

No, Sen. Durbin, Choice Not Between Real Science and Political Science

by Marlo Lewis on June 10, 2010

in Global Warming

Sen. Durbin claims S.J.Res.26 presents the Senate a choice between “real science” and “political science.” Not by a country mile. See my previous posts on this point.

Actually, as a colleague reminds me, it is a misnomer to call EPA’s regulatory trigger the endangerment “finding” rather than the endangerment “rule.”  The Senate is voting on the “legal force and effect” of the endangerment rule, not trying to determine scientific truth via a head count.

Durbin claims that EPA made its endangerment rule after consulting with “scientists across America.” In fact, as the endangerment rule acknowledges, EPA largely based the rule on the IPCC reports. As the Climategate scandal reveals, the IPCC reports do not meet U.S. Government transparency and accountability standards.

If Sen. Durbin thinks greenhouse gas emissions are so dangerous, then he should follow the Constitution and do the hard work of trying to assemble legislative majorities capable of turning his agenda into law. 

Instead, Durbin wants EPA to ‘enact’ his agenda on its own authority, knowing that EPA won’t have to answer to his constituents for the economic impacts at the ballot box.

More Demagoguery from Sen. Boxer

by Marlo Lewis on June 10, 2010

in Global Warming

Sen. Boxer now compares Sen. Murkowski’s resolution to an attempt to repeal the Surgeon General’s famous report in 1964 linking cigarette smoking to cancer.

She ignores the fact that the Surgeon General’s report was purely an assessment of the medical literature. It had no legal force and effect. Indeed, the Surgeon General’s report did not even provide policy recommendations.

If EPA’s endangerment finding were simply one agency’s review of the scientific literature, the Senate would not have any business voting on it either. However, unlike the Surgeon General’s report, the endangerment finding is both trigger and precedent for policy changes potentially affecting millions of businesses and homes and trillions of dollars in cumulative GDP.

Congress never intended for the Clean Air Act to be a framework for climate policy, never voted for EPA to use the Act as such a framework, and never signed off on the far-reaching regulatory cascade the endangerment finding triggers.

Therefore it is entirely proper for the Senate to debate and vote on the ”legal force and effect” of the endangerment finding. Indeed, overturning the endangerment finding is a constitutional imperative.

Sen. Boxer’s Demagoguery Knows No Bounds

by Marlo Lewis on June 10, 2010 · 3 comments

in Global Warming

Sen. Boxer (D-Calif.) is now speaking against the Murkowski resolution (S.J.Res.26). Her demagoguery knows no bounds.

She asks us to imagine a hundred Senators, who are not scientists, who are not health experts, presuming to determine which pollutant is dangerous and which is not. “It is not our expertise, it is not our purview.” “It is ridiculous.” “It is the height of hubris.” “What are we going to do next, repeal the laws of gravity?” “Maybe we’ll say the Earth is flat and will argue that one too.” “We could pass a resolution that says there shouldn’t be any more rain, and then I guess there wouldn’t be any more rain.”

Boxer ignores — and conceals — the simple fact that the Murkowski resolution would overturn the “legal force and effect” of the endangerment finding, not its scientific reasoning or conclusions.

The resolution is a referendum not on climate science but on who shall make climate policy: Elected lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Boxer champions the endangerment finding because it empowers EPA to implement policies that she and other members of the greenhouse faction have been unable to secure the old fashioned way — by ratifying treaties and enacting laws. 

Opponents of S.J.Res.26 will do and say anything to avoid restoring political accountability to climate policymaking.

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