Net Zero Watch | 30 June 2022
Supreme Court limits power of EPA, other regulatory agencies, in blow to Biden’s climate agenda
The Wall Street Journal, 30 June 2022
WASHINGTON—The Supreme Court on Thursday curtailed the Environmental Protection Agency’s powers to restrict greenhouse-gas emissions from power plants, in a decision that could limit the authority of government agencies to address major policy questions without congressional approval.
The decision was in line with several Supreme Court decisions in recent years that reined in federal agencies by striking down regulations on the grounds that agencies had usurped power from Congress and the judicial branch.
West Virginia led a coalition of Republican-leaning states and coal producers that asked the Supreme Court to weigh in and clarify the limits of the Environmental Protection Agency’s authority, raising broader questions about how far the regulatory authority of federal agencies extends. The coalition said powerful and wide-reaching policies should come from Congress, not agency-level regulators.
The Obama-era EPA rules were “illustrative of an alarming trend whereby presidents turn to implied authority, typically in long-extant statutes, to achieve what Congress fails to do,” the libertarian Cato Institute said in a legal brief.
The case before the high court was unusual because it involved regulations put forth by the Obama administration that never went into effect and were replaced in 2019 under the Trump administration. At issue was the Clean Power Plan, an Obama-era set of rules devised by the EPA that sought to mandate a national shift away from coal to cleaner sources of power, including natural gas, wind and solar.
For half a century, the Clean Air Act has directed the EPA to regulate stationary sources of air pollution that endanger “public health or welfare.” The Obama-era Clean Power Plan extended that regulatory reach beyond the physical premises of a power plant to allow off-site methods to mitigate pollution.
The Supreme Court in 2016 halted the Clean Power Plan from taking effect, but the justices never directly addressed whether the rule was unlawful. The Trump administration in 2019 overturned the plan, replacing it with industry-friendly rules allowing older power plants to continue operating.
In January 2021, at the end of Mr. Trump’s presidency, a federal appeals court in the District of Columbia struck down his administration’s replacement rule, providing the Biden administration with a clean slate to work from in devising its own carbon-emissions rules.
The EPA powers at issue are central to Mr. Biden’s climate agenda. With fragile majorities in the Senate and House, Democrats have limited ability to advance their platform through new legislation. Like his recent predecessors, Mr. Biden is poised to govern through agencies such as the EPA, relying on his inherent constitutional authority and the statutory powers provided by existing legislation.
READ THE DECISION
U.S. Supreme Court delivers a major win for the reliability and affordability of the electric grid
Isaac Orr, American Experiment, 30 June 2022
Today the U.S. Supreme Court issued a landmark decision in West Virginia vs. EPA, ruling that the Clean Air Act did not specifically authorize the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from power plants. Now, any greenhouse gas regulations would need to be passed by Congress.
At issue was the Clean Power Plan (CPP), an EPA regulation promulgated by the Obama administration which mandated that existing coal and natural gas power plants reduce their carbon dioxide emissions. There were many problems with this regulation, some of them were legal, and some of them were practical.
The main legal problem with the Clean Power Plan is that it relied upon a brand new and legally fraught interpretation of Section 111 of the Clean Air Act (CAA). This amounted to EPA inventing the authority to regulate greenhouse gasses under the CAA, but the Supreme Court ruled that these powers were never delegated to the agency.
At issue was the idea that states and electric companies could meet the emissions targets established by EPA by generation shifting, which effectively meant reducing the use of coal-fired power plants or closing them down entirely and replacing them with a combination of wind, solar, and natural gas generation. This “outside the fence” regulation was an unprecedented argument that eventually was struck down.
This decision is an enormous win for the reliability and affordability of the electric grid because it will give utility companies confidence that they can continue operating their existing coal and natural gas power plants, which are some of the most reliable and lowest-cost sources of electricity on the grid, without the looming threat of EPA regulations coming down the pike to close them down.
For example, in Minnesota, the coal-fired power generators at the Sherburne County Generating Station (Sherco) and the natural-gas-fired High Bridge Station were two of the lowest-cost sources of electricity on Xcel Energy’s system in 2019, according to Federal Energy Regulatory Commission (FERC) data.
Now, utility companies in Minnesota will not be able to use pending federal regulations as an excuse for prematurely closing down these reliable, affordable assets, which is why the electric utility industry actually supported the Obama regulations.
Baptists and Bootleggers, Utility Edition
The CPP marked a turning point for the way investor-owned utilities like Xcel Energy and wind and solar special interest groups interacted. Once, these stakeholders were often at odds, but the CPP turned them into brothers in arms.
The reason all boils down to cold hard cash.
Because electric companies in many states are government-approved monopolies and their customers are not free to choose another provider if the company in their service area charges too much or has too many power outages, it would be unfair to let them set the price of electricity to whatever the company wishes.
As a result, the price of electricity sold by utility companies is controlled by state utility regulators who use a formula to determine what the price of electricity should be each year.
The revenue formula used by regulators allows electric companies to charge their customers enough for their electricity to cover the reasonable costs of operating and maintaining the electrical system. The revenue formula also stipulates that electric companies will make their money back when they build new capital assets, whether they be power plants, transmission lines, or even new corporate offices, plus a 10 percent profit on undepreciated assets, as long as the regulator approves these new projects.
However, the 10 percent profit declines every year as the capital assets depreciate or lose value over time. This gives utilities like Xcel a powerful incentive to close down low-cost, reliable, but depreciated assets and build new wind turbines, solar panels, and natural gas plants.
This is a key reason why Xcel Energy’s corporate profits have soared as the state’s use of wind and solar has increased.
The wind and solar groups lobby for coal plant closures and wind and solar construction, and Xcel rakes in the dough. Then, Xcel kicks some of the cash back to the green groups, and the cycle continues.
Today’s Supreme Court decision won’t fix all of our energy policy, but it is a positive step because decisions of this magnitude should be made by elected representatives in Congress, not by unelected bureaucrats in Washington D.C.
This ruling was crucial to reigning in the overreach of the administrative state.
Francis Menton: Progressive utopian vision versus the constitution
Manhattan Contrarian, 23 June 2022
The “major questions doctrine” says that a regulatory agency cannot embark upon a major transformation of the economy without a very specific direction from Congress to do so.
[…] It’s already been a bad week in the Supreme Court for progressive shibboleths. Just today, the key provision of New York’s gun restriction regime — under which the authorities had discretion to deny you a gun permit if they thought the reason you gave for wanting one was not good enough — got struck down under the Second Amendment.
For what it’s worth, I’ve long thought that that provision was obviously unconstitutional, and that the Second Circuit’s decision upholding it was not a good faith application of existing Supreme Court precedent. In practice, the authorities denied almost all requests for gun permits except from politicians, big political donors (to Democrats) and celebrities. The decision has caused a good deal of wailing and gnashing of teeth over in the precincts of the Left.
And there’s plenty more to come. Without doubt you are already familiar with the case involving Mississippi’s abortion law, likely to spell the end of the long reign of Roe v. Wade. But today I’m going to focus on another high-impact case, West Virginia v. EPA. This one was argued back in February, but the decision still has not been issued. They tend to issue the decisions in the most important cases at the very end. In the West Virginia case, there is significant potential that the Supreme Court could significantly rein in the regulatory assault that the Biden Administration is currently waging against the fossil fuel industries, and maybe some other regulatory assaults as well.
You can tell that there is concern over this one because the New York Times is not waiting around for the decision to start its parade of hit pieces. On Monday, the lead story, occupying about half of the front page, dealt with this case, with the headline “Republican Drive to Tilt Courts Against Climate Action Reaches a Crucial Moment.” The byline is Coral Davenport.
But first, some background on the case. The procedural history is complicated, which adds uncertainty to guessing what the Supreme Court might do. The history starts with a regulation adopted in 2015 by the Obama EPA, cynically called the “Clean Power Plan.” The basic idea was to have the EPA restrict the use of fossil fuels to generate electricity, starting with making it impossible to use coal for the purpose, and then later moving on to oil and natural gas. The supposed authority for the CPP was Section 7411 of the Clean Air Act. I’d like to be able to give you a pithy quote from Section 7411 so you could judge for yourself whether it has language that would arguably authorize the massive power grab of the CPP, but no such pithy quote exists, and the section in full is considerably longer than this blog post. So you’ll just have to go to the link and read it if you want to try to understand its significance.
From the beginning it was clear that the Trump EPA intended to rescind the CPP, and in 2019 they got around to doing it. They then put in place another regulation called the Affordable Clean Energy plan (ACE), which made some gestures toward “greenhouse gas” regulation, but did not attempt to transform the electricity-generation sector of the economy the way the CPP did.
A group of (Democratic) states went to the DC Circuit to challenge the Trump EPA’s rescission of the CPP and institution of the ACE. Meanwhile, another group of states (Republican) had already challenged the CPP in the same court. On January 19, 2021 (last day of the Trump Administration) the DC Circuit issued an opinion ruling in favor of the Democratic states (surprise!), and striking down the Trump EPA’s rescission of the CPP and institution of the ACE.
At that point everybody petitioned to the Supreme Court, which agreed to hear both the Republican states’ challenges to the CPP and the Democratic states’ challenges to the rescission of the CPP and institution of ACE. Meanwhile, the ACE has been struck down, but where was the CPP? The Biden Administration has not reinstituted it, and indeed by its own terms it is obsolete, since numerous deadlines have passed during the time it was in limbo. The Biden Administration says that they are working on something new, but it is not yet public.
In this procedural morass, the easy thing for the Supreme Court to do would be to basically say “come back to us when there’s something to challenge.” But there is substantial speculation — in part based on questions from the justices at the oral argument — that the Court has in mind using this case as a vehicle to make some broader ruling on what’s called the “major questions doctrine.”
The “major questions doctrine” says that a regulatory agency cannot embark upon a major transformation of the economy without a very specific direction from Congress to do so. That sounds promising, but in the real world the “major questions doctrine” has been infrequently applied, giving the regulatory agencies the idea that they can do whatever they want under old and ambiguous statutes when Congress won’t give them the authority they would like.
And now you can see what has got the New York Times worried. The Green New Deal is moribund in Congress, and after the midterms it will be finished, maybe forever. If the government is going to “save the planet” by suppressing fossil fuels, that can only be done via regulatory agencies claiming the authority to issue huge economy-transforming regulations under old statutes that had nothing to do with CO2 or other non-toxic “greenhouse gases” back when they were passed.
New EPA Climate Change Indicator is deceptive
Ralph Alexander, Net Zero Watch, 25 May 2021
New climate change indicators on the U.S. EPA (Environmental Protection Agency) website are intended to inform science-based decision-making by presenting climate science transparently. But many of the indicators are misleading or deceptive, being based on incomplete evidence or selective data.
A typical example is the indicator for heat waves. This is illustrated in the left panel of the figure below, depicting the EPA’s representation of heat wave frequency in the U.S. from 1961 to 2019. The figure purports to show a steady increase in the occurrence of heat waves, which supposedly tripled from an average of two per year during the 1960s to six per year during the 2010s.
Unfortunately, the chart on the left is highly deceptive in several ways. First, the data is derived from minimum, not maximum, temperatures averaged across 50 American cities. The corresponding chart for maximum temperatures, shown in the right panel above, paints a rather different picture – one in which the heat wave frequency less than doubled from 2.5 per year in the 1960s to 4.5 per year in the 2010s, and actually declined from the 1980s to the 2000s.
This maximum-temperature graph revealing a much smaller increase in heat waves than the minimum-temperature graph displayed so boldly on the EPA website is dishonestly hidden away in its technical documentation.
A second deception is that the starting date of 1961 for both graphs is conveniently cherry-picked during a 30-year period of global cooling from 1940 to 1970. That in itself exaggerates the warming effect since then. Starting instead in 1980, after the current bout of global warming had begun, it can be seen that the heat wave frequency based on maximum temperatures (right panel) barely increased at all from 1981 to 2019. Similar exaggeration and sleight of hand can be seen in the EPA indicators for heat wave duration, season length and intensity.
A third deception is that the 1961 start date ignores the record U.S. heat of the 1930s, a decade characterized by persistent, searing heat waves across North America, especially in 1934 and 1936. The next figure shows the frequency and magnitude of U.S. heatwaves from 1900 to 2018.
The frequency (top panel) is the annual number of calendar days the maximum temperature exceeded the 90th percentile for 1961–1990 for at least six consecutive days. The EPA’s data is calculated for a period of at least four days, while the heat wave index (lower panel) measures the annual magnitude of all heat waves of at least three days in that year combined.
Despite the differences in definition, it’s abundantly clear that heat waves over the last few decades – the ones publicized by the EPA – pale in comparison to those of the 1930s, and even those of other decades such as the 1910s and 1950s. The peak heat wave index in 1936 is a full three times higher than it was in 2012 and up to nine times higher than in many other years.
The heat wave index shown above actually appears on the same EPA website page as the mimimum-temperature chart. But it’s presented as a tiny Figure 3 that is only 20% as large as the much more prominent Figure 1 showing minimum temperatures. As pointed out recently by another writer, a full-size version of the index chart, from 1895 to 2015, was once featured on the website, before the site was updated this year with the new climate change indicators.
The EPA points out that the 1930s heat waves in North America, which were concentrated in the Great Plains states of the U.S. and southern Canada, were exacerbated by Dust Bowl drought that depleted soil moisture and reduced the moderating effects of evaporation. While this is undoubtedly true, it has been suggested by climate scientists that future droughts in a warming world could result in further record-breaking U.S. heat waves. The EPA has no justification for omitting 1930s heat waves from their data record, or for suppressing the heat wave index chart.
Although the Dust Bowl was unique to the U.S. and Canada, there are locations in other parts of North America and in other countries where substantial heat waves occurred before 1961 as well. In the summer of 1930 two record-setting, back-to-back scorchers, each lasting eight days, afflicted Washington, D.C.; while in 1936, the province of Ontario – also well removed from the Great Plains – experienced 43 degrees Celsius (109 degrees Fahrenheit) heat during the longest, deadliest Canadian heat wave on record. In Europe, France was baked during heat waves in both 1930 and 1947, and many eastern European countries suffered prolonged heat waves in 1946.
What all this means is that the EPA’s heat-wave indicator grossly misrepresents the actual science and defeats its stated goal for the indicators of “informing our understanding of climate change.”