Cooler Heads Digest 26 July 2013

26 July 2013

In the News

Demoralize the Anti-Oil Fringe
Robert Bradley, Jr., Leader & Times, 25 July 2013

We Really Don’t Understand Our Climate
Walter Russell Mead, American Interest, 25 July 2013

IER’s Murphy on the Social Cost of Carbon
Marlo Lewis,, 24 July 2013

“Millions Will Die” without Carbon Tax, Claims Hysterical New Jersey Senate Candidate
David Martosko, Daily Mail, 24 July 2013

Electricity Bills on the Rise; Higher Prices to Come
David Unger, Christian Science Monitor, 23 July 2013

Wind Pricing: Not Cheap But Subsidized
Lisa Linowes, Master Resource, 23 July 2013

‘Sue and Settle’ and the Carbon Tax
Sen. David Vitter, Washington Times, 22 July 2013

News You Can Use
Fossil Fuels to Dominate World Energy Use Through 2040

Fossil fuels will continue to supply nearly 80 percent of world energy use through 2040, according to the International Energy Agency’s World Energy Outlook, which was released this week. Energy use in developing countries is projected to increase by 90 percent; in developed nations, energy use is projected to increase 17 percent. By 2040, China's energy demand is expected to be twice that of the U.S.

Inside the Beltway
William Yeatman

McCarthy Shows Her Cards

In a June 25 speech, President Obama explained that Congressional inaction was a pretext for his administration to fight global warming by executive fiat.

Newly-confirmed EPA Administrator McCarthy got the message. According to InsideEPA, McCarthy said in a July 22 video message to agency employees, “We have a clear responsibility to act now on climate change. That's what President Obama has called on us, and the American people, so that we protect future generations.”

It is noteworthy that she didn’t mention the Congress. By significant bi-partisan margins, cap-and-trade policies have died repeatedly in the Senate. Of course, EPA’s authority to regulate climate change is derivative of the Clean Air Act. And yet, as my colleague Marlo Lewis has explained aptly,

EPA claims that its greenhouse-gas regulations derive from the CAA as interpreted by the Supreme Court in Massachusetts v. EPA*. But in the last Congress, after almost two decades of global-warming advocacy, Congress declined to give EPA explicit authority to regulate greenhouse gases, when Senate leaders mothballed cap-and trade legislation. A bill authorizing EPA to do exactly what it is doing now — regulate greenhouse gases under the CAA as it sees fit — would have been dead on arrival. The notion that Congress gave EPA such authority when the Clean Air Act was passed in 1970, years before global warming emerged as a public concern, defies both history and logic.

*[As an aside, the Supreme Court is now in the process of determining whether it will revisit Mass v. EPA by reviewing the D.C. Circuit’s decision to uphold EPA’s climate regulatory regime.]

There’s another troubling aspect to McCarthy’s video memo. In it, she said that the agency will be taking an “all hands on deck” approach to implementing regulations to reduce greenhouse gases. Specifically, was speaking about diverting EPA’s limited resources into a regulation known as the New Source Performance Standards for greenhouse gases. Here’s the problem: This regulation is a discretionary responsibility. That is, EPA chose to do it. The Agency didn’t have to.

As I demonstrated in a study released earlier this month, EPA is out of compliance with roughly 98% of its non-discretionary responsibilities. These are duties that the Congress explicitly stipulated that EPA perform. Yet the agency is ignoring them! Instead, Administrator McCarthy is pouring resources into a discretionary responsibility. All of which raises an important question: Why is the EPA giving priority to duties chosen by unelected bureaucrats, rather than responsibilities assigned by elected representatives?

D.C. Circuit Renders a Welcome Decision on Ozone

In 1977 amendments to the Clean Air Act, the Congress created the Clean Air Scientific Advisory Committee (CASAC), a body of scientists whose job is to advise EPA on the setting of National Ambient Air Quality Standards (NAAQS).

EPA is required to take CASAC's advice into account, and, when it publishes any NAAQS, the agency must explain any differences it had with CASAC’s advice. In 2006 and 2008, George W. Bush’s EPA promulgated revised NAAQS for particulate matter and ozone, respectively. Both of the regulations were set at levels that were less stringent than the range recommended by CASAC.

In a 2009 ruling, American Farm Bureau Federation v EPA, the D.C. Circuit Court rejected Bush’s 2006 NAAQS for particulate matter. The court reasoned that the agency had inadequately explained its differences with CASAC’s advice.

In a ruling announced on Monday, Mississippi et al. v EPA, this same court upheld Bush’s 2008 ozone NAAQS, despite the fact that it was less stringent than what CASAC had recommended. This time, the court found that EPA had adequately explained the difference.

By the Court's own admission in the Mississippi et al. v EPA opinion, there are no clear cut criteria by which EPA's reasoning is judged. Having read both opinions, I couldn’t discern any standard other than a judgment call. There are fourteen judges on the D.C. Circuit, which hears the preponderance of challenges to EPA rules, and they adjudicate cases in panels of three. As a result, it is entirely possible for the court to be of different minds on the same issue, which seems to be the case here. Only one judge served on both panels. I get the sense that the 2009 panel wanted to defer to CASAC, the 2013 panel wanted to defer to EPA, and each one found a reasoning to do so.

Whatever the case, it’s a welcome development. The 2009 American Farm Bureau Federation decision had suggested that EPA, in practice, did not have the discretion to disagree with CASAC. This was scary, because CASAC embers are taken from a talent pool of epidemiologists and practitioners of other dubious disciplines that always produce “scientific” results indicating the public health importance of their own work. As a result, it’s pretty much impossible to nominate a reasonable CASAC. If its power was unchecked, CASAC would not have limited itself. This is the rare case whereby affording the EPA administrator relatively more authority is a good thing, because the alternative is worse.

The Cooler Heads Digest is the weekly e-mail publication of the Cooler Heads Coalition. For the latest news and commentary, check out the Coalition’s website,