Cooler Heads Digest 17 April 2015

17 April 2015

In the News

Al Gore: Poor People Don’t Need Coal
Michael Bastasch, Daily Caller, 17 April 2015

Environmentalists’ Civil War
Robert Bryce, National Review, 17 April 2015

Five Hidden Ways You’re Paying To Subsidize Green Power
Brian Potts, Weekly Standard, 17 April 2015

Judith Curry vs. Climate Alarmism (Jon & Jerry—Are You Listening?)
Robert Bradley, Jr., Master Resource, 16 April 2015

Obama’s Illegal Coal Regulations Must Be Stopped
West Virginia Attorney General Patrick Morrissey, Washington Examiner, 16 April 2015

Steyer Nonprofit Owns Stake in Green Energy Investment Firm
Lachlan Markay, Washington Free Beacon, 15 April 2015

Obama Administration Worries about Environmental Effect of Keystone Oil, Not Iranian Oil
David Kreutzer, The Daily Signal, 14 April 2015

German Backlash Grows against Coal Power Clampdown
Arthur Neslen, Guardian, 14 April 2015

Rebranding EPA’s Clean Air Agenda
Chris Horner, Washington Times, 13 April 2015

What’s the True Cost of Wind Power?
Randy Simmons, Newsweek, 11 April 2015

News You Can Use
“Clean Power” Plan Would Cost about 300,000 Jobs

According to a report by the American Action Forum, job losses from EPA’s “Clean Power” Plan could be as high as 296,000 through 2030.

Inside the Beltway
William Yeatman

Oral Arguments on Challenge to EPA’s "Clean Power" Plan

On Thursday morning, 16th April, I attended the oral arguments in the challenge brought by Ohio-based Murray Energy and 15 intervenor States to EPA’s “Clean Power” Plan before the D.C. Circuit Court of Appeals.

The petitioners face a high bar to demonstrate they are properly before the court, because the “Clean Power” Plan is only a proposed rule, and the court has jurisdiction over only final agency rules. In fact, the court has never before overturned a proposed rule.

In making the case that the court has jurisdiction to judge their complaint, the petitioners invoke the All Writs Act, an 18th century statute that empowers federal courts to issue “necessary and appropriate” injunctions where “gaps” in a statutory scheme pervert the ends of justice. Courts very rarely have exercised their All Writs Act authority, which is reserved for extraordinary, unprovided-for cases. The challengers argue that EPA’s “Clean Power” Plan represents just such a case, for two reasons.

  • First, state regulators and utilities have no choice but to start complying with the proposed “Clean Power” Plan now, even though it’s only a proposed rule, because they are capital-intensive businesses that must plan years in advance. This has never before been the case with respect to any EPA proposal.
  • Second, EPA doesn’t have the authority to begin with. (For more on this complicated argument, see here and here).

Thus, they argue that an All Writs Act injunction is necessary to prevent States and utilities from having to continue to spend considerable resources planning for a proposed mandate that the EPA doesn’t have the power to issue in the first place. They are requesting an extraordinary writ for extraordinary circumstances.

At oral arguments, Judge Thomas Griffith seemed wary of the petitioner’s arguments, for fear of opening the floodgates to challenges of proposed rules. Judge Karen Henderson, on the other hand, seemed sympathetic to claims made by Murray Energy and the intervenor States.

Judge Brett Kavanaugh’s position seemed to be somewhere in-between those of his colleagues. However, he pursued a line of reasoning about the timing of the “Clean Power” Plan that suggested to me that he was leaning towards EPA’s position. During rebuttal arguments, Judge Kavanaugh noted that any decision by the court likely would be rendered during the summer, which is roughly the same time that the final “Clean Power” Plan is due. He then explained that challengers to the rule may seek an injunction to stay the “Clean Power” Plan immediately after the rule goes final. And if the regulation does indeed represent an extraordinary scenario, then the petitioners request would have a high probability of success. He concluded that such an alternative remedy (i.e., a stay of the final rule) would be available to opponents of the regulation only weeks after a decision was rendered on the Murray Energy case. His reasoning seemed to be: Why would the court adopt an extraordinary response (by siding with the petitioners), when it could wait a few weeks and achieve the same result through normal channels?

That said, prognosticating outcomes on the basis of oral arguments is a fool’s errand. We’ll find out what the judges actually think some time in the next three months.

Notable House Hearings

On April 14th, EPA Office of Air and Radiation chief Janet McCabe testified before a House Energy and Commerce subcommittee on draft legislation that would allow States to “opt out” of the “Clean Power” Plan. She did not acquit herself well. For more, see:

On April 15th, the House Science, Space, and Technology Committee held a hearing on The President’s UN Climate Pledge–Scientifically Justified or a New Tax on Americans? In diplomatic lingo, the hearing focused on the administration’s “Intended Nationally-Determined Contribution” (INDC) for the December 2015 COP 21 climate conference in Paris. For a recap, see

Across the States
William Yeatman

EPA Proposes Unprecedented 55th Takeover of State Regulatory Program

EPA last week proposed to take over Arkansas’s Regional Haze program and thereby impose more than $1 billion in costs on five coal-fired power plants, in order to achieve an “improvement” in visibility that is imperceptible. This would be EPA’s 55th federal implementation plan imposed during the Obama administration. By contrast, EPA imposed 5 total FIPs during the previous three presidential administrations (i.e., Clinton, Bush I, and Bush II).

Around the World
Myron Ebell

Vatican Announces Climate Summit for April 28

The Vatican announced on 14th April that it will hold a one-day conference on 28th April on climate change and sustainable development titled, “Protect the Earth, Dignify Humanity: The Moral Dimensions of Climate Change and Sustainable Development.”  Speakers will include Ban Ki-moon, Secretary General of the United Nations, and Jeffrey Sachs, Columbia University economics professor, director of Columbia’s Earth Institute, and director of the UN Sustainable Development Solutions Network.  Leading representatives of other major religions and prominent climate scientists will also be invited to speak. 

According to the Vatican’s press release, “the goal of this summit is to raise awareness and build a consensus that the values of sustainable development cohere with values of the leading religious traditions, with a special focus on the most vulnerable; to elevate the debate on the moral dimensions of protecting the environment in advance of the papal encyclical; and to help build a global movement across all religions for sustainable development and climate change throughout 2015 and beyond.” 

The press release continues: “The desired outcome is a joint statement on the moral and religious imperative of sustainable development, highlighting the intrinsic connection between respect for the environment and respect for people – especially the poor, the excluded, victims of human trafficking and modern slavery, children, and future generations.”

Pope Francis is scheduled to release an encyclical on climate change some time before he attends the second United Nations climate summit of world leaders in New York City in September.  The Pope will also address a joint session of Congress during his visit to the United States, where he is also expected to speak about climate change.

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,