Cooler Heads Digest 19 February 2016

19 February 2016

In the News

Congressman: EPA Full of “P*rn Addicts, Office Thieves, and Drunk Drivers”
Kathryn Watson, Libertarian Republic, 19 February 2016

Activists Shut Down Liberal Group’s Climate Confab
John Siciliano, Washington Examiner, 19 February 2016

Critics Fear EPA Is Trying To Circumvent Major Supreme Court Ruling
Michael Bastasch, Daily Caller, 18 February 2016

The Green Energy Goal That Is Condemning Many to Prolonged Poverty
David Kreutzer, Daily Signal, 18 February 2016

“Peak Oil” Over, Economists Study Climate Policy Costs
Robert Michaels, Master Resource, 17 February 2016

Will EPA Abide by the Stay?
Marlo Lewis,, 16 February 2016

Spin Cycle
Chip Knappenberger & Patrick Michaels, Cato at Liberty, 16 February 2016

Study: Increased CO2 Is Greening Deserts Globally
Anthony Watts, Watts Up With That?, 16 February 2016

Climate Models Botch Another Prediction
Tom Hartsfield, Real Clear Science, 16 February 2016

Global Climate Fund Is a Slush Fund for World’s Dictators
Marian Tupy, Reason Hit & Run, 16 February 2016

EPA Isn’t Handling Its Business But Insists on Man-Handling Ours
Seton Motley, Red State, 16 February 2016

What Should States Do about Obama’s New Climate Regulations?
Doug Domenech, Daily Caller, 16 February 2016

Campaign 2016: Nobody Cares about Climate Change
Marita Noon, Oil Pro, 15 February 2016

News You Can Use
Top Solar CEO Admits Products Can’t Compete

In a New York Times profile, Lyndon Rive, chief executive of SolarCity, one of the largest providers of rooftop solar panel services, conceded that his product “makes no financial sense for a consumer” without subsidies and mandates.

Inside the Beltway
Myron Ebell

Justice Scalia’s Death Scrambles EPA Power Plant Litigation

The death of Supreme Court Justice Antonin Scalia on 13th February has quickly ended jubilation among opponents of the EPA’s greenhouse gas rule for existing power plants over the Supreme Court’s stay of the rule on 9th February.  Most legal observers who have made public comments, but certainly not all, expect the three-judge panel on the D. C. Circuit Court of Appeals to uphold all or most of the rule.  On the other hand, the 5 to 4 Supreme Court decision to stay the rule raised hopes that there were five votes to overturn the rule on appeal. 

Justice Scalia’s death upends that calculation.  There are now only four Justices who thought that the rule was sufficiently unlikely to survive in court to issue an unprecedented stay. If the circuit court upholds the rule, then a 4 to 4 vote in the Supreme Court would not overturn the lower court.  Of course, President Barack Obama could nominate and the Senate could confirm Scalia’s replacement before the Supreme Court takes up the appeal.  Or nominating and confirming a replacement could be delayed until a new President and the 115th Congress are sworn in next January.

While everything is up in the air, the D. C. Circuit Court’s deadline for the initial briefs by the plaintiffs in the case was today, 19th February.  Thomas Lorenzen, an attorney at Crowell and Moring who represents plaintiffs in the case, said in a video interview with Environment and Energy Publishing before Scalia’s death that he expects the power plant rule will be overturned in court.  Lorenzen’s opinion is significant because he worked as an environmental litigator at the Department of Justice from 1997 to 2013.  From 2004 to 2013, he was the assistant chief of DOJ’s environment and natural resources division where he successfully led EPA’s defense in Massachusetts v. EPA, EPA’s endangerment finding, and a number of other high profile appeals.

Here is what Lorenzen told E & E TV (subscription required) before Scalia’s death: “My personal opinion is the power plan is not going to survive. I think that EPA overreached in its attempt to use Section 111(d) to achieve reductions from things other than the sort of technological and operational measures that have traditionally been understood to be the tools you can use for individual plants. Trying to transform the energy sector, trying to go beyond the fence line and say that a plant can do what its owners or operators can do -- invest in renewables, transfer generation from higher-emitting to lower-emitting sources, training programs -- does not appear to be what Congress contemplated in Section 111(d). So I think EPA's got some hard times ahead of it on this one.”

Across the States
William Yeatman

Status of State Implementation of the “Clean Power” Plan

Wisconsin this week became the latest State to stop work on the “Clean Power” Plan in the wake of the Supreme Court’s recent decision to pause implementation of the rule during the time it takes to complete legal challenges. The State Policy Network put together the following breakdown of what States are doing:

  • States that are stopping work on the “Clean Power” Plan: Alabama, Georgia, Kentucky, Indiana, Michigan, Montana, Nebraska, North Dakota, South Dakota, Texas, Utah, Wisconsin, and West Virginia;
  • States that are continuing work on the “Clean Power” Plan: California, Colorado (though the  Attorney General is urging that regulators discontinue work on the rule), Minnesota, Nevada, New York, Oregon, Pennsylvania, Virginia, Washington;
  • States that haven’t yet decided: Arkansas, Arizona, Florida (seems to be moving towards stopping), Iowa, Illinois, Kansas (seems to be moving towards stopping), Louisiana, Oklahoma, Wyoming (seems to be moving towards stopping).

Around the World
Myron Ebell

Todd Stern Reassures Europeans That Republicans Won’t Undo Paris Commitments

Todd Stern, the U. S. State Department’s special envoy for climate change negotiations, said in London on 18th February, that if the next President repudiates the Paris Climate Treaty the international “blowback” would be much stronger than the negative reaction after President George W. Bush announced in 2001 that he would not submit the Kyoto Protocol to the Senate for ratification. 

The BBC quoted Stern: “There was a lot of blowback that the US got generally diplomatically across the range of diplomatic concerns and I have no doubt that it would be very significant if the US were to do that with regard to Paris, probably much, much more significant than what happened before.”

Stern made the remarks to reporters as part of a three-day “reassurance tour” to Brussels, London, and Paris intended to counteract the Supreme Court’s decision to stay the EPA’s greenhouse gas rule for existing power plants and to downplay the chances that a Republican President will walk away from the Paris treaty.

Stern expressed qualified confidence that the EPA’s power plant rules would survive legal challenge, but that if they did not, there was no need to worry because the administration would adopt other measures to meet the U. S. commitment under Paris to cut greenhouse gas emissions by 26 to 28% below 2005 levels by 2025.

Again according to the BBC, Stern said: “We anticipate that the Clean Power Plan will be upheld.  But if for whatever reason it is not, then we will have to use other means to get to our target, but we are not backing off our target.”

President Barack Obama made Stern’s task a little more difficult when he said recently that all the Republican presidential candidates “are denying climate change.”  In fact, at least two candidates have already explicitly rejected the Paris treaty.  Senator Marco Rubio (R-Fla.) announced in October that if elected he would submit the Paris treaty to the Senate for its advice and consent.  Senator Ted Cruz (R-Tex.) said soon after the Paris negotiations ended on 12th December that if elected he would withdraw the United States from the treaty. 

The BBC story went on to report that, “Mr Stern said that the US would sign in April and join the [Paris] agreement this year.”  How the Obama Administration can join the Paris Climate Treaty without Senate ratification is a mystery that was made more obvious this week when the government of Fiji announced that they had ratified it.  My CEI colleague Chris Horner was quoted in a story by Michael Bastasch in the Daily Caller on the curious fact that government of Fiji (and probably every other country in the world except for the current U. S. administration) understands that the Paris Climate Treaty is a treaty and thereby requires ratification.  

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,