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Saturday, December 06, 2008

Laughing: The Games Have Begun

Before the election I wrote about this - Obama's economic advisor said that the Obama adminstration would regulate CO2 as a HAP (under section 112). And since the election, Obama has promised again to do it:
He repeated his campaign promise to create a system that limits carbon dioxide emissions and forces companies to pay for the right to emit the gas. Using the money collected from that system, Obama plans to invest $15 billion each year in alternative energy. That investment - in solar, wind and nuclear power, as well as advanced coal technology - will create jobs at a time of economic turmoil, he said.
Corn farms over 500 acres would also be impacted. Larger churches, stores, apartment buildings - millions upon millions of new emitters that would have to apply for permits and pay fees. The fees pay for EPA processing the permits.

So there's no need to have fits about the EPA (The Supreme Court mandated that it either regulate CO2 or come up with a reasonable explanation as to what it wasn't doing so):
Farmers so far are turning their noses up at the notion, which is one of several put forward by the Environmental Protection Agency after the U.S. Supreme Court ruled in 2007 that greenhouse gases emitted by belching and flatulence amounts to air pollution.
It would require farms or ranches with more than 25 dairy cows, 50 beef cattle or 200 hogs to pay an annual fee of about $175 for each dairy cow, $87.50 per head of beef cattle and $20 for each hog.
Think how much food would cost!!! If CO2 is regulated as a HAP (section 112) under existing law, emitters of 25 tons or more will have to go through a permitting process, etc. There are other possibilities, but all of them would impose considerable regulatory burdens.

That 5 million "green" jobs Obama's promising? A good number of them could be at the EPA.

An awful lot of people weren't paying attention in this election.

Naturally, PETA is in favor of this:
"It makes perfect sense if you are looking for ways to cut down on meat consumption and recoup environmental losses," said Bruce Friedrich, a spokesman in Washington for People for the Ethical Treatment of Animals.

"We certainly support making factory farms pay their fair share," he said.
It would be great for Canadian and Mexican farmers!!

Of course, every right-minded WaPo reader knows that we are in an environmental crisis, and that something has to be done before millions die. Here's the sea-level variance from the Topex-Jason data (satellite altimetry):

Yep. Looks like the Death Star to me. With ocean levels rising like that, we'd all better make for the nearest mountain. (University of Colorado has a very nice website for the satellite sea-surface data. They just updated for most of 2008.) If you look at the higher resolution graphs, you can see that over the last couple of years the trend has been declining.

For what's it worth, sea levels are good lagging indicator of what the climate is doing.

Anyway, if Obama follows through, we ARE going to have a depression in this country. This economy is too weak to withstand this type of gaming. It will be an interesting spring.

I strongly recommend reading the SBA's response to EPA's ANPR(Advanced Notice of Proposed Rule, which basically pointed out a lot of the problems and asked for private support to avoid regulating CO2).

For further background, I also recommend this excellent review. Since Obama's policy was originally created (in July of 2008), a court invalidated regional cap and trade compliance. Read the whole thing, but here's the most relevant section:
CAIR was a carefully constructed cap-and-trade scheme adopted after years of negotiation among the federal government, industry, states, and environmental advocacy organizations. Issued in March of 2005, CAIR permanently capped emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) in the eastern United States and would have managed emissions of these pollutants through the use of a regional cap-and-trade program. The Agency estimated that this flexible and market-based approach would reduce SO2 emissions in these states by more than 70 percent and NOx emissions by more than 60 percent from 2003 levels, without “command and control” regulation.

But on July 11, 2008, the same day the EPA Administrator signed and issued the ANPR, the D.C. Circuit Court of Appeals ruled the entire CAIR program unlawful. In North Carolinav. EPA, a unanimous three-judge panel ruled that any trading scheme that allowed some facilities to maintain — indeed, even increase — emissions was inconsistent with the Act, even if it resulted in a regional emissions reduction of air pollutants.[7] Why? Because the CAIR “does not connect states’ emissions reductions to any measure of their own significant contributions” and does not ensure that each state achieves the appropriate clean air standard, but the statute requires just that. That is, the Act does not permit a scenario where one state’s air pollution levels could deteriorate, even when the overall air quality of a region markedly improves. Describing CAIR as “a single, regional program . . . [where] all its components must stand or fall together,” the court vacated the entire rule and said EPA must “redo its analysis from the ground up.”
So now the Obama administration either gets action from Congress (new law exempting CO2 from the Clean Air Act, and promulgating another law), or it exerts executive authority to regulate CO2 under the Clear Air Act, or it continues the Bush administration policy of saying "You must be kidding me, right?" to the Supreme Court.

As it stands, Obama's administration doesn't have authority to set up a cap and trade system. It needs Congress to pass legislation to do so, but any meaningful legislation would indeed have to impact farms, hospitals, apartment buildings, churches, municipal halls, etc. I don't think Congress will act, because right now the individual members don't have to take responsibility for any of this.

I disagree with the conclusion of the Wiley Rein analysis. It's very logical, but in fact the Supreme Court case which forced the EPA to this step was brought by parties wanting the EPA to regulate motor vehicle emissions, rather than power plants, heavy industry and refineries. In essence, this still leaves the EPA with no response to the Supreme Court's mandate, which was pretty clear. The text of the decision is here, and I quote from the syllabus:
4. EPA’s alternative basis for its decision—that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning divorced from the statutory text. While the statute conditions EPA action on its formation of a “judgment,” that judgment must relate to whether an air pollutant“cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7601(a)(1). Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.
The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rule-making petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. Pp. 30–32.
Here I quote from the text itself:
If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (statingthat “[EPA] shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class of new motor vehicles”). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking,its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.
A reasonably usable edition of the Clear Air Act is accessible at Cornell University's Law School. Even though the EPA is expected to do economic analysis of regulation under CAA, such economic analysis is explicitly precluded from affecting the regulation. Since the EPA already argued in this case that CO2 global emssions would rise no matter what it did (and they are rising faster then ever. China is now the world's greatest CO2 emitter), it can't use the ineffectiveness argument.

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