Tag: greenhouse gas regulation

EPA Intervention Where None Is Needed

Falling back on tired scare tactics, U.S. Environmental Protection Agency administrator Gina McCarthy today announced carbon dioxide emissions limits for new power plants as part of the President Obama’s Climate Action Plan. From McCarthy:

The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences. We know this is not just about melting glaciers. Climate change—caused by carbon pollution—is one of the most significant public health threats of our time. That’s why E.P.A. has been called to action. And that’s why today’s action is so important for us to talk about.

I humbly disagree both as to the “public health threat” of carbon dioxide emissions from human activities, as well as with the idea that the EPA can do anything to alleviate whatever climate change may result.

What the new emissions limits do is to basically force the administration’s preference for natural gas over coal as the fossil fuel source for our nation’s electricity production going forward, perpetuating the administration’s seeming “War on Coal.” It does this by setting the carbon dioxide emissions limits for new power plants such that they are impossible to meet by burning coal, but can be met readily by burning natural gas. The reason for this is simple chemistry: the act of burning coal releases nearly twice the amount of carbon dioxide as does burning natural gas per unit of energy released.

The funny thing is, the market was already moving in that direction. Cheap natural gas is displacing coal for generating electricity, which in turn is reducing our national carbon dioxide emissions.

AEP v. Connecticut: Global Warming as Political Question

Yesterday the U.S. Supreme Court heard oral arguments in American Electric Power v. Connecticut, the massive greenhouse-gas suit. Like the other “big” global warming/climate change suits, this one suffers from a basic and incurable defect: it seeks to undermine the separation of powers established under the U.S. Constitution by inviting the courts to address “political questions” of a sort properly resolved by other branches of government. As Cato’s amicus brief by Ilya Shapiro and Evan Turgeon explained in the case of Comer v. Murphy Oil:

“[W]hile it executes firmly all the judicial powers intrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.” Muskrat v. United States, 219 U.S. 346, 355 (1911). A dispute is not “judicial in its character” when, among other reasons, the plaintiff does not have “standing” or the claim raises a “political question.” … And the political question doctrine, for which “the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations,” Coleman v. Miller, 307 U.S. 433, 454-55 (1939), isolates the judiciary from policy disputes the Constitution assigns to the democratic process.

By its nature, global warming is exactly the sort of policy question traditionally entrusted to the political branches: it is wholly unsuited to individualized justice based on links between particularized emissions and particularized effects, its proposed remedies are much disputed and likely to be the result of inevitably arbitrary compromise, sovereign negotiations with foreign actors play a crucial role, and so forth. As the courts have long recognized, one does not generate a case for judicial action simply by piling atop each other the propositions “something needs to be done” and “the political branches have not done it.” Indeed, the Obama administration itself has more or less invited the Supreme Court to dismiss the action on political-question grounds.

The Cato Institute filed an amicus brief urging the Supreme Court to review the American Electric Power case and then filed another amicus brief on the merits. Anyone interested in how the complexities of the Court’s “political question” doctrine apply in this case should read – in addition to Ilya Shapiro’s blog posts here and here – this new article in the Federalist Society’s publication Engage by Megan L. Brown of Wiley Rein LLP, who has served as Counsel of Record to the Cato Institute in its amicus briefs in this area. Brown provides a thorough explanation of why all three of the major warming suits fail the justiciability test, why Justices Kennedy and Breyer may be worth watching as “swing” votes in AEP, and how the new case affords the court a chance to revisit its problematic pro-regulatory holding in Massachusetts v. EPA (2007). (More from Brown in this Christian Science Monitor op-ed.)

Also worth reading on this subject: Harvard professor Laurence Tribe, by no means known as a general skeptic of environmental regulation, who has assisted the defense side in this litigation and explains some of the reasons in a new Boston Globe op-ed.