Tag: EPA

An Appalling Lack of Truthfulness at the EPA

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”


In preparation for President Obama’s unveiling, today, of the U.S. Environmental Protection Agency’s new proposed regulations to limit carbon dioxide emissions from existing power plants, the EPA has released its updated “Climate Change Indicators in the United States.” As you may have guessed, the report claims manmade climate change is upon us and it is bad.

Last summer, the president announced his Climate Action Plan aimed at mitigating future climate change by executive fiat—in other words, avoiding Congress and public opinion—and simply commanding from on high that U.S. carbon  emissions be reduced (never mind that they were already declining, or that any U.S. reductions, no matter how large, would have no meaningful effect on the future course of the climate).

Since then, the administration and the scientists it pays to study global warming have been rolling out report after report pointing to the horrors that have already occurred (like the record-long time since a Category 3 hurricane crossed a U.S. beach?), and how things will certainly get much worse from human-caused global warming if we don’t act now to head it off—that is, stop burning coal to produce electricity.

First was a report from the scientists’ lobby for government funding, the American Association for the Advancement of Science (AAAS), then came the federal National Climate Assessment report, and now the latest from the EPA—just in time for the president to cite in his remarks.

All along we have been saying that these reports are not scientific, but instead are purely political, documents. That became quite clear in last week’s congressional hearing testimony by Daniel B. Botkin, who once believed global warming was a terrible problem, but has since taken the opposite position.

Perhaps there is no finer example of the politicization of “science” than what the “Indicators” report the EPA just handed us.

What the National Climate Assessment Doesn’t Tell You

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”


The Obama Administration this week is set to release the latest version of the National Climate Assessment—a report which is supposed to detail the potential impacts that climate change will have on the United States.  The report overly focuses on the supposed negative impacts from climate change while largely dismissing or ignoring the positives from climate change.

The bias in the National Climate Assessment (NCA) towards pessimism (which we have previously detailed here) has implications throughout the federal regulatory process because the NCA is cited (either directly or indirectly) as a primary source for the science of climate change for justifying federal regulation aimed towards mitigating greenhouse gas emissions. Since the NCA gets it wrong, so does everyone else.

A good example of this can be found in how climate change is effecting  the human response during heat waves.  The NCA foresees an increasing frequency and magnitude of heat waves leading to growing numbers of heat-related deaths. The leading science suggests just the opposite.

A Microeconomic Look at Regulatory Overkill

In this new paper, I argue that an overly burdensome U.S. regulatory state is partly responsible for the downward trend in domestic and foreign investment in U.S. factories, professional services operations, distribution centers, and research and development facilities. EPA mandates, Obamacare’s costly, complicated new health care directives, and the slowly emerging financial services restrictions stemming from Dodd Frank, are just some of the new regulations that have thickened the Federal Register to more than 80,000 pages per year and added 16,500 new pages to the Code of Federal Regulations during the Obama presidency, undoubtedly deflecting and chasing investment and business creation to foreign shores.

Oddly, this massive expansion of federal rules has evolved as President Obama has simultaneously expressed concerns about the impacts of both declining investment and regulatory overkill on economic growth. In 2011, the president issued Executive Order 13563 under the heading “Improving Regulation and Regulatory Review.” Section 1 states:

Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

The president issued this EO in the wake of his party’s mid-term election rebuke, perhaps to indicate that he understood the concerns of business. He even required that his agencies formulate plans for undertaking systematic, retrospective reviews of their rules and regulations with an eye toward making them less imposing on society:

Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis for rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned…

In the words of a former chief economist at the Council of Economic Advisers:

The single greatest problem with the current system is that most regulations are subject to a cost-benefit analysis only in advance of their implementation. That is the point when the least is known and any analysis must rest on many unverifiable and potentially controversial assumptions.

Federal Agencies Out of Control: Quick Roundup

Today, a Washington Post editorial asks whether the Environment Protection Agency is out of control because one of its officials spoke of  “crucifying” businesspeople who may run afoul of that agency’s regulations.  The short answer is Yes, it is out of control.  Go here for the longer answer.

The Drug Enforcement Agency is also out of control.  Daniel Chong was left in a holding cell for days without food, water, or a toilet.  Agents forgot about him.  Poor Chong attempted suicide because he was so distressed.

Meanwhile the Secret Service is under scrutiny for the security detail that was partying with prostitutes in advance of President Obama’s trip to South America.  The agents involved say they are puzzled by the spotlight since their supervisors were aware of similar conduct in the past and it was no big deal.

EPA and the ‘Necessary Bankrupting’ of Coal

In its proposed rulemaking on emissions from coal-fired power plants, the Environmental Protection Agency has fulfilled President Obama’s campaign statement that his administration would “essentially bankrupt” anyone who had the audacity to hope to build a new generation facility. By essentially prohibiting the production of new plants, the administration is again picking winners and losers in our energy economy, something which is best done by the market.

Supporters of this policy will claim that it is cheaper to generate electricity from natural gas, and that is true for now.  But major producers using hydraulic fracturing and new horizontal drilling techniques in shale formations have recently stopped drilling new wells because the price is so low.

If it ultimately costs more to produce electricity from gas than it does from coal, the administration will have slapped yet another energy price hike on us—in addition to what we already pay to subsidize solar power, windmills, and Chevrolet Volts while taxpayers absorb the debt from the multiple bankruptcies of other politically correct energy concerns like Solyndra, Range Fuels, and a host of others.

The President’s Spilled-Milk Joke

One of President Obama’s better applause lines the other night came when he stepped into the unaccustomed public role of a deregulator:

We got rid of one rule from 40 years ago that could have forced some dairy farmers to spend $10,000 a year proving that they could contain a spill — because milk was somehow classified as an oil. With a rule like that, I guess it was worth crying over spilled milk.

I will note for the record that we had made a bit of a hobbyhorse of EPA’s dairy-oil-spill controls, taking note of them in no fewer than four posts as the sort of regulatory overkill the Obama administration should disavow. House Republicans complain that the president is now putting himself at the head of someone else’s parade, since their members had long urged repeal of the rules and the Obama EPA under administrator Lisa Jackson had dragged its heels about going along. But I’m not going to complain. The ability to get out in front of the other side’s parades served President Bill Clinton well, and I just wish President Obama would use it more often.

EPA Actions Should Be Subject to Judicial Review

Michael and Chantelle Sackett bought some Idaho land and began placing gravel fill on the site to prepare for laying a foundation for their dream home. Then they got something from the EPA: a “Compliance Order,” declaring that they were in violation of the Clean Water Act, because their land had been deemed a “wetland” subject to federal jurisdiction.

By beginning construction without a federal permit, the Sacketts were breaking the law and exposing themselves to civil and possibly criminal penalties, according to the Order. The Order instructed them to stop their construction and restore the property to its “original state” – it even told them what type of shrubbery to plant on the site, and exactly where to plant it. If they failed to comply with the order, they were subject to $37,500 fines per day.

The Sacketts were, understandably, shocked: they had no reason to think their property was a wetland; their neighbors had been allowed to build homes, and there was no indication in their title documents that the land was subject to federal control. So they asked for a hearing – and that was when they learned that the Compliance Order process does not entitle them to a hearing. They must either comply with the Order immediately to avoid the fines, or play chicken with the EPA – waiting until the EPA decides to file an “enforcement action.” At that time, they would be allowed to present their arguments that the land is not actually a “wetland.” But of course, by that time, the fines would have accumulated to hundreds of thousands or millions of dollars.

Worse, these Compliance Orders are issued by a single EPA bureaucrat, on the basis of “any evidence.” That’s the language of the statute itself – and federal courts have interpreted “any evidence” to mean even an anonymous phone call or a newspaper story.

And a Compliance Order doesn’t just demand that you obey EPA’s orders or face fines – ignoring a Compliance Order is a separately punishable offense against federal law, aside from the liability for any environmental damage. In other words, you can face penalties for violating the Clean Water Act and also for ignoring a Compliance Order. Worse still, ignoring a Compliance Order can serve as the basis of a finding of “wilfulness,” and thus the basis of criminal charges.

Pacific Legal Foundation represents the Sacketts and argues that they should have their day in court – either under federal statutes like the Administrative Procedure Act or under the Due Process Clause – without having to face the possibility of devastating penalties.  PLF lawyer Damien Schiff argued the case today before the Supreme Court; while the justices were active in probing the weaknesses of both sides, the government’s lawyer didn’t do the EPA any favors.  So today may have ended being a very good day for the Sacketts, even if the New York Times editorial page took the alarmist stance that allowing them to seek pre-enforcement judicial review would be a ”big victory to corporations and developers who want to evade the requirements of the Clean Water Act.”

The case is Sackett v. EPA; read the argument transcript here and the briefs here.

This blogpost was coauthored by adjunct scholar Timothy Sandefur, who is a principal attorney at PLF and wrote about the case in Regulation magazine.