Commentary: Does the Michigan v. EPA decision doom the Clean Power Plan?

The U.S. Supreme Court’s June decision that rejected a Clean Air Act regulation limiting mercury emissions from power plants looms over the Obama administration’s push to cut those facilities’ greenhouse gas emissions and, given the reasoning employed by the five justices in the majority, it’s possible that the Clean Power Plan could be at risk of a similar fate.

In Michigan v. Environmental Protection Agency Justice Antonin Scalia concluded that the CAA provision at issue there requires EPA to consider the potential costs of an emissions limit to the polluter before it concludes that the limit is, in the words of the statute, “appropriate and necessary.” That decision, which was joined by fellow Republican appointees Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, could be understood as a departure from the way the Court has traditionally interpreted the environmental laws.

For the past thirty or so years, the Court has tended to uphold an agency’s interpretation of a statute that authorizes it to write regulations if that interpretation is “reasonable.” In the words of the majority opinion in a case called Chevron USA, Inc. v. Natural Resources Defense Council, Inc.:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Section 112 of the CAA does not say when EPA must consider the costs of a potential regulation, but instead requires only that EPA do so before issuing that regulation. In fact, EPA made clear that it would consider the costs of compliance with the Mercury and Air Toxics rule struck down in Michigan v. EPA before the regulation was finalized.

According to the Chevron rule that traditionally governs, the Court should have upheld the MAT rule against the attack leveled against it because the EPA’s administrator reasonably understood the statutory language to permit the agency to consider compliance costs after deciding that some limit on mercury and other toxic air pollutant emissions from coal-fired power plants is needed to protect public health and the environmental quality of the atmosphere.

But it didn’t. Instead, Scalia wrote that EPA had tried to “gerrymander” the Chevron rule by ignoring a part of the CAA. To Scalia and the justices that joined his opinion, the word “appropriate” necessarily includes consideration of compliance costs.

The Clean Power Plan, like the MAT rule, is based on a two-step process in which EPA first decided that limits on carbon dioxide emissions are needed to advance the goals of the CAA. This conclusion, known as an “endangerment finding,” preceded the agency’s consideration of the costs to industry; those costs were taken into account before the Clean Power Plan was announced in early August.

Will the Supreme Court apply the reasoning of Michigan v. Environmental Protection Agency in the inevitable challenge to President Barack Obama’s signature program for limiting the damage coal combustion does to the atmosphere? Or will it conclude, instead, that its interpretation of “appropriate and necessary” is irrelevant because a different section of the CAA authorizes the Clean Power Plan?

We cannot know that until litigation that aims to eliminate the Clean Power Plan reaches the justices. But there may be cause to worry. For one thing, Justice Thomas wrote, in his concurring opinion in the Michigan case, that he thinks deference to agency interpretations of statutes might violate the Constitution’s separation of powers doctrine. Justice Alito seems to think the Chevron doctrine has to go, too, and Scalia himself has indicated some skepticism about the degree to which courts refrain from second-guessing an agency’s understanding of a statute’s meaning. The Court’s most senior justice, Scalia has voted not to defer to an agency statutory interpretation in nearly half the cases that raise the issue since John Roberts became chief justice ten years ago.

It is not clear that Chief Justice Roberts outright opposes the idea of deferring to agency interpretations of statutes, but he has indicated a willingness to limit the circumstances under which that deference is due.

Because the Court’s four justices appointed by Democratic presidents (Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, Elena Kagan) have not indicated any inclination to overrule the decision in the Chevron case, the fate of much of the country’s environmental regulatory apparatus is in the hands of Justice Anthony M. Kennedy.

The cacophony surrounding the 2016 Presidential election will be laced with arguments over issues big and small. The question whether EPA, or for that matter, the agencies that manage everything from our food supply to wildlife and the public lands, will have their decisions subjected to scrutiny by politically conservative judges who are inclined to favor the interests of industry or instead whether the expertise those agencies have shown will be granted the respect it deserves is one that the justices who replace 82-year old Ginsburg, 79-year old Scalia, 79-year old Kennedy, or 77-year old Breyer should keep in mind when they cast a ballot for the candidate who will appoint them.

Advertisements

COMMENTARY: New Colo. Sen. Gardner’s votes on climate change amendments are proof of unwillingness to lead

Cory Gardner, Colorado’s brand-new Republican U.S. senator, has had a charmed career. The “cherubic” legislator from the Centennial state’s eastern plains rose in about nine years from obscurity to one of the state’s most powerful politicians.

He got there because he’s likable, because he had the good fortune of running against an incumbent U.S. senator who ran a less-than-stellar re-election campaign, and because he promised Coloradans that he would be a different sort of Republican – one more attuned to the changing priorities of a politically moderate Western state than are many of his GOP colleagues in Washington and elsewhere.

This week, as the Senate debated a bill to green-light the controversial KXL oil pipeline, Gardner had the chance to prove that his words were sincere. He failed to do that and, in the process, reinforced fears that he will give more priority to the desires of fossil fuel interests than to the imperative of a cogent national response to anthropogenic climate change.

Gardner had four chances to acknowledge, with his vote and, maybe, with his voice, that humans are causing Earth’s climate to change. When he had the opportunity to vote for amendments to S.1, the KXL pipeline bill, offered by Sens. John Hoeven, R-N.D., Joe Manchin, D-W.Va., Brian Schatz, D-Haw., and Bernie Sanders, I-Vt., that forthrightly recognized that indisputable fact, Gardner blew it. In each case he voted “no.”

To be fair, few of his GOP colleagues voted any differently and, during his campaign last year, Gardner never took a clear stand on climate change. Nevertheless, the senator represents a state that stands to be severely impacted by climate change, with a serious potential of lower winter snow pack, earlier snow melt that reduces summer flows in the state’s rivers and streams and the volume of water in its reservoirs, and increasing drought on the senator’s native Great Plains. Colorado is a state that depends heavily on tourism, as people from all over the world travel to its mountains to ski, snowboard, and otherwise revel in the wintry white, and its burgeoning high technology sector draws talented employees who value the state’s equable climate and four-season playground far more than they do the parochial desires of oil company executives for increased profits at the expense of a warmed planet.

Environmental policy is central to Colorado’s economy, quality of life, and culture. Gardner’s votes this week indicate a surprising willingness to overlook that reality. It is difficult to believe that Gardner is not familiar with the clear scientific consensus that climate change currently causing rapid and dramatic change all over the planet is anthropogenic in origin. It is likewise difficult to believe that Gardner does not know that the widespread and ever-growing combustion of fossil fuels accounts for the heating of  our atmosphere and oceans.

The senator’s votes this week are a sad reminder that even those politicians who cannot count on a consistent trend of support for one party or the other are willing to disregard their constituents’ justifiable and genuine concern for the future of their state, the nation and civilization itself. They also tell every Coloradan that Cory Gardner is not a leader. He has not shown a willingness to be honest about humanity’s impact on the air we breathe and the oceans upon which we depend and, apparently, is comfortable with policies that will only add to the harm caused by our society’s intentional and destructive chemical experiment in the atmosphere.

COMMENTARY: Inhofe’s distortions and ignorance demean Senate and debate over oil pipeline

That famous climate change-denying curmudgeon James M. Inhofe is at it again, and this time his willful denial of facts and slander of scientists is casting a sad shadow over the U.S. Senate as it starts a new Congress with a debate over the controversial KXL oil pipeline.

Inhofe, a Republican from Oklahoma, is well-known for his refusal to accept that human-caused emissions of greenhouse gases are changing the climate of Earth. Among the greatest hits of this man’s obtuse failure to recognize reality are these memorable comments:

  • “[T]his 97% [of climate scientists accepting human-caused global warming], that doesn’t mean anything. I named literally thousands of scientists on the floor…and these were top people.” – Source
  • “Regarded as the ‘greatest scandal of our generation’ by the UK Telegraph, “Climategate,” as the scandal is called, discloses what scientists over the years had been telling me: the so-called ‘consensus’ is simply wrong.” – Source
  • “In short, some parts of the IPCC process resembled a Soviet-style trial, in which the facts are predetermined, and ideological purity trumps technical and scientific rigor. ” – Source
  • “The claim that global warming is caused by man-made emissions is simply untrue and not based on sound science.” – Source

During the 114th Congress, which started earlier this month after an election in November that saw Republicans gain control of the Senate and expand their majority in the U.S. House of Representatives, Inhofe will chair the Senate Environment & Public Works Committee. He is, therefore, in an influential position and one might expect that, as such, he might choose his words more judiciously. Unfortunately, the 80-year old from Tulsa continues to display both both belligerence and ignorance.

Last week, Inhofe added to his infamy. During a debate on a proposed amendment to ban the export of oil carried in the KXL pipeline, Inhofe marred the Senate’s deliberation by lambasting scientists and by, again, raising the false accusation that climatologists are lying about mankind’s impact on the planet’s climate. He also misrepresented the meaning of a scientific paper to give credence to his misguided beliefs.

“[E]ven if someone is a believer that the world is coming to an end, that global warming is going to kill everybody and it is all due to man-made gas, if they truly believe that still, even in spite of that, it is not going to reduce worldwide emissions. I guess that is what they want to do, so we hear about the consensus,” Inhofe said.

“I remember at that time I made a speech on this floor questioning the science. I said, ‘I assume there are scientists out there are not part of the IPCC – that is the Intergovernmental Panel on Climate Change – and that those scientists know better. They know what the reality is,'” Inhofe continued. “I started getting phone calls. I got phone calls from scientists.”

Inhofe explained that 58 “recognized scientists,” including climate change denier Richard S. Lindzen of the Massachusetts Institute of Technology, had contacted him.

He later explained that there is no consensus in the scientific community that climate change is happening because “63 percent of weather-casters believe any global warming that is occurring is the result of natural variation and not human activities.”

Inhofe also claimed that a paper published in Nature during 2013 casts doubt on the reality of anthropogenic climate change.

“Nature journal, which is a well-respected journal, in their 2013 paper said that there is considerable uncertainty as to whether [increases in extreme climate variability] is occurring,” the Oklahoman said.

He was referring to an August 2013 paper that concluded only that, in a warmed world, the range between high and low temperatures would not necessarily expand. The paper articulated no conclusions about the impact of climate change on mean temperatures. As lead author Dr. Chris Huntingford, a climatologist at the Center for Ecology and Hydrology in the United Kingdom, explained in an email message:

“Our Nature paper strictly analyzes only year-to-year variability (fluctuations) in temperature, and demonstrates that in some parts of the world, this is actually going down. Elsewhere it is going up. This may be seen in both direct measurements and in supporting climate model simulations. This goes against the view
that maybe, as general global warming occurs, everywhere will additionally see larger year-to-year swings in temperature.

“However, we do not at any point offer evidence against a general on-going background and upwards warming trend. Detection and attribution statistical studies show that the observed average increasing temperatures are almost certainly a consequence of the burning of fossil fuels.”

Inhofe also invoked the discredited “Climategate” claim that climatologists have fabricated research. Multiple reviews have concluded that such claims are false.

“Climategate was when they analyzed some of the things IPCC had said and they had all these quotes and emails that totally debunked the credibility of IPCC,” Inhofe asserted. “Still today they are talking about it.”

These arguments, steeped in a deeply flawed understanding about the nature of science and a willingness to deceive the American people about what scientists know about our changing climate, are despicable. The question whether the Obama administration should grant the permit needed to build the KXL pipeline across the Canada-U.S. border is an important one; some members of Congress who support the pipeline argue that constructing it will result in lower overall greenhouse gas emissions than blocking it. Others make the point that the oil that would move through it is filthy and likely to further delay a needed transition away from fossil fuels. Whatever their perspectives, many contributors to the debate on KXL that has happened in both chambers of Congress this month have made their arguments cogently, honestly, and intelligently.

That is, unfortunately, not the way that Mr. Inhofe has done it. He’s not the only one, of course, but here’s the thing that bears emphasis: Members of Congress have a privilege to say whatever they want on the floor of the Senate or the House of Representatives, but they should not abuse that privilege by making comments that are utterly foolish and that do nothing to advance an intelligent discussion of either energy policy or an American response to the growing climate change crisis.

Mr. Inhofe should do the people of this country the courtesy of learning what science is, how it works, and why it indisputably teaches that the buildup of greenhouse gases in the atmosphere will change the climate before he knocks the efforts of climatologists. And is it too much to ask that he, or at least his staff, read a scientific paper before, yes, lying about its conclusions on the floor of the United States Senate?