The first fruits






With midnight regulation, Obama Energy Department just outlawed your three-way bulb

In the last full day of the Obama administration, the Department of Energy just issued a final rule that will outlaw even more light bulbs.

The 2007 light bulb ban in effect outlawed most incandescent light bulbs by imposing efficiency standards on ordinary light bulbs. Congress exempted a few types of light bulbs, including bug lights, three-way bulbs, "rough service lamps," and some decorative bulbs, such as globe-shaped bulbs.

But that law gave DOE the right to expand the class of bulbs covered by the mandates. In a new rule published today, DOE redefined the words in the law, "general service lamp," to include a lot more types of light bulb. In short, bulb types that Congress had originally exempted are no longer exempted.

Three-way bulbs, which have two different filaments and thus three different brightnesses, are currently exempted. DOE just ruled that they now need to be covered. The Department's reasoning: "DOE expects these sales will likely increase since these lamps could be used as replacements for other regulated lamp types." In other words: People might start buying these bulbs because they want regular light bulbs rather than expensive LEDs or crappy fluorescents.

DOE also spiked the exemption for globe-shaped bulbs. Many manufacturers make, and many retailers sell, globe-shaped bulbs that met the standards, but consumers were left with the option to buy globe-shaped bulbs of the old type. That couldn't stand.

This rule doesn't go into effect for three years, but it could lead pretty quickly to domestic bulb makers ceasing production.

A few bulb types are still exempt, including bug lights and oven lights.

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Key Omission Undercuts Attempted New York Times Expose of EPA Nominee Scott Pruitt

In today's New York Times, Eric Lipton and Coral Davenport dropped what was supposed to be a blockbuster expose of "a series of instances in which [Environmental Protectoin Agency (EPA) administrator nominee Scott] Pruitt put cooperation with industry before confrontation as he sought to blunt the impact of federal environmental policies in his state-against oil, gas, agriculture and other interests." According to Lipton and Davenport, "[Pruitt's] antipathy to federal regulation-he sued the Environmental Protection Agency 14 times-in many ways defined his tenure as Oklahoma's attorney general."

In support of these contentions, the article includes an interactive feature that presents the legal briefs from the 14 suits against the EPA in which Pruitt participated on behalf of Oklahoma. Lipton and Davenport note: "In all but one of these 14 cases, regulated industry players also were parties." The obvious implication is that Pruitt is doing the bidding of the industries that funded his political campaigns.

However, there is a gaping hole in the New York Times story. The reporters make it seem as though Pruitt was waging a one-man war against the EPA. In fact, an unprecedented and diverse number of states have challenged the agency during the Obama administration. For example, both of the EPA's signature regulations-the Clean Power Plan and the Waters of the United States rule-were challenged by more than half of all states. By my count, 206 states (attorneys general, governors, or state regulatory bodies) participated in 12 of the 14 lawsuits against the EPA in addition to Oklahoma Attorney General Pruitt. That's an average of 18 states per lawsuit. Nor is it the case that only conservative states challenged the EPA. To wit, Michigan, Ohio, and even Delaware have joined Oklahoma in fighting various EPA rules.

It is remarkable that Lipton and Davenport omitted discussion of how many states joined Oklahoma in challenging the EPA during the Obama era. After all, Pruitt has made federalism the touchstone of his opposition to the agency.

Arguably, the breadth of state opposition to Obama-era EPA rules undercuts the thesis implied by Lipton and Davenport-that industry funding influenced Pruitt's prosecutorial discretion. To buy what the Times is selling, you'd have to believe that more than half the state attorneys general in the country are supplicants of industry. That's a sweeping and ill-founded supposition.

Also, the plenitude of state challenges to Obama's EPA cuts against Lipton and Davenport's evident assumption that the underlying rules were important public health safeguards. It defies reason to claim that more than half of all states are against clean air or clean water when they challenge the Clean Power Plan or Waters of the United States rule.

Without question, the state officials who have sued are more accountable to their constituents than are the unelected civil servants at the EPA. Does it make sense to think that citizens in more than half of all states want dirty air and water? Of course not! Rather, these states are fighting highly politicized regulations that would subject more and more state authority to the EPA, in order to achieve health and environmental benefits that are illusory. To this point, consider the following links to previous posts that tell the true story about the rules being challenged by Pruitt, among many other states: Clean Power Plan, Mercury and Air Toxics Standards, Ozone NAAQS, Carbon Pollution Standards, Regional Haze, and the Waters of the U.S. Rule.

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Can Trump, Congress Undo EPA's Midnight Fuel Economy Regulation?

The U.S. Environmental Protection Agency (EPA) finalized-14 months ahead of schedule-its Mid Term Evaluation (MTE) of greenhouse gas emission standards for model year (MY) 2022-2025 passenger cars and light trucks. The EPA was in such a rush to dump a fait accompli on the incoming Trump administration that it apparently forgot to post anything about this multi-billion dollar decision on the agency website's landing page.

The EPA's action locks in greenhouse gas (GHG) standards the agency tentatively adopted in 2012-more than a decade before millions of the covered vehicles are even manufactured. GHG standards are de facto fuel economy standards, because, as the EPA and the National Highway Traffic Safety Administration (NHTSA) acknowledge, carbon dioxide constitutes 94.9 percent of vehicular greenhouse gas emissions, and "there is a single pool of technologies ... that reduce fuel consumption and thereby CO2 emissions as well" (75 FR 25372).

On December 8, 2016, the Auto Alliance, representing 12 leading manufacturers of passenger cars and light trucks, asked the EPA to withdraw the proposed Mid Term Evaluation, which the agencies in July 2016 told automakers would not be proposed until mid-2017. The Alliance cautioned that the EPA's proposed GHG standards ignore consumer acceptance and are based on "several technical and modeling errors that lead to an overly optimistic view of both technology effectiveness and cost to manufacturers and ultimately to consumers."

The Alliance additionally noted that the proposed MTE conflicts with the EPA's regulatory obligation to implement a "harmonized single national GHG/Fuel Economy program in which the EPA and NHTSA, along with California's Air Resources Board (`ARB'), would issue their draft TAR [Technical Assessment Report] and subsequent MTE determinations at the same time."

Nonetheless, on this Friday before a three-day weekend, the EPA basically told automakers to go pound sand. The affected industries responded with releases today calling on the incoming Trump administration to yank or at least reconsider the EPA's action.

Global Automakers President and CEO John Bozella stated:

The Environmental Protection Agency has still failed to state a compelling reason for rushing its final determination. It unnecessarily truncated public comment and prevented scrutiny of an important policy decision that will affect consumers, investment, public health, and the environment. This can only undermine confidence in the objectivity of policymaking. It merits a serious look by the incoming administration.

National Automobile Dealers Association President and CEO Peter Welch stated:

The Obama Administration today just made new cars and trucks thousands of dollars more expensive for America's working men and women. Expensive and unaffordable new cars will drive Americans into less efficient, less clean and less safe used cars-undermining the very goals of this policy. We urge the incoming Trump Administration to withdraw today's action, and we look forward to working with the new Administration to ensure that working families can choose the cleaner, safer new cars and trucks they need at prices they can afford.

What is to be done?

The EPA's action is either a rule or it is not. If it is a rule, then it is vulnerable to quick repeal via the Congressional Review Act (CRA), which enables Congress to veto regulations adopted within the previous 60 legislative days. CRA resolutions of disapproval cannot be filibustered, as they require only simple majorities to pass. If both chambers of Congress pass the resolution and the President signs it, the targeted rule is overturned.

The EPA and its allies, predictably, claim the MTE is not a rule, only the evaluation of a rule. However, the CRA definition of rule includes any agency statement of particular or general applicability and future effect that interprets, implements, or prescribes policy or law. The MTE easily fits within that capacious definition.

While denying the MTE is a rule, the EPA and its allies also claim President Trump cannot legally withdraw it. Why? Because it has gone through the public notice and comment process. But isn't that tantamount to saying it is a rule?

But let's assume it is not a rule. How then does it legally bind anyone to do or forbear from doing anything?

Also, how does the EPA's premature finalization of the MTE excuse the agency from fulfilling its regulatory commitment under the 2012 joint rulemaking to coordinate its final MTE with NHTSA's? Either the EPA's action is simply unlawful, or the Trump administration would have an opportunity to modify the EPA's MTE in the process of coordinating it with NHTSA's.

Finally, even if we assume the Trump EPA cannot simply nix the MTE by fiat, it would certainly be within its rights to accept a petition to reconsider the MTE. The Trump EPA could then restore the schedule for proposing and finalizing the MTE that the agencies published in July. And on the basis of those additional public comments and technical reviews, it would have until April 2018 to finalize new coordinated MTEs that the agencies consider more consistent with consumer acceptance, technology costs, fuel prices, and employment impacts.

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Incoming EPA Chief Gains Ammo Against CO2 Regs

Imagine for a moment you're applying for an executive position at a prestigious capital firm, and during the course of the interview the assessor asks for your ideas on curtailing greenhouse gas emissions (GHGs). Your internal (if not external) response would probably go something like this: "What does CO2 have to do with my potential role as an investment manager?" Now imagine being the nominee for the CIA or HUD and being subjected to the same question. That's exactly what happened during last week's confirmation hearings.

As The Wall Street Journal reports, Sen. Kamala Harris bizarrely tried to corner Mike Pompeo, nominated to head the CIA, on the issue of man-made global warming. To his credit, Pompeo brilliantly deferred, retorting, "I, frankly, as the director of CIA would prefer today not to get into the details of climate debate and science. It just seems - my role is going to be so different." He added, "I do know the agency's role. Its role is to collect foreign intelligence." Bingo.

HUD nominee Ben Carson faced similar consternation. Sen. Elizabeth Warren used a portion of her time urging Carson to lay out "actions . to adapt to or prevent climate change." As entertaining and nonsensical as all this is, none of it provided the kind of fireworks we're bound to witness during EPA nominee Scott Pruitt's hearing this week. Pruitt, of course, is expected to significantly water down the agency by rescinding onerous regulations.

Unfortunately for Democrats, when it comes to the faux war on CO2, Pruitt's job may not be as difficult as they hoped. Cato Institute's Patrick J. Michaels reports on a new paper, "The Art and Science of Climate Model Tuning," that undermines the Obama administration's "finding of endangerment" claim regarding CO2. Because the EPA interprets GHGs as dangerous, Michaels says "any attempt to undo Obama-era EPA regulations will be bitterly contested in court, perhaps for years."

The paper, however, provides strong evidence of EPA gerrymandering, which could negate Democrats' popular legal defense. According to Michaels, it found "that each fiddling of the models . gives a different forecast of how much the earth will warm for doubling atmospheric carbon dioxide, which is called the equilibrium climate sensitivity (ECS). If the ECS can be changed to a wide range of values, depending upon the `tuning' of the model, then it is the modeler and not the underlying physics that decides this number. And who defines an `acceptable' ECS? In these cases, it is the very same people jiggling the models in the first place."

The Obama EPA gets away with unlawful acts because it fabricates evidence. In fact, the entire Democrat war on greenhouse gases - including off-script "gotcha" questions at confirmation hearings - is nothing but a political farce. The Left is going to be a whole lot more agitated when Republicans put an end to pursuing nonexistent issues.

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