Thursday, June 30, 2022

Supreme Court Puts Brakes on EPA in Far-Reaching Decision

The Supreme Court ruled Thursday that federal regulators exceeded their authority in seeking to limit emissions from coal plants in a decision that sharply curtails the executive branch’s authority to make policy actions on a range of issues without Congressional direction.

In a blockbuster 6-3 decision penned by Chief Justice John Roberts, the court said the Environmental Protection Agency had overstepped when it devised the Obama-era regulatory scheme, known as the Clean Power Plan. The plan had been challenged by West Virginia and others.

The court said that when federal agencies issue regulations with sweeping economic and political consequences—in this case, rules to address climate change—the regulations are presumptively invalid unless Congress has specifically authorized the action.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the chief justice wrote, faulting the EPA for finding new powers in “the vague language of a long-extant, but rarely used, statute.”

Beyond the EPA, the decision is likely to rein in President Biden’s ability to use other departments and regulators such as the Treasury Department, the Securities and Exchange Commission and the Federal Energy Regulatory Commission to address climate change, one of his signature policy initiatives.

Mr. Biden called the court’s ruling “a devastating decision that aims to take our country backwards.”

“I have directed my legal team to work with the Department of Justice and affected agencies to review this decision carefully and find ways that we can, under federal law, continue protecting Americans from harmful pollution, including pollution that causes climate change,” Mr. Biden said.

The principle articulated by the court, known as the “major questions doctrine,” was mentioned in earlier cases but is being recognized more explicitly now, said Gautam Hans, a law professor at Vanderbilt University.

“The court has now really explicitly relied on this doctrine to limit the EPA’s authority, and other regulatory agencies are going to be more cautious now that they have to navigate this,” Mr. Hans said.

With Congress often mired in gridlock, Mr. Biden and his Democratic predecessors have used regulation instead of legislation to advance their policy agendas, Mr. Hans said. “Now it’s going to be much harder for those agency rules to survive judicial scrutiny,” he added.

The EPA ruling is similar to the court’s decision on the Biden administration’s vaccine-or-testing mandate for large employers.

In that ruling, from January, the justices said the Occupational Safety and Health Administration (OSHA) had exceeded its authority.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the majority said in an unsigned opinion.

In both cases, the court split along the usual ideological lines, with Chief Justice Roberts finding support from the other five conservatives on the court: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The National Mining Association, which was part of West Virginia’s coalition in the case, said the battle was over federal authority.

“While many would have liked to label this as a case about climate, it is not; it is a case about the authority of government agencies and the economic impacts to the states and all Americans when that authority is abused,” the group said.

Scott Nelson, an attorney with Public Citizen, a nonprofit consumer-advocacy group, countered that the ruling would hurt consumers by undercutting federal agencies’ attempts to protect them, while giving businesses and others who might oppose regulations a wide, new lane to challenge them.

“I would tend to expect that any kind of regulatory initiative that anybody has a stake in opposing is going to be characterized as a major question,” Mr. Nelson said.

Most immediately, opponents are likely to bring up the issue in ongoing litigation against vaccine mandates for federal employees, he said. The Securities and Exchange Commission’s proposal for climate-risk and emissions disclosures is another initiative that may be legally vulnerable because some justices may consider the topic odd for oversight from a financial regulator, he added.

In the case decided Thursday, West Virginia led a coalition of Republican-leaning states and coal producers that asked the Supreme Court to weigh in and clarify the limits of the EPA’s authority.

For half a century, the Clean Air Act has directed the EPA to regulate stationary sources of air pollution that endanger “public health or welfare.” The Obama-era Clean Power Plan, which never went into effect because it was blocked by the Supreme Court in an earlier case, extended that regulatory reach beyond the physical premises of a power plant to allow off-site methods to mitigate pollution.

The Trump administration in 2019 implemented a replacement rule that was more friendly to the coal industry. But in January 2021, on the last day of Mr. Trump’s presidency, a federal appeals court in the District of Columbia struck down the replacement rule, providing the Biden administration with a clean slate to work from in devising its own carbon-emissions rules.

Justice Elena Kagan said in a dissent on Thursday that the Obama-era EPA had exercised broad authority given to it by Congress, and that the Supreme Court keeps thwarting the agency’s lawful efforts to address a climate crisis.

“The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy,” Justice Kagan wrote. “I cannot think of many things more frightening.”

The dissent was joined by Justice Sonia Sotomayor and Justice Stephen Breyer, whose retirement became effective Thursday.

The court’s conservatives have increasingly come to invalidate regulatory actions they think amount to new national policies that should be determined by legislators.

“This Court has established at least one firm rule: ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance,’ ” Justice Gorsuch wrote in January.

Democrats in Congress decried the ruling’s potential to limit the power of the executive branch to react quickly to climate change and other crises.

“This ruling sets a troubling precedent both for what it means to protect public health and the authority regulatory agencies have to protect public health,” Senate Judiciary Committee Chairman Dick Durbin (D., Ill.) said.

Republicans largely cheered the ruling, saying it puts power back in the hands of elected representatives rather than regulatory agencies.

“When Congress acts to address major policy questions affecting Americans and their livelihoods, it says so clearly, explicitly,” said Rep. Cathy McMorris Rodgers (R., Wash.), the House Energy and Commerce Committee’s top Republican. “It does not hide sweeping authorities of the Executive Branch in obscure provisions of the law, as the Obama executive branch tried to argue.”

The decision is a warning to regulatory agencies that they should be wary of interpreting old laws to give them broad new powers, said Jonathan Adler, a professor at Case Western Reserve University School of Law.

“Finding dormant regulatory authority in pre-existing statutes is something the court disfavors,” Mr. Adler said.


Net zero red tape to be ditched as Britain returns to coal

Fossil fuel power plants are set to be temporarily freed from planned checks on their emissions in a scramble to prevent blackouts as Britain turns back to coal.

Coal and gas stations providing back-up supply in 2023 will not have to get reports on their emissions signed off by an independent expert under changes being proposed by Whitehall officials.

There is growing concern over energy security amid fears Russia will shut off gas supplies to Europe in retaliation for sanctions imposed in response to its war on Ukraine.

The gradual retirement of the UK’s nuclear fleet in coming years as well as problems with France’s nuclear stations are adding to the pressure in energy markets.

Coal-fired plants have already been asked to stay open this winter, while gas quality rules could also be relaxed to allow more from the North Sea into Britain’s pipes.

Under rules from 2019, fossil fuel facilities bidding to take part in National Grid ESO’s market for back-up power supply have to declare their carbon emissions in line with limits.

The Government wants to make it compulsory for these declarations to be independently verified — a service expected to be carried out mostly by niche consultants — but there have been delays in getting enough people accredited to do the verification.

Officials are concerned that if independent verification is compulsory, some plants will not be able qualify to provide back-up supply for the winter of 2023-2024.

Officials now plan to postpone for a year the requirement to have emissions figures verified, meaning plants should be able to take part in the auction for 2023.

It marks the second time the requirement has been delayed.

In consultation papers, officials warned that failure to act could lead to lower competition which could trigger increased prices and “risks to security of supply”.

They added: “We consider this proposal would be a reasonable precaution to take.” The Government believes there is only a “low” risk that plants would falsify their emissions claims.

National Grid’s target for the amount of capacity they need to procure for the 2023-2024 back-up market is likely to be “stretching”, the officials said.

Officials also plan to change criteria to make it easier for mothballed power plants to take part in the market.

Britain does not buy much gas directly from Russia but there are concerns about a significant knock-on impact if Russia cuts off supplies to Europe.

Worst-case scenarios modelled in Whitehall indicate 6m households could face black-outs if this winter if that were the case.

National Grid is now developing plans under which potentially millions of households will be paid if they choose to cut their electricity use at peak times, lessening the strain on the system.

Under plans first reported by The Times, National Grid has asked power suppliers to indicate how many of their customers might shift usage out of peak times if they were paid to do so.

It follows trials with Octopus Energy this year.

National Grid said: “Demand shifting has the potential to save consumers money, reduce carbon emissions and offer greater flexibility on the system.”

A spokesperson for the department for business, energy and industrial strategy said: “The Government is carefully considering respondents’ views and will publish a response setting out next steps in due course.

“The UK has no issues with either gas or electricity supply and the government is fully prepared for any scenario, even those that are extreme and very unlikely to occur.”


Boris Johnson heads for a climate clash over plans for new coal mine

Boris Johnson is set to clash with his climate change advisers over plans to sink Britain’s first new coal mine in 30 years.

Lord Deben, chairman of the climate change committee, said yesterday that excavating for coal off the coast of Cumbria was ‘indefensible’.

This flies in the face of the Prime Minister’s recent statement that he wants to supply the steel industry with UK coal.

Last year’s Cop26 summit in Glasgow, hosted by the UK, resulted in a global pact to ‘phase down’ coal use worldwide and the Government aims to stop using it in power stations by 2024.

But following Russia’s Ukraine invasion, Mr Johnson is keen to make the UK less reliant on fuel imports. Around 40 per cent of our coking coal is from Russia.

Lord Deben, who as John Gummer was environment secretary from 1993 to 1997, said digging the new mine would undermine plans to cut greenhouse gas emissions to net zero by 2050 and set a bad example to other countries reluctant to stop using coal. The issue is being considered by the Levelling Up Secretary, Michael Gove, who says he will make a decision before July 7.

Last week the Prime Minister made clear he is in favour of the mine by saying it ‘makes no sense’ to import coal for steel when the UK has its own.

But green campaigners say demand for coking coal to make steel has hugely declined in recent years.

Launching a 600-page report yesterday, Lord Deben said: ‘As far as the coal mine goes, it is absolutely indefensible. First of all 80 per cent of the coal it produces will be exported. It is not going to contribute anything to our domestic needs. We do not need this coal mine.’

He also criticised the Department for Transport for not advising business people to take fewer international flights and use video conferencing instead.

And climate change committee chief executive Chris Stark said the Government’s programme to insulate UK homes ‘fell off a cliff’ a decade ago.


New EPA Climate Change Indicator is deceptive

New climate change indicators on the U.S. EPA (Environmental Protection Agency) website are intended to inform science-based decision-making by presenting climate science transparently. But many of the indicators are misleading or deceptive, being based on incomplete evidence or selective data.

A typical example is the indicator for heat waves. This is illustrated in the left panel of the figure below, depicting the EPA’s representation of heat wave frequency in the U.S. from 1961 to 2019. The figure purports to show a steady increase in the occurrence of heat waves, which supposedly tripled from an average of two per year during the 1960s to six per year during the 2010s.

Unfortunately, the chart on the left is highly deceptive in several ways. First, the data is derived from minimum, not maximum, temperatures averaged across 50 American cities. The corresponding chart for maximum temperatures, shown in the right panel above, paints a rather different picture – one in which the heat wave frequency less than doubled from 2.5 per year in the 1960s to 4.5 per year in the 2010s, and actually declined from the 1980s to the 2000s.

This maximum-temperature graph revealing a much smaller increase in heat waves than the minimum-temperature graph displayed so boldly on the EPA website is dishonestly hidden away in its technical documentation.

A second deception is that the starting date of 1961 for both graphs is conveniently cherry-picked during a 30-year period of global cooling from 1940 to 1970. That in itself exaggerates the warming effect since then. Starting instead in 1980, after the current bout of global warming had begun, it can be seen that the heat wave frequency based on maximum temperatures (right panel) barely increased at all from 1981 to 2019. Similar exaggeration and sleight of hand can be seen in the EPA indicators for heat wave duration, season length and intensity.

A third deception is that the 1961 start date ignores the record U.S. heat of the 1930s, a decade characterized by persistent, searing heat waves across North America, especially in 1934 and 1936. The next figure shows the frequency and magnitude of U.S. heatwaves from 1900 to 2018.

The frequency (top panel) is the annual number of calendar days the maximum temperature exceeded the 90th percentile for 1961–1990 for at least six consecutive days. The EPA’s data is calculated for a period of at least four days, while the heat wave index (lower panel) measures the annual magnitude of all heat waves of at least three days in that year combined.

Despite the differences in definition, it’s abundantly clear that heat waves over the last few decades – the ones publicized by the EPA – pale in comparison to those of the 1930s, and even those of other decades such as the 1910s and 1950s. The peak heat wave index in 1936 is a full three times higher than it was in 2012 and up to nine times higher than in many other years.

The heat wave index shown above actually appears on the same EPA website page as the mimimum-temperature chart. But it’s presented as a tiny Figure 3 that is only 20% as large as the much more prominent Figure 1 showing minimum temperatures. As pointed out recently by anotherwriter, a full-size version of the index chart, from 1895 to 2015, was once featured on the website, before the site was updated this year with the new climate change indicators.

The EPA points out that the 1930s heat waves in North America, which were concentrated in the Great Plains states of the U.S. and southern Canada, were exacerbated by Dust Bowl drought that depleted soil moisture and reduced the moderating effects of evaporation. While this is undoubtedly true, it has been suggested by climate scientists that future droughts in a warming world could result in further record-breaking U.S. heat waves. The EPA has no justification for omitting 1930s heat waves from their data record, or for suppressing the heat wave index chart.

Although the Dust Bowl was unique to the U.S. and Canada, there are locations in other parts of North America and in other countries where substantial heat waves occurred before 1961 as well. In the summer of 1930 two record-setting, back-to-back scorchers, each lasting eight days, afflicted Washington, D.C.; while in 1936, the province of Ontario – also well removed from the Great Plains – experienced 43 degrees Celsius (109 degrees Fahrenheit) heat during the longest, deadliest Canadian heat wave on record. In Europe, France was baked during heat waves in both 1930 and 1947, and many eastern European countries suffered prolonged heat waves in 1946.

What all this means is that the EPA’s heat-wave indicator grossly misrepresents the actual science and defeats its stated goal for the indicators of “informing our understanding of climate change.”

See original for graphics




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