If it does, the impacts on our lives, livelihoods, liberties and living standards will be enormous
Guest opinion by Paul Driessen
The U.S. Supreme Court recently heard oral arguments in Utility Air Regulatory Group v. Environmental Protection Agency. The case will determine how far EPA can extend its regulatory overreach, to control “climate changing” carbon dioxide from power plants and other facilities – by ignoring the Constitution’s “separation of powers” provisions, rewriting clear language in the Clean Air Act, and disregarding laws that require the agency to consider both the costs and benefits of its regulations and what it is regulating.
Put more bluntly, the Court will decide whether EPA may deceive the American people, by implementing regulations that have no basis in honest science and will be ruinous to our economy. It is the most important energy, economic and environmental case to come before the Court it in decades.
Suppose a used car dealership routinely rolled back speedometer mileage, deleted customer complaints from its website, posted fabricated compliments, and lied about defects and accidents, to sell more cars. Or a manufacturer misstated its sales and bottom line, failed to mention major safety violations and fines, and made false claims about new product lines, to attract investors and inflate stock prices?
Both would be indicted for fraud. Now apply the same standards to EPA, whose actions and regulations will affect far more people: virtually every family, facility, company and community in the United States. Jurors would likely rule that the agency is engaged in systematic deceit, dishonesty and fraud.
EPA Administrator Gina McCarthy insists there is “no more urgent threat to public health than climate change.” She is determined to impose President Obama’s anti-hydrocarbon agenda. “I just look at what the climate scientists tell me,” McCarthy told Senator Jeff Sessions (R-AL). Translated, she means she talks only to those who advocate climate alarmism, and ignores all contrary scientists and evidence.
In fact, thousands of scientists and studies argue that there is no empirical, observational evidence to support any of her claims. Recent NOAA and NASA temperature data confirm that global warming ended in 1997 and continues today, even as atmospheric carbon dioxide levels increase steadily, improving plant growth worldwide. Seas are rising at barely seven inches per century, and there is no evidence that recent weather events are any more frequent, intense or “dangerous” than what mankind has dealt with forever.
There is no convincing evidence that carbon dioxide emissions have replaced the powerful, complex, interrelated natural forces that have always driven climate and weather changes. No evidence supports the notion that slashing CO2 emissions and trashing our economy will “stabilize” global temperatures and climate variations, or that developing countries will stop pouring carbon dioxide into the atmosphere.
EPA brushes all this aside. The agency just assumes and asserts human causes and disastrous results, disregards any and all experts and evidence to the contrary, and ignores any and all costs imposed by its regulations.
It has also violated the Constitution, by rewriting specific Clean Air Act provisions that specify 250-ton-per-year emission limits, in sections that EPA is relying on for its climate rulemakings. To shut down coal-fired power plants, the agency illegally and arbitrarily raised the threshold to 100,000 tons of carbon dioxide per year, and ignored the fact that in 692 bills Congress never contemplated applying these sections to greenhouse gases. Unless the Supreme Court intervenes, EPA will continue rewriting the law, gradually tightening its standards to control millions of natural gas generators, refineries, factories, paper mills, shopping malls, apartment and office buildings, hospitals, schools and even large homes.
EPA and other agencies have paid out billions in taxpayer dollars to finance and hype “research” making ludicrous claims that manmade global warming is hidden in really deep ocean waters or obscured by pine tree vapors; tens of thousands of offshore wind turbines could weaken hurricanes; and climate change will cause more rapes and murders. They have used “climate disruption” claims to justify giving eco-activist groups billions of taxpayer dollars to promote alarmist climate propaganda … spending tens of billions on crony-corporatist “green energy” and “climate resilience” programs … and forcing the United States and other nations to spend hundreds of billions on worthless climate change prevention capers.
EPA’s so-called “science” is intolerable “secret science.” The agency refuses to share it with outside experts or even members of Congress and businesses impacted by its regulations. The agency claims this taxpayer-funded information is somehow “proprietary,” even though it is being used to justify onerous regulations that dictate and impair our lives, livelihoods, liberties, living standards and life spans. EPA refuses to be transparent because it wants to prevent any examination of its internal machinations.
Just as bad, EPA routinely ignores its own scientific standards, and many climate reports it relies on come straight from the UN’s Intergovernmental Panel on Climate Change. However, as the Committee For A Constructive Tomorrow observed in its amicus curiae brief to the Supreme Court in this case, the IPCC has been caught red-handed presenting student papers, activist press releases and emailed conjecture as “peer-reviewed expert reports.” It has been caught deleting graphs that clearly show its computer models were worthless, and employing junk models like the one that generated Michael Mann’s infamous “hockey stick” to support assertions that it is 95% certain that humans are causing climate change chaos.
These computer models are built on unproven alarmist assumptions, have never been “validated” and are not merely “unverifiable.” They are flat-out contradicted by real-world evidence right outside the EPA windows, making their results worthless for sound, legitimate public policy. Any yet they drive policy.
In violation of federal laws and executive orders, EPA hypothesizes, concocts or exaggerates almost every conceivable carbon “cost” – to agriculture, forestry, water resources, coastal cities, human health and disease, ecosystems and wildlife. But it completely ignores even the most obvious and enormous benefits of using fossil fuels and emitting plant-fertilizing carbon dioxide: affordable heat and electricity, jobs, transportation, better crop growth and nutrition, and improved living standards, health and welfare.
In reality, hydrocarbon and carbon dioxide benefits outweigh their alleged costs by as much as 500 to 1! That means EPA’s “climate change mitigation” rules impose costs on society that exceed even EPA’s exaggerated regulatory benefits by as much as 500 to 1. The EPA “cure” is far worse than the “disease.”
And let’s not forget that one of Ms. McCarthy’s senior advisors devising the agency’s climate change policies and regulations was none other than John Beale – the guy who bilked us taxpayers out of $1 million in salary and travel expenses for his mythical second job as a CIA agent. To suppose his fraudulent actions did not extend to his official EPA duties defies belief. And yet EPA has apparently taken no steps to reexamine Beale’s analyses or conclusions.
EPA has done all of this knowingly, deliberately, with full knowledge of the grossly deficient foundations of its pseudo-science and policies – to drive an anti-hydrocarbon agenda, without regard for the consequences that agenda will inflict on millions of Americans and billions of people worldwide.
This goes beyond mere sloppiness or incompetence. It is dishonest. It violates the law. According to standards applicable to every citizen and business in the land, it is fraudulent. By controlling the energy that powers our homes, cars, businesses and nation, EPA’s carbon and carbon dioxide policies will control and impair our economy, wipe out tens of millions of jobs, and kill thousands of people – for little or no health or environmental benefits.
The real threat to public health and welfare is not climate change. It is EPA and what this rogue agency is doing in the name of preventing climate change. If the Supreme Court allows this, by giving carte blanche authority to EPA, the battle will rage on countless other fronts, because voters are sick and tired of being lied to, manipulated, defrauded, and forced to pay outrageous prices for oppressive regulations.
Democrats say they plan to use climate change to attack Republicans in 2014. I say, Bring it on!
Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of Eco-Imperialism: Green power – Black death.
Lysenkoism is alive and well in the EPA and the US Gov’t.
I am waiting for the same standards the apply to the right be applied to the left. A quote I believe heard attribute to Richard Nixon it true today as much as it was then. “Why is it only illegal when a Republican does it?” Why when Cheney alleged had oil company’s help [write] energy polices was it so “wrong” and yet when environment groups help write environment polices it so “right”? As if one group has an evil agenda and the other doesn’t. Yet history shows the left is malevolent. I fear I will be dead and gone and these question will go unanswered. I also fear by then the left will have enslaves us all.
Dear Pat Dolan,
I’m so sorry to hear that you’ve been ill. I hope that soon, VERY soon, you will be operating at 100% and feeling like your old self again (and posting more often — you are a wonderful creative writer). Do take care. And remember, at the lowest ebb, the tide is about to turn… .
With concern and best wishes for a better NEXT twelve months or so,
Janice
{thanks for responding}
A slight diversion, but hopefully relevant.
As a resident of a Westminster(ish) parliamentary system, I cannot understand how an agency such as the EPA can make binding regulations without any reference to the Legislature. Under Westminster, all proposed regulations must go through Parliament. In Australia, they are required to be tabled for 30 sitting days (in Federal Parliament), and may be disallowed on a motion by a Member. Further, there is a standing Senate Committee that examines all proposed regulations and reports on them prior to the expiry of the tabling period. Similar provisions apply to State governments.
The rationale is that the Parliament cannot delegate its law-making power, and there have been many court cases about it. As someone alluded to above, it is closely related to taxation powers, and there have been many cases of agencies trying to impose what are effectively taxes, which they are constitutionally prohibited from doing (although they can impose fines, which are disallowable anyway).
How does the US Constitution enable the legislature to delegate its lawmaking power to unelected bodies?
Meanwhile the EPA has already dropped the next shoe. The latest proposed rules will dramatically reduce the sulfur level in gasoline which is currently 30 parts/million to 10 ppm by 2017 . Typically the EPA claims the cost is nil (1 cent/gal) and this will cure all known diseases.
On the other hand the American Petroleum Institute claims that the regulation will increase the cost of fuel by 6 to 9 cents/gal and require significant investment driving more of the small refiners out of business as happened with the former low sulfur diesel mandate because they cannot afford the large investment. Wonder why diesel fuel costs more than gasoline? You can thank the EPA for that as it lowered the allowable sulfur level in diesel. It is not clear that technology exist to achieve the proposed sulfur level in gasoline according the article. Unfortunately such facts have not deterred the EPA before, think mandated cellulosic ethanol.
Note the included Reuter’s photo shows the mandatory smoke being emitted from a stack in San Pedro, California using clever photography. Do you think California would allow such smoke emission?
If not now, when will the Supreme Court save us from draconian rules?
“The EPA claimed the cost to consumers would be less than a penny per gallon of gas; the EPA projects the rules will raise the average cost of buying a vehicle by $72 in 2025.”
“But the American Petroleum Institute pointed to studies it has commissioned estimating that the limits would actually add 6 cents to 9 cents a gallon to refiners’ manufacturing costs while requiring $10 billion in capital costs. American Fuel and Petrochemical Manufacturers, a trade group, called it “the most recent example of the agency’s propensity for illogical and counterproductive rulemaking.”
Who do you believe?
“This rule is all pain and no gain,” said House Energy and Commerce Committee Chairman Fred Upton, R-Mich. “This winter’s cold snap underscores just how vulnerable American families and businesses are to any increases in energy costs, and yet the administration is moving forward to raise prices at the pump.”
“Under current rules, American gasoline can only contain up to 30 parts per million of sulfur. Charles Drevna, president of the American Fuel and Petrochemical Manufacturers lobbying group, says that any tightening of that requirement would be impossible for refiners to meet because of the nature of the sulfur molecules.
http://www.foxnews.com/politics/2014/03/03/epa-will-reportedly-announce-new-sulfur-emissions-rule/
Hi, Johanna,
Until someone better-informed comes along, here’s your old sort-of-bothersome, bird-loving, singing, pal, piping up to respond to your excellent question. Without going into specific sections of the U. S. Constitution (and completely ignoring all the case law), here’s a very basic answer. The Legislature cannot abrogate its duty to write the laws, HOWEVER, Congress can write legislation with sufficient specificity such that an executive branch agency can issue rules per that legislation’s intent.
When the Supreme Court of the U. S. looks at an administrative agency question, it will ask (among other things): 1) was the agency essentially acting:
A. like a court (adjudicative proceeding); or
B. like a legislative body (rulemaking)?
If A., then the key issues will be: 1) whether due process was followed (essentially, (1) Reasonable Notice; (2) Meaningful Hearing); and 2) whether the agency properly applied the relevant sections of agency’s enabling legislation (here, that is mainly the Clean Air Act) per Congress’ intent (looking not just to the letter of the law, but to the spirit of the law).
If B., then, there will be close scrutiny given as to whether those rules are within the scope of the authority granted to the agency by Congress. The issue of whether Congress’ enabling legislation is void on its face for vagueness (or void for ceding too much rule making/law making discretion to the agency) could also come into play.
So, in summary, Congress can delegate some rulemaking authority, but not too much (see U. S. Fed. Administrative Law cases). The executive (a.k.a. administrative) agency does not have to consult with Congress, but must operate within that law or the agency’s actions will held to be ultra vires. Congress, not the executive, is ultimately in control. It can defund or simply abolish by legislation nearly every one of the executive agencies except those falling under the Executive’s prerogative to wage war. Re: “National security,” this is not (in my opinion) a true war power, thus, T.S.A., here in the U.S., could be abolished tomorrow by Congress. If “national security” were held to be a “war” power, justifying Executive fiat, we would be vulnerable to a Stal1n (or whatever wicked dictator you want to name).
I hope that this is helpful to you. How has your summer gone? I hope it was full of lots of happy time in your lovely garden (with lots of fun birds) and enjoying your beautiful country “down” there.
Take care,
Janice
#(:))
Janice Moore says:
March 3, 2014 at 5:44 pm
[The mods do not want to see Janice zigzagging ANY boat rumming to port, Coke, or starboard, in clam seas nor contra temps. Mod]
Mayday! Mayday!
Mod Oy Vey Board!!!
I do not think we can expect any justice from the US Supreme Court in relation to this matter. It is because of the US Supreme Court, in the first place, that the EPA adopted its present position to regulate CO2. As much as I hate to acknowledge this, the US Supreme Court has already made its bed on the issue of CO2.
The only way the US will ever see a change regarding the regulation of CO2 is by politicians bringing it about. But seeing that the American people have put these politicians in office, it is now up to them to bring about their change.
In short, yes they will.
Matthew Marler “Are the justices of the Supreme Court really qualified to overrule the scientific judgment of the EPA scientists? I think that the EPA is wrong in this case, but I do not see how that justifies SCOTUS in overruling EPA.”
I should mention that I am not a specialist in environmental law. However, the EPA should have to justify that something it calls a pollutant is a pollutant. It can’t just say that we deem oxygen a pollutant and will regulate oxygen. For instance, the EPA is currently attempting to rely on the IPCC reports to justify more CO2 regulation. Personally, I don’t think that is adequate.
Additionally, courts rule on scientific evidence all of the time in personal injury lawsuits and in workers compensation matters. (For instance, did a certain chemical cause lung disease in a particular worker?) What happens with respect to scientific issues is that both sides submit their own experts. In the Massachusetts case, the States submitted their own evidence with respect to CO2, and the Bush EPA essentially laid down without challenging it. There are many holes in warmist “science,” and by not challenging them the Bush administration gave the Supreme Court the view that warmist “science” was something equivalent to DNA when used to solve crimes. Thus, I suspect that various members of the Supreme Court believed that ruling that CO2 couldn’t be regulated would have resulted in a technicality (the legal concept of standing) taking precedence over a matter of great practical importance.
As others have pointed out, even if the Supreme Court permits extensive regulation, the Court is interpreting a statute, which can be amended.
JD
@ur momisugly Mac (8:41pm) — LOL. Those you manage at the finest company in the world are so blessed that you have that fine sense of humor (you do bring it to work with you?…, heh — just keep that wadded up coat handy (to scream into)).
@johanna at 7:52 pm
From: 43. REGULATION AND THE CONSTITUTION #1, by Dr. Harrison Schmitt (former US Senator (NM), astronaut, geologist, #12 man on the Moon)
There is a lot of stuff written about government powers to “provide for the common defence, promote the general Welfare”. However, it seems few people remember or choose to heed that an equal phrase in the Preamble is, secure the Blessings of Liberty to ourselves and our Posterity,. Liberty has somehow taken a back seat to all other concerns.
Janice and Steve, thanks for your answers. The key seems to lie in the slightly different way that the Executive is defined in the US. The Administrative Procedures Act would be unconstitutional on its face in Westminster-style democracies.
And it all goes back to the New Deal, eh? There seems to be no end to the mischief that originated there.
And yes Janice, the birds are out in full force, especially the parrots, which are coming in from the bush to harvest the early nuts, not to mention dropping them on my metal roof from a great height for the sheer fun of making a lot of noise!
@Larry Cullen in Texas at 7:06 pm
While Justice Kennedy’s questions of the Solicitor General give me a little hope, it is only a little.
I’m with you. I expect a win-win for the EPA. Either they get to keep the tailoring rule, or they lose the tailoring rule, but get to regulate GHG under absurd rules that “the Supreme Court told them to do.”
I see one hope. SCOTUS calls a rehearing to look at the broader question, as they did in Citizens United, and call the whole shebang – where EPA can define for itself what is and is not a pollutant – unconstitutional. On the plus side, Justice Roberts lead the way on Citizens United. On the minus side, he has taken a lot of heat for Citizens United and may not get a court to dive in the deep end again. On the whole, I think it is lottery-ticket odds — but on the other hand sometimes a lottery ticket it is the only way to win.
Hi, Johanna,
You are so very welcome. Oh, how wonderful it would be to see those parrots. So cool to SEE. But, not to hear, lol. I hope they tuck their heads under their wings before you need to get to sleep.
Yes, re: Franklin Delano Roosevelt, et. al., our country came “theeeeees” close to going completely socialist in the 1930’s. There are hundreds of newspaper accounts and documents proving this (including the Venona Papers written about by Ann Coulter in her excellent book Treason). In a way, that horrid chapter in U. S. history gives me hope: we’ve been through worse. America, true, liberty-loving, Constitution-upholding, America, IS!
Take care,
Janice
Not being a US citizen – there are some things I don’t quite understand. Here, had an agency overreached like the EPA has, the parliament through the minister would have hauled it into line long ago. Now from what I can see in the US you don’t have ministerial responsibility for departments, they are lumped under the president? Bad design, had each department been responsible to a minister of the house, you would not have this problem now.
Anyway, a simple question, since the US House is dominated by the Republican Party, why does not the house not either amend the clean air act to disqualify carbon-dioxide, or add a provision requiring to refer such decisions back to congress. Could the congress intervene via a motion clarifying regulatory intent of the clean air act – to “Inform” the Supremes of their intent in regulating only vehicular emissions.
One of the problems in the US system is that it has a totalitarian Administration, too much power is concentrated into a single “Will” which depending on who you get as president delivers different results. Your head of state should not be able to veto legislation that is duly passed by both houses of parliament and should absolutely not be able to write legislation or regulation. Regulation should only be enabled via an act of parliament.
If the states were to gather a constitutional convention to change the constitution, they really should consider stripping the President of the power of veto that enables the totalitarian behaviour to exist in the administrative branch. It is Parliament that represents the people, not the President.
(Speaking as an outsider of course)
Bob, having thought a bit more about the helpful answers to my question above, it seems to come down to two things.
One, in the US the Executive = the President. In Westminster systems, the Executive is the elected government (principally Ministers) – but it is a subset of the legislature, rather than a separate power base.
Two, as Steven explained above, in a rush of blood to the head, the legislature handed over a bunch of legislative powers to the President – which strikes me as bizarre, but no doubt they had their reasons. So the legislature passes the primary legislation, and then the President is in charge of regulations applicable to that legislation.
US constitutional and legal mavens, please correct me if I’ve got it wrong.
One other question – can the legislature repeal the legislation which handed these powers to the President?
johanna.
Yes, I can see that, but it does not seem logical to give the ability to effectively legislate (regulate) to an administrative body that is not representative of the people. While the US President is democratically elected, he cannot be representative of that part of the population who voted for someone else. Never ever. The President does not represent the people therefore should not be able to legislate (regulate) at all.
For example there is media about Obama choosing not to enforce legislation passed by the parliament. How is it that he can do that, how is it that the parliament has no power to direct the President to enforce the rules that the people’s representatives enacted? Here the responsible minister could be censured by the parliament, why can’t the US parliament likewise censure the President?
Stephen Rasey: It did. It admits that it did. It’s defense is that it was forced to as to prevent “absurdities.”
Could the court rule that the law created injudiciable conflicts in its wording, so that fair and science based regulations were impossible? That therefore the regulations can not be enforced until Congress rewrites the law to remove the absurdities? Sometimes laws are declared impermissibly vague.
JD Ohio: Personally, I don’t think that is adequate.
Me neither, but the law gives to EPA the authority to decide what is adequate, not to you or me.
I think the best hope comes from what Steve Rasey wrote: if EPA had to break the law in order to come up with workable regulations, then the regulations are not lawful. Or, the arbitrary “big vs little” violates some “equal protection of the law” interpretation. Mr Rasey’s “win-win” comment may be correct.
”Climate changing carbon”???
I suppose they mean Carbon dioxide, CO2, which never changed any climate apart from the political one.
I predict a win for the EPA, and a big loss for the American people, and democracy.
Hope I’m wrong.
Anthony what have you done to the twitter world – they rally attack you and all you write. But alas I have the ultimate defense against the Grant Science Consensus method. I ask them for one just one real PEER REVIEWED PAPER THAT HAS ADVANCED TO THEORY . . THEY HAVE NONE AS YOU KNOW.
Mann and the EA University will not release the based data sets, the math, the algorithms so it is impossible for anyone to replicated their work. The method is here for those that do not believe in a real science review.
http://www.scientificpsychic.com/workbook/scientific-method.htm
Essentially, you got it. The American government is separated vertically among federal, state, and local jurisdictions. The federal government itself is split into 3 branches — executive (the President and the bureaucracies), the legislative (the U.S. Congress, itself split into two houses) and the judicial. The highest federal court in the Supreme Court of the United States. The 3 branches of the federal government are considered “separate but equal,” at least on paper, with each branch having specific duties. The Constitution of the United States also specifies many checks and balances among the three branches, grants each branch specific powers and grants those powers to one branch only.
Yes, the Congress can pass a bill to repeal any law it wants. But to become law, that bill must be signed by the president or the Congress may override the president’s veto by a 2/3 majority vote. Congress may at any time vote to not fund any program it wants to not fund. Again, the budget is a bill, which must be passed into law and signed by the president or … (see above).
The heads of the various federal agencies that make up the federal bureaucracy report to the President. As chief executive, the American President may decide how to administer the laws passed by Congress. The President may issue executive orders, which are directives on execution and administration of the law. These executive orders may not violate existing law, create new law, or overstep the Constitutional limits placed upon the executive branch or the federal government.
Or at least that’s what it says on paper. In reality, we have a Imperious President who ignores the law, rewrites the law and chooses which laws to enforce and which laws to ignore. We also have a split Congress with each house controlled by different parties, making legislation difficult to pass (not necessarily a bad thing, btw) and a President who categorically will not sign a bill, any bill, which limits the power of the state.
“The real threat to public health and welfare is not climate change. It is EPA and what this rogue agency is doing in the name of preventing climate change.”
Hmm, a rogue agency trying to undermine the energy supply of the USA. Maybe KGB infiltrated?