EPA Busted for Ideology

epa-logo[1]Guest essay by James Sawhill

The EPA’s attempt to harness new coal-fired power plant constructions has been exposed as ideological rather than legal. The EPA further ignored the Department of Energy’s (DOE) earlier conclusion that carbon capture and storage (CCS) has not been “adequately demonstrated.” [1]

Thanks to commentary from The Energy and Environment Legal Institute (E&E Legal) the EPA has been forced to retreat from their draft rule. That rule would mandate the use of CCS, a process that would inter carbon dioxide underground which has so far proved to be little more than a thought experiment. To mandate this technology, the court required the EPA to prove CCS was “adequately demonstrated” and “commercially available.” In that they were laid naked by E&E Legal.

We submitted comments for the record explaining that EPA had made a mockery of the interagency review process, ignoring the government’s own experts in order to push an ideological agenda.


The truth is that the experts had persuasively argued the opposite, in effect, that carbon capture and storage has been demonstrated to be not viable. Making this more egregious, the Department of Energy had paid a quarter of a billion taxpayer dollars to learn this information and lesson that EPA ignored and even misrepresented.

Chris Horner, lead E&E Legal author. [2]

Apparently that is crucial because if the EPA is not serving as an expert but rather as an ideological actor and misrepresenting the DOE, it would not warrant “deference in court”. Lack of deference implies that the EPA’s beliefs may be ambiguous, at best secondary to other better standards, and therefore not the standards the courts should apply. [3] I will yield to our visiting legal scholars to illuminate “deference in court”, legal ambiguity, and those matters going forward at law.


It is likely that the intended purpose of the EPA was to impose a de facto ban on coal-fired power plants. Those stakes are huge. The rule on new power plants could also be the legal predicate for the EPA’s proposed rule regulating existing power plants. That could establish emissions reductions for states and attempts to force them to meet those targets by adopting cap-and-trade tax schemes and other damaging financial and energy practices.

The lack of deference in court decision could potentially make the EPA’s entire global warming agenda vulnerable as also ideological.

While the EPA is not likely to abandon its activism, Horner hopes that the biggest impact of E&E Legal’s exposing of the EPA will be to discredit it enough so that Congress will step in to put a stop to the misuse of the 1970 Clean Air Act. [2]



1] http://www.americancommitment.org/content/epa-plan-ban-coal-hits-major-roadblock

2] http://eelegal.org/?p=3919

full comments in pdf linked here:


3] http://onward.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions/

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May 27, 2015 8:41 am

Finally some good news. A government organisation pushing an ideological agenda, who would’ve thought?
A quarter of a billion dollars is basically money stolen from the public that could’ve gone to medical research or another viable use.
carbon capture and storage lol, wow the idiocy.

Reply to  sabretruthtiger
May 27, 2015 3:24 pm

I wonder, if the agency heads were elected rather than appointed, would there be the same agenda?

Gentle Tramp
May 27, 2015 8:51 am

The idea of burying the valuable and limited plant-food CO2 (and the O2 which is bound in it) deep into the earth – and therefore beyond the reach of the biosphere which is graving for it – is simply sickening and insane…
Pure madness and superstition is ruling our time. I wonder, how later generations will judge our “settled science” and “enlightened society”…

Reply to  Gentle Tramp
May 27, 2015 10:48 am

GT, this process has been happening for several hundred million years. Look here: http://earth.geology.yale.edu/~ajs/2001/Feb/qn020100182.pdf. The planet has a very small fraction of the CO2 available compared to the early Phanerozoic. Lack of available carbon for primary production is far more likely to cause environmental problems than “excess” ever will. I have pointed this out before. The only other period in the planet’s geological history comparable to the present was the terminal Permian ca. 250 mya, immediately prior to the greatest extinction event in geological history. The clear atmospheric response following the extinction suggests that the planetary primary sources of CO2 (mainly volcanism) had been outpaced by biological processes that fixed carbon and reduced carbon availability.

Gentle Tramp
Reply to  Duster
May 27, 2015 1:33 pm

Right so, I described the geological perspective of “Carbon sedimentation versus Carbon liberation by volcanism” – more generally but in the same vein – in an earlier wuwt discussion some weeks ago.
But alone your very precise quote
“Lack of available carbon for primary production is far more likely to cause environmental problems than “excess” ever will”
is more than enough to make it unmistakable clear that CCS is nothing else but STUPID !!!

Reply to  Duster
May 27, 2015 5:25 pm

To sequester carbon in an unnatural manner is a violation of natural processes.

Gary Pearse
Reply to  Gentle Tramp
May 27, 2015 5:51 pm

Depends on whether the ideological transformation of American education continues so that later generations are intellectually disarmed more than at the present stage of the project.

Gentle Tramp
Reply to  Gary Pearse
May 28, 2015 1:43 am

Yes, that is indeed an unpleasant possibility and danger. But let’s hope that common sense and the natural rebellious spirit of youth of every new generation will overcome ideological indoctrination…

Reply to  Gary Pearse
May 28, 2015 7:13 am

Mother Nature might start up another cold period and freeze this CO2 religion into oblivion.

May 27, 2015 8:57 am

“While the EPA is not likely to abandon its activism, Horner hopes that the biggest impact of E&E Legal’s exposing of the EPA will be to discredit it enough so that Congress will step in to put a stop to the misuse of the 1970 Clean Air Act. [2]”
It seems we also need some help from the Judiciary as we are now getting on Immigration, mining, and other matters. They don’t care about Congress, look at attitude with Treaty with Iran! This administration has lost more cases than previous administrations.

Reply to  Catcracking
May 27, 2015 10:17 am

This administration (obamas) came in with half a brain, split up between all the advisors and his appointees. But he sure is one smart dude when it comes down to destroying the good ole US of A.

Coach Springer
May 27, 2015 8:57 am

Congratulations to Chris Horner, et. al. The EPA is an advocate, not an impartial administrator. But good look putting an executive agency in its place with this executive and his preferences for executive action and red misanthropy.

Alan the Brit
May 27, 2015 9:03 am

CCS = vegetation!

Reply to  Alan the Brit
May 27, 2015 10:48 am


Gentle Tramp
Reply to  Alan the Brit
May 27, 2015 1:41 pm

I guess you actually mean:
CCS = inhibited vegetation!

Reply to  Gentle Tramp
May 27, 2015 5:59 pm

I think Alan meant vegetation captures carbon and stores it.

Gentle Tramp
Reply to  Gentle Tramp
May 28, 2015 1:52 am

@ Katherine
OK, that makes sense as well, but then the meaning would be clearer with this order:
Vegetation = CCS !
or, even more precise:
Vegetation = the only intelligent and legitimate CCS !

May 27, 2015 9:09 am

Just a thought: Imagine what could have been done with that quarter billion. Imagine the real useful research that could have been done. Into almost any interesting and useful research one could name from new cures for cancer to new batteries to new rocket engines.
Instead it was spent almost literally on a hole in the ground. Sigh.

Reply to  Dan
May 27, 2015 12:35 pm

Isn’t that about what NASA need to keep the Space program funded that Obama shut off?

Mike Smith
May 27, 2015 9:15 am

This report really shows us just how systemic and pervasive the corruption of climate science has become within our institutions.
We should be moving on to remedies and punishments but I shall not be holding my breath.

Reply to  Mike Smith
May 27, 2015 10:36 am

I feel like holding my tax breath for a quarter of a billion dollars.

Tom in Florida
Reply to  kim
May 27, 2015 11:14 am

Just for perspective, how much of a share of Man U would this money buy?

May 27, 2015 9:20 am

the saddest part is….assume for one minute they were able to accomplish their goals
How much would they lower CO2 levels?
What guarantees do they have that CO2 at a certain low level will not crash and kill everything on the planet?
…they don’t even know that much

May 27, 2015 9:21 am

Landmark Legal Foundation submitted FOIA requests to EPA and was stonewalled for thirty months.
With the obama junta steering the EPA it is a wonder that E&E is getting any traction – but it is good to see!

Bruce Cobb
May 27, 2015 9:21 am

The EPA is out of control and should be shut down.

Reply to  Bruce Cobb
May 27, 2015 10:50 am

It looks like the EPA is out to make the planet uninhabitable for carbon-based life forms.

Reply to  Duster
May 27, 2015 11:07 am

Easy solution; extend the voting franchise to all natural born citizens of the plant kingdom. C’mon, Justice!

Reply to  Duster
May 27, 2015 11:09 am

If they use Gentian Violet on their little voting fingers it might cut down on the incidence of fungal epidemics.

Reply to  Bruce Cobb
May 27, 2015 5:55 pm

Perhaps capture and sequestration of the EPA…

Reply to  Dawtgtomis
May 28, 2015 2:23 am

Frack the EPA.

May 27, 2015 9:30 am

Bruce Cobb “The EPA is out TO Control!”

John M
May 27, 2015 9:34 am

I’m trying to figure out what the story is here. I see claims that the EPA has “backtracked”, with the implication that there was some smashing legal victory, but all I’ve got from the links is rhetoric and some more links to pay-walled sites.
I’d like to believe the EPA has been forced to acknowledge reality, but I’m having trouble piecing the story together from this post.
Can anyone point me to something specific the EPA has been forced to stop doing?

Mark from the Midwest
Reply to  John M
May 27, 2015 11:56 am

This was a substantial legal victory. Within the Administrative process the courts have placed a great deal of importance on the notion that the agencies are, or use, expert opinion in the formulation of their rules. Subsequently, a Federal Judge is reluctant to interfere in the process. It’s similar to dealing with a Masters or Doctoral thesis with three outcomes, 1) Pass, 2) Not Pass, 3) Fail. In the NOT PASS instance the student is free to continue working toward the degree, with the advice of their adviser. But a FAIL leaves that student with few or no options in order to get to their desired goal. From a legal standpoint this is the equivalent of a FAIL.
The important thing is that the EPA has to “walk back” a rule, and has few options in restarting the process. If they restart the rule making process in this subject matter they are required to acknowledge the finding of the opposing party. That acknowledgment is a huge hurdle.

May 27, 2015 9:36 am

I was wondering what’s the EPA carbon storage requirement? Can the co2 be stored for 100 years? 1000 years?

Reply to  fernandoleanme
May 27, 2015 10:22 am

The stored co2 will just slither out of it’s hole and creep into the ocean depths as missing heat and only come out when the appointed time to destroy the world comes.

May 27, 2015 9:39 am

Simple solution for the EPA here. All they need to do is subsidize enhanced oil recovery using CO2. It’s already one of the best tertiary methods for enhancing oil recovery, and with government incentive the method would become more widely economically feasible. Infrastructure would then be in place for the feds to take over to keep injecting CO2 once the fields are abandoned. Higher oil recoveries would generate more wealth, more taxes, more jobs, and they could feel safe from their boogey man.

Reply to  RWturner
May 27, 2015 6:02 pm

Cool! sequestration can be profitable. What about the capturing process?

May 27, 2015 9:45 am

I am waiting for one judge, just one, to find some government employee or attorney in contempt for presenting misleading information (aka lying). Until that time, this garbage is just going to continue.

Ian W
Reply to  dam1953
May 28, 2015 3:58 am

“Lack of Deference in Court” is getting close to that. I think that they will be realizing that they have sailed a little too close to the wind.

May 27, 2015 9:46 am

The whole premise of this EPA rule has never made sense to me from day 1. If CCS is viable technology and if CO2 is giving the planet a fever, then why not mandate it for ALL plants that emit CO2? Why just mandate it for coal?
Yes, coal is more “CO2-intensive”, so what? If we capture one ton of CO2 from a coal plant, isn’t the end result for the planet the same as if we captured one ton of CO2 from a natural gas plant?
It’s stunning that the EPA brazenly ignored DoE experts to push through a proposed rule that was known not to be adequately demonstrated or commercially viable. Stunning but not surprising, given that Gina McCarthy admitted before Congress that CO2-regulations aren’t about pollution control at all.

Reply to  KTM
May 27, 2015 12:42 pm

Go to Washington state. drive around and count the number of power plants burning wood to make electricity, And they are proud of it. The rules on a wood stove would overload your brain, yet they burn wood to make electricity, The energy content is less tan 1/4 that of the worst coal and the amount of emissions are about four times the average coal plant. And the EPA loves using wood for power as it is “CO2 Neutral.” Go figure that BS out.

Reply to  usurbrain
May 29, 2015 1:11 pm

Both CO2 and coal are “C02 neutral”. It’s just the timescales: 50 years for wood, 50 million years for coal….

Reply to  usurbrain
May 29, 2015 1:12 pm

Whoops, I meant wood and coal are “C02 neutral”.
Have C02 on the brain for some reason.

Tom G(ologist)
May 27, 2015 10:04 am

I spent YEARS of a long career fighting battles with EPA on behalf of private sector clients. Although I do not hold out much hope that this outcome will be a game changer in and by itself, it is still HUGE!!!! and hearty congratulations go to Horner, et. al. Thanks

David L. Hagen
May 27, 2015 10:21 am

EPA Issued?
Has the EPA actually withdrawn CCS in a published document?
Or is this anticipated from comments by “Anonymous”?
See EPA: FACT SHEET: Clean Power Plan & Carbon Pollution Standards Key Dates

Summer 2015
EPA to issue final rules on:
Clean Power Plan for Existing Power Plants in States, Indian Country and U.S. Territories.
Carbon Pollution Standards for New, Modified and Reconstructed Power Plants.
EPA plans to propose a federal plan for meeting Clean Power Plan goals for public review and comment.

Reply to  David L. Hagen
May 27, 2015 10:42 am

There are two sets of proposed rules. The ones on existing plants go final summer 2015 and are under constitutional challenge. The ones on new plants and CCS are not final and still open for comment. Those are the ones challenged by Chris Horner.

Reply to  ristvan
May 27, 2015 11:05 am

From the web site http://www.freerepublic.com

EPA’s Secret And Costly ‘Sue And Settle’ Collusion With Environmental Organizations (2013)
http://www.forbes.com/sites/larrybell/2013/02/17/epas-secret-and-costly-sue-and-settle-collusion-with-environmental-organizations/ ^ | 2/2013 | Larry Bell
Posted on 5/27/2015, 1:16:22 PM by dennisw

“Sue and Settle “ practices, sometimes referred to as “friendly lawsuits”, are cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action they and the litigants both want.
In other words, the agency throws the case, somewhat like Bre’r Rabbit agreeing to be thrown into a favorite brier-patch. A big difference however, is that in this case, Farmer McGregor andMr. Rabbit were partners in the scam from the beginning. It’s the unwary American public that actually does get caught in the thorns.
While the environmental group is given a seat at the table, outsiders who are most impacted are excluded, with no opportunity to object to the settlements. Accordingly, both the litigants and the defendant agency, operating in coffee bars and friendly courtroom shadows, avoid the harsh outside glare of oversight. No public notice about the settlement is released until the agreement is filed in court…after the damage has been done.
On top of all that, we taxpayers, including those impacted regulatory victims, are put on the hook for legal fees of both colluding parties. According to a 2011 GAO report, this amounted to millions of dollars awarded to environmental organizations for EPA litigations between 1995 and 2010. Three “Big Green” groups received 41% of this payback: Earthjustice, $4,655,425 (30%); the Sierra Club, $966,687; and the Natural Resources Defense Council, $252,004. Most of this was paid to environmental attorneys in connection to lawsuits filed under the Clean Air Act, followed next by the Clean Water Act.

Writer = tcrlaf

The book “Environment, Inc.” laid this all out a decade ago.
There are big “Environmental” law firms that scour for things to sue the gov about, like the “Snail Darter”, and they pocket BIG FEES in coordination with EPA wonks, who later become “advisors” to these same firms.

Reply to  ristvan
May 27, 2015 12:48 pm

@ RACookPE1978
There are numerous rumors of private meetings between these lawyers, Text messages, even e-mails (that some how disappear off of the Government server) providing advice as where to look, tactics to employ and help on achieving the desired goal with and from the EPA.

Jon Lonergan
Reply to  ristvan
May 27, 2015 8:19 pm

Not just ‘draft rule’ but ‘daft rule’

David L. Hagen
Reply to  ristvan
May 28, 2015 2:55 pm
May 27, 2015 10:24 am

This is a turn around. A few years ago the courts let the EPA get away with fining a gasoline maker for not using an additive that didn’t exist.

May 27, 2015 10:25 am

SNL’s May 21, 2015 story, “Report: EPA drops carbon capture provision from new source CO2 rule” derived from an InsideEPA.com story (paywalled) is probably a result of this.
SNL Link: https://www.snl.com/interactivex/article.aspx?ID=32744210&KPLT=2 (you need an account with SNL to read the actual story)

May 27, 2015 10:28 am

There is no doubt the EPA intended to ban new coal plants by requiring CCS it knew to be technically and commercially infeasible. The evidence is in its own Regulatory Impact Analysis, which literally says there will be no impact because no coal plants will be built. The RIA is available at http://www.epa.gov/sites/production/files/2013-09/documents/20130920proposalria.pdf.

Reply to  ristvan
May 27, 2015 10:53 am

I realize it might be hard on coal miners but I really would rather see new nuclear plants being developed.

Reply to  Duster
May 27, 2015 6:19 pm

Duster, you have to understand that nuclear power is not flexible in its generation capacity. You must use conventional nuclear power generation as base load to the grid, because dropping or adding load requires long periods of time. That is where pulverized coal shines. At a fraction of the cost per megawatt, pulverized coal burns as well as oil or gas with the same flexibility of power production. with the proper fireside treatment and scrubbing of effluent, the particulate emissions are quite tolerable. I used to work in a power plant designed for high-sulfur bituminous which had switched to Wyoming anthracite coal. We had to add a combustion retardant to the coal to keep it from igniting inside the coal mills.

Mike McMillan
Reply to  Duster
May 28, 2015 12:10 am

Not a zero sum situation. Build both.

Reply to  ristvan
May 27, 2015 11:03 am

Bitter, bitter hypocrisy from the EPA, and what a legacy.

May 27, 2015 10:37 am

Campaign slogan for Sixteen:
Keep the Lights On!

David L. Hagen
May 27, 2015 10:51 am

ristvan Good observation. Do you have a full name and current link to that doc?

May 27, 2015 11:35 am
May 27, 2015 11:54 am

As I understand it the Fed/EPA goal is to reduce CO2 output from the power generation sector by 30%. Some say reduce coal fired CO2 by 30%. They are not the same.
30% reduction in power generation CO2 times 38% of US CO2 contribution times 19% global CO2 contribution = 2.27% reduction on global CO2. Whoopee.
Eliminating half of coal fired generation: 0.5 * 0.245 * 0.19 = 0.0233 or 2.33% of global CO2 burden.
Massive economic disruption for an inconsequential result.
(Generation produces 38% of US CO2.)
(US produces 19% of global CO2.)
(Coal CO2 represents 24.5% of US GHGs.)

Ian W
Reply to  nickreality65
May 28, 2015 4:12 am

I believe you have misunderstood the aim of the EPA. They are achieving their aim of “massive economic disruption”.

May 27, 2015 12:43 pm

While everyone is focusing on EPA, lets not lose track of what Sierra Club is accomplishing:
Wednesday, May 27, 2015
Inside the war on coal
How Mike Bloomberg, red-state businesses, and a lot of Midwestern lawyers are changing American energy faster than you think.
By Michael Grunwald

Reply to  timg56
May 27, 2015 1:34 pm

Link to Grunwald article:
Next they want to go after natural gas.
/Mr Lynn

Jim Sawhill
Reply to  L. E. Joiner
May 27, 2015 3:02 pm

Ouch! Revealing link. Thanks Mr Lynn.

Reply to  L. E. Joiner
May 29, 2015 6:27 am

They’ve got no replacement. What a bust.

May 27, 2015 1:19 pm

Terrific news James Sawhill!
I don’t follow your introductory sentence though; to be specific, the use of the word harness confuses me and perhaps others.

“The EPA’s attempt to harness new coal-fired power plant constructions…”

My understanding for the meanings of harness is that ‘harness’ is a productive connection or attachment, e.g.:
‘harness’; har·ness \ˈhär-nəs\
: a set of straps that are placed on an animal (such as a horse) so that it can pull something heavy
: a set of straps that are used to connect a person to something (such as a parachute or a seat)
Full Definition of HARNESS
1a : the gear other than a yoke of a draft animal
b : gear, equipment; especially : military equipment for a horse or man
2a : occupational surroundings or routine
b : close association
3a : something that resembles a harness (as in holding or fastening something)
b : prefabricated wiring with insulation and terminals ready to be attached
4 : a part of a loom which holds and controls the heddles.”
Did you perhaps intend to convey ‘prevent’, ‘obstruct’, ‘constrain’, or similar?
Anyway, many thanks for the good news today!

Jim Sawhill
Reply to  ATheoK
May 27, 2015 1:42 pm

In an earlier life I was an English Major – so, of course I struggle to find the proper word(s).
While I have since reformed (sciences and engineering), I often find myself at a complete loss for words to express what I am seeing, reading, hearing … in recent annals of human behaviors and beliefs.
So, thanks for being kind to me with the multiple choice. I’ll pick either ‘obstruct’ or door #2.

Reply to  Jim Sawhill
May 28, 2015 2:22 am

Hogtied, hamstrung, and goatroped all work if you want to be as bestial as the EPA about it.

Reply to  ATheoK
May 27, 2015 1:48 pm

Should “harness” be replaced by “harass”? It makes a lot more sense in context.

Lauren R.
May 27, 2015 1:58 pm

It should have been obvious that the EPA was pursuing an ideologically-driven agenda from the beginning as their own data showed U.S. carbon dioxide emissions were diminishing during the time the EPA began work to regulate carbon dioxide emissions. See here:
Without any regulation whatsoever carbon dioxide emissions had decreased 12% over 5 years from 2008 to 2013. The EPA was seeking a solution to a “problem” that was fixing itself.

Dr. Deanster
May 27, 2015 4:18 pm

While a nice report .. .a “symbolic win” … it does not amount to squat!!!
The Narcissists in D.C. and the political elite will continue to screw the public, and financially gain in the process. Not one “crook” will go to jail … not one single fine will be levied, not a single activists life will be negatively affected.
We are a “Kept Public”.

May 27, 2015 4:36 pm

We have the opportunity, in 2016, to hold Presidential and Congressional feet to the fire, and insist that our votes will require them to commit to reining in the EPA and the rest of the runaway federal bureaucracy. Of course only Republicans, and then only some of them, would make such a commitment. But those of you still with some allegiance to the erstwhile Democratic Party are free to confront your candidates, too.
/Mr Lynn

May 27, 2015 4:48 pm

I always thought they were using ideology the whole time.

David L. Hagen
May 27, 2015 7:19 pm

Struggles of “Clean Coal”
Billions over budget. Two years after deadline. What’s gone wrong for the ‘clean coal’ project that’s supposed to save an industry?

. The plant was scheduled to start generating power in 2013. . . .Now Kemper managers say the plant won’t be online until the first half of next year at the earliest. And as the plant blows through deadlines, the cost has ballooned dramatically: An original price tag of $1.8 billion has swelled to $6.2 billion. Last week, Kemper lost one of its major partners because of the construction delays and higher-than-expected costs projected for producing electricity.. . .
Another high-profile test case for the technology — FutureGen 2.0 in central Illinois — died three months ago after its federal subsidies evaporated.

May 27, 2015 8:19 pm

The EPA discredited. How sweet. Now when is Congress going to force the slashing of the funds they always squander?

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