Supreme Court Must Curtail the EPA’s Regulatory Overreach Immediately

By Gregg Goodnight

It is imperative that the Supreme Court stop the regulatory abuses enabled by the gross error of the 2007 ruling in Massachusetts v. EPA. This ruling has been the pretext for a vast extension of regulations by the Environmental Protection Agency (EPA) that were never intended under the U.S. Constitution or the 1970 Clean Air act or authorized by subsequent amendments.

Purporting to be protecting the globe from catastrophic warming, EPA has presumed authority to regulate carbon dioxide as a greenhouse gas. Proposed regulations would control myriad details of our personal and economic lives. These would include the heating of homes, the extent and method of travel, the cost of purchases and the competitiveness of businesses. Government already is picking winners and losers among technologies, industries, and companies. This de facto extension of governmental power is nowhere to be found in the texts of the U.S. Constitution or Clean Air Act — and was clearly not the intent of their authors.

Many proponents of this governmental overreach have promoted the “climate change” hypothesis that global temperatures and extreme weather events are driven by man-made greenhouse gases. Full scientific scrutiny of the theory is resisted with the assertion that it is “settled science”. Theorists refuse to debate or even discuss their scientific basis. In truth, the underlying science is so weak that proponents rightly fear that their theories will not survive examination.

According to data from the last 150 years — the period of the instrumental record for temperature — the earth has warmed about one degree centigrade, the oceans have risen a modest seven inches, and the frequency and strength of extreme weather events have not increased. The alarmists’ rhetoric is mere propaganda.

Even a cursory review of the recent climactic record reveals that the modest and generally beneficial trends in global temperatures and weather patterns are normal and most likely a result of natural cycles. The earth is nearing the end of the 12,000-year Holocene interglacial period, a geologically brief time between spells of extraordinary cold lasting many thousands of years. During this interval, there have been seven periods of average global temperatures that were higher than today’s. Modern global temperatures are neither unusual nor extreme.

Our current mild warming began shortly after the conclusion of the Little Ice Age at the end of the 18th century and predates by over 150 years any accelerating use of fossil fuels. One can recall Washington’s crisis at Valley Forge and Napoleon’s troops freezing on their return from Moscow to gain an historical perspective. Soon after these events, today’s warming cycle began and has continued until the recent 20-year pause that began after 1998. Increased atmospheric CO2 could not have caused this recent warming as an effect cannot precede a cause.

Another contradictory and embarrassing fact for global alarmists is the Medieval Warm Period from 1000-1250 AD, when global temperatures were higher than today’s. The Vikings settled Greenland and grapes were grown in northern England. All of this at low levels of atmospheric CO2. Many alarmists have falsely asserted that this period didn’t exist despite thousands of contemporaneous accounts and overwhelming scientific evidence to the contrary.

It is quite evident that the extremely mild warming of the last 150 years has a significant natural component with possibly a slight anthropogenic (man-made) element, but there is no scientific basis for declaring a “climate emergency.” Nonetheless, globalists see this unproven hypothesis as a vehicle to extend governmental control that will necessarily reduce individual freedoms and the impede efficient operation of free markets.

It is quite apparent that EPA’s presumption of authority under the Clean Air Act is resulting in unlawful actions. To facilitate Biden’s “War on Coal,” unwarranted regulations are being rammed through the regulatory process including the Soot Standard, the Power Plant Effluent Standard, Haze Emission Rules, and others. These rules have the intended effect of shutting down many U.S. coal-fired power plants to meet CO2-reduction commitments under the unauthorized Paris Agreement.

It is critical that the Supreme Court curtail the unwarranted extension of the Clean Air Act into the unintended area of “climate change.” If proponents of this dubious hypothesis want to limit CO2 emissions, actions must be justified through new laws that have been proposed, debated, amended, and passed through our democratic process.

Gregg Goodnight is a retired professional chemical engineer and a proud member of the CO2 Coalition residing in Pearland, Texas, his current interests include climate science, the electrical grid, and public policy for energy.

This commentary was first published February 24, 2022 at Real Clear Energy

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Gordon
February 24, 2022 10:55 pm

Great Post. I am a retired Chemical Engineer that has researched the Global Warming scam for years
The science behind the scam is full of fraud.

Phillip Bratby
Reply to  Gordon
February 24, 2022 11:51 pm

Ditto for me, a retired physicist and energy consultant.

Geoff Sherrington
Reply to  Phillip Bratby
February 25, 2022 12:48 am

Similar for me, a retired scientist (chemistry) also did part of an.aero engineering degree.
There is a lot of overlap with this new kid on the block, the self-proclaimed climate scientist. We even ran some power stations.

Tom
Reply to  Phillip Bratby
February 25, 2022 5:20 am

Quintuplet dittos here. I’m an older than dirt non-retired Mechanical/Electrical engineer with 60 years’ experience in analyzing test data and computer models. My modelling started on Pace 231R analog computers. The self-described ‘climate scientists’ of today are mostly frauds. REAL scientists don’t have to hide behind consensus. They back their theories with real data – without ‘homogenization’.

Mason
Reply to  Gordon
February 25, 2022 4:31 am

Ditto for me. Retired Mechanical Engineer, specialty in Thermodynamics, Heat Transfer, Energy Conservation and Environmental Application. This CO2 is a pollutant scam is an ideology gone wild.

John Bell
Reply to  Gordon
February 25, 2022 5:01 am

Ditto for me too, retired mechanical engineer.

David S
Reply to  John Bell
February 25, 2022 9:06 am

I’m also a retired mechanical engineer. So all of us have a good understanding of physics and have time on our hands to study the climate change claims.

Duane
Reply to  Gordon
February 25, 2022 5:03 am

It makes no difference whether global warming is a scam or is valid, the author’s post concerns the legality and authority of current regulatory efforts as allowed under a prior SCOTUS ruling. The Federal government has no power to regulate anything except as enabled by Federal law. The warmunists used the 1990 Clean Air Act Amendments in arguing that EPA has the authority to regulate carbon discharges. Of course there is no mention whatsoever of regulating carbon in the CAA, so the 2007 decision in MA vs. EPA effectively created regulatory authority out of thin air, pun intended. This ruling can be reversed by the current SCOTUS, but only if a proper test case is litigated before them.

This can be done – but somebody needs to do it, as in litigate a proper test case. Ranting about it does no good. Litigating a real world case can do all the good in the world.

David Elstrom
Reply to  Duane
February 25, 2022 7:17 am

In fact, the federal government requires more than power under federal laws. It requires an enumerated power, either from the original Constitution or an amendment (duly ratified by the people of 3/4ths of the states), under which to propose laws. Not only does the EPA lack such authority. Most of the administrative bureaucracy is equally without sanction of enumerated power. The amendment process was intended to provide a “living” Constitution, but is rejected by Progressive control freaks as an impediment to federal masterminds and because it forces them to obtain permission from the “rabble” they detest.

Duane
Reply to  David Elstrom
February 25, 2022 5:51 pm

The general authority for nearly all Federal regulation is the interstate commerce clause of the Constitution. Pollution, which is a product of commerce, recognizes no state borders, so if Federal law regulates pollution, it is permissible under the Constitution.

The issue is that no Federal law regulates carbon as pollution.

DMacKenzie
Reply to  Duane
February 25, 2022 11:00 pm

In 2007 the Supreme Court ruled in Massachusetts v. Environmental Protection Agency that CO2 is indeed an air pollutant, ordering the EPA to start regulating its emission. 

kybill
Reply to  Gordon
February 25, 2022 5:17 am

Ditto for me. I am a retired Mechanical Engineer whose career was spent building and upgrading coal fired power houses. I was proud of what we did – provide “good high paying union jobs” and provide a much needed commodity. Makes me sick to what is going on today.

Tom.1
Reply to  Gordon
February 25, 2022 6:30 am

Same here Gordon. I could not agree more with the author. As far as fraud, I not so much with that. I think it is a massive case of group think, and people fooling themselves because they believe so strongly in the hypothesis of catastrophic AGW.

Patrick B
Reply to  Tom.1
February 25, 2022 9:36 am

I agree that it’s not so much fraud as a failure to act in a scientific manner. The failure to acknowledge margins of error and what that means, the failure to acknowledge the lack of data, the insistence that unproved models can accurately project, the failure to call out the failed predictions of so many in their field, the failure to make falsifiable hypothesis – and above all the absolute certainty of their statements made with no recognition of the potential to be wrong – are all very unscientific behaviors.

A good scientist may strongly support their favorite hypothesis but would acknowledge the potential for other explanations.

Tom Abbott
Reply to  Patrick B
February 25, 2022 10:36 am

“I agree that it’s not so much fraud as a failure to act in a scientific manner.”

It’s fraud on the part of the people who orginated this human-caused climate change scam: Michael Mann, Phil Jones and the Hockey Stick team.

It’s fraud all the way down for them.

They have fooled many people who should not have been fooled.

How hard is it to figure out these fraudsters have no evidence for human-caused climate change? Not that hard. Just ask them. They can’t provide you with any evidence. What does that tell you? It ought to tell you all you need to know. You don’t have to be a scientist to figure out when someone can’t back up the claims they make.

Alarmist climate scientists can’t back up the claims they make.

Barry Anthony
Reply to  Tom Abbott
February 25, 2022 10:52 am

>>How hard is it to figure out these fraudsters have no evidence for human-caused climate change?<< Other than the over 150 years of increasingly granular and accurate research compiled not just by the most prolific and prestigious research organizations in history, but the fossil fuel industry’s own scientists, as well? Aside from all that, ok, sure, there’s no evidence whatsoever…

Janice Moore
Reply to  Barry Anthony
February 25, 2022 11:39 am

Okay, Mr. Sarcastic, show us some.

Meh. I’ll spare you the wasted effort: there is not one piece of data proving that human CO2 emissions cause either “global warming” or “climate change.”

Not one.

In fact, there is anti-proof. To wit:

CO2 UP SIGNIFICANTLY. WARMING NOT.

comment image

paul courtney
Reply to  Barry Anthony
February 25, 2022 11:45 am

Mr. Anthony: Still using that name, huh? This post looks like some final flourish from an outed troll who is about to move on.

aussiecol
Reply to  Barry Anthony
February 25, 2022 12:36 pm

Well lay your cards on the table then and show us the ”evidence”

Barry Anthony
Reply to  aussiecol
February 26, 2022 9:06 am

Here you go: “These results confirm theoretical predictions of the atmospheric greenhouse effect due to anthropogenic emissions, and provide empirical evidence of how rising CO2 levels, mediated by temporal variations due to photosynthesis and respiration, are affecting the surface energy balance.”  http://asl.umbc.edu/pub/chepplew/journals/nature14240_v519_Feldman_CO2.pdf

J Patrick Demorest
Reply to  Gordon
February 25, 2022 7:43 am

I’ll ditto you all and raise you ten. You are just scratching the surface. As a retired analytical chemist in the water industry, I can attest that EPA plays the same game with the Clean Water Act and their attempt to classify every puddle of water as a jurisdictional “Water of the United States” so they can order citizen’s behavior under penalty of federal prison. Scalia called it benevolent despotism.
Among other reasons, the climate change shtick should also be an unconstitutional establishment of religion.

Tom Abbott
Reply to  J Patrick Demorest
February 25, 2022 10:38 am

“Scalia called it benevolent despotism.”

There’s nothing benevolent about it.

Joao Martins
Reply to  Gordon
February 25, 2022 12:50 pm

Ditto for me, biologist, retired from working in agricultural food production, dealing with weather in a naturally variable warm temperate climate. (and still doing some research in the history of biological/medical sciences as a kind of hobby). “CO2 as a pollutant” is polluting the biological sciences.

Last edited 2 months ago by Joao Martins
Macha
Reply to  Gordon
February 25, 2022 3:08 pm

Ditto. Industrial Chemist that transitioned to process engineering modelling. Manmade CO2 being a global climate driver just doesn’t stack up. Especially radiative theory. Emission temp of CO2 in this context is -80C. What is warmed by that?

beng135
Reply to  Gordon
February 26, 2022 6:05 am

Ditto the dittos — a retired professional mech engineer in VA. Worked at a now closed coal power plant that had operated first in 1918, tho the original 4 boilers/turbine-generators (20 MW each) had been removed for newer units. A small town had been built around the plant to house the employees.

Last edited 2 months ago by beng135
Dudley Horscroft(@dudleyhorscroft)
February 24, 2022 11:47 pm

From the 1850s, the earth has warmed about 1.1C, according to the IPCC. In the same time the CO2 level in the atmosphere has increased about 50%, from about 280 ppm to about 420 ppm. If the CO2 level increases by the same amount, and the CAGW hypothesis is valid, we can expect another 1C.

To which here in extra tropical Australia, I say, Bring it on!

QED, a bit of science to confound the alarmists.

Geoff Sherrington
Reply to  Dudley Horscroft
February 25, 2022 1:27 am

Dudley,
Don’t get to rely too much on official numbers.
There is a lot of credible evidence that half that temperature change is natural plus urban heat island affecting the average and that CO2 in the air was quite variable in pre Mauna Loa days,
If you were a modern climate activist, of course you would prefer numbers that suited the narrative, so CO2 is best low and steady. Like the hockey stick with its smooth shaft, quite bogus but a simple story to convince the natives that mayhem started suddenly when CO2 started to rise.
Geoff S

MarkW
Reply to  Geoff Sherrington
February 25, 2022 7:20 am

Half of the warming occurred prior to CO2 having risen enough to make a difference. Even if all of the warming since then were due to CO2 (a physical impossibility) only half the warming could be caused by CO2. In all likelihood, the absolute max that CO2 could have caused is only 10 to 20% of the warming.

AGW is Not Science
Reply to  MarkW
February 25, 2022 9:55 am

As far as I’m concerned, until they can show through observations that CO2 is the “cause” of anything, CO2’s “contribution” is zero.

Because that is what observations support.

The “enhanced greenhouse gas hypothesis” is based on the inherent assumption “all other things held equal” which means in reality it is a pointless academic discussion, NOT something anyone should base ‘policy’ on.

Tom Abbott
Reply to  AGW is Not Science
February 25, 2022 10:41 am

I’m with you.

There’s no evidence CO2 causes anything other than greening of the landscape.

Barry Anthony
Reply to  Tom Abbott
February 25, 2022 10:53 am

>>There’s no evidence CO2 causes anything other than greening of the landscape.<< “These results confirm theoretical predictions of the atmospheric greenhouse effect due to anthropogenic emissions, and provide empirical evidence of how rising CO2 levels, mediated by temporal variations due to photosynthesis and respiration, are affecting the surface energy balance.”  http://asl.umbc.edu/pub/chepplew/journals/nature14240_v519_Feldman_CO2.pdf

Janice Moore
Reply to  Barry Anthony
February 25, 2022 11:42 am

Here’s the part you got wrong, Mr. Anthony:

due to anthropogenic emissions.”

As of today, there is NO data proving this conjecture.

paul courtney
Reply to  Barry Anthony
February 25, 2022 11:54 am

Well, another post under that name. This time with a link! Your work is done, just a matter of time before we all read your link and see the light. Then will we all feel silly!!!

Derg
Reply to  Dudley Horscroft
February 25, 2022 1:32 am

I thought it was 1 degree. Where is 1.1 published? And who measured the temperature in tenths of a degree?

Mark BLR
Reply to  Derg
February 25, 2022 6:47 am

Where is 1.1 published?

AR6 (WG1 report, 2021), SPM, in bullet-point A.1.2 :

Global surface temperature was 1.09 [0.95 to 1.20] °C higher in 2011–2020 than 1850–1900

Details in section 2.3.1.1.3, “Temperatures during the instrumental period – surface”, the last paragraph of which starts (on page 2-47) with :

To conclude, from 1850–1900 to 1995–2014, GMST increased by 0.85 [0.69 to 0.95] °C, and to the most recent decade (2011–2020) by 1.09 [0.95 to 1.20] °C.

– – – – –

And who measured the temperature in tenths of a degree?

Individual thermometer readings ?
Most scientists, even way back in 1850.

The global (mean / average) surface temperature ?
Nobody.

AGW is Not Science
Reply to  Mark BLR
February 25, 2022 9:58 am

Liquid in glass thermometers used to measure air temps were full degree increments – so how exactly did they measure to a tenth of their scales?!

Mark BLR
Reply to  AGW is Not Science
February 26, 2022 2:37 am

… how exactly did they measure to a tenth of their scales?!

By eye, often assisted by a magnifying lens.

NB : There is a difference between “precision” (which is what is actually under discussion here, i.e. “measuring the output of a scientific instrument”) and “accuracy” (which appears to be what you think it is about, i.e. “how close the value written in a notebook is to the actual temperature”).

Tom Abbott
Reply to  Mark BLR
February 25, 2022 10:47 am

“Global surface temperature was 1.09 [0.95 to 1.20] °C higher in 2011–2020 than 1850–1900”

Well, now it is 0.7C cooler than 2020.

How can this cooling happen when CO2 in the atmosphere continues to increase?

It must be that there is no truth to the claim that increased CO2 in the atmosphere means increased temperatures.

Barry Anthony
Reply to  Tom Abbott
February 25, 2022 10:55 am

>>Well, now it is 0.7C cooler than 2020<< Is it your goal simply to storm in and spew complete nonsense into this thread, Tom? Where’s the “cooling,” exactly? https://climate.nasa.gov/vital-signs/global-temperature/

paul courtney
Reply to  Barry Anthony
February 25, 2022 11:55 am

Projection defined.

Tom Abbott
Reply to  Barry Anthony
February 25, 2022 4:59 pm

“Where’s the “cooling,” exactly?”

This is so easy:

comment image

Mark BLR
Reply to  Tom Abbott
February 26, 2022 3:16 am

This is so easy

Ditto …

HC5-UAH6_10-yr-averages.png
Barry Anthony
Reply to  Tom Abbott
February 26, 2022 9:08 am

>>This is so easy:<< That’s a chart of the lower troposphere, NOT surface temperatures. Here’s a chart of surface temperatures. Where’s the “cooling,” exactly? https://climate.nasa.gov/vital-signs/global-temperature/

Janice Moore
Reply to  Tom Abbott
February 25, 2022 11:44 am

Correct, Mr. Abbott. It is well established (by ice core data) that CO2 LAGS temperature by a quarter cycle.

Janice Moore
Reply to  Janice Moore
February 25, 2022 12:16 pm

@ whomever “minused” my assertion of 2/25/22, 11:44 am:

“… there is general agreement that temperature changes precede CO2 changes during the rising phase and CO2 lags temperature by a larger amount during the falling phase. …”

http://www.climatedata.info/proxies/ice-cores/files/stacks-image-30abc45-800×546.png

(Source: http://www.climatedata.info/proxies/ice-cores/ )

Last edited 2 months ago by Janice Moore
Janice Moore
Reply to  Janice Moore
February 25, 2022 12:59 pm

Further to Mr. or Ms. Minus:

“Ice core samples tell us that atmospheric CO2 concentration follows in lock step with the temperature variations during the ice ages, lagging by roughly 800 years. The two trends are almost perfectly synchronized, with the CO2 following the temperature.”

http://www.ice-age-ahead-iaa.ca/small/vostok_co2_data.jpg

(Source: http://www.ice-age-ahead-iaa.ca/scrp/pnge000.htm )

Barry Anthony
Reply to  Janice Moore
February 26, 2022 9:10 am
Barry Anthony
Reply to  Janice Moore
February 26, 2022 9:10 am

>>It is well established (by ice core data) that CO2 LAGS temperature by a quarter cycle.<< Science has clearly proven otherwise in the case of AGW, Janice. https://svs.gsfc.nasa.gov/11362

Mark BLR
Reply to  Tom Abbott
February 26, 2022 2:41 am

“[the decadal average] in 2011-2020″ =/= “[the annual average] in 2020″

It must be that …

“Religion is a culture of faith; science is a culture of doubt.” — Richard Feynman

Ron Long
February 25, 2022 2:44 am

What an interesting event an actual “Scopes Monkey Trial” for CO2 and Climate Change would be. If the US Supreme Court was the Judge it might even be a fair-and-balanced trial. Maybe the NASA “10% greening of the earth” would be admitted as evidence?

Joseph Zorzin
February 25, 2022 2:53 am

Massachusetts v. EPA”

The state is now totally dominated by the climatistas. No politician here dares speak up against this new faith. They get crazier by the day.

Tom Abbott
Reply to  Joseph Zorzin
February 25, 2022 10:49 am

This is called group-think.

David Dibbell
February 25, 2022 3:31 am

Good article. “It is critical that the Supreme Court curtail the unwarranted extension of the Clean Air Act into the unintended area of “climate change.” Let’s hope they do exactly that. And the people should elect Representatives and Senators to Congress who are willing to amend the Clean Air Act to explicitly exclude claims of warming due to greenhouse gases. That issue and the scientific debate simply does not belong under the EPA’s authority. And for that matter, whatever the U.S. does with carbon dioxide emissions will never be detectable in the climate outcome.

February 25, 2022 4:39 am

Excellent article. I too am an engineer (two degrees – Queen’s and U of Alberta) and I say the issues of Catastrophic Human-made Global Warming (“CAGW”, aka “Climate Change”) and grid-connected Green Energy to be elementary, false and fraudulent. I knew this reality in 1985 and published this conclusion in 2002 and nothing has changed.

Engineers understood this reality years before university-based “climate scientists” (with a few esteemed exceptions), because we have to solve real world problems quickly and accurately, and cannot hide in the weeds awaiting a consensus onto which we can adhere.

The idea that the judiciary can opine on such scientific subjects is risible – most lawyers take easy undergrad courses to get the grades necessary to be admitted to law schools – so they avoid STEM courses and are utterly ignorant of science, math, etc.

Judges are further corrupted by political partisanship, which is extreme in both Canada and the USA. Finally, many of them don’t even know the basics of our laws: Innocent until proved guilty, Rules of Evidence, and Human Rights. Our Courts are an incompetent, partisan gong show in both the USA and Canada. Judges are routinely appointed because they are failed lawyers, bagmen for political parties who needed a job.

I’ve presented to about a dozen federally-appointed Justices, and have seen no evidence of legal rigor or even moderate competence. In summary, I would not let these people wash my car.

Last edited 2 months ago by Allan MacRae
Duane
February 25, 2022 4:58 am

It must be said that the Supreme Court has no power to just issue rulings – they must have a case before them to decide in order to issue a ruling, or overturn a prior ruling. This post makes no mention of any cases currently in litigation that challenge the 2007 ruling in MA vs. EPA.

It seems rather likely that the current SCOTUS would be open to overturning the 2007 ruling, if a proper case were presented and argued effectively. This would be a task for a public interest law firm (or “lawfare” firm) like Pacific Legal Foundation to develop such a case and get it into the Federal courts.

kybill
February 25, 2022 5:21 am

Actually it is not the Supreme Courts job to straighten this out. This is the responsibility of our elected representatives. They wrote the laws and have the power and responsibility to correct or fine tune them. We need to elect people to Congress that have our interests in mind – not self enriching themselves.

Tom Abbott
Reply to  kybill
February 25, 2022 10:53 am

“This is the responsibility of our elected representatives.”

Good point. True.

D. J. Hawkins
Reply to  kybill
February 25, 2022 2:03 pm

You’re quite right. Congress could carve out an exception, explicitly removing any authority for the EPA to regulate CO2. All it takes is the political will.

Last edited 2 months ago by D. J. Hawkins
jeffery p
February 25, 2022 6:04 am

The Supreme Court should not be expected to rule on the science. The court should appropriately rule on the regulatory power granted the EPA. The EPA has far exceeded its charter.

D. J. Hawkins
Reply to  jeffery p
February 25, 2022 2:07 pm

The problem is the way that charter was defined. Congress punted it’s own responsibility and delegated all the hard work (and power) to the EPA. I’ve yet to see any bureaucracy with an essentially unlimited remit say, “This is as far as we go, and no further.”

ResourceGuy
February 25, 2022 6:05 am

The invasion by Biden’s forces has begun and you are the target this time.

joe
February 25, 2022 6:05 am

not sure about this but, was there not a time when what ever the epa proposed, had to be voted into law or modified by the congress?

jeffery p
Reply to  joe
February 25, 2022 8:20 am

Congress passes laws that empower agencies. Agencies are supposed to be limited by those laws. Instead, we have agencies making these decisions for themselves. Obviously, this can’t be allowed to continue.

I wish Congress would do its job. You never know what courts are going to do.

Bruce Cobb
February 25, 2022 6:08 am

The initial impetus for the EPA of cleaning up the nation’s ground, water, and air was a laudable one. But the problem was that once its original purpose had essentially been met, (probably within two decades) it was no longer needed. The states themselves could have taken over the reins. However, no thought had ever been given to the idea of decommissioning the EPA, so it acted like any government bureaucracy whose primary purpose becomes its own survival, and indeed growth: it searched out new ways to regulate, and in fact strangle business, economic growth, and democracy itself. It is beholden to no one, and is a rogue government agency. It should, therefore, be dismantled. But who is gonna bell that cat, I wonder?

jeffery p
Reply to  Bruce Cobb
February 25, 2022 8:39 am

Trump tried to reign in the bureaucracy/shadow state using executive orders. But executive orders can easily be undone. We need Congress to do its job, too.

We can’t depend upon the courts. The issue here isn’t whether the science justifies the EPA’s actions (it doesn’t, BTW) the issue is whether the EPA is acting within the scope of its regulatory powers as granted by law. (Clearly, the EPA’s actions are not within its powers.) However, we have a few justices that believe that the Constitution grants the government to do whatever it believes is necessary, or trendy, at any particular time.

ResourceGuy
February 25, 2022 6:08 am

Making Russian assets more valuable is what they do.

Richard M
February 25, 2022 6:40 am

I doubt anything will change until real science once again is allowed into the debate. The current pseudo-science of the greenhouse effect needs to be updated. The correct picture of the atmosphere does not produce warming from increases in gases like CO2.

The claimed 3.7 W/m2 of surface warming is not real. The very basis of the entire climate scare is wrong. The energy disappears into the atmospheric boundary layer energy swamp. In general, it is met with a decrease in surface conduction by the same amount.

No this is not magic. It is basic thermodynamics. It is the 2nd law in action. The boundary layer and the surface are always in contact and therefore energy is always flowing back and forth. Lots and lots of energy. When one side of this duo warms from any event, the energy is almost instantly shared with the other side. That’s how they stay in thermal equilibrium.

At current CO2 concentrations, the last emission of that 3.7 W/m2 almost always occurs from the boundary layer. The boundary layer cooled at the exact time the surface warmed. Guess what, equilibrium was disrupted and the 2nd law will cause equilibrium to be restored. That means 3.7 W/m2 will be conducted (or radiated) back into the boundary layer. The result is nothing happens. No warming of the surface.

The claimed surface warming from the greenhouse effect does not happen. It disappears almost entirely. Yes, there will be a small amount of energy coming from above the boundary layer but that turns out to be insignificant.

The greenhouse effect has been accepted because it is viewed entirely as a radiative effect. The cancelation of the warming is mainly via conduction. This is never considered by radiation experts.

jeffery p
Reply to  Richard M
February 25, 2022 8:48 am

We try to convince the courts on the merits of the science and I’m not sure we will win. Not because we’re not right, but because the facts are easily obfuscated.

Richard M
Reply to  jeffery p
February 25, 2022 1:05 pm

I agree. That was the point of my first sentence. We need to start pushing this amendment to greenhouse theory. It needs to fuel the debate and put the alarmists on the defense. Up until this time even skeptics have accepted much of the alarmist science. Time to push back.

David Elstrom
February 25, 2022 7:03 am

Every regulatory agency has the same problem. They enforce laws outside the Constitution’s enumerated federal powers, and the entire system is designed to give the illusion of due process and separation of powers without actually providing any such things.

MarkW
February 25, 2022 7:16 am

Biden has just nominated a justice with a long history of ignoring the law and ruling on what she feels the law should be to replace Justice Breyer on the Supreme Court.

https://www.foxnews.com/politics/biden-supreme-court-nominee-ketanji-brown-jackson

When you are too liberal for the DC court, you are out there.

jeffery p
Reply to  MarkW
February 25, 2022 8:55 am

IMHO, anyone who does not understand and adhere to the doctrine of natural rights is unfit for the judiciary, especially the federal courts.

Janice Moore
Reply to  jeffery p
February 25, 2022 12:07 pm

Yes. Natural Law was the only way we got convictions at Nürnberg in 1946. They were, after all, “only following orders.”

TonyG
Reply to  Janice Moore
February 25, 2022 1:58 pm

They were, after all, “only following orders.”

Lotta that going around again lately.

Janice Moore
Reply to  TonyG
February 25, 2022 5:13 pm

There sure is. 🙁

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February 25, 2022 7:36 am

Asked and answered. The 1990 CAA amendments added climate change to the definition of pollution. The SC ruled that since (many) scientists say our CO2 emissions cause climate change it is a pollutant under CAA. They did not find it dangerous, EPA did that as the next CAA step. So Congress in fact opened the door to CO2 regulation in 1990. Why else add climate change to the definition of pollutant?

The endangerment finding has been contested but that is a hard case to win. It is really up to Congress to stop EPA, not the Supreme Court.

Beta Blocker
Reply to  David Wojick
February 25, 2022 8:40 am

David, that is the reality which opponents of EPA regulation of carbon now face. I will note that Biden can veto any Congressional legislation that would limit the EPA’s ability to regulate carbon emissions under currently existing law. He would certainly do so if a Republican controlled Congress passed such legislation in 2023.

It appears the Biden Administration is now attempting to revive the Clean Power Plan which was Obama’s approach to regulating America’s carbon emissions. IMHO, the Clean Power Plan is an approach which is consciously designed to fail in the courts because it doesn’t treat all sources of carbon emissions equally.

The Clean Power Plan is a Potempkin Village approach designed to appease climate activists while not actually being effective at reducing America’s carbon emissions, mostly likely because it is destined to be struck down.

The alternative approach — one which is much more likely to survive legal challenges in the courts — uses existing sections of the Clean Air Act to classify GHG emissions as criteria pollutants. These are the steps by which this might be done.

— Publish a Clean Air Act Section 108 Endangerment Finding which complements 2009’s Section 202 finding.
— Classify carbon emissions as ‘criteria pollutants’ under the Clean Air Act.
— Establish a National Ambient Air Quality Standard (NAAQS) for carbon pollution.
— Declare carbon emissions as Hazardous Air Pollutants (HAPs) under CAA Section 112.
— Use the NAAQS for carbon pollution as America’s tie-in to international climate change agreements.
— Defend the Section 108 Endangerment Finding, the NAAQS, and the Section 112 HAP Declaration in the courts.
— Publish a regulatory framework for carbon pollution under Clean Air Act sections 108, 111, 112, 202, and other CAA sections as applicable.
— Establish cooperative agreements with the states to enforce the EPA’s anti-carbon regulations.

Some discussion of past history is in order.

Employing the Clean Air Act for directly regulating carbon emissions has been a topic of discussion in the environmental law community for at least two decades. By 2012, a strong legal foundation had been established for using the Clean Air Act to its maximum possible effectiveness in reducing all of America’s carbon emissions, not just those from coal.

But the Obama Administration never moved forward with using the CAA to its maximum possible effectiveness, and the climate activists never called Obama to account for not doing so. Rather, his administration published the Clean Power Plan, a plan which I believe was consciously designed from the beginning to fail in the courts.

GHG emissions are ubiquitous throughout the American economy. Two key issues must be addressed by those who expect the Executive Branch to carry the full burden of quickly reducing America’s GHG emissions through taking immediate executive actions which are fully within its existing legal authorities.

The first key issue is how to avoid the massive complexity of regulating each individual source of carbon. The other key issue is how to structure the GHG reduction strategy so that it survives the many legal challenges certain to be brought against it in the courts.

Grace Weatherall, then a student at the Harvard Law School (JD 2021), produced a white paper dated 07/27/2020 which explores the question of how the Clean Air Act could be used to quickly control America’s greenhouse gas emissions while avoiding the pitfalls of micro-regulating each and every source of carbon and of creating a highly complex regulatory framework which is bound to be highly vulnerable to lawsuits.

Immediate Executive Action: Unexplored Options for Addressing Climate Change Under the Existing Clean Air Act 

Weatherall points out that the approach of developing a NAAQS for carbon pollution under CAA Section 108 has the greatest potential for employing the Clean Air Act in a way which makes it powerfully effective for controlling GHG emissions, legally defensible in the courts, and simple enough in its execution to avoid the massive complexity of separately regulating each individual source of carbon.

It remains to be seen if the Biden Administration will do what actually has to be done to fulfill its promises to the climate activists.

Last edited 2 months ago by Beta Blocker
old engineer
Reply to  Beta Blocker
February 25, 2022 2:06 pm

Beta Blocker-

Thanks for reviewing the steps necessary to make any pollutant, not just CO2, a criteria pollutant. Note that, except for mobile sources, a pollutant must be a criteria pollutant to be regulated by the EPA.

Your second step – classify CO2 as a criteria pollutant, is a lengthy process, requiring public input. Given that the only “proof” that additional CO2 will cause a danger to public health and welfare are climate models, there might be some difficulty showing that CO2 is a danger to public health and welfare.

To me, the fact that CO2 is not a criteria pollutant makes the EPA on shakey ground trying to regulate it. Maybe the right lawsuit could get Mass v. EPA reversed.

Reply to  Beta Blocker
February 25, 2022 5:38 pm

If we get enough votes we can override the veto.

The easiest legal action is to falsify the existing EPA endangerment finding based on new science like Happer’s saturation findings.

A NAAQS for CO2 is absurd because there is no way the US can lower the Concentration, even assuming humans are causing it. Requiring the impossible, with penalties for failure, has to be unconstitutional.

Beta Blocker
Reply to  David Wojick
March 1, 2022 8:48 am

David Wojick: “If we get enough votes we can override the veto. The easiest legal action is to falsify the existing EPA endangerment finding based on new science like Happer’s saturation findings.”

David, even if the Republicans take control of the Congress in 2023, there will not be enough votes in both houses to override a Biden veto.

The courts leave it to the EPA to decide what scientific arguments are valid in support of a policy action and only rule on whether or not the EPA’s procedural process for establishing a regulation had been properly followed.

The fact that a CAA Section 202 Endangerment Finding was successfully defended in the courts paves the way for a CAA Section 108 Endangerment Finding, if Biden’s EPA wants to pursue it.

David Wojick: “A NAAQS for CO2 is absurd because there is no way the US can lower the Concentration, even assuming humans are causing it. Requiring the impossible, with penalties for failure, has to be unconstitutional.”

Because CO2 is a well mixed gas and America represents perhaps 17% of the world’s GHG emissions, then establishing a National Ambient Air Quality Standard (NAAQS) for carbon is a legal sticking point in establishing these emissions as criteria pollutants.  How would that legal sticking point be dealt with?

The argument to be made for setting a NAAQS for carbon directly acknowledges the fact that America represents only 17% of world carbon emissions but states that America’s demonstrated commitment to reducing its own emissions is necessary as one key component of a comprehensive plan for cooperative international action against all carbon emissions. 

As this argument would go, it is the establishment of a common international target for the earth atmospheric CO2 concentration which would justify establishing a Clean Air Act NAAQS for America, knowing full well that international cooperation will be necessary to achieve it.  

jeffery p
Reply to  David Wojick
February 25, 2022 8:58 am

You are correct.

This shows the dangers of relying on the courts to keep the power of the government in check.

David S
February 25, 2022 8:59 am

The Constitution gives exclusive legislative power to Congress and no other entity. It does not give Congress the authority to delegate that power to any other entity. Yet the EPA writes “rules” that carry the force of law. So now we have unelected and unaccountable bureaucrats writing laws. That’s tyranny and it must be ended.

Reply to  David S
February 25, 2022 10:10 am

This is true for all regulations, by all agencies, under all laws which direct them to make such regulations. It is central to our system so not about to end.

Olen
February 25, 2022 9:31 am

The Supreme Court cannot be relied on to do anything in the interest of the Constitution. The responsibility ultimately lies with elected representation and before that the voters. The problem is no branch of the federal government will take up the problem of voter fraud. When politicians are not accountable to the people with their vote they can do as they please.

Tom.1
February 25, 2022 9:56 am

This was a 5-4 decision straight down the partisan middle. It is one of the most egregious instances of judicial activism ever. If Congress wanted to give EPA the authority to regulate CO2, they could have done so at any time.

Beta Blocker
Reply to  Tom.1
February 25, 2022 10:33 am

Tom, the Congress did in fact open the door to regulating carbon emissions. See David Wojick’s comment above and my response. The legal foundation has already been laid to pursue a very aggressive program of carbon regulation, if the Biden Administration chooses to use the foundation which is already in place. Opponents of carbon regulation ignore this situation at their own peril.

Tom.1
Reply to  Beta Blocker
February 25, 2022 11:10 am

Citation please.

Tom.1
Reply to  Beta Blocker
February 25, 2022 12:34 pm

There are 6 criteria pollutants; CO2 is not one of them. It is a total stretch of imagination by the court to allow the EPA to regulate CO2 without explicit inclusion of CO2 in the CAA.

Beta Blocker
Reply to  Tom.1
February 25, 2022 1:55 pm

Tom.1: “There are 6 criteria pollutants; CO2 is not one of them. It is a total stretch of imagination by the court to allow the EPA to regulate CO2 without explicit inclusion of CO2 in the CAA.”

The Congress has given the EPA the authority needed to extend the original list of criteria pollutants — or so many people in the environmental law community strongly argue.

The strategy the environmental law community followed from about 2004 through about 2012 was to force the EPA to add CO2 and other carbon GHG’s to the list of substances categorized as criteria pollutants.

Their victories in the courts between 2007 and 2012 laid a strong legal foundation for doing just that, for extending the original list to include carbon GHG’s.

Now, if we speak strictly about the procedural process, the approach of regulating carbon GHG’s as criteria pollutants is a transparent, above-board means of controlling carbon emissions. CO2 and other carbon GHG’s are identified as the ‘pollutants’ of concern to be directly regulated.

What happened after 2012 was that the climate activists and the Obama Administration abandoned the policy approach which relied on categorizing carbon GHG’s as criteria pollutants — even though their victories in the courts allowed them to pursue that approach, had they wanted to.

What the EPA did instead was to publish and promote the Clean Power Plan, an approach which focuses mainly on coal and which controls GHG emissions indirectly by limiting the emissions of non-GHG substances which are associated with coal power plants. This indirect approach is rightly labeled as a stealth mode approach for regulating carbon.

IMHO, the Clean Power Plan was consciously and deliberately designed to fail in the courts. But while it was the policy between 2013 and 2017, it did have the effect of putting pressure on the owners of coal-fired power plants not to maintain a commitment to coal as their plants aged and needed replacement. But that’s as far as it went.

IMHO, if Biden’s net zero targets are to be achieved, it can only be done through energy conservation. A return to the 2004-2012 policy strategy of declaring CO2 and other carbon GHG’s as criteria pollutants under the CAA is the only means climate activists now have at their disposal to regulate GHG’s to the extent needed to enforce a strict energy conservation policy.

What will the Biden Administration do? Will it, or will not, use the full authority of the Clean Air Act to reduce America’s carbon emissions to the full extent that current law allows?

Last edited 2 months ago by Beta Blocker
Tom.1
Reply to  Beta Blocker
February 25, 2022 2:16 pm

You seem well versed in this; I guess for a reason. To me, whatever statutory authority EPA has is at best vague and given what is at stake and the enormous implications for energy policy going forward, as well as cost, it is (IMO) the responsibility of the peoples’ representatives, meaning Congress, to authorize in no uncertain terms what the EPA authority is with respect to CO2. As it is, the administrative state is doing an end run around Congress, who has their thumb up their collective butts.

old engineer
Reply to  Tom.1
February 25, 2022 2:16 pm

Tom.1-

The CAA has provisions to classify other compounds as criteria pollutants as outlined by Beta Blocker above.

The EPA has never chosen to try to make CO2 a criteria pollutant. IMO, this is because there are only climate models to say that CO2 presents a danger to public health and welfare.

Beta Blocker
Reply to  old engineer
February 25, 2022 5:39 pm

Tom.1: “You seem well versed in this; I guess for a reason. To me, whatever statutory authority EPA has is at best vague and given what is at stake and the enormous implications for energy policy going forward, as well as cost, it is (IMO) the responsibility of the peoples’ representatives, meaning Congress, to authorize in no uncertain terms what the EPA authority is with respect to CO2. As it is, the administrative state is doing an end run around Congress, who has their thumb up their collective butts.”

I work in the nuclear industry, and many if not most of those inside the industry who want to see an expansion of nuclear power in the US are using climate change as one of their central arguments for more nuclear power.

However, there are those in this industry who refuse to acknowledge or criticize the severe mismanagement of the VC Summer and Vogtle 3 & 4 AP1000 projects which led to the cancellation of VC Summer and the massive cost and schedule overruns at Vogtle 3 & 4.

For myself, I make the point that nuclear advocates can argue climate change issues all they want to, nuclear power cannot make a comeback in the US unless the managers of nuclear projects are willing to do what is necessary to stay on cost and on schedule.

As for the science of climate change, I’m willing to believe that carbon GHG’s play some role. But whatever role these GHG’s play, it’s more likely than not that the earth will continue to warm long into the future, possibly for another two hundred years or more.

old engineer: “Tom.1, the CAA has provisions to classify other compounds as criteria pollutants as outlined by Beta Blocker above. The EPA has never chosen to try to make CO2 a criteria pollutant. IMO, this is because there are only climate models to say that CO2 presents a danger to public health and welfare.”

Looking at past history, 2009’s Section 202 Endangerment Finding for carbon was being used as a prototype test case for the eventual publication of a Section 108 finding, assuming the Section 202 finding survived the inevitable lawsuits.

A Section 108 Endangerment Finding would be a necessary element for use in classifying CO2 and other carbon GHG’s as criteria pollutants.

In theory, the role of the courts is to insure that the EPA’s procedural processes have been properly followed, not necessarily to pass judgement on the scientific validity of the climate science arguments contained in an Endangerment Finding.

After 2012, the EPA’s successful defense of the Section 202 finding in the courts opened the way for publication of a Section 108 finding, thus opening a pathway into criteria pollutant space.

But the EPA didn’t go down that road. In 2013, it published the Clean Power Plan instead, a plan that in my opinion was certain to be defeated in the courts because it doesn’t regulate all of America’s carbon emissions equally.

Why didn’t Obama’s EPA build upon the work that had been done between 2004 and 2012 and classify CO2 and other carbon GHG’s as criteria pollutants? Why did it publish the Clean Power Plan instead?

My suspicion has long been that the reason it wasn’t done is because the above-board approach of using a Section 108 Finding and a NAAQS would have been too successful in quickly reducing America’s carbon emissions.

Marty Cornell
February 25, 2022 7:59 pm

Congratulations Gregg on this cogent essay. The challenge, of course, is how to induce the Supremes to act.

Doonman
February 25, 2022 9:20 pm

It is interesting to note that John Kerry, US climate Czar, recently said that even if the US was to emit zero carbon dioxide that it won’t make any difference to global climate change.

It is also interesting to note that the EPA does not and cannot regulate the rest of the world.

So unless you believe that John Kerry is lying, the EPA can do absolutely nothing to effect any sort of climate change. Any and all of their climate regulations accomplish nothing and are a total and complete waste of US time and money.

Doug
February 26, 2022 8:25 am

when regulations such as this are not a matter of legislation, they become autocracy. It is the duty of SCOTUS to put them in line.. If they fail ,it becomes the duty of the public to disobey in a civil disobedience manner . That becomes the last bunker of freedom short of revolution against the system . When the system fails it must be replaced

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