Last Thursday, June 30, the Supreme Court issued its decision in West Virginia v. EPA, holding that, absent a further explicit statute from the Congress, the EPA did not have the authority to orchestrate its planned fundamental restructuring of the electric power generation sector of the economy. More generally, the Supreme Court stated that in cases involving “major questions,” including regulations that affect large portions of the economy, the government must demonstrate “clear congressional authorization” to support a sweeping effort to regulate.
Do you think that such a Supreme Court decision might cause the various regulatory bureaucracies to slow down and reconsider a little before plowing ahead with other dubious plans for fundamental economic restructurings? That’s not how these bureaucracies work. And such is most particularly the case with regard to regulators of the energy sector, sometimes known as “climate change” arena, where the bureaucrats are burning with a righteous religious fervor that they believe entitles them to cast the evil sinners into the fires of hell.
And thus, contemporaneous with the Supreme Court’s decision, several agencies promptly doubled down on efforts to strangle the oil and gas industries with regulatory restrictions, essentially daring the courts or anyone else to stop them. Thousands of pages of statutes give them thousands of arguments to claim they have the “clear congressional authorization,” any one of which arguments might stick. They are now out to show who’s boss.
EPA Administrator Michael Regan wasted no time in getting a statement out on the afternoon of June 30. Excerpt:
[W]e are committed to using the full scope of EPA’s authorities to protect communities and reduce the pollution that is driving climate change. . . . EPA will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.
In other words, we will just have to find other ways to implement the restrictions that we want to implement. The very next day, July 1, David Blackmon at Forbes reported that “EPA Targets Permian Basin, Widening Biden’s War On Oil And Gas.” The Permian Basin is currently the most productive oil and gas region in the United States, providing about 40% of the oil production and 15% of the gas of the entire country. The Permian Basin is also the site of about 40% of the nation’s active drilling rigs. And so it seems that EPA is gearing up to declare the Permian Basin a so-called “non-attainment area” with respect to ozone. Blackmon:
[T]he Environmental Protection Agency (EPA) announced [this week that] it may soon issue a ruling declaring that vast parts of the Permian Basin are in “non-attainment” status under the agency’s ozone regulations. If such a declaration is made, it will constitute a direct governmental assault on what is by far America’s most active and productive oil-producing region and its second most-productive natural gas area.
What would be the effect of such a declaration on current and future U.S. domestic oil and gas production? Blackmon again:
Placing the Permian Basin in non-attainment status would force a significant reduction in the region’s rig count, severely limiting the domestic industry’s efforts to increase U.S. oil production at a time when the global oil market is already severely under-supplied.
Texas Governor Greg Abbott promptly called on the Biden Administration to back off, saying that an EPA “non-attainment declaration “could interfere in the production of oil in Texas which could lead to skyrocketing prices at the pump by reducing production, increase the cost of that production, or do both.” But Blackmon notes that the plan comes from an office headed by a Biden-appointed anti-fossil-fuel activist, and thus is likely a core element of the administration’s program:
Mr. Biden appointed Joe Goffman, another of the many anti-fossil fuel activists that now hold senior posts at his various agencies, to head up EPA’s Office of Air and Radiation on an acting basis. That appointment might have been made with this specific policy action in mind.
Meanwhile, over at the Interior Department, July 1 was also the day for issuance of a statutorily-mandated five-year off-shore oil and gas leasing plan. Nicholas Groom at Reuters has a summary here. The bottom line is, we’re going to completely shut down leasing off both the Atlantic and Pacific coasts, but maybe we’ll allow a little in the Gulf of Mexico or the Cook Inlet (Alaska). The number of auctions over the five-year period will be in the range of “zero to eleven,” and supposedly we’ll take public input as to which way to go. But Interior Secretary Deb Haaland in a statement left no doubt as to where she wants and expects this to come out:
“From Day One, President Biden and I have made clear our commitment to transition to a clean energy economy,” Haaland said in a statement. “Today, we put forward an opportunity for the American people to consider and provide input on the future of offshore oil and gas leasing. The time for the public to weigh in on our future is now.”
There is a 90 day period for public comment. You can be sure that environmental activist groups will flood the zone with thousands of comments to support the approach of the “zero” option of ceasing all further off-shore leases.
Other agencies were eerily silent in the aftermath of the Supreme Court’s June 30 decision. Notable among those were the SEC and the Federal Reserve, both of which have recently ventured into adding “climate change” to their missions with only the most questionable of statutory support. Neither has given any indication of an intention to slow down.
And then on July 2, President Biden issued his now-famous tweet blaming the rising price of gas at the pump on gas station owners:
My message to the companies running gas stations and setting prices at the pump is simple: this is a time of war and global peril. Bring down the price you are charging at the pump to reflect the cost you’re paying for the product. And do it now.
A bureaucracy-wide campaign is ongoing under this guy’s direction to suppress oil and gas production in any way they can think of, and yet he has the gall to blame high prices on “companies running gas stations,” the majority of which are small independent businesses.
West Virginia versus EPA is Not an Impenetrable Barrier Against Aggressive Carbon Regulation
In this long commentary, I argue that the Supreme Court’s decision in West Virginia versus EPA isn’t necessarily an impenetrable barrier against highly aggressive government regulation of America’s carbon emissions.
The goal of Biden’s economic and energy policies is to quickly and completely transform America’s economy according to the vision outlined in the WEF’s ‘Great Reset’ and ‘Build Back Better’ agendas.
Within the larger context of Biden’s Extended War on Carbon (BEWoC), the recent SCOTUS decision is only one lost skirmish for the administration and for the climate activists. It is a speed bump along the Biden administration’s road towards a much-downsized carbon fuels industry in the United States.
A lawfare-based battle plan for conducting a war against carbon doesn’t particularly require that the Biden administration win in the courts. It only requires that the regulatory environment for the carbon fuels industry remains highly uncertain for the foreseeable future, thus keeping fossil fuels highly risky as a current and future financial investment.
The Biden administration can simply ignore the precedent set by West Virginia versus EPA and proceed forward with a blizzard of new anti-carbon regulations in the expectation that years of litigation will be necessary from the carbon fuels industry to keep the administrative state’s regulatory agencies at bay.
* BEWoC Topic #1: Background to the Legal Issues of West Virginia versus EPA *
As background to the legal issues of the court’s decision, the basic points of contention in West Virginia versus EPA concern the validity of: (1) the “major questions doctrine” as it applies to America’s regulatory administrative state; and (2) the definition of what constitutes a “best system of emission reduction” for power plants within the Congressional intent of, and the EPA’s own past practice interpretation of, Section 111 of the Clean Air Act.
The majority opinion of West Virginia versus EPA (6-3) begins by noting that the Clean Air Act contains three primary regulatory approaches for dealing with atmospheric pollutants from fixed sources; e.g. power plants and industrial facilities. These are:
— setting a National Ambient Air Quality Standard (NAAQS) for each of six listed criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. The NAAQS approach uses Sections 108-110 of the Act. The Clean Air Act contains provisions and a process for adding new criteria pollutants to the original list. None have been added since the original list was established fifty years ago.
— the New Source Performance Standards program of Section 111. That section also contains little-used provisions applying to existing fixed sources. These additional provisions are the ones at issue in West Virginia versus EPA.
— the Hazardous Air Pollutants (HAP) program, set out in Section 112. Hazardous air pollutants, also known as toxic air pollutants or air toxics, are those pollutants that are known or suspected to cause cancer or other serious health effects, such as reproductive effects or birth defects, or adverse environmental effects. 187 of these toxic air pollutants are currently carried on the EPA’s list of HAPs.
The Clean Air Act also contains provisions for controlling pollution from mobile sources, e.g. cars, trucks, heavy mobile equipment, etc. Note that the EPA’s 2009 Endangerment Finding for carbon is a Section 202 endangerment finding which applies to mobile sources of air pollution.
The 2009 finding was a test case document for use as a prototype in publishing other subsequent endangerment findings, the most important of which would have been a Section 108 finding, thus triggering the NAAQS process for controlling emissions of carbon GHG’s from fixed sources.
But the Obama administration never went forward with a Section 108 finding and with a NAAQS-based GHG reduction strategy. Obama’s EPA published the Clean Power Plan instead, an approach which was, in my opinion, designed from the beginning to fail in the courts.
Why would the plan fail? Because it singles out coal while leaving other major sources of GHG emissions alone. This makes the plan vulnerable to court challenges even in the absence of the major questions doctrine.
Why would Obama ignore the environmental law community’s long-held preference for a NAAQS-based anti-carbon scheme? Most probably because of its immediate and widespread impacts on America’s economy and on the American voting public. Obama did’t want to risk the backlash.
Here in the year 2022, the Biden administration has no qualms about pushing strong anti-carbon measures, regardless of the impacts on America’s economy or the risk of political backlash. IMHO, Biden’s EPA will give new consideration to going with a NAAQS-based regulatory strategy.
* BEWoC Topic #2: A Closer Look at the Clean Power Plan *
The Clean Power Plan as originally rolled out in 2015 by the Obama administration used Section 111(d) to implement a “generation shifting” type of GHG reduction strategy. Coal-fired power generation would be replaced with a combination of less emissive gas-fired generation and then eventually by wind and solar generation.
The original plan considered a power generation facility as a whole as representing a “system” of pollution control within the meaning and intent of the Section 111. It then follows that choosing the “best system of emission reduction” might include replacing a coal-fired plant in its entirety with a gas-fired plant, or with a wind farm, or with a solar farm, or with some combination thereof in other locations near or far from the shuttered plant site.
In other words, the Clean Power Plan is a “generation shifting” type of GHG reduction strategy for the power grid taken as a whole.
The plan went into hibernation while Donald Trump was president. Upon assuming control of the federal government, the Biden administration expressed a desire to rewrite and update the Clean Power Plan to reflect current administration priorities.
It is probable that a new version of the plan would by-pass gas-fired generation as an interim transitional tool and go directly to wind and solar as the preferred “best system of emission reduction” for the nation’s power grid as a whole. West Virginia versus EPA was filed as a preemptive strike against its return.
* BEWoC Topic #3: a Closer Look at West Virginia versus EPA *
The majority ruling in West Virginia versus EPA is founded on these three arguments, summarized here:
— First, the Congress has declined to pass legislation which would explicitly enable a generation shifting approach to reducing carbon pollution, an approach which would involve a major policy issue with sweeping impacts. Since the Constitution grants “all legislative powers” to the Congress, administrative agencies can’t undertake a complete transformation of the economy on their own authority.
— Second, as the EPA’s own past practice interpretation of Section 111 of the Clean Air Act demonstrates, the term “system” as used in Section 111(d) refers to systems installed on power generation equipment located at an individual plant site. Extending the definition to include the entire power generation facility as a whole is beyond the intent of Congress when it enacted the law. Further, expanding the term “system” has the collateral effect of transforming the EPA’s rule into a major policy issue with sweeping impacts.
— Third, a central constitutional principle states that Congress alone has legislative authority to decide major policy issues with sweeping impacts. A related legal doctrine, the “Major Question Doctrine” (MOD), holds that federal agencies must point to clear authorization from Congress before exercising new significant and transformative regulatory powers. The majority opinion says that Section 111(d) does not contain such clear authorization.
The minority opinion in West Virginia versus EPA directly contradicts the majority opinion, and is founded on four other arguments, summarized here:
— First, the Congress does not have the technical expertise to be deciding questions concerning which systems and technologies are the best available for reducing pollution. Congress has intentionally left the implementation details to the administrative agencies.
— Second, the wording of Section 111 embodies the clear intent of the Congress to grant authority to the EPA to go as far as is necessary to reduce emissions of harmful pollutants. And so the “major questions doctrine” has no applicability to the issue in dispute.
— Third, Section 111, most naturally read, authorizes EPA to develop the Clean Power Plan. In other words, to decide that generation shifting is the “best system of emission reduction” for power plants producing carbon dioxide, even if this has the practical effect of forcing a major transformation of America’s economy.
— Fourth, climate change is an existential crisis caused by humankind’s carbon emissions, one which demands immediate government action to resolve, action which is within the Congressionally-authorized authority of the EPA to determine and to implement.
As Francis Menton observes, the differences between the two constitutional philosophies behind the majority and the minority SCOTUS opinions in West Virginia versus EPA could not be more stark. One view places defined limits on the power of the administrative state, the other view imposes few if any restrictions on the power of the administrative state to govern and transform America’s economic and social life.
* BEWoC Topic #4: Biden’s Extended War on Carbon will Continue *
White House national climate advisor Gina McCarthy said that the Supreme Court didn’t bar the EPA from pursuing President Biden’s climate goals and vowed, “We will see the transition to clean energy, regardless of the Supreme Court.” And that “We’re going to keep moving forward, even though the Supreme Court would like to look backwards and hold us back.”
In an interview with CNN about the president’s low approval numbers in the polls, White House director of the National Economic Council, Brian Deese, said in defense of Biden’s anti-carbon policies that transitioning away from fossil fuels remains central to the administration’s energy and economic policies. High gas prices and the transition away from fossil fuels is essential to preserving the liberal world order.
It is already abundantly clear that Biden’s economic and energy policy advisors don’t particularly care about public opinion and will not change course in response to Biden’s negative poll numbers regardless of where these go. But will these policy advisors care about the legal opinions delivered by the US Supreme Court, past, present, and future?
We are on notice. Biden’s war on carbon will go on by fair means or foul regardless of West Virginia versus EPA. Moreover, it will go on regardless of what future decsions the Supreme Court might render in revisiting Massachusetts versus EPA, the 2007 SCOTUS decision which directs that the EPA regulate carbon emissions; and eventually, in revisiting the SCOTUS decision upholding the EPA’s 2009 Endangerment Finding for carbon.
* BEWoC Topic #5: The Role of Lawfare in Bypassing Supreme Court Decisions *
It’s reasonable to assume that Biden’s climate advisors and the EPA’s legal staff have anticipated that the Clean Power Plan would be struck down and have already come up with alternative means for using Executive Branch regulatory authorities in new and creative ways to bypass the SCOTUS ruling, means which will employ a lawfare strategy as their legal modus operandi.
Lawfare is a form of legal warfare which weaponizes the law and the courts in pursuit of progressive-agenda political, economic, environmental, and social justice goals. Lawfare is also a tactic for imposing crippling legal costs on any person, organization, corporation, or industry which opposes the progressive agenda, thus discouraging that opposition.
In the absence of Congressional buy-in for the Green New Deal, lawfare is the means through which Biden’s advisors and their allies in the progressive legal community and inside the federal government’s administrative state will operate in pushing their anti-carbon agenda, doing so in the face of any and all adverse Supreme Court decisions.
A lawfare strategy for bypassing or thwarting any decisions SCOTUS makes concerning regulation of carbon might embody several tactical elements:
— Publish a blizzard of new environmental and financial anti-carbon regulations from a variety of federal agencies, regulations which are seemly small in their individual impacts but which in sum total add to up to a greatly expanded system of regulation for America’s carbon fuels industry.
— Issue these many smaller regulations in a steady stream which will be very expensive and time-consuming for the carbon fuels industry to deal with on an individual basis, with the goal of deliberately inviting numerous drawn out court challenges which will take years to resolve.
— Employ stealth mode co-regulation of pollutants produced in the extraction, production, and burning of fossil fuels (e.g. ozone, methane, and particulates as prominent examples) by setting allowable limits at levels nearly impossible to economically attain.
— File civil lawsuits against strategically-targeted corporations identified as being carbon polluters in a bid to strongly discourage investment in fossil fuel extraction and production.
In summary, using threats of ever more aggressive environmental and financial regulations — in addition to aggressive enforcement of existing regulations — can be an effective lawfare strategy for adding substantially more financial and project risk to any investments which might be made in the continued production of carbon energy in the United States.
* BEWoC Topic #6: Direct Regulation of Carbon GHG’s as Criteria Pollutants using a NAAQS-based Strategy *
The clean Air Act contains provisions for adding new criteria pollutants to the original list from fifty years ago. Those provisions were enacted by Congress.
As long as the process the EPA follows for adding new criteria pollutants scrupulously complies with the provisions of the Act, the addition of carbon GHG’s could be claimed to be in compliance with Congressional intent and thus would not be subject to the major questions doctrine.
Establishing a comprehensive system of carbon pollution regulation employed as one component of a larger and more broad-scope lawfare-based strategy for discouraging investments in the carbon fuels industry might be done like this:
— Publish a Clean Air Act Section 108 Endangerment Finding which avoids the procedural process issues of 2009’s Section 202 finding.
— Classify carbon emissions as new ‘criteria pollutants’ according to the procedures described in the Clean Air Act.
— Establish National Ambient Air Quality Standards (NAAQS) for those carbon GHG’s identified in the Section 108 Endangerment Finding as being ‘criteria pollutants’.
— Explicitly acknowledge that attainment of the NAAQS for each new criteria pollutant requires international cooperation. Argue that establishment of these NAAQS for the United States is a necessary prerequisite for obtaining the necessary international cooperation.
— Use the NAAQS for carbon GHG’s as America’s formal tie-in to international climate change agreements.
— Declare certain targeted carbon GHG emissions as Hazardous Air Pollutants (HAPs) under CAA Section 112.
— Publish a comprehensive regulatory framework for carbon emissions 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.
— Establish a system of carbon pollution fines which is the functional equivalent of a legislated tax on carbon.
— Establish the legal basis for sharing the revenues collected from these carbon pollution fines among the federal and state governments.
— Actively and aggressively defend the EPA’s comprehensive system of carbon pollution regulations in the courts
The argument is made that CO2 is a well-mixed gas on a global scale and therefore establishing a NAAQS for each carbon GHG identified as a Section 108 criteria pollutant would make no sense from either a regulatory perspective or from a scientific perspective, given the very substantial international cooperation which would be necessary to attain the NAAQS standards.
On the other hand, if the counter-argument is made that establishment of these NAAQS is a necessary prerequisite for obtaining the needed international cooperation, then the NAAQS would represent America’s firm commitment to international climate change agreements, thus (in theory) incentivizing China and India to come on board with their own aggressive GHG reduction commitments.
That China or India or any of the other developing nations might actually reduce their carbon emissions in any substantial way would seem to be preposterous on the face of it. However, from a lawfare strategy perspective, that is neither here nor there. Simply establishing the credible threat of a comprehensive system of carbon pollution regulation would serve to discourage further investments in America’s carbon fuels industry.
* BEWoC Topic #7: Energy Conservation as the EPA’S Preferred ‘Best System of Emission Reduction’ *
Biden’s GHG reduction strategy envisions replacing coal-fired and gas-fired power generation with a combination of wind and solar backed by grid scale batteries, plus an aggressive program of incentivized energy conservation.
Biden would attempt to by-pass gas-fired generation as an interim transitional tool and go directly to wind and solar as the preferred means of transforming the nation’s electric power grid as a whole.
Nothing in the way of a credible plan has been presented by the Biden administration as to just how America will get from here to there in achieving his announced schedule for his Net Zero goals.
What is clear, based on any rational technical analysis, is that Biden’s emission reduction targets for 2030, 2035, and 2050 are impossible to achieve without a massive commitment to energy conservation.
A doubling of the price of all forms of energy is one reliable means of incentivizing the necessary conservation measures. The process of greatly increasing the price of energy while simultaneously reducing its supply through aggressive financial and environmental regulation is now well underway, and with predictable consequences.
Under the philosophy that a kilowatt of electricity saved is a valid substitute for a kilowatt of electricity produced, we should expect to see that the EPA’s new and revised carbon regulations will cite energy conservation as the preferred “best System of emission reduction” for controlling carbon GHG’s.
* BEWoC Topic #8: An Example of a ‘Blizzard of Regulations’ Anti-carbon Lawfare Strategy: the Notional SSCECP *
The goal of Biden’s economic and energy policies is to quickly and completely transform America’s economy according to the vision outlined in the WEF’s ‘Great Reset’ and ‘Build Back Better’ agendas.
Back in March 2022, I posted a comment/essay on the ‘Watts Up With That’ science blog which uses the conceptual framework of the ‘Supply Side Carbon Emission Control Plan (SSCECP)’ as a vehicle for examining the following question: How far could Joe Biden and his allies in the lawfare legal community go in quickly reducing America’s consumption of fossil fuels using his own authorities as President — authorities already granted to him under current law?
https://wattsupwiththat.com/2022/03/18/a-plan-b-for-addressing-climate-change-and-the-energy-transition/#comment-3480244
If you have control of America’s energy, then you have control of America’s economy. The notional SSCECP represents a no-holds-barred regulatory offensive against carbon emissions; and as such, it also represents a no-holds-barred regulatory offensive against our current economic system.
The SSCECP is the most extreme example of a coordinated lawfare strategy for issuing a blizzard of new environmental and financial anti-carbon regulations from a variety of federal agencies — regulations which are seemly small in their individual impacts but which in sum total add to up to a greatly expanded system of regulation for America’s carbon fuels industry.
With but one exception, every program element of the notional SSCECP has a prior historical precedent of Executive Branch action which has undergone successful judicial review at one time or another in one court or another.
As analytical constructs go, the SSCECP is specifically designed to be the mother of all test cases for judicial application of the major questions doctrine. Especially for use in overturning previous Supreme Court decisions.
A Supreme Court dominated by Gorsuch clones would reject most of the SSCECP’S program elements as being administrative overreach according to the major questions doctrine. A Supreme Court dominated by Kagan clones would accept each and every SSCECP program element as being within the authorities granted by the Congress to the Executive Branch agencies of the administrative state.
It would seem that one sure means of reversing West Virginia versus EPA would be packing the Supreme Court with four new Kagan Clone Justices (KCJ’s). If the Democrats retain control of the Senate after the 2022 mid-terms, packing the Supreme Court will be a top item on their political to-do list.
But is packing the Supreme Court even necessary? Probably not.
Issuing a blizzard of new and revised regulations in a steady stream is a lawfare strategy which will be very expensive and time-consuming for the carbon fuels industry to deal with on an individual basis. The numerous court challenges spawned by a blizzard of new regulations will take years to resolve, buying time for the administrative state to gain full control of America’s energy and therefore full control of America’s economy.
* We are on notice. Little will change after West Virginia versus EPA. *
A lawfare-based battle plan for conducting a war against carbon does not particularly require that the Biden administration win in the courts. It only requires that the regulatory environment for the carbon fuels industry remains highly uncertain for the foreseeable future, thus keeping fossil fuels highly risky as a current and future financial investment.
Biden’s war on fossil fuels will go on by fair means or foul regardless of West Virginia versus EPA. It will go on regardless of public opinion. It will go on regardless of the major questions doctrine and regardless of what future decisions the Supreme Court might render. It will go on regardless of which party controls the Congress after the 2022 mid-terms.
The only question remaining to be answered is whether or not Biden’s great reset of America’s economy will be permanent and irreversible by the time he leaves office.