The Volokh Conspiracy

NASA’s James Hansen can be a bit unhinged when he talks about climate change. Although one of the world’s more prominent climate scientists, he has a penchant for selectively presenting only the most apocalyptic global warming scenarios and adopting unduly inflammatory rhetoric, as when he compared coal-laden trains, aka “death trains,” to the railcars carrying Jews to Nazi concentration camps or suggested that energy company CEOs are guilty of “crimes against humanity.”

Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

The folks at the Heartland Institute are mad, and that seems to have driven them a little mad. For years environmental activists have compared climate skeptics and those who raise questions about the likelihood of a warming-induced apocalypse to Holocaust deniers and worse. In 1989, then-Senator Al Gore famously compared those who downplayed the climate threat to those who ignored Hitler’s rise and NASA’s James Hansen compared coal-bearing trains to the rail cars headed to Nazi crematoria, drawing a moral equivalence between the use of coal and the Holocaust. Think Progress also trumpeted the “climate denial” views of Norwegian terrorist Andrew Breivik and claimed he was “inspired” by mainstream climate skeptics.

Then, earlier this year, Heartland was the target of directed smear campaign after the Pacific Institute’s Peter Gleick surreptitiously obtained internal Heartland documents by impersonating a board member. Gleick anonymously distributed the purloined documents together with a forged memorandum purporting to provide further evidence of Heartland’s internal dealings. Progressive bloggers trumpeted the materials, and the forged memo in particular, as evidence of Heartland’s sinister machinations. While it seems likely that Gleick himself forged the memo (or knows who did) Heartland may have difficulty seeking legal redress for his actions. I posted on what some call “Fakegate” here and here.

Instead of trying to retain the moral high ground by defending the substance of its views, Heartland adopted the tactics of its most unhinged critics, purchasing a billboard comparing those who believe in global warming to the Unabomber. According to Heartland, this was to be the first in a series featuring famous “global warming alarmists,” including Osama Bin Laden, Fidel Castro and other “rogues and villians.” Heartland explained the campaign this way:

what these murderers and madmen have said differs very little from what spokespersons for the United Nations, journalists for the “mainstream” media, and liberal politicians say about global warming. They are so similar, in fact, that a Web site has a quiz that asks if you can tell the difference between what Ted Kaczynski, the Unabomber, wrote in his “Manifesto” and what Al Gore wrote in his book, Earth in the Balance.

The point is that believing in global warming is not “mainstream,” smart, or sophisticated. In fact, it is just the opposite of those things. Still believing in man-made global warming – after all the scientific discoveries and revelations that point against this theory – is more than a little nutty. In fact, some really crazy people use it to justify immoral and frightening behavior.

The response to this ad was quite negative from friend and foe alike, prompting Heartland to pull the ad within 24 hours. Heartland now claims the billboard was an “experiment.”

“This provocative billboard was always intended to be an experiment. And after just 24 hours the results are in: It got people’s attention.

“This billboard was deliberately provocative, an attempt to turn the tables on the climate alarmists by using their own tactics but with the opposite message. We found it interesting that the ad seemed to evoke reactions more passionate than when leading alarmists compare climate realists to Nazis or declare they are imposing on our children a mass death sentence. We leave it to others to determine why that is so.

Well lots of folks didn’t get the joke, including many of Heartlands friends and funders. Several speakers have withdrawn from Heartland’s annual climate conference, including Rep. James Sensenbrenner and IPCC critic Donna Laframboise. (More reactions here and here.) E&E News also reports the publicity stunt is costing Heartland financial support, and could prompt staff departures too.

Even if the billboard was initially designed as an “experiment,” it was a stupid idea. The implicit argument of the billboards is completely unjustifiable. So what if some tyrants and whackjobs believe in global warming. This is like arguing someone should eat meat because Hitler was a vegetarian. Lots of evil, crazy, and stupid people believe plenty of sensible things (and lots of brilliant people have embraced nutty ideas). Heartland’s justifiable anger at the vitriol spewed by its most extreme or unhinged opponents does not justify sinking to their level. If the folks at Heartland believe there is a double-standard — and I believe there is, even though I also believe anthropogenic global warming is a real problem — then they should explain why. There’s no need to provoke and offend countless commuters and others by suggesting that a believing in global warming makes one like the Unabomber. It was a know-nothing message, and not just because most so-called “skeptics” actually believe in global warming too, and only reject apocalyptic climate projections. I expect this sort of stunt from extreme animal rights groups, not those who purport to want an open and honest scientific debate. However angry the Heartland folks may be with some of those on the other side, this stunt was unjustified and unwise — and by all accounts it looks like it will cost Heartland dearly.

The Washington Post reports the Environmental Protection Agency will release proposed regulations governing the emissions of greenhouse gas emissions from power plants this week, perhaps as early as today.   As described by the Post, this New Source Performance Standard regulation could put a halt to the construction of new coal-fired power plants unless and until carbon sequestration or some other GHG-emission-reducing technology becomes economically viable.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a coal-fired plant that does not have costly carbon controls.

“This standard effectively bans new coal plants,” said Joseph Stanko, who heads government relations at the law firm Hunton and Williams and represents several utility companies. “So I don’t see how that is an ‘all of the above’ energy policy.”

The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls.

These new regulations are but one piece of the surge in GHG regulations the EPA is adopting under the Clean Air Act as a consequence of Massachusetts v. EPA.

UPDATE: Here is EPA’s release and website on the new standard

Today the U.S. Court of Appeals for the D.C. Circuit will begin two days of oral arguments in a set of challenges to the EPA’s various rules applying the Clean Air Act to greenhouse gas regulations.  These rules are the inevitable outgrowth of the Supreme Court’s decision in Massachusetts v. EPA, as I explain here and here.  For this reason, most of the industry challenges face tough sledding.  For instance, given Mass v. EPA it is difficult to argue that the EPA Administrator was wrong to conclude that the emission of greenhouse gases cause or contribute to air pollution that could be reasonably anticipated to threaten health or welfare.  Yet this is one of the claims the industry groups have to make if they are to succeed.  Similarly, it will be difficult to challenge the substance of the EPA’s rules governing GHG emissions from motor vehicles.

The more serious challenge to the EPA comes from the challenges to the so-called “tailoring rule” which is the EPA’s effort to apply some of the Clean Air Act’s stationary source provisions to greenhouse gases.  The reason this challenge is more serious is because the EPA looked at the statutory requirements of these provisions and realized that implementation of the Act, as written, was impossible.  The statutory thresholds that determine what facilities are covered are low enough that, when applied to GHGs, they increase the number of regulated facilities over 140-fold, according to EPA.  The administrative costs of trying to process this many permits threatens to grind the EPA’s air office – and state air permitting authorities — to a halt.  So, the EPA is trying to rewrite the relevant Clean Air Act provisions by administrative fiat.  In the alternative, the EPA has argued, regulatory agencies would have to hire hundreds of thousands of new regulators to handle the permit applications.  The problem for EPA is that the relevant emission thresholds are expressly written into the Clean Air Act, and there is no provision giving the EPA authority to modify these limits. So, what the EPA is asking for authority to do, is rewrite the law by administrative fiat — something no federal agency has the authority to do.  This puts the D.C. Circuit in a tough place: either let EPA rewrite the law, or enforce a statutory provision that threatens to shut down the agency.  Further evidence the Supreme Court was wrong in Mass. v. EPA, particularly when it suggested that applying the Clean Air Act to GHGs would pose no problems.

Here are additional previews of the litigation from Richard Frank and Brad Plumer.

UPDATE: Here’s an additional preview from Greenwire noting the magnitude of this litigation.

The revelation that Peter Gleick of the Pacific Institute posed as a Heartland Institute board member to obtain confidential board documents and then distributed these documents, along with an almost-certainly-fake “Climate Strategy” memo continues to reverberate through climate science and policy circles.  Folks that might otherwise be discussing the new study claiming climate change could lead to shorter people are instead preoccupied with the ethics of Gleick’s actins.  There’s also reason to believe legal action could be coming.  Gleick may have violated relevant state laws, and Heartland has apparently referred the matter to the FBI and is considering civil actions.  Gleick has canceled recent speaking engagements, resigned posts with some organizations involved in climate science and policy, and is taking a leave from the Pacific Institute, where he is also under investigation.

The Heartland Institute, for its part, has released two sets of e-mail correspondence (on its new “Fakegate” website) that shed further light on Gleick’s actions.  Early this year, heartland’s James Taylor had an exchange with Gleick on the Forbes website.  More specifically, Taylor lambasted a Gleick essay, and Gleick responded.  Shortly thereafter, Heartland invited Gleick to participate in a debate over climate change at the Institute’s annual dinner.  There was a brief back and forth, but on January 27, Gleick declined the offer, even though Heartland had offered to pay $5,000 to a charity of Gleick’s choice.  Interestingly enough, on the very same day he turned down Heartland’s invitation to debate — citing, among other things, concerns about the organizations lack of transparency and refusal to list all of its donors — Gleick began posing as one of Heartland’s board members in an e-mail exchange that led to his receipt of confidential Heartland documents.  This is quite a coincidence — a coincidence that makes Gleick’s explanation of his actions all the more curious (as if they were not curious enough).  As Steven Hayward quipped, “The only thing missing right now to make Gleick’s story weaker is an old Woodstock typewriter.”

Meanwhile, Heartland has been quite heavy-handed with bloggers and websites who posted the documents distributed by Gleick, suggesting that posting the documents on line could be illegal and demanding that all of the relevant documents, and not just the “Climate Strategy” memo, be taken down.  Debbie Fine, general counsel for the Center for American Progress Action Fund, has responded to Heartland’s threats with a letter noting CAPAF (like many other organizations) has taken down the almost-certainly-faked memo, but explaining why it is under no legal obligation to remove the other documents.  As I understand the law, CAPAF is correct.  Those who  obtained the documents lawfully may disclose their contents.

In 2010 and 2011 the climate science community was rocked by the release of e-mails from the University of East Anglia’s Climate Research Unit showing that climate scientists can be just as petty, political and (at times) unethical as any other group.  To this day, it has not been determined who obtained the e-mail files and posted them online.

Last week, another potentially explosive trove of climate-related private documents was released on the web, in this case a set of documents prepared for a board meeting of the Heartland Institute, a libertarian think tank based in Chicago that sponsors the Nongovernmental International Panel on Climate Change and other efforts designed to downplay the threat posed by anthropogentic climate change and discourage the adoption of climate change policies.  Among the documents was a “Climate Strategy” memorandum purporting to outline Heartland’s secret efforts to, among other things, suppress “warmist” views and discourage the teaching of climate science in schools.  Someone calling himself “Heartland Insider” distributed these documents to several progressive bloggers who promptly posted the materials on the web.

Other than the “Climate Strategy” memo, the documents were relatively pedestrian — revealing but not earth-shattering.  If anything, these documents suggested that the Heartland Institute’s efforts — and those of climate skeptics generally — are less well-funded than some suspect (and certainly less well-funded than major environmentalist groups).  Yet almost immediately, questions were raised about the memo’s authenticity.  The content and tone of the memorandum were a bit off, and it contained subtle errors of the sort someone on the inside would have been unlikely to make.  Megan McArdle dissected the memo here and here, while others identified evidence the memo had a different provenance than the other purloined materials.  Heartland, for its part, declared the memo a fake (while also making threats and going on the warpath against anyone who dared post the purloined documents).  Meanwhile, speculation swirled about the memo’s actual author.

Yesterday, a big part of the mystery was solved when a climate scientist, Peter Gleick of the Pacific Institute, came forward as the source of the documents, but not as the author of the suspicious memo.  Wrote Gleick:

At the beginning of 2012, I received an anonymous document in the mail describing what appeared to be details of the Heartland Institute’s climate program strategy. It contained information about their funders and the Institute’s apparent efforts to muddy public understanding about climate science and policy. I do not know the source of that original document but assumed it was sent to me because of my past exchanges with Heartland and because I was named in it.

Given the potential impact however, I attempted to confirm the accuracy of the information in this document. In an effort to do so, and in a serious lapse of my own and professional judgment and ethics, I solicited and received additional materials directly from the Heartland Institute under someone else’s name. The materials the Heartland Institute sent to me confirmed many of the facts in the original document, including especially their 2012 fundraising strategy and budget. I forwarded, anonymously, the documents I had received to a set of journalists and experts working on climate issues. I can explicitly confirm, as can the Heartland Institute, that the documents they emailed to me are identical to the documents that have been made public. I made no changes or alterations of any kind to any of the Heartland Institute documents or to the original anonymous communication.

This is just incredible (and not only because Gleick was chairing a working group on scientific integrity at the time of his actions). McArdle, again, is all over this.

The very, very best thing that one can say about this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties. Let’s walk through the thought process:

You receive an anonymous memo in the mail purporting to be the secret climate strategy of the Heartland Institute. It is not printed on Heartland Institute letterhead, has no information identifying the supposed author or audience, contains weird locutions more typical of Heartland’s opponents than of climate skeptics, and appears to have been written in a somewhat slapdash fashion. Do you:

A. Throw it in the trash

B. Reach out to like-minded friends to see how you might go about confirming its provenance

C. Tell no one, but risk a wire-fraud conviction, the destruction of your career, and a serious PR blow to your movement by impersonating a Heartland board member in order to obtain confidential documents.

As a journalist, I am in fact the semi-frequent recipient of documents promising amazing scoops, and depending on the circumstances, my answer is always “A” or “B”, never “C”.

In this case, however, we are to believe that Gleick was so overcome with his rage at the Heartland Institute that he chose option “C” and, upon receiving additional documents from Heartland, sent the whole package of materials around without ever doing any investigation of his own as to the authenticity of the “Climate Strategy” memo. It’s hard to believe, but it’s also hard to believe that Gleick himself would have forged the document (as many suspected even before he came forward). Is there a third alternative?

In any event, Gleick’s actions will have serious repurcussions. From the NYT‘s Andrew Revkin:

Another question, of course, is who wrote the climate strategy document that Gleick now says was mailed to him. His admitted acts of deception in acquiring the cache of authentic Heartland documents surely will sustain suspicion that he created the summary, which Heartland’s leadership insists is fake.

One way or the other, Gleick’s use of deception in pursuit of his cause after years of calling out climate deception has destroyed his credibility and harmed others. (Some of the released documents contain information about Heartland employees that has no bearing on the climate fight.) That is his personal tragedy and shame (and I’m sure devastating for his colleagues, friends and family).

The broader tragedy is that his decision to go to such extremes in his fight with Heartland has greatly set back any prospects of the country having the “rational public debate” that he wrote — correctly — is so desperately needed.

Others have reached similar conclusions, but the feelings are not universal.

Much of the clmate science community seems unable to condemn Gleick’s conduct (see, e.g. here), just as some environmentalist groups and climate activists have a hard time acknowledging the frequent exaggeration or “sexing up” of climate studies to accentuate the threat posed by climate change. (And I say this as someone who believes climate change is a problem and supports appropriate policies to address the threat.)

McArdle again:

When skeptics complain that global warming activists are apparently willing to go to any lengths–including lying–to advance their worldview, I’d say one of the movement’s top priorities should be not proving them right. And if one rogue member of the community does something crazy that provides such proof, I’d say it is crucial that the other members of the community say “Oh, how horrible, this is so far beyond the pale that I cannot imagine how this ever could have happened!” and not, “Well, he’s apologized and I really think it’s pretty crude and opportunistic to make a fuss about something that’s so unimportant in the grand scheme of things.”

After you have convinced people that you fervently believe your cause to be more important than telling the truth, you’ve lost the power to convince them of anything else.

 

UPDATE: Here is how the NYT initially covered the document release, and here is Heartland’s response. Here is the NYT‘s coverage of Gleick’s confession.  David Appell also has an interview with AGU President Michael McPhaden on the controversy and its likely impact on climate science, and Judith Curry reflects on “Gleick’s ‘Integrity’.”

Heartland’s effort to force bloggers and others to take down the purloined documents seems like bluster to me.  Unless they were to try and assert copyright, I don’t think they have much legal recourse.  They may, however, be able to go after Gleick for his deception.  Gleick seems aware of this possibility, as he has retained a lawyer (and a “crisis manager’) on this matter.

Speculation about the provenance of the faked memo continues, and some are challenging Gleick to provide evidence for his account.  Others are offering coffee mugs.  Are t-shirts next?

The NYT on the new release of climate scientists’ emails:

The new e-mails appeared remarkably similar to the ones released two years ago just ahead of a similar conference in Copenhagen. They involved the same scientists and many of the same issues, and some of them carried a similar tone: catty remarks by the scientists, often about papers written by others in the field. . . .

In one of the e-mails, Raymond S. Bradley, director of the Climate System Research Center at the University of Massachusetts, Amherst, criticized a paper that Dr. [Michael] Mann wrote with the climate scientist Phil Jones, which used tree rings and similar markers to find that today’s climatic warming had no precedent in recent natural history. Dr. Bradley, who has often collaborated with Dr. Mann, wrote that the 2003 paper “was truly pathetic and should never have been published.”

Dr. Bradley confirmed in an interview that the e-mail was his, but said his comment had no bearing on whether global warming was really happening. “I did not like that paper at all, and I stand by that, and I am sure that I told Mike that” at the time, he said. But he added that a disagreement over a single paper had little to do with the overall validity of climate science. “There is no doubt we have a big problem with human-induced warming,” Dr. Bradley said. “Mike’s paper has no bearing on the fundamental physics of the problem that we are facing.”

Some of the other e-mails involved comments about problems with the computer programs used to forecast future climate, known as climate models. For instance, a cryptic e-mail apparently sent by Dr. Jones, a researcher at East Anglia, said, “Basic problem is that all models are wrong — not got enough middle and low level clouds.”

Gavin A. Schmidt, a climate modeler at NASA, said he found such exchanges unremarkable. He noted that difficulties in modeling were widely acknowledged and disclosed in the literature. Indeed, such problems are often discussed at scientific meetings in front of hundreds of people.

Roger Pielke also comments here, noting that the new e-mails confirm the politicization of decisions about what papers to cite (or omit) from the 2007 IPCC report.

As with the first ClimateGate release, I have yet to see anything in these e-mails that disproves, or even seriously undermines, the basic claim that human emissions of greenhouse gases have contributed to a gradual warming of the climate and will continue to do so in the future. They do, however, further confirm that “mainstream” climate scientists have contributed to the politicization of climate science and allowed political concerns to influence scientific judgments, exaggerating the reliability of climatic projections and downplaying scientific findings that undermine the claim that climate change presents an apocalyptic threat.

Here’s a list of VC posts that mention ClimateGate. For an overview of my views, see here and here.

On the eve of another UN climate summit, it appears that another batch of potentially embarrassing e-mails by various climate scientists have been released to the public. The Guardian reports:

The emails appear to be genuine, but the University of East Anglia said the “sheer volume of material” meant it was not yet able to confirm that they were. One of the emailers, the climate scientist Prof Michael Mann, has confirmed that he believes they are his messages. The lack of any emails post-dating the 2009 release suggests that they were obtained at the same time, but held back. . . .

One marked difference from the original 2009 release is that the person or persons responsible has included a message headed “background and context” which, for the first time, gives an insight into their motivations. Following some bullet-pointed quotes such as “Over 2.5 billion people live on less than $2 a day” and, “Nations must invest $37 trillion in energy technologies by 2030 to stabilise greenhouse gas emissions at sustainable levels,” the message states:

“Today’s decisions should be based on all the information we can get, not on hiding the decline. This archive contains some 5.000 emails picked from keyword searches. A few remarks and redactions are marked with triple brackets. The rest, some 220.000, are encrypted for various reasons. We are not planning to publicly release the passphrase. We could not read every one, but tried to cover the most relevant topics.”

Excerpts of the e-mails are posted on Watt’s Up With That? and The Air Vent.

Last month, the X-Prize Foundation announced the winners of the Wendy Schmidt Oil Cleanup Challenge.  The challenge was created to spur the development of more effective oil spill cleanup methods.  Specifically, the challenge offered $1.4 million in prizes for the development of removing oil from the ocean’s surface.  The aim was to double the industry’s best oil recovery rate in controlled conditions.  The winning team, Elastec/American Marine, demonstrated an oil recovery rate more than three times the industry’s previous best and was awarded the top prize of $1 million.

This is another example of how technology inducement prizes can spur the development of valuable technologies, and further evidence that such prizes are far more cost-effective than ex ante R&D grants or government investments in speculative ventures like Solyndra.  The latter may be more politically popular, but prizes would be a better use of taxpayer dollars.  As I’ve argued at length, if we’re serious about problems like global climate change, we should invest more in prizes and less in conventional approaches to government-sponsored R&D.

(Thanks to Roger Meiners for the pointer.)

A Daily Caller story claiming the Environmental Protection Agency is “asking for taxpayers to shoulder the burden of up to 230,000 new bureaucrats — at a cost of $21 billion” in order to regulate greenhouse gas emissions under the Clean Air Act has caused a bit of a stir on the internet (see, e.g., here, here, and here). The critics are correct that the Daily Caller flubbed the initial story. The numbers aren’t new and the EPA isn’t asking for billions of dollars for tens-of-thousands of new hires. But the critics miss the real significance of EPA’s arguments, which is that treating greenhouse gases as “pollutants” under the Clean Air Act, as called for in Massachusetts v. EPA, leads to absurd results.

First, the EPA is not asking for additional resources. What the EPA is asking for is permission to ignore the plain text of the Clean Air Act so as to make the task of regulating greenhouse gases more manageable. The brief at issue is quite clear on this point. The specific figures are an illustration of how it is simply unmanageable to try and regulate such emissions, carbon dioxide in particular, under statutory provisions designed for traditional air pollutants that are emitted by far fewer facilities. The obvious answer to this problem would be to recognize that greenhouse gases are not what Congress had in mind when it told the EPA to regulate “pollutants” under the Clean Air Act, but this option is foreclosed by Massachusetts v. EPA.

Second, the EPA’s claim that regulating greenhouse gases under the Clean Air Act would overwhelm the agency’s existing resources and effectively require the hiring of thousands of new employees is not new. I detailed this problem in this Reason essay and HJLPP article. The Obama EPA noted this problem it first proposed the Tailoring Rule in 2009. The Bush EPA (and others) also made this point when arguing that the Act should not be interpreted to apply to greenhouse gases. The Supreme Court was not convinced, however. Indeed, the Massachusetts v. EPA majority briefly considered, and dismissed, the claim that regulating greenhouse gases under the Clean Air Act would be impractical.

Third, the real problem with the EPA’s argument is that the agency is asking to ignore the plain text of the Clean Air Act. Specifically, the statutory provisions at issue require regulating facilities with the potential to admit more than 100 or 250 tons per year of regulated pollutants. As the EPA admits, this is impossible for the agency to do without increasing the agency’s total budget more than ten-fold. But the EPA’s solution is just as much of a problem, because what EPA wants to do is replace the Act’s express numerical thresholds with new thresholds of its own invention, based on the EPA’s judgment of what it wants to do when. Yet there is no precedent for administrative revision of statutory text in this fashion — and for good reason. It is one thing to allow an agency to twist potentially ambiguous language so as to avoid an absurd outcome, but quite another to allow an agency to rewrite clear statutory provisions, such as express numerical thresholds. Interpreting “pollutant” to mean only traditional air pollutants does far less violence to the Act’s text and structure than replacing 100 and 250 with numbers the EPA finds more convenient. But the source of this problem is not EPA overreaching or overzealous regulators within the Obama Administration, but the Supreme Court’s decision in Massachusetts v. EPA. If the Court had not misread the statute, we would not have to worry about bloggers and journalists misreading the EPA’s briefs.

Two weeks ago, President Obama asked EPA Administrator Lisa Jackson to shelve plans to tighten the National Ambient Air Quality Standard for ozone, leaving any reconsideration of the current standard until 2013. This past week, the EPA announced it was delaying the planned release of proposed regulations to control greenhouse gas emissions from power plants under the Clean Air Act. This is the second time EPA has delayed publication of these rules.

Viewed together, these decisions suggest the Obama Administration is making a conscious effort to moderate its regulatory policy, particularly in the environmental area. If so, why would this be? Could it possibly make political sense for the Obama Administration to acquiesce to GOP attacks on environmental protection? After all, as Ann Carlson noted at Legal Planet, environmental protection remains popular,and polls suggest relatively few Americans believe environmental regulation costs jobs (though it can).

It is inconceivable that the Obama Administration believes that these moves will placate Tea Party opposition or win plaudits from across the aisle. But that’s not the point. Nor is aggregate popular opinion on these questions particularly relevant to the political calculus. Rather, as I noted in comments to Ann Carlson’s post, what matters are the views of marginal voters and, in particular, marginal voters in politically significant states. That is, the opinions of moderates and independents in Ohio, Pennsylvania and West Virginia matter more than the views of environmental activists in San Francisco or Washington, D.C.

Viewed in this light, the political rationale of these decisions is easier to understand. Insofar as these moves are politically inspired, it would appear the aim is to placate those potential constituencies in battleground states most sensitive to the costs of new and impending environmental regulations. Think coal and power company unions, small businesses in what remains of the industrial midwest, and moderate Democrats in state and local governments whose enthusiasm is essential for voter turnout. These sorts of groups are more likely to notice whether the Obama Administration appears to be moderating the EPA’s regulatory zeal or tightening the screws, and such issues may influence their votes.  There’s a reason Joe Manchin (D-WV) ran against environmental regulation, and the White House is certainly understands where proposed environmental rules would have the greatest economic effect.

None of this means that the Obama Administration’s decisions were politically driven — I have no deep inside sources — or that they are politically wise.  The ozone NAAQS decision was almost certainly political, but the latest decision may well have been influenced by other concerns.  But if the Obama Administration is deliberately trimming the EPA’s sails, the political calculus is easy to understand.

The Yale Law Journal‘s new “Summary Judgment” online series features a set of essays on the Supreme Court’s decision in American Electric Power v. Connecticut, in which the Court held unanimously that suits against utilities alleging their emissions of greenhouse gases contribute to the “public nuisance” of global warming under federal common law were displaced by the Clean Air Act.  Contributors to the online symposium include Hari Osofsky, Daniel Farber, James May, Maxine Burkett, Michael Gerrard, and yours truly. My contribution, “A Tale of Two Cases” (PDF), discusses how the outcome in AEP was predetermined by the Court’s prior holding in Massachusetts v. EPA that greenhouse gases were pollutants subject to regulation under the Clean Air Act.  The essay is based on a longer article forthcoming in the Cato Supreme Court Review that I will discuss at the Cato Constitution Day event on Thursday.

Until last week, many conservatives considered New Jersey Governor Chris Christie a hero. Some were even clamoring for him to enter the presidential race. Now, however, some of the same conservatives are branding him a heretic, even as he embraces policy decisions they support. What’s going on?

Last week, Christie vetoed legislation that would have required New Jersey to remain in the Regional Greenhouse Gas Initiative (RGGI), a multi-state agreement to control greenhouse gas emissions through a regional cap-and-trade program. The bill was an effort to overturn Christie’s decision earlier this year to withdraw from the program. Given conservative opposition to greenhouse gas emission controls, the veto should have been something to cheer, right? Nope.

The problem, according to some conservatives, is that Christie accompanied his veto with a statement acknowledging that human activity is contributing to global climate change. Specifically, Christie explained that his original decision to withdraw from RGGI was not based upon any “quarrel” with the science.

While I acknowledge that the levels of carbon dioxide and other greenhouse gases in our atmosphere are increasing, that climate change is real, that human activity plays a role in these changes and that these changes are impacting our state, I simply disagree that RGGI is an effective mechanism for addressing global warming.

As Christie explained, RGGI is based upon faulty economic assumptions and “does nothing more than impose a tax on electricity” for no real environmental benefit. As he noted, “To be effective, greenhouse gas emissions must be addressed on a national and international scale.”

Although Christie adopted the desired policy — withdrawing from RGGI — some conservatives are aghast that he would acknowledge a human contribution to global warming. According to one, this makes Christie “Part RINO. Part man. Only more RINO than man.” ["RINO" as in "Republican in Name Only."]

Those attacking Christie are suggesting there is only one politically acceptable position on climate science — that one’s ideological bona fides are to be determined by one’s scientific beliefs, and not simply one’s policy preferences. This is a problem on multiple levels. Among other things, it leads conservatives to embrace an anti-scientific know-nothingism whereby scientific claims are to be evaluated not by scientific evidence but their political implications. Thus climate science must be attacked because it provides a too ready justification for government regulation.   This is the same reason some conservatives attack evolution — they fear it undermines religious belief — and it is just as wrong.

Writing at MichelleMalkin.com, Doug Powers warns that ” if some politicians think they can swim in the waters of AGW without getting wet or soaking taxpayers, they should think again.” In other words, once you accept that human activity may be contributing to global warming, embracing costly and ill-advised regulatory measures is inevitable. Yet it is actually Powers, not Christie, who is embracing a dangerous premise. As Christie’s veto shows, he understands that the threat of climate change does not justify any and all proposed policy responses. One can believe the threat is real, and still think cap-and-trade is a bad idea. Christie’s critics, on the other hand, seem to accept that once it can be shown that human activity may be having potentially negative environmental effects, this alone justifies government intervention. Yet the environmental effects of human behavior are ubiquitous. Human civilization necessarily entails remaking the world around it. So if recognizing negative environmental effects leads inevitably to governmental intervention, there is virtually no end to what government needs to do, global warming or no.

How inconvenient, then, that even the vast majority of warming “skeptics” within the scientific community would agree with Governor Christie’s statement that “human activity plays a role” in rising greenhouse gas levels and resulting changes in the climate.   The Cato Institute’s Patrick Michaels, for instance, has written several books acknowledging human contributions to global warming.  In Climate of Extremes: The Global Warming Science They Don’t Want You to Know (co-authored with Robert Balling, another “skeptic”) for example, he explained that there is an observable warming trend and that human activity shares some of the blame.  Michaels and Balling are labeled “skeptics” because they don’t believe the warming is likely to be as severe or as disruptive as most other climate scientists, but they readily accept the reality of anthropogenic global warming.  (See, e.g., p. 27.) Their rejection of a climate apocalypse — and not a denial of human contributions to climate change — is actually the view of most climate “skeptics,” and nothing Christie said is incompatible with that view.

As I’ve written before, it would be convenient if human activity did not contribute to global warming or otherwise create problems that are difficult to reconcile with libertarian preferences. But that’s not the world we live in, and politicians should not be criticized for recognizing that fact.  Further, even if one accepts the “skeptic” perspective on climate change, there are still reasons to believe climate change is a problem, as I explain here. This does not require endorsing massive regulatory interventions or cap-and-trade schemes; there are alternatives.  In the end, politicians should be evaluated on their policy proposals — and commended for the courage to acknowledge politically inconvenient truths.

The Guardian reports on a scenario analysis conducted by several scientists considering possible scenarios resulting from contact with alien life forms. The analysis covers many basic scenarios, such as basic communication or the possibility of disease transmission from physical contact, but also suggests global warming could give aliens an excuse to attack.

The authors warn that extraterrestrials may be wary of civilisations that expand very rapidly, as these may be prone to destroy other life as they grow, just as humans have pushed species to extinction on Earth. In the most extreme scenario, aliens might choose to destroy humanity to protect other civilisations.

“A preemptive strike would be particularly likely in the early phases of our expansion because a civilisation may become increasingly difficult to destroy as it continues to expand. Humanity may just now be entering the period in which its rapid civilisational expansion could be detected by an ETI because our expansion is changing the composition of the Earth’s atmosphere, via greenhouse gas emissions,” the report states.

“Green” aliens might object to the environmental damage humans have caused on Earth and wipe us out to save the planet. “These scenarios give us reason to limit our growth and reduce our impact on global ecosystems. It would be particularly important for us to limit our emissions of greenhouse gases, since atmospheric composition can be observed from other planets,” the authors write.

Somehow, I don’t think an alien race capable of interstellar space travel would consider humanity much of a threat — we have yet to put people on Mars — but the authors do characterize these scenarios as “highly speculative.”   If we’re willing to accept the premise that aliens come to earth and care about what we’re doing, why should we assume the alien race embraces contemporary environmental ideology? It seems to me the scientists are engaged in a bit of projection.

We could just as easily speculate about an advanced alien race seeing things quite differently. Perhaps the aliens would come from a planet with a much warmer temperature and see global warming as our invitation for them to colonize the planet. Or maybe they’d see gradual warming as a sign that we are a productive civilization that has been able to conquer and subdue our natural environment and is therefore worth trading and cooperating with. Or maybe this race would follow something like the “Prime Directive” and see our expansion as a reason to just leave us alone. Or maybe they would watch cable television and conclude we are a primitive, debased species not worth their time.

[Note: Extra links added.]

I have my share of disagreements with Jonathan Zasloff, particularly on matters of environmental law and policy (see, e.g., here), but his attack on Fox News’ alleged climate “expert” Joe Bastardi hits the mark. There are reasonable bases upon which to question some aspects of global warming, including some of the more dire computer model projections, but Bastardi’s claims (as reported by Media Matters) are woefully ignorant. Indeed, I can’t think of many so-called climate “skeptics” who would endorse some of his “arguments.” It’s the climate equivalent of creation “science.”