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A Carbon Ultimatum?

An editorial in today's WSJ suggests that an Obama Administration will "greenmail" Congress into enacting stringent climate change policies by threatening the imposition of draconian greenhouse controls by the Environmental Protection Agency.

As Barack Obama's energy adviser has now made clear, the would-be President intends to blackmail — or rather, greenmail — Congress into falling in line with his climate agenda.

Jason Grumet is currently executive director of an outfit called the National Commission on Energy Policy and one of Mr. Obama's key policy aides. In an interview last week with Bloomberg, Mr. Grumet said that come January the Environmental Protection Agency "would initiate those rulemakings" that classify carbon as a dangerous pollutant under current clean air laws. That move would impose new regulation and taxes across the entire economy, something that is usually the purview of Congress. Mr. Grumet warned that "in the absence of Congressional action" 18 months after Mr. Obama's inauguration, the EPA would move ahead with its own unilateral carbon crackdown anyway.

The problem with the WSJ's narrative is that Grumet is describing nothing more than what is legally required as a consequence of the Supreme Court's decision in Massachusetts v. EPA. Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand — and win. The legal argument that the EPA is obligated to control greenhouse gas emissions from new motor vehicles, power plants, and other sources is, at this point, a slam dunk. It does not matter that the existing Act is a particularly poor vehicle for greenhouse gas control, or even (as I believe) that the Supreme Court misread the Act. Those arguments are moot. So, whoever occupies the White House come January, if Congress does not reform the Clean Air Act to address greenhouse gases in a more sensible manner, EPA regulations will follow.

Tracy Johnson (www):
How long will it take before they realize exhaling is illegal under these controls?
10.20.2008 12:14pm
William Van Alstyne (mail):
Please, not "whomever occupies the White House..." !!!!
10.20.2008 12:18pm
Houston Lawyer:
There is a whole lot of difference between the regulations that the EPA controlled by those who don't think greenhouse gasses are a problem would adopt and those regulations that would be adopted by the EPA controlled by people who believe that greenhouse gasses are the greatest threat facing Western civilization. There is no generic middle ground here.
10.20.2008 12:28pm
Bob from Ohio (mail):

sensible manner


Nancy Pelosi and Harry Reid?

Good luck.

18 months? Just in time for the mid-terms.
10.20.2008 12:41pm
byomtov (mail):
The WSJ editorial page guilty of distortion and misrepresentation?

Hardly "man bites dog" territory.
10.20.2008 12:57pm
M. Gross (mail):
I not too worried, I somehow doubt Obama is going to suffer from a severe case of stupidity the second he's elected. If anything, he's probably in a better position to try to amend the legislation to a sensible compromise than McCain is.

Clamping down industry in the middle of an economic recession is unlikely to appeal to anyone.
10.20.2008 1:06pm
DangerMouse:
Under that decision, the EPA is effectively obligated to begin the regulation of greenhouse gas emissions under the Clean Air Act. If the law is not amended, and the next Administration fails to act, environmentalist groups will file suit to force their hand -- and win.

Or, Congress could tell the Court to $*@&off and repeal the Clean Air Act entirely. Congress cannot be forced to pass laws by a Court, period.
10.20.2008 1:11pm
Oren:
(1) Congress passes a law that requires the EPA to set emissions standards for any pollutant "which may reasonably be anticipated to endanger public health or welfare." (42 U.S.C. § 7521(a)(1))

(2) CO2 is a pollutant which may reasonably (note: not certainly) be anticipated to endanger public health or welfare. (Mass. v. EPA)

(3) Congress has opportunity to amend that law (or pass a new law) or else the law they already wrote will be, gasp, enforced.

And this constitutes some sort of funny business? The only thing purportedly being done here is holding Congress to the Clean Air Act they drafted. Are we to give Congress the luxury of passing laws and then, if they don't like them, the executive will just defer on enforcing them?
10.20.2008 1:20pm
Oren:

Or, Congress could tell the Court to $*@&off and repeal the Clean Air Act entirely. Congress cannot be forced to pass laws by a Court, period.

No, but they also can't amend laws they have already passed without the President's autograph or a supermajority. They wrote it, why can't they live with it?
10.20.2008 1:21pm
The Unbeliever:
As a sign of goodwill, the Congressional Democrats (including the ones running for President/Veep) should first volunteer to restrict all carbon producing activities in their own lives, including speeches and breathing. Show some leadership!
10.20.2008 1:23pm
The Unbeliever:
They wrote it, why can't they live with it?
They could live with it before an external party came and told them what they really meant?
10.20.2008 1:27pm
Oren:

They could live with it before an external party came and told them what they really meant?

Can you detail why CO2 emissions ought not to be covered under the text of the CAA (42 U.S.C. § 7521). Certainly the capacious language of the CAA was expressly intended to cover new forms of pollution as they arose without need for new statutory language.

There are plenty of conservatives that have principled opposition to the CAA itself and I have much respect (and some agreement) with their complaints. What I cannot fathom is how the CAA can be fairly read not to include CO2 pollution at all.
10.20.2008 1:32pm
Oren:
Incidentally, the text of the CAA defines pollutants that can be regulated as

“any air pollution agent … , including any physical, chemical, … substance … emitted into … the ambient air … ,” §7602(g)

Seems broad enough (perhaps the CAA is indeed a bad law for being so broad, doesn't change much).
10.20.2008 1:35pm
A. Zarkov (mail):
BHO will not have to greenmail the new Congress. They too believe in AGW and will move with haste to correct what they believe is a major threat to Planet Earth. But when someone asks AGW advocates about China and India as sources of escalating carbon emissions, they say the US has to lead by example. This means do nothing about China and India and let even more industry flow out of the US to those countries.

I think ordinary people, the "Joe Plumber" types, understand what's happening. They know carbon controls mean they get to consume less so someone else gets to consume more. Or as George Orwell once said: “One has to belong to the intelligentsia to believe things like that; no ordinary man could be such a fool.”
10.20.2008 1:37pm
Jim Hu:
greenmail? I'm not seeing it. Different usage?
10.20.2008 1:57pm
Oren:

when someone asks AGW advocates about China and India as sources of escalating carbon emissions, they say the US has to lead by example.

If, after we've gotten our own house in order, China and India refuse to take meaningful steps to reduce their emissions then I would be in favor of charging their exports to the US with tariffs equal to the expected carbon tax* that would be incurred by manufacturing here.

There is no reason they should get a free pass but it's hardly convincing to insist that they start taking steps when we haven't.

* Or cost of credits, or whatever the burden is here.
10.20.2008 1:59pm
Fedya (www):
M. Gross wrote:
I not too worried, I somehow doubt Obama is going to suffer from a severe case of stupidity the second he's elected.


I'm more worried Obama will suffer a severe case of hubris.
10.20.2008 1:59pm
Oren:

greenmail? I'm not seeing it. Different usage?

Yes, different usage -- green in the sense of environmental (Green Party) as opposed to green in the sense of money (Greenbacks).
10.20.2008 2:02pm
A. Zarkov (mail):
Oren:

"There is no reason they should get a free pass but it's hardly convincing to insist that they start taking steps when we haven't."

It sure is if you believe that carbon emissions put the planet in peril. But how about we insist they everybody start curbing their emissions now? Moreover, China and India have much greater rates of increase of CO2 than the US.

Don't you realize that your argument falls along the line of unilateral disarmament?
10.20.2008 2:17pm
Bill Owens:
Breathing is, of course, carbon neutral. Congress or the Executive Branch using their breath to talk about CO2 may or may not be, in the end.
10.20.2008 2:27pm
James Gibson (mail):
Has anyone noticed that the Greens lost in Canada last week, no representation in their parliament. Canada has also withdrawn from the Kyoto accords.

Biden says we should sell clean coal tech to China. But, as others have already noted in this thread, if China doesn't intend to use it what can we do. The Kyoto pushers say we western nations have to clean-up our act to off-set the carbon emissions of the growing nations like China and India. These nations don't even include the basic air pollution controls we have used since the 1970s. Of course carbon storage (the basis of clean coal) isn't even proven to work. The two pilot plants havn't even been built. But by 2010 we will have perhaps hundreds of these plants in construction based on the "Greens" promise it will work. By 2012 when Obama is running for re-election they won't be talking about this subject at all.

Robert Kennedy Jr is leading the construction of outdated Solar Thermal plants in the California desert while Arnold is so excited about Kennedy's plants to cover the world with solar cells (don't even know the tech). Nancy Pelosis is backing Wind energy so T Boone Pickens can redirect his Natural Gas investments to powering our cars instead of power plants. And the Avatar of renewable "Green" energy, Al Gore, is sitting on the sideline so as not to undermine the election of the Messia (who Al will then lead to the true path to nature at the Budhist temple). I'm putting in my candle order right now; oh thats right, these also produce greenhouse gases.
10.20.2008 2:28pm
Buck Turgidson (mail):
Todd used the word "hysteria" to describe the reaction to a gun "joke". Why not use the same word to describe WSJ's commentary? Not only are WSJ editorials devolving into paranoid rants, they are consistently factually challenged.

@A.Zarkov:
I think ordinary people, the "Joe Plumber" types, understand what's happening.

"Ordinary people" don't have a clue. Most of what they see is propaganda on both sides and most lack both the information and the processing skills to form an informed conclusion.

To make matters worse, McCain is talking out of both sides of his mouth, making the message completely unintelligible. He has consistently claimed to be the "greenest" candidate, whatever that may mean. Then he spouts nonsense like, "I am against caps, but I am for cap-and-trade." What that demonstrates is not so much commitment to either extreme, but rather complete ignorance on the issue. Given that this is rapidly becoming the number 3 or number 4 issue (next to the economy, in general, terrorism and healthcare), it's dangerous territory. Lucky for McCain, the topic did not come up in the debates--that's three out of four topics he knows nothing about (remember the shock on his face when Obama refuted his "penalty" talking point?).
10.20.2008 2:34pm
A. Zarkov (mail):
"Ordinary people" don't have a clue. Most of what they see is propaganda on both sides and most lack both the information and the processing skills to form an informed conclusion.

At least ordinary people know what they don't know. But Obama and McCain have the hubris to think they understand the technology of energy policy. For example "alternative energy" will do little to solve our dependence on foreigners for liquid fuels. Does Obama understand this? Not that I can tell.
10.20.2008 2:44pm
kurt9 (mail):
Since CO2 is a dangerous pollutant, we would need to eliminate all sources of CO2 gas. Perhaps we should start with the extermination of all animal life in North America.
10.20.2008 2:46pm
SeaDrive:
As I see it, the real message is than any attempt at real change in either energy or environmental policy will be met with huge resistance from folks in love with the status quo. One may or may not believe in global warming, but it's hard not to believe that the US would be better off with cleaner air needing fewer oil imports. The fact that the same infrastructure is in play for two major problems ought to make it easier to change to more enlightened policy, but I fear the bigger effect is energizing two groups of nay-sayers.

Since the Nixon attempt at energy policy, I have been of the opinion that the biggest reason for a lack of action has been the inability to articulate a clear vision of what the new order would look like. With the goads of global warming, warfare in the oil states, and much higher oil prices, there has been rapid progress in the last several years. I do think that another 5 years will go by before we really understand what we will have to accept (windmills? car exhaust smelling like french fries?), and the infrastructure really begins to change.
10.20.2008 2:47pm
Opher Banarie (mail) (www):
Beyond Obama/McCain and the EPA, there is an independant group working on "cap and trade" systems for swapping CO2 emissions between companies, governments and individuals. Story.

The complexity of valuing CO2 emissions in the future, or of trees or other "offset assets", will make the current Credit Default Swap fiasco seem like the Mad Hatters Tea Party. The next generation of 20-somethings are laying the groundwork for the next global financial melt-down.
10.20.2008 3:32pm
Oren:

Since CO2 is a dangerous pollutant, we would need to eliminate all sources of CO2 gas. Perhaps we should start with the extermination of all animal life in North America.

Yup. While we are at it, we should probably bury your straw man so that he doesn't decompose and release his carbon either.
10.20.2008 4:07pm
Brett:
Can you detail why CO2 emissions ought not to be covered under the text of the CAA (42 U.S.C. § 7521). Certainly the capacious language of the CAA was expressly intended to cover new forms of pollution as they arose without need for new statutory language.

(1) A substance that human beings exhale cannot rationally be defined a pollutant.

(2) 42 U.S.C. § 7521(a)(1) refers to, "any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines". 42 U.S.C. § 7521(a)(3)(A)(i) makes clear that "regulations under paragraph (1) of this subsection applicable to emissions of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter". CO2 does not fall within any of those categories, nor is it susceptible to inclusion under ejusdem generis.

Massachusetts v. EPA was wrongly decided.
10.20.2008 4:12pm
Dan Weber (www):
I want Obama to go all the way and suggest replacing with the income tax with a carbon tax.
10.20.2008 4:20pm
Oren:
(1) A substance that human beings exhale cannot rationally be defined a pollutant.
On what grounds? The text of the CAA does not make such an exclusion. Moreover, nobody claims that CO2 is harmful as exhaled but rather becomes harmful by increased concentration in the atmosphere.


(2) 42 U.S.C. § 7521(a)(1) refers to, "any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines". 42 U.S.C. § 7521(a)(3)(A)(i) makes clear that "regulations under paragraph (1) of this subsection applicable to emissions of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter". CO2 does not fall within any of those categories, nor is it susceptible to inclusion under ejusdem generis.

Read 42 USC 7602(g):

(g) The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.

Surely CO2 is a physical or chemical material under any definition. The restrictions in § 7521(a)(3)(A)(i) have only to do with particular restrictions on automobiles and are intended to loosen the restrictions on those pollutants in order to accommodate the difficult nature of capture/catalysis technology on a moving platform.
10.20.2008 4:46pm
Oren:
Gah, my bolding was all wrong, I didn't mean to include the radioactive part. The point is the same though -- 7602(g) is wide enough to include anything and everything (physical substances).
10.20.2008 5:01pm
A. Zarkov (mail):
The CO2 that humans exhale is part of the carbon cycle and as such is not a greenhouse gas forcing because it won't increase the equilibrium level of atmospheric CO2. On the other hand, the burning of fossil fuels releases what's normally sequestered carbon, and that's a different story.
10.20.2008 5:09pm
Shertaugh:
Why does the next administration have to follow a Supreme Court interpretation of a statute? I thought the Executive Branch decides what the law is for the Executive Branch. No?
10.20.2008 5:31pm
Brett:
Surely CO2 is a physical or chemical material under any definition.

Irrelevant. CO2 is not an "air pollution agent" or a precursor. CO2 is in fact a component of the atmosphere. You might as well call nitrogen, oxygen, and water vapor "air pollution agents".
10.20.2008 5:42pm
Brett:
The CO2 that humans exhale is part of the carbon cycle and as such is not a greenhouse gas forcing because it won't increase the equilibrium level of atmospheric CO2. On the other hand, the burning of fossil fuels releases what's normally sequestered carbon, and that's a different story.


The language of the Clean Air Act does not support this distinction. If CO2 is a pollutant, then it's a pollutant regardless of the source or whether it increases atmospheric CO2.

You made this bed. Lie in it.
10.20.2008 5:46pm
A. Zarkov (mail):
"You made this bed. Lie in it."

I don't understand your comment at all. I was making a scientific statement, not a legal statement. If the law wants to regard CO2 from whatever source as pollutant, then it can do so, but that won't change the science. It's important for people to realize that's it's the combustion of fossil fuels that changes the equilibrium level of atmospheric CO2 because sequestered carbon is not part of the normal carbon cycle.
10.20.2008 6:10pm
r.friedman (mail):
Looking at the WSJ editorial page for its facts is like looking at the WSJ stock tables for their prose.
10.20.2008 6:24pm
Brett:
It's important for people to realize that's it's the combustion of fossil fuels that changes the equilibrium level of atmospheric CO2 because sequestered carbon is not part of the normal carbon cycle.


It's far more important for people to realize that anybody talking about "the equilibrium level of atmospheric CO2" is spouting pseudo-scientific gobbledegook, inasmuch as there is no such thing. There is no steady state for atmospheric CO2 levels; it simply does not exist.
10.20.2008 6:46pm
bbbeard (mail):
None of you seem to be aware that water (aka "dihydrogen monoxide") is a more potent greenhouse gas than CO2. Get busy, you greenish lawyers out there -- someone needs to take a stand against the thoughtless introduction of massive quantities of this greenhouse gas into our atmosphere. It's about time EPA took a stand against open-air irrigation, hydroelectric power, the creation of "recreational" reservoirs, and -- most crucially -- the Bush administration's criminal failure to cover the territorial waters of the United States with evaporation-suppressing surfactants.

Seriously, can any of you lawyers out there explain why <i>Massachusetts v. EPA</i> would not extend to H2O?

BBB
10.20.2008 6:51pm
wfjag:

. . . I somehow doubt Obama is going to suffer from a severe case of stupidity the second he's elected. . . .

Clamping down industry in the middle of an economic recession is unlikely to appeal to anyone.

Raising taxes in the middle of an economic recession is a bad idea, too. You assume, however, that you can reason with zealots.
10.20.2008 7:08pm
Dr. T (mail) (www):
How is it that any intelligent person can believe that a naturally occurring gas that is exhaled by every animal and essential to every photosynthetic plant is a pollutant? Obviously they fell for the false reports from the IPCC and other propagandists for the anthropogenic global warming hoax.

The recent rise in carbon dioxide concentrations is due to warmer temperatures; it is not the cause of warmer temperatures. Warmer water holds less CO2 (think about warm soda or beer), so the atmospheric CO2 concentration rises.

Here are more facts to ponder. No one has ever proven that CO2 in the atmosphere is a greenhouse gas. In fact, no one has ever proven that the greenhouse effect applies to the gigantic open system that is Earth. And, if the greenhouse effect does apply, our recent CO2 changes are trivial: water vapor comprises 95% of all 'greenhouse' gases in the atmosphere.

We need to petition our Representatives and Senators to stop this nonsense. I'm tired of Luddites and misanthropes using global warming as an excuse to destroy technology or destroy mankind.
10.20.2008 7:52pm
A. Zarkov (mail):
Brett:

"It's far more important for people to realize that anybody talking about "the equilibrium level of atmospheric CO2" is spouting pseudo-scientific gobbledegook, inasmuch as there is no such thing."

I suggest you google the phrase. Remember if there's a carbon cycle, then some level of carbon concentration has to repeat. That's the meaning of the word "cycle."
10.20.2008 11:03pm
Lev:

(1) Congress passes a law that requires the EPA to set emissions standards for any pollutant "which may reasonably be anticipated to endanger public health or welfare." (42 U.S.C. § 7521(a)(1))

(2) CO2 is a pollutant which may reasonably (note: not certainly) be anticipated to endanger public health or welfare. (Mass. v. EPA)


I thought the EPA fight was caused by the EPA refusing to take action in evaluating whether or not CO2 was in fact a "pollutant" such that some rulemaking, what rulemaking, if any rulemaking, might be appropriate. Essentially, refusing to take any action at all.

I thought the SCt decided that CO2 could be a "pollutant" within the definition of the CAA and that therefore the EPA could not not do anything; it must do something. The something being to evaluate whether the "pollutant" CO2 can "reasonably be anticipated to endanger public health" as that is used in the CAA so as to make CO2 subject to CAA rulemaking, and, at least, to determine whether considering the nature of CO2 whether they was any rulemaking that could address the "danger."
10.21.2008 12:04am
one of many:
I suggest you google the phrase. Remember if there's a carbon cycle, then some level of carbon concentration has to repeat. That's the meaning of the word "cycle."\

argh, I hate to point this out since you should have the better of the argument but you are just wrong with regards to the "cycle" in "carbon cycle". the cycle there just refers to the series of steps carbon goes through repeatedly and while the carbon goes through these steps repeatedly the amount of carbon does not have to repeat. a cycle can be a self-regulating cycle or not (strong arguments for the carbon cycle being a self-regulating cycle exist and this is where you want to talk about an equilibrium point), and it can be either repeating or non-repeating but no specific such category is part of the meaning of "cycle" in "carbon cycle", if you have difficulty with this idea think of the classic expanding cycle, the speaker-microphone feedback cycle where the amount of noise is continuously increasing.
10.21.2008 3:14am
Jay Myers:

Can you detail why CO2 emissions ought not to be covered under the text of the CAA (42 U.S.C. § 7521). Certainly the capacious language of the CAA was expressly intended to cover new forms of pollution as they arose without need for new statutory language.

Aside from the fact that if Congress thinks that the EPA isn't following the law then Congress can speak up for itself without meddling from the Sierra Club? How about because CO2 is a normal component of the atmosphere and thus not a pollutant. You might as well label Oxygen or Nitrogen pollutants.

Also, there is no good reason to believe that whatever global warming might occur due to human production of CO2 would "endanger public health or welfare". The Earth has been much warmer in the past (and had vastly higher concentrations of CO2 in the atmosphere) than it is currently and life thrived. Even the most radical global warming predictions don't much exceed the temperatures of the medieval warm period, when Mediterranean fruit such as pomegranates grew in Germany, England had vineyards, and Greenland really was green.


The CO2 that humans exhale is part of the carbon cycle and as such is not a greenhouse gas forcing because it won't increase the equilibrium level of atmospheric CO2. On the other hand, the burning of fossil fuels releases what's normally sequestered carbon, and that's a different story.

But all of the carbon in fossil fuels comes from the remains of plants and animals and thus used to be part of the carbon cycle. Do you think that the Earth's processes are magical and so must operate in the most beneficial way for life? If not, then explain why it has to be a bad thing to return this carbon to the biosphere from which it originated.

Perhaps the sequestration of all that carbon is why the Earth has been in an ice age for the last million years or two?
10.21.2008 4:00am
Daniel Newby (mail) (www):
How is it that any intelligent person can believe that a naturally occurring gas that is exhaled by every animal ... is a pollutant?


All mammals also synthesize inside their bodies and excrete nitric oxide, carbon monoxide, acetone, and a whole slew of other nasties. This is not an argument for dumping the pure compounds into the sky by the ton.

I think the EPA's plan is a great idea. We must not miss this epic opportunity to watch Federal bureaucrats try to regulate active volcanoes.
10.21.2008 8:32am
Oren:

You might as well call nitrogen, oxygen, and water vapor "air pollution agents".

They certainly would be if the EPA had reasonable belief that they endangered human health or welfare. That's the statute's fault for having 7602(g) specify virtually no limit on what is or isn't pollutant.
10.21.2008 3:03pm
Oren:

Aside from the fact that if Congress thinks that the EPA isn't following the law then Congress can speak up for itself without meddling from the Sierra Club?

They can repeal or amend the CAA if they don't like its application to CO2. The CAA was written to be a broad as possible specifically because its drafters didn't want to have to pass a new law every time a new threat to human health or welfare came up.

As to the scientific controversy, I noted above that statutory language does not require certainty -- only a reasonable belief. AGW certainly hasn't been proven in any strict sense of the word but there is a chasm between those that dispute some of the accepted conclusions and those that pronounce that the AGW is unreasonable instead of merely in error. The latter position seems entirely untenable.
10.21.2008 3:11pm
courtwatcher:

Aside from the fact that if Congress thinks that the EPA isn't following the law then Congress can speak up for itself without meddling from the Sierra Club?


Umm . . . not sure what this means. Congress included a citizen suit provision in the Clean Air Act whose entire purpose is to allow the Sierra Club or any other person (including industry) to sue if it thinks EPA isn't following the law. If Congress doesn't want environmental groups (or industry groups) to sue it, it can speak up again.
10.22.2008 3:09am