About that 'Greenhouse Gas' Provision...

If you write a news story about a significant piece of legislation relying heavily on its proponents—or worse, your own ideological interests—you are likely to overstate their victory. That is precisely what the New York Times did when it contended recently that the misnamed Inflation Reduction Act explicitly [gave] the EPA the authority to regulate greenhouse gases:

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month, is language written specifically to address the Supreme Court’s justification for reining in the E.P.A., a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the E.P.A. the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar and other renewable energy sources.

Hi! I'm a carbon-based life form!

Except it didn't. Nor did it  grant the EPA “the broad authority to shift America away from burning fossil fuels.” How did such a common compound on this planet—we are, after all, carbon-based life forms and exhale CO2 with every breath we release—come to be considered a pollutant anyway?

To understand the issue better, here’s a brief history showing judicial and administrative rulings that carbon dioxide (naturally emitted by oceans and land and relatively very little by humans) is a pollutant and the extent to which the EPA. can regulate its emission.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the Environmental Protection Agency has the authority to regulate  greenhouse gas (GHG) emissions if it determined that the emissions endangered public health. A few years later the EPA, acting under the Clean Air Act, determined that there were six gases that posed a danger to public health and welfare.

That determination was challenged in court and in 2014 the Supreme Court upheld only part of the EPA’s determination in Utility Air Regulatory Group v. EPA. The Court’s majority held that the agency had authority to regulate emissions from large stationary sources such as power plants, but had overstepped its authority when it tried to use the Clean Air Act to regulate smaller stationary sources. More important, the court held that the “air pollutant” language  referred to regulated air pollutants and not greenhouse emissions.

So am I!

The  next most consequential ruling on the Clean Air Act and the role of the EPA was the recent  West Virginia v. EPA decision, issued at the end of June, in which the court rejected an expansive reading of the EPA’s authority. A critical element in the majority opinion was that Congress never explicitly granted the EPA authority to regulate greenhouse gases. In an effort to get around the limitations imposed in that decision by the Supreme Court, however, the Biden administration tried to slip language into the Inflation Reduction Act in order to claim that they had now overcome that restriction on the EPA’s reach and legislatively permitted the agency to regulate greenhouse emissions (CO2) from power plants.

In what has become known as the “major questions doctrine,” the court has adopted a more stringent approach to how it interprets laws that gives much less deference to the views of experts at the federal agencies charged with implementing complex, dynamic regulatory programs designed to protect public health and safety... Roberts made clear that Congress could choose to pass more detailed legislation granting EPA the authority at the heart of the case if it wished.

The Inflation Reduction Act amends the Clean Air Act to add seven specific new programs to reduce greenhouse gases and provide funding to the states to develop their own plans. Taken together, these provisions go a long way to address Roberts’ concern that Congress has not spoken plainly enough about EPA’s authority to tackle climate change. But it falls short of granting EPA the authority to revive the generation shifting approach of the Clean Power Plan.

Me too!

Why didn’t it do so? Because it could not. To ram this bill through the Democrats used  the budget reconciliation provision and a bill passed this way must be “closely tired to spending, revenue and the federal debt limit—it cannot set broad national policy.” The Times, largely relying on the statements by the act’s advocates, thinks they succeeded, but more reasoned commentators dispute that, and I think they, not the NYT, are right. In particular the analysis by Professor Jonathan H. Adler is far more persuasive. The IRA, he writes:

does not grant the EPA new regulatory authority with regard to GHGs. Nor does it address the Supreme Court’s reasons for rejecting a broad view of EPA’s regulatory authority in West Virginia v. EPA. Nor is it quite accurate to say the IRA "amends the Clean Air Act . . . to define the carbon dioxide produced by the burning of fossil fuels as an 'air pollutant.'" Nothing in the IRA modifies the CAA's existing definition of air pollutant in Section 302 of the Act.

Yes, there are several section- specific mentions of greenhouse gases but the language used doesn't address the issues in the West Virginia case  Whether greenhouse gases are air pollutants never was a factor in that decision. Taking sharp issue with the NYT article, Adler notes,  “[I]t is suggested that because these provisions define greenhouse gases as a set of air pollutants, this makes clear that GHGs may be considered air pollutants under the Air, and this will be ‘a powerful disincentive to are lawsuits.’ Don’t bet on it.”

The point is that simply because something is defined as an “air pollutant” in one section of the Clean Air Act, it is not necessarily one under other of the Act’s provisions. The “definitional provisions in the IRA are “section-specific," not of general application so that GHGs may be air pollutants for  “some provisions,” but not all of the Act. Because this is so, Adler sees in the IRA no barrier to state challenges to EPA regulations of GHGs. He has a further criticism of the NYT article.

The story claims that the EPA’s 2009 conclusion that GHGs could be reasonably anticipated to endanger health or welfare "'meant carbon dioxide could be legally defined as a pollutant and regulated.' This is backwards. It is not that something must be considered dangerous before it can be considered an air pollutant under the Act. Rather, if something is an air pollutant (because it satisfies the Act’s definition, which does not require dangerousness), then the EPA may regulate that pollutant under certain CAA provisions if the EPA subsequently concludes that emissions of that pollutant cause or contribute to air pollution that may endanger health or welfare. In other words, just because something is an air pollutant under the Act does not necessarily mean that it is dangerous or that the EPA can or must regulate it.

Why do you hate us?

Yes, the EPA may well try to use the IRA to regulate carbon dioxide from coal plants, although the agency should ultimately lose because it lacks specific Congressional authority to do so. Of course, the bureaucrats can cause a lot of damage in the meantime. 

How much can still be constrained. Senator Shelley Moore Caputo of West Virginia cut $45 million  from the IRA which she argued would have expanded the EPA’s authority and that violated the rules respecting content of budget reconciliation bills. That she prevailed on this score adds to the contention of those disputing the NYT account; nothing in the IRA expanded EPA’s authority to regulate power plants. Nor could it under a budget reconciliation bill. But watch them try.

Inside the Dishonest 'Inflation Reduction Act'

Democrats and environmentalists who are the Democrats’ core constituency are celebrating the climate provisions of the misnamed “Inflation Reduction Act,” signed into law yesterday by President Joe Biden, like it was V-J Day. Paul Krugman led the hyperbole parade with a column arguing that Democrats may have “saved Civilization” with the bill. This is a peculiar scene, as both the politics and policy substance of the bill fall far short of the hosannahs it is currently receiving. Below the surface, hard core greens are grumbling that the bill is a disappointment, with threats to disrupt its implementation. What’s going on here?

Before analyzing the substance of the climate portions of the bill, the political aspects should be recognized. First, there has never been a piece of energy or environmental legislation of this scale that wasn’t the product of extensive committee hearings, scholarly analysis, and floor debate that usually took months if not a year or more to complete, and always resulted in a bill that was able to achieve some bipartisan support, this ensuring its durability.

But the IRA was cobbled together in secret and in haste by Senate Democratic leader Chuck Schumer and West Virginia’s Democratic senator Joe Manchin. More likely the bill is being celebrated because it is thought to have saved Democrats, who equate their existence with civilization itself, from electoral rout in November. Both the partisan process of the bill’s passage and the lack of a regular lawmaking process suggest the bill’s stability and longevity may be limited. A future Republican Congress and/or administration may well cut it back.

Ask Joe Manchin.

If you had proposed the climate portion of the bill to Democrats when Biden first took office last year, the environmental left would have erupted in outrage because it fell so far short of the designs of their beloved “Green New Deal.” In fact the price tag for the entire IRA is only about half of what Manchin proposed to Schumer in July of last year—an offer that the left scorned and raged about at the time. Now they have settled for half of a half a loaf while acting like they acquired the whole bakery. So desperate were Democrats to pass something—anything—they can point to as a “significant accomplishment” that this history is conveniently forgotten. Bernie Sanders is about the only leading progressive who has been candid about this.

On the substance of the bill, there are some prospective changes that further confuse the scene. The bill does represent a break with the previous demands of climate orthodoxy to impose a carbon tax and/or a cumbersome regulatory scheme on the electricity sector (though there is mischievous language in the law that may allow an opening for EPA regulation, as Chris Horner has pointed out here at The Pipeline).

It also purports to include support for reviving nuclear power, reducing—though not removing—the chokehold on some domestic fossil fuel production, and a “promise” of regulatory reform to come, which Manchin somehow neglected to get in writing, much less demanding a vote for regulatory reform before voting for the IRA. The heart of this bill is simply massive subsidies for wind and solar power and electric cars to the tune of $370 billion over the next decade. And everyone is rolling over for the talking point that these subsidies will enable the U.S. to achieve its “net-zero” ambitions by 2050, and its intermediate 2030 emissions reduction target under the Paris Accord.

Are these grandiose predictions realistic? Leaving aside the crucial defect of the intermittency of wind and solar power along with the necessity of vastly expanding our electrical grid to accommodate more “renewables,” there are reasons to doubt these promises. A traditional congressional markup process that included public hearings and expert analysis might have revealed some of the tradeoffs and wishful thinking behind the bill. The Los Angeles Times reported: “Princeton University researchers estimate that zeroing out U.S. carbon emissions by 2050 could require installing solar panels and wind turbines across more than 225,000 square miles, an area much bigger than California.” Anyone think the country is down for that much land defaced with windmills and solar panels?

Things of beauty and joys forever.

The idea of “net-zero” arose when it became evident that achieving literally no carbon emissions by 2050 was ridiculous if not impossible, and thus the “net” part of “net-zero” will allow for lots of cheating, though the cheats will be called “offsets,” or “carbon sequestration,” which, despite 20 years and billions in research funding has yet to show carbon can be sequestered at scale and an a reasonable cost.

To reach the 2030 emissions reduction target, the rate of decarbonization in our energy sector will have to more than double, from about 4.5 percent a year since 2005 (thanks mostly to natural gas replacing coal rather than any effect of windmills) to more than 11 percent, according to the careful calculations of Roger Pielke Jr: “Is it possible that U.S. electricity emissions decrease by 70 percent by 2031? Sure, it is possible. Is it likely? No, in my view, not remotely. If the IRA emissions-reductions projections are indeed oversold, then it will be interesting to see responses, especially among climate advocates who may feel that they were duped.”

Environmentalist disappointment and subsequent outrage is destined to appear again regardless for two reasons. First, environmentalists can’t live without the frisson of apocalyptic doom, so they will have to resume the nonstop messaging of climate doom regardless of the results of the IRA. Second and more importantly, environmentalists are quietly lining up to make sure the implementation of the IRA’s climate provisions fail.

Hope for the worst, root for the worser.

Yes, you heard that right. The adults in the room where climate policy is made have come to understand that the regulatory roadblocks environmentalists rely on to block pipelines, new oil refineries, and drilling on public land can also be used by grassroots groups in the states and localities to block the necessary infrastructure to enable wind and solar power to make any real impact on our electricity supply. The promise to reform environmental the permitting process, especially for a natural gas pipeline in West Virginia, was a large factor in getting Sen. Manchin back to the table. But as soon as the IRA passed, environmentalists vowed to stop any changes to environmental regulation, except for wind and solar power. It is unlikely that such narrowly tailored change can pass, and it wouldn’t reach the powers of state public utility regulators who guard their prerogatives jealously against federal encroachment.

Beyond these central problems are the closely related difficulties of electric cars and the resource supply chains necessary for scaling up the magical batteries that the newest fever dream of the climate campaign is relying upon. That will need to be discussed separately in a sequel.

About That 'Inflation Reduction Act...'

That “Inflation Reduction Act” just passed by Nancy Pelosi's House of Representatives? The one with a projected spending orgy of yet another $740 billion and Potemkin revenue projections? Naturally, it’s worse than you think.

First is the lack of any sincere effort at pretense that this was much more than dishonest re-branding failed left-liberal big government proposals, of which 87,000 new IRS employees is the most eye-popping. New York Times columnist economist Paul Krugman rakishly opened this column with the confessory, “[t]he Inflation Reduction Act, which is mainly a climate change bill with a side helping of health reform…”

Ah, yes. The long-stalled “climate” legislation. No support for something? Just call it whatever the public do support. Expect annual Free Beer and Apple Pie Acts. It’s not like there’s a crisis of confidence in institutions. Just lie, baby! Fighting inflation, one dishonest abandonment of republican principles at a time.

It's a climate act! A tax hike! Health care!

So, no, it isn’t just a tax and spending bill. The “Inflation Reduction Act” — also sold as deficit reduction — will neither lower inflation nor the deficit but, in addition to containing much of Alexandria Ocasio-Cortez’s “Green New Deal” spending, it also holds 40 pages of amendments to the Clean Air Act (CAA).

You may have heard Sen. Ted Cruz saying that the bill overturns the Supreme Court’s recent opinion in West Virginia v. EPA, which finally drove a stake in the Obama climate-change regulations via the CAA. That’s a bit oversold. Which is not to say the provisions are not problematic and possibly very much so.

Consider Sec. 60107 of the reconciliation bill (page 678), which adds a “Sec. 135: Low Emissions Electricity Program.” Very ‘AOC’. And to pull this off, it sails in under the spending flag, $17 million for a few thisses and $17 million for a few thats. But in the back, piloting this cruise, is a section that reads, “$18,000,000 to ensure that reductions in greenhouse gas emissions are achieved through use of the existing authorities of this Act.”

Oh. And which authorities might those be, because… don’t we keep hearing about federal courts throwing out claims that the Clean Air Act is a global warming law? Doesn’t say. Which itself is clever, though hopefully in the end too clever by half. This stunt has two most-likely objectives, first being to dent the armor of folks like Supreme Court justices Roberts and Gorsuch and many litigants and amici in the seemingly never-ending stream of climate litigation saying: look, whenever Congress has specifically considered actually regulating greenhouse gases through the CAA it has rejected the proposal.

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In West Virginia, SCOTUS gutted yet another attempt to use one provision this way, while clearing its throat for the next round by placing a “Major Questions Doctrine” front and center: Do not claim that some provision of a given law provides you with the authority for massive economic disruption like greenhouse gas reduction regulations unless you can point to Congress saying that’s what you’re to do.

The purpose of the "Inflation Reduction Act," now heading to Joe Biden's desk for signing, is to arm litigants hostile to the energy industries to claim Congress has said, "oh, just use those authorities we provided over there." See? Purportedly a post-West Virginia v. the EPA affirmation by Congress that, yes, the Clean Air Act provides authority to reduce GHGs, so this (choose your claimed authority) is what they were referring to. Which it isn't. No matter what the Democrats say:

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The Senate parliamentarian did strike a companion provision as improperly legislating in a budget bill. That language stood out for having dared to specify certain CAA provisions. The subtler gambit, unfortunately, seems to have gone unnoticed. In fact, it will now buttress defense of those ideas for “backdoor climate plans” using various provisions of the Clean Air Act not heretofore deployed by the climate crowd as possible vehicles to re-engineer the U.S. economy by pretending such measures are consistent with congressional intent. It’s so obvious they didn’t even need to specify what that authority is!

Rather, its purpose is to toss a rhetorical crutch to all manner of activists, whether seated on the bench, in newsrooms, or lurking in pressure groups to decry the trustworthy talking point that Congress has always spit the climate bit and so the latest expansive interpretation of some little-used statutory provision into a global warming roadmap is, supposedly, no longer far-fetched.

Which is to say this is less designed to “overturn” West Virginia, than the implications of that spectacular win, in prepration for the climate complex’s next stab at claiming Congress has already adopted a global warming regulatory regime, while still avoiding any supposed statutory authority. It is pretty aggressively mischievous, subtly eroding a key premise, and recurring theme of the climate opposition, that Congress never authorized any of these programs to be greenhouse gases reduction programs. Which it didn’t.

I for one do not see any of the six justices in the West Virginia majority rolling over for such tricks and saying ah well, that changes things and turns out Congress had settled its debate on the GHG issue. I do however see the D.C Circuit court, which will hear the case first, doing just that.

So, this cynical mischief isn’t, ahem, the end of the world. But it is a very unwelcome development. And an even worse sign of what our republic has come.

THE COLUMN: 'These Boots Were Made for Walking' *UPDATED*

If you think the Republicans are going to clean up in the fall Congressional elections, taking back both the House of Representatives and the Senate, with a clear shot to unseating Joe Biden or Your Name Here in 2024, think again. Yesterday, in a triumphal special session, the Senate passed the "Inflation Reduction Act" (stop laughing), with the otherwise useless vice president, Kamala Harris, casting the tie-breaker in favor of the rebranded mo' betta version of the recently deceased "Build Back Better" boondoggle. This time around, there was no Joe Manchin the Third or Krysten Sinema to put their fingers in the dikes and hold back Brandon's flood tide, both of them having sold out in exchange for some particular local fillips. In a 50-50 upper chamber, with the House in the bag, that's all the Democrats needed, 

The bill will do nothing about inflation, of course. Prices will continue their upward spiral, and supermarket shelves will increasingly resemble similar establishments in the Soviet Union c. 1985. But who cares? What counts is how the media spins the vote, and the answer is: a big win for the ice-cream gobbler and chief Covid patient—fully vaxxed and boosted!—now emerging hale and hearty from the White House basement and getting ready head back to Delaware for some much-needed R&R. There's nothing the Democrat-Media Complex loves more than a comeback story. And for that Joe Biden can thank Manchin and Sinema. 

Let's start with Manchin, former governor and now apparently senator-for-life from West Virginia. Having replaced John McCain as the phoniest man in the Senate, Manchin has enjoyed playing footsie with Mitch McConnell while he does his "conservative" fan dance for the rubes back home in Hootin' Holler, W. Va., a half-assed state that was gerrymandered out of rump counties of Ol' Virginny during the Civil War and hasn't amounted to a hill of beans since. Surrounded on the north by Federal powerhouses Ohio and Pennsylvania and bordered by two slave states that stayed in the Union, Kentucky and Maryland, in 1863 it chose the better part of valor and skedaddled away from the Confederacy as quickly as it could. The gutless Manchin is its perfect embodiment:

Sinema, the latest model of "maverick" from Arizona, meanwhile got... well, let's let the New York Times tell us what she got:

To win Ms. Sinema’s support, Democratic leaders agreed to drop a $14 billion tax increase on some wealthy hedge fund managers and private equity executives that she had opposed, change the structure of a 15 percent minimum tax on corporations, and include drought money to benefit Arizona... Ms. Sinema had been the final holdout on the package after Senator Joe Manchin III, Democrat of West Virginia, struck a deal with top Democrats last week that resurrected a plan that had appeared to have collapsed.

Ah, but when the stakes are this high there's always another palm that can be greased, another side deal to be made. This was Manchin's -- and the headline on the Times story informs the honorable gentleman from Hind Teat, W.Va., just how much his courage is appreciated and how much good will they'll show him in 2024 when he runs for re-election:

Manchin’s Donors Include Pipeline Giants That Win in His Climate Deal

After years of spirited opposition from environmental activists, the Mountain Valley Pipeline — a 304-mile gas pipeline cutting through the Appalachian Mountains — was behind schedule, over budget and beset with lawsuits. As recently as February, one of its developers, NextEra Energy, warned that the many legal and regulatory obstacles meant there was “a very low probability of pipeline completion.” Then came Senator Joe Manchin III of West Virginia and his hold on the Democrats’ climate agenda.

Mr. Manchin’s recent surprise agreement to back the Biden administration’s historic climate legislation came about in part because the senator was promised something in return: not only support for the pipeline in his home state, but also expedited approval for pipelines and other infrastructure nationwide, as part of a wider set of concessions to fossil fuels.

It was a big win for a pipeline industry that, in recent years, has quietly become one of Mr. Manchin’s biggest financial supporters.

The pride of Hootin' Holler.

The Wall Street Journal put the boot in: "Republicans thought that by supporting giant infrastructure and computer-chip bills, the West Virginian might stop a partisan spending bill. GOP Senators now look like tourists who paid $300 from LaGuardia for a taxi to their Manhattan hotel."

The package will be confirmed in the House just as soon as speaker Nancy Pelosi gets back from her super top-secret mission to start a shooting war with China for no good reason. One of the surprise bon-bons embedded in this farrago is a huge budget boost for everybody's favorite federal agency, the IRS

Under the Inflation Reduction Act negotiated by Sen. Joe Manchin (D., W.Va.), the agency would receive $80 billion in funding to hire as many as 87,000 additional employees. The increase would more than double the size of the IRS workforce, which currently has 78,661 full-time staffers, according to federal data.

The additional IRS funding is integral to the Democrats' reconciliation package. A Congressional Budget Office analysis found the hiring of new IRS agents would result in more than $200 billion in additional revenue for the federal government over the next decade. More than half of that funding is specifically earmarked for "enforcement," meaning tax audits and other responsibilities such as "digital asset monitoring." That would make the IRS one of the largest federal agencies. 

How did the GOP, which thought it had Joe Biden and the Democrats right where they wanted them just a couple of weeks ago, get into such a pickle? And why are things only going to get worse, right up to the moment when they fail to take back the Senate and under-perform in the House? Nate Silver weighs in: 

As was the case when we launched the forecast a month ago, the Deluxe version of FiveThirtyEight’s midterm model still rates the battle for control of the Senate as a “toss-up.” But within that category there’s been modest, but consistent movement toward Democrats. Their chances of winning the Senate now stand at 55 percent. That’s up from 47 percent from forecast launch on June 30. It’s also up from 40 percent in a retroactive forecast dated back to June 1.

Silver's right about the Senate: does anybody really think the carpetbagging  Cleveland-born Turkish Muslim. Dr. Mehmet Oz, who voted in the 2018 Turkish elections, and the washed-up football player Herschel Walker are going to win? Oz is running at least ten points behind a guy who just had a stroke, while Walker will face Warnock, a man with almost as many skeletons in his closet as Walker has. Trump has backed both Oz and Walker; after all, he's seen a lot of them on TV. Meanwhile, in Ohio, J.D. Vance is doing his best to blow what should be a gimme, and currently trails his Democrat opponent, congressman Tim Ryan, by four points.

All that matters, people.

So how did we get here? Two names immediately come to mind: Mitch McConnell, one of the leaders of the geriatric mafia in Congress, and Donald Trump. McConnell, supposedly the canny old tortoise who's always outwitting the Democrat hares, spent most of his time as Senate majority leader obstructing Trump, getting the three Supreme Court justices through by nuking the filibuster for Court appointments, but not much else. The time to have retired this careerist testudo and his corrupt Taiwanese-born wife was in 2014, when it was clear the GOP was going to take the Senate with or without him. But no: McConnell, who turns 81 in February, was left in place to continue warming the seat he's held for the former slave state of Kentucky since 1984.

And then there's Trump, at whose feet we can justly lay the 50-50 Senate that followed in the wake of his loss in 2020 and its disgraceful aftermath in January 2021. Going into the fall elections, both Georgia senate seats were held by the GOP: David Perdue and Kelly Loeffler, who were opposed by Jon Ossoff and Raphael Warnock. Loeffler, a wealthy housewife appointed to fill out retired senator Johnny Isakson's term, looked like a sure loser from the start, while Purdue -- another plutocrat --  at least had the advantage of genuine incumbency, even if it was only one term. All the GOP had to do was win one of them and they would retain control of the Senate. 

But no. As luck would have it, both elections went to runoffs, which were duly held on Jan. 5, with the "stolen election" hysteria approaching its height the following day. In the intervening weeks Georgia had been a special focus of Trump's ire, and president decided to make two Republican state officials -- Gov. Brian Kemp and secretary of state Brad Raffensberger -- his principal enemies. Unsurprisingly, in this overheated atmosphere, both Perdue and Loeffler lost and thus the Senate was tied.

Which left Harris as the deciding vote in yesterday's passage of a bill we will all live to regret for a very long time. Those boots, bought so dearly in 2020, were made for walking, and they just walked all over you. 

UPDATED: And, just like that, it's no longer an "inflation reduction" bill. It's a "climate, tax, and health care package." Suckers!!