On Tuesday, the Trump administration proposed the “Affordable Clean Energy” (ACE) rule as a replacement for former President Obama’s Clean Power Plan (CPP). While the new regulations have elements that will make it less onerous than the CPP, it is still misguided. It continues to promote the biggest fake new story ever: that human activities, particularly industrial actions, are causing runaway global warming (AGW).
In reality, carbon dioxide (CO2), the only gas restricted by both the ACE and the CPP, is the elixir of life, an essential ingredient in plant photosynthesis.
To understand how the EPA, even under President Trump, still finds it necessary to restrict CO2 emissions, let’s review a bit of history.
Obama knew he could not get legislation to control CO2 through the Senate since, during the months leading up to the December 11, 1997 adoption of the UN’s Kyoto Protocol in Japan, the Senate passed — with unanimous (95-0) support — a resolution that virtually guaranteed it would never have to vote on Kyoto (or any treaty like it) and thus risk appearing less than totally “green.” Entitled the Byrd/Hagel Resolution
, it stated that the U.S. should not be a signatory to any agreement that did not hold developing countries to similar targets to developed ones. In particular, the document stated:
Obama also showed awareness of the problem when he arranged that the replacement for Kyoto, the Paris Agreement, not be a treaty, and thus not require Senate approval. The challenge was to get “rulings” that seemed to legitimize the EPA control over CO2 without going through Congress.
Obama achieved this by exploiting another growing problem with the Constitutional balance of powers: legislative actions from the Judicial Branch. The following is a brief overview of how the EPA achieved its goal of controlling CO2. The EPA explains the background
On April 2, 2007, in Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court found that greenhouse gases [including CO2] are air pollutants covered by the Clean Air Act. The Court held that the [EPA] Administrator must determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.
Predictably, on December 7, 2009, the EPA issued its “Endangerment Finding” that GHG emissions did indeed threaten health:
The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases-carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)-in the atmosphere threaten the public health and welfare of current and future generations.
The Administrator finds that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.
This is the flawed driver underlying both the CPP and the ACE. Ironically, under the EPA definition of air pollutant one can include oxygen, because it causes rust.
It is likely the EPA colluded with the State of Massachusetts to get it to sue the EPA itself in support of designating GHGs as pollutants. In effect, it claimed that the EPA was endangering the lives of citizens by failing to control a harmful substance, namely CO2. It appears from reading the transcript of the trial that EPA deliberately lost the final Supreme Court case. If it had properly defended itself, it would have exposed all the lies and misinformation it already pedaled to convince the public that AGW is a proven scientific fact.
Most think about this case in the context of criminal or civil law. In fact, and this is central to the problems created by unaccountable bureaucrats, it was adjudicated under
Administrative Law. AL is a disaster, only created at the request of the bureaucrats to seize control. It was also a complete abdication
of Constitutionally mandated responsibility.
Justice Scalia summarized the situation when the case came before the Supreme Court in 2007:
The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.
Here is Scalia’s dissent in full
. However, there is one massive hole in his comments that not
only illustrates what is wrong with administrative law in this case, but in almost every case where it is the basis for judgment.
It was the EPA that determined that CO2 was a harmful substance.
The Supreme Court was placed in the position of having to rule that the EPA must control a harmful substance that the EPA itself decided, without evidence, was a harmful substance.