December 28, 2009
Clearing the Air on the Clean Air Act and Climate Change
By Harvey M. Sheldon
Green believers give no indication of slowing their quest for carbon dioxide control. On December 7, 2009, coincident with the convening of the since-failed Climate Conference in Copenhagen, the USEPA made final the "finding" that greenhouse gases, including carbon dioxide, threaten human health and the environment.
According to alarmists and the Obama administration, there is a scientific "consensus" that man's activities threaten our planet with detrimental global warming, dangerous sea-level rise, disease, and more destructive storms. Even though the North Pole had open water in the 1940s, and temperatures were higher both in the middle ages and 7,000 years ago, we are said to be in danger. An atmospheric trace gas (CO2) is the supposed culprit, even though plants depend on it to live and there used to be much more of it in the atmosphere.
On December 9, news reports said "the Obama administration is warning Congress that if it doesn't move to regulate greenhouse gases, the Environmental Protection Agency will take a 'command-and-control' role over the process in a way that could hurt business." The threat is to use the Clean Air Act.
This ploy is basically extortion. As an experienced lawyer, I bristle at this brutish tactic to induce business to plead for the mercy of the regulatory guillotine instead of being drawn and quartered.
I think too many law firms and consultants are playing the politically correct game of being silent and just giving their clients notice of new rules. They stay mum on policy out of fear of criticism or loss of client loyalty. This is short-sighted and not really in the best interest of their clients. Counselors and consultants should give meaningful advice, even if it is sometimes unpopular. Given the evidence of data manipulation and falsification by alarmist "scientists" and many of the assumptions or assertions of the IPCC and the alarmists, this "go along" attitude is looking less like prudent caution and more like disbelieving "good Germans" afraid to confront reality.
Most Americans do not understand the chokehold carbon dioxide control would give government over almost everything we do. Giving government the power to allot carbon dioxide gives it essential control over most means of production. This is "the road to serfdom" that the great F.A. Hayek warned about.
Whether global warming is occurring at a significantly increased and dangerous pace over normal variations because of mankind is the issue. Very credible data show and numerous scientists contend that there is little effect on climate from carbon dioxide emissions, and that mankind's contribution of carbon dioxide to the alleged problem is not predominant to boot. I recommend to all the report "Climate Change Reconsidered" on the web at NIPCC.
Public companies must account to their stockholders for material risks from regulations and proposed laws. At this point, the red tape and cost in the laws proposed to deal with global warming pose a higher risk to the health of most American businesses than the changes that may or may not occur in climate. (Indeed, if you want to discuss real climate risk, perhaps you should be discussing the risk of global cooling, which has serious basis in science.)
American businesses now face the prospect of government regulating how they buy and use energy and produce products, falsely pitched as a way to protect the Earth's climate. They need to challenge such regulation. They need to consider saying that carbon dioxide regulation poses a systemic risk to free enterprise and the health of the economy. The "science" demonstrating that global warming is man's fault lacks credible proofs. The very capacity of the so-called general circulation models relied on by the United Nations' IPCC to predict the future has been disproved in several ways. Other important IPCC assumptions are wrong, too. Now that evidence of conscious manipulation of fundamental historic data has been revealed, perhaps the "skeptic" side will get a hearing. If it doesn't, we will be shooting ourselves in the gut.
If Waxman-Markey passes, the federal government will supervise all forms of industrial, residential, and commercial energy use. That bill will charge for carbon, impose a "cap-and-trade" system, and mandate renewable energy standards and energy efficiency requirements for American business and industry. There will be a tight nationwide system of federal supervision and regulation of energy use and climate control efforts reaching down to local building codes and housing inspectors. The 1,427 pages of the bill are a monument to the ambition of some to have rules for everything.
Indeed, even some of the most ardent alarmists say that the bill will do little to change the future climate. However, it will cost staggering sums and countless wasted man-hours. Furthermore, the emphasis on "green energy" in the bill is an engineering pipe dream because the "green" sources relied on and subsidized are inherently inadequate for the task on a national scale, and emphasis on them also would cause hardship in the third world.
The threat to use the Clean Air Act to control carbon dioxide has a somewhat hollow ring to me. I would call the administration's bluff. Let me explain.
The two principal programs that affect business under the Clean Air Act are the Stationary Source programs of Title I and the Motor Vehicle programs in Title II. (Also, there is a separate "acid rain" program that affects utilities primarily and does not include greenhouse gases.) Under Title I, the basic starting point for the development of regulations is the establishment of "air quality criteria." Once those criteria are in place, the states or federal government plan for an emission-control regime that will achieve a healthy or safe level of the pollutant -- i.e. one that will meet the air quality criteria.
The "finding" of the administrator was not made under Title I. In fact, its legality is highly questionable even under Title II. I seriously doubt the EPA can escape a duty to develop national air quality standards under Section 108(b) of the Act based on statutory history and the case law. Promulgating such standards requires consideration of "all relevant science" before it can occur. In short, if this is made into a fight over genuine science, with rules in play about the competence of evidence and witnesses, I have little doubt that the skeptic view will win.
People need to see the wolves in green clothing for what they are: charlatans. Honest environmentalists need to stop their unquestioning clamor, revisit the science, and recognize the truth, lest the very good cause they serve be seriously harmed.
Americans and American business should not knuckle under to this cynical and corrupt power grab. Before new policy and rules are made, we must demand a thorough airing of the climate science with a fair and honest process by a reliable investigating team. It will not be that hard to root out the fudging and falsification of data.
This is the fight that will define the twenty-first century as either a time when mankind advances due to honest enterprise, quality science, and technical achievement...or we are subjugated by government micro-regulation from manipulative control freaks based on false and slanted data from grant recipients with no scruples.
Mr. Sheldon is a Chicago attorney specializing in environmental law. He is a graduate of Amherst College and Harvard Law School. The views expressed are personal and do not reflect any firm or client.