Senate Joint Resolution 26, the Clean Air Act, and the consequences of inaction

Background

Approximately three months ago I received this (presumably form-generated) email through a mailing list:

Our new senator, Scott Brown, is considering a resolution from Alaskan Sen. Lisa Murkowski — but written by a coal lobbyist — that would roll back Clean Air Act protections.

Sign the petition telling Sen. Brown that the people of Massachusetts support a strong Clean Air Act.

Check out this page at the Environment Massachusetts Web site:

http://www.environmentmassachusetts.org/action/global-warming/brown-clean-air2?id4=tafsent

I wrote a brief reply to the list and sender explaining the situation wasn’t as simple as claimed, responded to a short followup question, and called it a wrap. Reactions suggested that the information I communicated was new to many members of the list (all informed and intelligent people, I should note), and it occurred to me that my response might be worth publishing here. However, the resolution appeared dead on arrival, the quixotic creation of a minority senator. Editing and republishing didn’t seem worth the time, until now: S.J.Res. 26 is headed for a Senate floor vote tomorrow. To better inform readers of the full situation, I’ve taken my response, adjusted it for a broader audience, and included it here; I hope you find it informative.

Regulating greenhouse gases using the current Clean Air Act is a dangerous idea

(For readers seeing this via p.m.o: the planet software appears to strip a crucial part of the header for this section. The heading which should be displayed is “Regulating greenhouse gases using the current Clean Air Act is a dangerous idea”, not “Regulating greenhouse gases is a dangerous idea”.)

Regulating greenhouse gases under the current laws is a seductive idea with a large problem. Using current law is politically painless for Congress, avoids legislative delay, and tackles a pressing problem. The dilemma is that tackling greenhouse gases requires a scalpel, but current law provides only a hatchet. The Clean Air Act (link goes to the Act as amended through the 108th Congress) was quite patently never intended to regulate carbon dioxide, and it is wholly unsuited to the task.

The Clean Air Act’s pollution limits are nonsensical applied to greenhouse gases. Title I, Part A, §112(b) lists the initial set of hazardous air pollutants regulated by the Act. It does not contain carbon dioxide, methane, or the various other major greenhouse gases. The Act permits the EPA administrator to revise the list, but he should not do so lightly: certain consequences immediately follow per the Act’s text. The Act mandates a certain level of regulation of “major emitting facilities” of listed pollutants. What’s a “major emitting facility”? According to §169(1), it’s “any of the following [list of various industrial facilities] which emit, or have the potential to emit, one hundred tons per year” of listed air pollutants. Further, “Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” How do these limits compare in the extent of their effect to the original pollutants, and sources, conceived of by the Clean Air Act? My understanding (full disclosure: I can’t find my original source for this sentence) is that past regulation for historically-listed pollutants affected a few hundred energy-generation plants; these days it affects several thousand. But for carbon dioxide, a 100- or 250-ton limit is almost nothing.

The EPA estimates in a tailoring proposal concerning the Clean Air Act and greenhouse gases that applying the 100- and 250-ton limits with respect to GHGs would require the EPA to issue 140 times as many PSD permits as it does now. The requisite man-hours would be 250 times the man-hours spent issuing permits now. The EPA currently issues 280 PSD permits each year; a 140-fold increase would require many large office builds, larger churches, tens of thousands of farms, and many other entities to get permits.

It’s difficult to say the Clean Air Act was intended for this purpose, given the incredible disproportion between limits suitable for GHGs and limits set by the Act. The Clean Air Act concerned toxic chemicals and industrial pollution present in (relatively) small quantities, as the textual limits specifically indicate, not chemicals as abundant as carbon dioxide. Moreover, was the Clean Air Act designed for pervasive, non-localized pollutants like carbon dioxide? It seems unlikely, because regulation explicitly addressed “regions”, not the entire nation.

But the 140-fold increase applies only if you respect the law’s plain text. If you ignore the text and suppose 250 doesn’t mean 250, you can alleviate the problem to a degree. That’s what the EPA proposes in the aforementioned tailoring proposal. Instead of interpreting 100 tons to mean 100 tons, or 250 tons to mean 250 tons, the EPA proposes to interpret each as 10000 tons and 25000 tons, respectively.

The misinterpretation of pollutant limits by a factor of a hundred scales back impact considerably, but it is grossly out of alignment with the plain text of the Act. What if, say, Environment Massachusetts brings a lawsuit to correct this atextual interpretation? (Not all environmental groups are happy about this administrative sleight of hand.) The EPA’s argument is that the language of the Act shows this to be a plausible alteration. It’s certainly true that that might accord with the law’s original intent (although it’s difficult to speak of the intent of hundreds of congressmen from across the country). Nevertheless, are we governed by the divined intentions behind a law, or are we governed by the law’s plain text? Laws don’t say what we think they should have said, they say what they say; 100 and 250 ton limits rather than orders of magnitude larger was certainly no scrivener’s error.

The clear conclusion motivated by this conflict between statutory text and practical effect is that the Clean Air Act was never written to apply to pollutants such as carbon dioxide normally present in amounts far exceeding statutory limits. Thus, the Clean Air Act shouldn’t be read to cover GHGs.

But then you reach a problem: in Massachusetts v. EPA, 549 U. S. 497 (2007), the Supreme Court essentially held that the EPA was required to add GHGs to their list of pollutants. The EPA is therefore required to regulate greenhouse gases according to the Clean Air Act as it stands now. They have no choice in the matter, and their hands are tied in just how carefully, delicately, precisely, etc. they can regulate by the Act itself: in essence they must regulate as if new polluters were large industrial plants such as the Clean Air Act originally targeted.

Senator Murkowski’s resolution would lift the requirement that the EPA regulate greenhouse gases using laws not carefully designed to do so. Rather than dealing with a problem through a means wholly unsuited to it, Congress would remove this power and requirement to use it from the EPA (and only with respect to greenhouse gases — all other existing regulation would remain untouched), to then later replace it with legislation specifically tailored to the goal of combating GHGs.

Conclusion

The laws available to the EPA in pursuing regulation of GHGs are entirely unsuited to the purpose, requiring heavy-handed regulation of two orders of magnitude more entities than these laws have ever addressed before. A deliberate misreading of the Clean Air Act curtails the required regulation’s breadth, but that misreading is subject to challenge in courts. If that misreading is corrected, as it should be, we are in for a world of pain: permits cost hundreds of thousands of dollars and consume a few hundred man-hours of regulatory agency time — each. The EPA will be completely swamped if the Clean Air Act is applied, under Massachusetts v. EPA, according to the Act’s text.

The right thing to do to regulate greenhouse gases is to construct a regulatory regime specifically designed for them, and to strip authority over that problem from the Clean Air Act.

Leadership by example

From an analysis of preliminary Iraqi election results a month ago:

Many democracies, especially those that have been given their impetus by outside power, hold successful elections once or twice, then have their weak institutions perverted by “strong men” — by which is meant leaders that come to power legitimately then refuse to return it, either doing away with the institutions and practices of representative government or turning them into formulaic but meaningless (think East German elections) hypocricy [sic] that fool no one, least of all their own citizens.

When one considers mistakes of other countries, it makes George Washington’s example all the more remarkable. Washington took the oath of office 221 years ago today to become the first President of the United States; approximately eight years later he gracefully left office, enabling a smooth and peaceful transfer of power to John Adams. This was not the first time he had set aside power for the good of all: he did likewise years before upon completion of the Revolutionary War, leaving public life rather than remain commander-in-chief or choose another position. (Contrary to popular belief, Washington did not decline a kingship. Moreover, that such an offer could have been credible is dubious given the sentiments in contemporary sources such as The Federalist Papers.)

If he does that, he will be the greatest man in the world.

Happy First Inauguration, Mr. President.

So this is how liberty dies

Nanny state watch: Scottish edition

I generally take a dim view of laws and regulations intended to protect people from themselves. I believe that responsibility for a person’s health and well-being ultimately resides with that person; a person who engages in risky or dangerous behavior must accept the consequences of his actions. Society should not take that responsibility and allow the misdoer to derive advantage without concomitant disadvantage. That way lies moral hazard, a phenomenon with which all discerning members of society should be familiar (and of which they should be justifiably wary) through the economic news and events of the last year or so.

In that vein I direct your attention to the latest attempt to extend the nanny state: a Scottish tax on chocolate in a proposal defeated by only two votes in a meeting of the British Medical Association. Dr. David Walker, its chief proponent, says:

“Chocolate has lost its status as a special treat and I think that if we charged a tax on it then, over a number of years, we could restore that status.”

He had earlier told the BBC news website that obesity was a “mushrooming” problem, and Scotland risked heading the same way as the United States.

He added: “There is an explosion of obesity and the related medical conditions, like type 2 diabetes. I see chocolate as a major player in this, and I think a tax on products containing chocolate could make a real difference.”

There is much that is wrong with this from economic and personal freedom standpoints. However, in the interests of concision and minimal scope, I will limit myself to taking issue with these later lines in the story, also from Dr. Walker:

“After eating a bag of chocolate sweets you would have to walk continuously for three hours to burn off the calories consumed.

“It is simply not enough to say people should get more exercise.

The regular reader will know that last year I completed a thru-hike of the Appalachian Trail. Backpacking requires a tremendous amount of energy (moreso for a trip of that length and duration), and I fueled myself using a variety of methods: gorp, granola bars, beef jerky, and candy, among others. For roughly the last 1300 miles of my hike, my primary fuel between meals was the large or king-size candy bar — usually Snickers for its high calorie-to-weight ratio but often Milky Way or 3 Musketeers for an attempt at variety. A large Snickers bar contains 280 calories, while a king-size bar contains 510 calories; Milky Way clocks in at 260 and 460 calories respectively.

Each day while thru-hiking I typically would eat the equivalent of five, six, or more large-size bars (ten is the maximum count I can remember, although I probably exceeded this when completing the Four State Challenge) while hiking twenty to thirty miles daily. (NB: my chocolate bar rate of intake effectively dropped to zero when I finished the hike.) Dr. Walker would likely agree that this rate of intake in this exceedingly unusual situation is much less likely to be harmful than it would be for an average person and situation, but if he did not, I could assure him with absolute certainty that while I was hiking this prodigious consumption of chocolate was in no way calorically harmful. Further, in the four months since I completed the thru-hike I have noticed no other lasting ill effects. Indeed, it was necessary to travel those distances without courting malnourishment and unhealthy weight loss; I have heard of thru-hikers who could not carry enough food to avoid losing weight in the final stages of their thru-hikes (at which point all discretionary weight would have long since disappeared). Would Dr. Walker punish me for what it was necessary for me to consume while hiking? A chocolate tax across the few hundred bars I likely consumed would have summed to a meaningful value — perhaps a couple handfuls more candy bars or a small meal in a town I passed through.

Dr. Walker may be right that for most people more exercise cannot adequately combat excessive chocolate intake. However, that his assertion is only usually right means that sometimes it is wrong; it is a clear example of the folly of not recognizing personal responsibility to avoid harmful choices. If this tax were real, the people who consume chocolate in moderation with respect to their situations (I include myself in this group) would only be harmed, while the ones who consume to excess, perversely, have an incentive to consume even more as they can take advantage of the newly-funded programs “used by the NHS to deal with the health problems caused by obesity” without paying the full costs to use them.

If Dr. Walker wishes to see more healthy intakes of chocolate, he would do better from a personal freedom standpoint to improve educational efforts that warn of the dangers of excessive sweets, which would neither inhibit individual responsibility nor tax the responsible chocolate lovers to pay for care for the gluttonous ones.

An update on government transparency

I commented earlier about governmental transparency and cited the proposed stimulus bill as an instance where transparency had not yet been achieved. Since the final iteration of the stimulus (more accurately, a conference report resolving differences between the House and Senate bills previously approved) is coming to final votes in both houses today assuming all goes according to plan, I think a brief update on the situation is in order.

As far as I understand it, the final version of the stimulus was first sent to lobbyists on Washington, D.C.’s K Street late Wednesday or early yesterday. Sometime strictly after that, congressmen received final copies. Finally, last night at 23:32 EST, Speaker Pelosi (more precisely, a staff member) announced the final conference report and joint bill text; the two are split across multiple government sites, so they may have been available earlier given extra diligence in searching for them, but it’s impossible to say. One news source says the House vote may come around 13:00 or 14:00 EST today (so about as I make this post), or about 13-14 hours after the initial public posting; the Senate vote may come sometime later in the evening, or perhaps around 22 hours later at most. It’s not quite the 48 hours unanimously agreed to by the House around, roughly, H1096 in the congressional records of the House from February 10 (readthestimulus.org has better details, but they don’t also have good permalinks, so search for “48″ in the page), but 13-14 hours (or some unspecified amount of time more, if the text was released earlier in private) should be close enough for everyone, right?

The Speaker really could have done a better job of making the process a bit more transparent, but I suppose she thinks in an emergency the agreed-upon rules can’t be accorded muchany importance if they get in the way of “necessary” legislation. To be clear, this isn’t President Obama’s bailiwick, so he can’t be faulted for this lack of transparency; it would have been nice, however, if he had publicly noted it and requested the process be modified. It’s understandable that President Obama isn’t bringing this short-circuited process to greater light given that it’s a bill drafted by his own party, but it’s not exactly commendable, either.