CARB to Prohibit False Statements

Note 1: late in the afternoon on November 20, 2010, Mr. Anthony Watts of the highly popular science blog WattsUpWithThat.com included most of what follows in a post titled "Surreality: CARB contemplating a “skeptical science” regulation with penalties."

California's Air Resources Board, ARB or sometimes CARB, this past week sent an email to those on a number of listserves to alert them that CARB proposes to have enacted a regulation that, among other things, would make it illegal to willfully and knowingly make any materially false statement or representation to the Board (ARB) or the Board's staff. Penalties for violating the new regulation are not as yet specified. The proposed regulation may be found here.

The proposed regulation is presented in part below:

"Proposed 17 CCR §95020

Prohibition on false statements

(a) In any matter within the jurisdiction of the Board, no person may knowingly and

willfully do any of the following when transacting any business with or communicating

in any manner with the Board or the Board’s staff:

(1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;

(2) make any materially false, fictitious, or fraudulent statement or representation;

(3) make or use any false writing or document knowing the same to contain any

materially false, fictitious, or fraudulent statement or entry; or

(4) omit material facts from a communication with an intent to mislead."

This appears to be based on a similar Federal law (18 USC 1001), that provides for a fine and up to 5 years imprisonment for knowingly and willfully providing false information of a material fact, among several other things, to any part of the Federal government. (paraphrased). see e.g. http://vlex.com/vid/sec-statements-entries-generally-19190798

As just a sample of the issues, the key words are:

“Knowingly”

“Willfully”

“False”

“Material”

Each of those words has a specific meaning, usually hammered out in court cases. CARB cannot just arbitrarily choose definitions of such words, to suit their purpose. They must comply with the law and legal precedents. Where this gets very, very interesting is in the definition of “false.” The issue is dealing with scientific information, and science is fairly fuzzy. There are uncertainties in data measurements, to name merely one of several problem areas, as well as experimental design errors, choice of data analysis methods, interpretation of results, etc.

There are almost always factions of scientists that can be found to support almost any view – although a few viewpoints are appropriately discredited as crackpot - such as perpetual motion, or efficiencies greater than 100 percent. The fact is that new data is discovered or developed; new and better explanations for old data are developed; old theories discarded and new theories put forward, showing that science is not settled and that the definition of “false” is slippery when applied to a statement related to science.

There are other problems with a criminal falsity statute, such as applicability to various situations, and exemptions, also conformity with the Constitution and various standards embodied there. In addition, there are fraud claims that can arise if funding for scientific research led to false statements based upon the research findings.

The word "Knowingly" is the topic of much debate and investigation in criminal matters related to similar statutes. The popular media such as newspapers, TV, radio, and internet expend many words on the issues of who knew what, and when did they know it. In this context, as science is continually changing, it would be not only unfair but an injustice to penalize a person for holding a view that later turns out to be wrong.

Also, this could easily be turned around on CARB, by asserting that the “science” they relied on in many of their regulations was false information, knowingly and willfully presented.

A regulation such as this may be considered similar to a criminal statute, where, for each element of the alleged crime, the prosecution must offer admissible evidence for and prove each element to the required standard. Stated another way, if any element cannot be adequately proven, there can be no conviction. That is the reason I chose to focus on the “false” requirement, as that one will be very difficult to prove for the reasons I gave above.

An element of a crime, in this context, is each thing that must be proven for the accused person to be convicted of the crime.

However, there is the issue of whether the communication to CARB was a statement, or was it a question, or an opinion? Also, was the communication actually a fact, or was it dressed in language to indicate there are a range of uncertainties?

The proposed statute also uses the word fraudulent, which has in itself a long list of elements that must be proven. In short, a charge of fraud is very difficult to prove because the accused’s intent must be proved.

This regulation could very well have the effect of intimidating dissenters such that they will not speak or communicate to CARB. That fact, alone, could result in the law being challenged in court as a chilling effect on what should be Free Speech under the U.S. Constitution.

It would be an interesting case, as even if all the other elements are proven to the appropriate legal standard, the “false” element may be a matter of opinion, not fact. When reputable scientists disagree, which one is to be labeled “false,” and the other “fact?” When one group agrees, and they are scientists, is another group of non-scientist dissenters not allowed to speak? The entire Climategate scandal illustrates this point. If non-scientists were muzzled, where would we be?

In addition, the proposed regulation raises U.S. Constitutional issues, particularly, impermissible restriction of Free Speech based on content. While an exhaustive discussion on this very important matter is beyond the scope of this blog post, it should be noted that the issue has been raised and handled before. see e.g. these articles.

What is required is some brave organization, or person, who is willing to risk the penalties, whatever they turn out to be, if convicted, to make the case before CARB that their IPPC-following science is wrong. The 60′s are upon us again. Many a protester went to jail in the 60′s in the USA to prove the strength of their beliefs.

Disclaimer: nothing written above is intended to be, nor is it, legal advice. Anyone requiring legal advice should consult a qualified attorney. It is merely a private opinion discussing general aspects of a legal issue.

Note 2: I would like to acknowledge the proof-reading and editing of those of you who cleaned up some of what I had originally written before its posting on WUWT. Thank you for that. Although you are un-named here, I believe it reads much better with those minor edits.

Roger E. Sowell, Esq.

Marina del Rey, California

Post-Prop 23 Era Begins in California

Now, the after-election era begins. California’s victorious AB 32 proponents have a tall order to fill.

These can be summarized as two simultaneous requirements:

A) Create jobs and revive the staggering economy, and

B) Cut CO2 and other named gases to the limits required under AB 32: 28 percent by 2020; then 93 percent by 2050.

AB 32 proponents have staked their reputations, if not all Californian’s livelihoods, on achieving both requirements at the same time. In reality, as the economy weakens and, California experiences contraction instead of growth, the CO2 and other gases may very well revert to 1990 levels by 2020 without much assistance from AB 32. After all, AB 32 requires only a 28 percent reduction by 2020, as stated above. The California work-force is approximately 16 million, and with 1.2 million people out of work, that is 7.5 percent reduction in itself. All that is required, then, is for another 3.6 million people to quit working with the appropriate contraction in the economy. People without jobs will eventually leave the state when the unemployment benefits cease. Companies who cannot make a competitive product or provide a competitive service under AB 32 requirements will leave the state. Federal mandates on vehicle CAFÉ standards will further reduce gasoline consumption, so that the people who remain in California, for whatever reasons, will be forced to drive cars that consume less gasoline – and thus emit far fewer CO2 molecules as they go. However, there is no substitute for reducing emissions – it is a 100 percent reduction – by having a car leave California forever and be parked in a garage in another state.

AB 32 proponents insist that jobs will be created, though, by all the green requirements. Perhaps solar power will be the answer? One solar power plant recently made the news, and the interesting facts are 180 permanent jobs for a power plant rated at 663 MW. With 1.2 million Californians unemployed and requiring a job, they all might find work in solar power plants that produce a combined 4.42 million MW. That’s an awful lot of power, and probably won’t be built anytime soon. The fact is that California consumes only 55,000 MW during peak periods. Even allowing for solar power plants to produce only one-fourth of their rated capacity over time, this does not appear promising. Therefore, we must look elsewhere for the green jobs.

Perhaps car manufacturers will locate their hybrid car assembly plants in California, and produce the tiny cars that achieve 42 miles per gallon, combined city and highway. Perhaps. But, the reality is that even before AB 32’s drastic measures were imposed, car companies shuttered the car assembly plants and relocated them to other states or other countries. Toyota recently shut down the NUMMI plant near San Francisco and moved the assembly work to Texas. So, it looks like there won’t be any cars made in California. Perhaps another segment of the economy will create green jobs?

How about jobs from manufacturing all the ethanol that must be blended into gasoline? The Governor mandated that 40 percent of all such ethanol plants must be built in California. Now, I must inquire, why would a location mandate be necessary, if those plants were such a good investment? Leaving that aside, such a plant can be run with 100 people, counting round-the-clock shift operations, and day workers such as maintenance, management, and clerical staff. It does not appear that ethanol production will soak up the 1.2 million unemployed, as that would produce an awful lot of ethanol. Where else can the green jobs be found?

Perhaps all the cap-and-trade innovators will create a million or more jobs. Maybe, just maybe, renewable solar power can be used to split water and form hydrogen, and that hydrogen can be used instead of ugly, polluting natural gas in the thousands and thousands of applications that presently burn natural gas. That actually would work quite well, but at what price? Also, how many people would be employed in the entire industry?

A cap-and-trade alternative would be to mimic the oxygen-only FutureGen power plants, in which pure oxygen is mixed with the fuel instead of ambient air. The combustion products from burning natural gas with oxygen-only are simply water vapor and CO2, plus minor amounts of SOx and NOx. There is a cost, though, and that cost is high. An air separation plant must be built, and run to produce the oxygen. Neither building the plant, nor running the plant, is cheap. Such plants are also more hazardous because oxygen environments are highly flammable. The stack gases can be scrubbed to remove NOx and SOx, then cooled to condense the water vapor, then all that remains is CO2. The CO2 can then be compressed and liquefied for transport and disposal in an oil well or other sequestration site. Note that the net electric power from the power plant will be reduced to the extent that the air separation plant requires power, and the CO2 capture and sequestration requires power.

Some estimates indicate that one-fourth to one-third of the power generated will be consumed by the air separation plant and CO2 capture and sequestration. If true, that will require that more power plants be constructed and operated just to power those cap-and-trade-mandated systems. Therefore, when replacing aging generating assets, for every 1,000 MW replaced, we must install 1,333 to 1,500 MW. For new installations to meet growing demand, we must also install a similar increased capacity. Power prices must inevitably increase to pay for this.

California’s 2020 population is estimated to be 40 percent greater than in 1990. Domestic energy usage is to be 40 percent less by 2020 per the Scoping Plan. How is this to be accomplished? Use less air conditioning, or an A/C unit that uses only 60 percent of the power? Do less cooking on electric stoves and ovens? By 40 percent? There are 90 meals per month, per person that must be prepared – is Mrs. Homemaker supposed to feed her kids air and water for 36 of those meals? Do not run refrigerators, washers, dryers, dishwashers, heaters, lighting, tv’s, computers, by 40 percent? Or, is more insulation and double-glazed windows supposed to reduce all energy usage by 40 percent? It will indeed be fascinating to watch how the green proponents of AB 32 force the 40 percent reduction to occur.

Simultaneous jobs creation, and CO2 reduction is their mandate under AB 32. We’ll be watching.

Roger E. Sowell, Esq.

Marina del Rey, California

Showdown over Prop 23 and AB 32 in California

The vote is two days away, Tuesday, November 2, 2010. Most of the words about Proposition 23, the popular referendum that would suspend (more likely, end forever) California's Assembly Bill 32, (AB 32), have already been written or in some cases, spoken. My views on the matter are on public display via this blog, also in speeches I have made, and in comments on other internet sites.

The latest verbal barrages seem to me to belong in one of three or four categories: Defeating Prop 23 will save California's economy, or, Defeating Prop 23 will doom California's economy (my view), or, Passing Prop 23 will only temporarily slow down the transition into a fully green and low-carbon economy, or, Prop 23 will have no effect either way, pass or fail, as California is doomed for other reasons (there is an excellent case for this one). Over-riding all the fuss is the accusation from the Anti-Prop 23 group that Prop 23 is the evil plot of, and funded by, dirty, polluting Texas oil companies who desperately want to stop the necessary march toward electric cars, clean air, and healthy citizens in California. Countering this accusation is the reality that cars in California have the cleanest-burning gasoline in the nation (known as CARB gasoline), all cars have catalytic converters to virtually eliminate all pollution from the car's exhaust pipes, California cars are required to be tested for emissions regularly and repaired if found wanting, the air quality in California has improved dramatically over the past 30 years even with vastly more cars running down the roads, and most of all, no electric cars exist that will do the job of a gasoline-powered car. More on the car situation later in this post.

Proposition 23 is a landmark ballot initiative, as this is the first time (or so I'm told) that any state's voters will decide if an environmental regulation will remain as-is on the books, or be placed on hold for an indefinite period until the state's unemployment predicament improves. California's recession is worse than most states, with unemployment at 12.7 percent and stubbornly holding. With a labor market of roughly 16 million, and unemployment in good times of approximately 5 percent, there are 7.7 percent of 16 million people out of work due to the recession. If my math is correct, that is 1.2 million people out of work. The reality is that far more people are out of work, as the US Labor department does not count all the people out of work. There are very likely more than 2 million people in California alone who are out of work.

Poll numbers, which are not a very good indicator of election results in my view, have Prop 23 as too close to call. The wording on the ballots is very skewed, misleading, and will likely favor failure of the proposition. The wording says, and I'm paraphrasing here, that passing Prop 23 will allow pollution to increase in California by having polluting industries place more pollutants in the air. For the un-informed, or poorly-informed voter, that sounds like a proposition to vote against. We have Attorney General Jerry Brown to thank for the wording. This is the same Jerry Brown who is running for Governor.

For a bit more discussion on each of the four categories from above, first, Defeating Prop 23 will save California's economy. This position has the effect of leaving AB 32 in place, with its implementation starting in 2012 and phasing in fully by 2020. It should be noted that many of AB 32 requirements are already in place and in force. As I have written elsewhere on SLB, and others have written extensively also, AB 32 has many requirements, including a Low Carbon Fuels Standard (mostly concerning ethanol for gasoline or bio-diesel), Renewable Portfolio Standard (renewable electric power generation of 33 percent by 2020, and 20 percent by Dec 31, 2010), increased gasoline mileage standards for cars and trucks, solar panel installations, combined heat and power systems, and most ominously and importantly, cap and trade for greenhouse gases. There are many, many other requirements. Those who want to defeat Prop 23 maintain that each of these requirements will stimulate California's flagging economy, creating wealth and jobs, and driving the economy into a post-petroleum or fossil-fuel age.

The basic belief (and crucial mistake) of those who insist that this is the time, and Californians are the ones who should do this, is that science and engineers now have the technology to forever provide cheap, clean, reliable energy instead of dirty, expensive, imported foreign oil. Apparently, those with this belief did not take any courses in physics, engineering, or economics. They also do not appreciate the geography and geology of California. This requires some explanation.

Their dream is, and has been for many decades, to have a society that obtains its electricity from the wind, or from the sun, or perhaps from the ocean's waves or tides, or perhaps from geothermal wells. Such electricity would power all homes, cooling them in the hot summer and warming them in the cold winter, provide power for all industries, and of course all means of transportation would use electric motors powered by efficient, light-weight batteries. This would include of course, cars, motorized scooters, trains, trucks, buses, subways, airplanes, and boats and ships. The dream includes abundant, reliable electric power, with little to no inconvenience in recharging the various batteries that are necessary.

Barriers to achieving the dream are, of course, that there just isn't enough renewable power in California. One of the most reliable and zero-carbon emitting powers, geothermal power, is available in California but is woefully inadequate to provide all the power needs. There also are not a sufficient number of elevated lakes to provide pumped storage hydroelectric power, even though California has many mountains. It is unfortunate, but true, that the sun only shines for part of each day - and that portion is rather short during the winter months. Even when the sun shines, there are many interruptions due to clouds, rain, even dust storms in the desert areas. The other unfortunate aspect of solar power is that the clearest areas are in the desert, but the population centers are near the coast where clouds persist. This requires long transmission lines to bring the power to the people. It is also unfortunate that the wind is erratic, both in when it blows, and how strong it blows, and how quickly the wind can change. The geography of California allows the wind to blow fairly steadily in three areas where a range of hills or mountains has a pass - these are located in Northern California at Altamont Pass, in Southern California at Tehachapi, and also near Palm Springs at Banning Pass. But, there are only those three and no more. It is also unfortunate that the tides offshore California are fairly weak, with a maximum tidal change of only about 6 or 7 feet (approximately 2 meters for the metrically-inclined readers). The waves offshore California are sometimes rather large, but the waters are deep, and the waves are not reliable. So, the availability of renewable power is lacking, even though California is probably the best-endowed state for renewable energy with sunny deserts, wind in three mountain passes, mountainous areas, at least some geothermal, plus a long coastline.

Even if the renewable power were available in sufficient quantities, which as we have seen above it is not, the intermittency problems present a very great cost issue. The dreamers do have a point, when they claim that we have the technology to smooth out the energy surges and declines, and provide reliable power. Yes, indeed we do. There are a number of energy storage and release systems, all well-known for decades. To list a few, there are batteries, capacitors, pumped storage hydroelectric, compressed air storage, high-speed flywheels, high-pressure hydraulic storage, and electrolysis of water to produce hydrogen. There are others, but this list will do for now. Each technology has at least one thing in common: they all yield less energy out than what is input into the storage system. This is a fundamental requirement of physics. Some have less loss than others. Each technology (save one, pumped storage hydroelectric) also has a critical flaw: the energy produced is very, very expensive compared to electric power from a gas-fired power plant.

Thus, the dream of a renewable-energy society could be achieved, today, if anyone was willing to pay an exorbitant price for their electricity. The three basics of the dreamers' renewable electric power, cheap, clean, and reliable, are lacking one element: cheap.

Saving California's economy with AB 32 and the defeat of Prop 23 is supposed to ride on developing and installing the means to provide renewable electricity, more efficient vehicles, and (someday, somehow but nobody knows when or how, exactly), solving that pesky storage problem to make energy cheap. There are those who talk about investments in smart grids, and white roofs, and reflective asphalts, and cool cars (in the hot temperature sense), and recycling all our organic wastes into bio-gas or cellulosic ethanol, and that these cutting-edge technologies will forever make oil and natural gas a thing of the past.

Maybe so. But, California has to exist in the real world, where there are other states, and other countries where low-cost energy powers the factories, homes, vehicles, and businesses. Goods and services provided by the lowest-cost methods are available in the market. It is true that Californians are afforded the opportunity to help unfortunate producers in remote areas of the world, and pay a premium price for the privilege of purchasing their products, it is not entirely clear that anyone else in the world will return the favor and buy high-priced California products or services as a charitable gesture to encourage the noble use of renewable energy.

Next, Defeating Prop 23 will doom California's economy (my view). In this scenario, to which I adhere, a defeat of Prop 23 will allow AB 32 to continue unchecked. The many requirements as listed above will play out each in its time, and Californians will face higher and higher costs of doing business, running their homes, driving to and from anywhere, higher costs of purchasing every product in every store, purchasing ever-smaller and more dangerous cars, and obtaining no visible or measurable improvement in air quality. It is very, very likely that oil refineries will simply shut down rather than pay the exorbitant costs of cap and trade. The shutdowns may not occur right away, but almost certainly will occur by 2020. It will be quite interesting to observe how cars will run in California, also how trucks will run, and especially how jet airplanes will be refueled. It should be noted that, as electric power prices escalate, the economics for installing solar panels will improve. This will be a self-fulfilling prophecy, then: if the power price is 35 cents or higher per kilo-watt-hour, a solar panel is probably justified. In the same fashion, when gasoline is scarce, it will become expensive, perhaps very, very expensive. Barring government action (which has happened in the past, when a refinery was to be shut down in Bakersfield), shutting down refineries will create a shortage. At that point, it may very well be less costly to buy an electric car or some sort of electric-gasoline hybrid. The car makers who provide such electric-gasoline hybrids will likely be quite profitable, and hire many people to work in their factories. I wonder, however, how many of such factories will be located in California? My guess is zero.

Then, Passing Prop 23 will only temporarily slow down the transition into a fully green and low-carbon economy. This argument is based on the fact that the economy has, in the past, had several periods of unemployment at or below the Prop 23 threshold of 5.5 percent. Also, there is a belief by some that the US economy is slowly recovering, and that California will also recover. Within a few years, unemployment will be (so they say) back to 5.5 percent, and the provisions of AB 32 can then be implemented. I do not favor this argument, as it is clear that the Obama administration has no desire to enact the necessary measures to restore the US economy to a healthy state. The stimulus with federal money was ill-conceived, and wrongly implemented - it did nothing to improve the economy. Increasing taxes is also not the way to go. However, administrations do change every four years when an unpopular President is in the White House, so there should be a change in 2012. Yet, by 2013 or 2014, when a new President is in office, with viable plans to cut taxes, and stimulate the economy and make businesses competitive in the world, the unemployment rate should begin to decrease. California, though, will likely not participate much, if any, in that improvement, for the reasons listed in the next section.

Finally, Prop 23 will have no effect either way, pass or fail, as California is doomed for other reasons (there is an excellent case for this one). California has managed to place itself in the worst of all positions among the 50 states: business-unfriendly, combative state regulators, high real estate costs, high labor costs, high cost of electricity (especially for the last increment of power purchased), high employee turnover resulting in costly hiring and training of replacement employees, burdensome regulations, out-of-control budget deficits at the state and local levels, and high cost of gasoline and diesel fuel. These factors combined make an excellent argument that the ship of state is sinking no matter what, and Prop 23 will only make a small impact on the date the ship slips forever beneath the waves.

Finally, the vote is nearly upon us. Sometime late on Tuesday night, or perhaps Wednesday if the vote is close and the absentee ballots will make the difference, we will know.

Roger E. Sowell, Esq.

Marina del Rey, California

Thoughts at 30,000 Hits

Again, I am amazed that SLB has today hit another milestone, 30,000 pageviews. The pace of hits has slowed a bit, as 8 months elapsed since 20,000 hits in February. That is most likely due to fewer posts. The old adage is true: post or perish. The number of countries has also increased, now up to 115.

It has been an interesting 8 months. As I wrote at 20,000 hits, I hoped the world will regain some much-needed sanity and stop the nonsense about global warming from carbon, the US federal laws on cap and trade will die and go away, and the chemical engineers' message that science must obey the fundamentals of process control will gain a wider audience. The nonsense continues but the battle is not over. Noted physicist Hal Lewis, professor emeritus at University of California at Santa Barbara, declared that CO2-induced global warming is a scam, when he wrote his letter resigning from the American Physical Society. Yet, the few official investigations of wrong-doing by climate scientists have concluded nothing was amiss - yet many feel the investigations were not sincere, nor properly conducted, and failed to ask the right questions. Of course there is no wrong-doing if no one asks the right questions.

We still have no federal law on cap and trade, and the upcoming elections in November will likely see a rout of the Democrats in Congress such that a law in that area will not be coming. However, the Democrat-majority Congress could pass some sort of bill before the new Congress is seated in January. The California ballot in November will have Proposition 23, which if it passes will suspend the state's wrongly-guided climate change law, AB 32.

The fundamentals of process control still do not have a wide appreciation among the climate scientists, but that will likely change as the climate world-wide continues to cool. Just in the past few months the sea surface temperatures (SST) have declined dramatically. Hurricanes world-wide (or tropical cyclones to use the proper terminology) are also at a historic low. Heat waves are not happening, and the polar ice is not melting at either pole. In fact, the Arctic ice growth is at a record pace since hitting the minimum in September. This is based on the satellite record, which is only a few years. Sea levels are not rising as predicted by the alarmists. In short, there is no cause for alarm. On the other hand, there is good reason to prepare for very cold winters. There was almost zero warmth this summer along the California coast where I live near Los Angeles, in fact I had no reason to turn on the air conditioner. Instead, I was tempted to turn on the heater quite a few times. I did not, though, and simply put on sweatpants and a sweater.

To switch subjects, I had the pleasure of giving more speeches since February, one to the North County Economic Development Council of San Diego, California, in which AB 32 was the topic. One speaker took the pro-AB 32 position, and I took the anti-AB 32 position. The vote by the committee following the speeches and question/answer session was strongly anti-AB 32. I also spoke in Anaheim, California, to the Orange County Chapter of the Construction Specification Institute, also in a pro and con format related to AB 32. The pro-AB 32 speaker was Dr. Elaine Chang of South Coast Air Quality Management District, the local air pollution control district for the area including and surrounding Los Angeles. My message was clear: AB 32 will spell the end of California's economy.

I have another speech upcoming, this time to the Southern California Chapter of the American Institute of Chemical Engineers (AIChE) at the monthly dinner meeting October 19th in Long Beach, California. With the economy in such bad shape, and employment prospects for so many people so dismal - including chemical engineers - the engineering society leadership asked me to speak about my engineering career, and how I weathered the several ups and downs since 1975. I am very much looking forward to that evening! In that speech, I will trace my career from 1975 as an engineering trainee, through plant process engineer, to owning and running my own consulting company providing chemical engineering services to a world-wide clientele. I will also describe the various events that shaped the decisions I made to change companies and change industries, and what led me to attend law school at the age of 47.

On yet another subject, the Grand Game, the quest for energy to supply the world, not much has changed. OPEC and oil still rule, and nuclear power in the USA is still on hold. As I wrote on SLB, the Saudis are no dummies, and they will never allow the price of oil to escalate so that renewable energy plants can be competitive without government subsidies. There is a reason oil is priced at $75 per barrel, and not $750. That reason is that alternatives do become preferable to OPEC oil at the $80 to $90 range. The General Motors car, the Chevrolet Volt, was announced and will likely be a quick loser as it is priced far too high to ever be competitive. Adding to GM's woes, electric power prices in California are escalating, most likely due to more and more renewable power plants such as solar. Natural gas continues at a very low price and over-supply. With oil cheap, gasoline is cheap therefore expensive hybrid cars and electric cars have little to recommend them. With natural gas cheap, wind-turbines and solar power plants also have little to recommend them.

A notable event occurred late this summer in Los Angeles, when the city's Department of Water and Power concluded their long-awaited study on the cost to replace cheap coal-based power with expensive renewable power based on wind-turbines and solar power plants. The DWP concluded that base rates must increase 25 percent. This is bad news for the AB 32 supporters because the Air Resources Board assures everyone that renewable power will only increase costs 13 percent. A 25 percent increase will hurt the poor and those on fixed incomes, forcing many to make hard choices between food, rent, medical care, and paying for the electric bill.

On the legal front, Texas has filed yet another action against the US EPA, challenging the EPA's threat to force Texas to consider CO2 a pollutant in issuing its air quality permits. Apparently, the US EPA is about to learn a lesson. The state of Texas has plenty of resources to battle this to the finish, and certainly has the will to do so.

The next few months will be interesting, indeed, as the Northern Hemisphere goes through the winter. It will likely be one of the coldest and longest winters in recorded history. The national elections for Congress and Senate will give some indication of the direction the nation will take. The California election will give some idea of the direction this state will take, as a new Governor will be elected, also Proposition 23 will be decided. Lawsuits don't progress that fast, but eventually we will know if Texas is correct, or the US EPA can just ignore the law clearly written in the Clean Air Act.

Once again, thank you to all who visit and read SLB.

Roger E. Sowell, Esq.

Marina del Rey, California

CO2, Campfires and Catastrophic Global Warming

After a break for the summer, it is good to be back, writing on SLB. This has been an unusually cool summer in California with both June and August registering below the long-term "normal" temperature. July was only barely above its normal temperature.

To continue with the blog posts, I want to address a topic that has been of considerable interest to me, and also respond to a serious question that is frequently asked of me. I typically get this question in each speech I make on global warming, and California's global warming law, AB 32.

The question is, why do you (meaning me) believe so strongly that atmospheric CO2 has no impact on the Earth's average temperature, and why should anyone believe you when so many scientists say that it is not controversial that CO2 definitely heats the atmosphere?

To begin, I want to point out that before becoming an attorney, I practiced chemical engineering for approximately 25 years in the USA and several other countries. Chemical engineering is a very broad discipline, but like all engineering, it involves a mix of theory and practice. One of the key aspects of chemical engineering is designing, building, operating, modifying, and repairing fired heaters. A fired heater has multiple burners that burn some sort of gas or an oil, or a combination of both, although there are also coal-fired heaters that burn the coal as a solid or a pulverized dust. Typically, the burners are either mounted along the side walls or at the bottom. Air is also introduced into the furnace, and the fuel burns inside. The interior walls are lined with a special type of brick or refractory that is designed to reflect the radiative heat back into the firebox. The walls are usually lined with metal tubes, spaced at regular intervals not only from each other but also from the interior walls. To ensure the fired heaters operate properly, they must be designed and built properly. Therefore, engineers understand how radiative heat transfer works. There are literally thousands of fired heaters operating continuously around the world, except for brief periods for repair.

It is this background in how heat travels from a flame, to a steel tube, but also from the flame to the refractory brick wall that gives me the certainty about CO2 and Earth's warming. The steel tubes not only receive heat directly from the flame, but also from the back side via heat reflected or re-radiated from the refractory brick wall. One of the key parameters in designing fired heaters is the distances used between the various components. For example, should the tubes be spaced half an inch apart, or perhaps 4 inches, or would 12 inches apart be better? Tubes are actually more like pipes, as they are typically around 4 inches diameter and perhaps 20 to 40 feet long. Also, should the tubes be placed half an inch from the refractory brick wall, or a greater distance? Furnace designers, engineers, have worked all this out and concluded that it is not a good idea to have the tubes placed too close together, nor too close to the wall. Also, it is not a good idea to have the tubes too far apart or too far from the wall. Distance is one of the critical parameters. For those who want to see what fired heaters look like, here is a link to one designer/supplier; this is not an endorsement but is presented merely for information.

To put this in some perspective, and to bring the discussion back to CO2, one only has to consider a campfire. Having built and enjoyed thousands of campfires thus far, and hundreds more wood-burning fires in fireplaces in homes over the years, a few things have become obvious to me. First, a campfire can be very hot. Wood fires can melt lead. The flames can reach one thousand degrees F or higher. Second, even though the flames are fairly hot, one can sit a few feet away from a campfire and be comfortable. A large fire emits more infra-red radiation as heat, therefore people tend to sit a bit farther away.

But an interesting thing happens around campfires. If one sits or stands too far away, the heat is not apparent to the skin. And, that distance is not all that far. One can stand 100 feet away from a normal campfire and not feel a thing. The example I use when discussing this with others is to consider a campfire on a hill three miles away. The view to the campfire is unobstructed, so any heat from the fire has a clear shot at one's face. Nobody that I know could ever feel the heat from such a fire located approximately 15,000 feet away. This is true even though the campfire's flames are burning at more than 1,000 degrees F. Certainly, a fired heater designer would never build a heater with such long distances involved between flame and the tubes.

Yet, and this is the key, the climate scientists would have us believe that CO2 in the atmosphere, which can be considered approximately 15,000 feet above the Earth's surface for an average distance, absorbs heat from the Earth's surface and prevents that heat from escaping to space. Note that the Earth's surface is not at 2,000 degrees F or at 1,000 degrees F such as a campfire, but is typically at 100 degrees F at the maximum. Some places will be a bit warmer, perhaps 120 degrees F in a desert in summer. But a more typical temperature is 80 degrees F, for land surfaces. Most of the oceans are cooler than that, depending on which ocean and the season of the year.

The Earth therefore radiates infra-red heat upward from its surface, at approximately 80 degrees F. The CO2 in the atmosphere, even giving it a very cold temperature at altitude, of perhaps -20 degrees F, is supposed to absorb the heat from the Earth's surface. The energy absorbed by the CO2 is supposed to be sufficient to block a good portion of the heat from the Earth, and force the surface below to cool down at a slower rate than would occur otherwise. The slower rate of cooling is then supposed to evaporate more water into the atmosphere, and create an even greater heating effect.

I leave it to the reader to decide if the climate scientists have a non-controversial position with their assertion that atmospheric CO2 absorbs heat from the Earth's surface. If one cannot feel the heat from a wood-burning campfire 3 miles away on a hill with a direct line-of-sight, one can only imagine how much of the Earth's surface heat affects a CO2 molecule 3 miles up in the sky.

Roger E. Sowell, Esq.

California Renewable Portfolio Standard to Date

As part of California's Global Warming Solutions Act of 2006, aka AB 32, the Renewable Portfolio Standard (RPS) requires California to install sufficient renewable energy plants to provide 20 percent of all electricity sold in the state, and that is to be accomplished by 12/31/2010, only seven short months from now. This is supposed to reduce CO2 emissions into the Earth's atmosphere, and thereby stop global warming. More on that a bit later.

California finally has some data and graphics available (see below) to show the state's production of renewable energy. These are from http://caiso.com/outlook/SystemStatus.html. The first figure below (Figure 1) shows the amount of power (MW or mega-Watts) produced each hour for May 21, 2010. The figure is updated daily. Several important points are apparent from examination of this figure. First, the total MW from renewables is an average of around 3,000 MW. That is approximately 14 percent of the power sold in the state on that day. But, that was an excellent day for wind compared to many other days. Typically, the figure is about 10 to 11 percent of the total power sold. With the 20 percent deadline only 7 months away, it is not likely the state will reach the goal.

Second, California counts several types of power production as "renewable." The colored bands at the bottom of Figure 1 show relatively constant production from geothermal, biomass, biogas, and small hydro power. These four combine for approximately 1800 MW. The other two, solar and wind, are much more variable in their output. Solar, as is well-known, only provides power for a fraction of the day, slowly ramping up as the sun rises, and ramping down just before sunset.

Figure 1

Renewable Power Production 5/21/2010 in California

Figure 2, below, shows the power from wind generation in California for today's date, 5/22/2010 through approximately 8:30 p.m. This is an unusually windy day, with a strong wind offshore Southern California, which added to the wind generation. (wind speed at LAX, Los Angeles International Airport today, hourly starting at 3 p.m. was 15, 16, 20, 20, 21, 16, and 21 miles per hour). The statewide variation in wind output from hour to hour is readily apparent from Figure 2, as the green line "goes up" and then "goes down."

Figure 2

California Wind Generation 5/22/2010

The other interesting point from both charts is that wind installations in California are not expected to grow much, if any. The three areas with good wind are known, and nearly built out. Solar installations are expected to grow in the next few years, however. The increased production from solar plants will increase renewable production only during the daylight hours, and will require back-up power from natural-gas fired plants. The price of electricity must go up to pay for both types of plants: wind and solar renewables that are highly variable, plus natural gas-fired plants as back-up when the wind does not blow or the sun does not shine.

The pitiful thing about California's adventures in global warming mandates is that California intends to show the world how it is (and can be) done. AB 32 states specifically that California will

"exercis[e] a global leadership role, [and] California will also position

its economy, technology centers, financial institutions, and businesses to

benefit from national and international efforts to reduce emissions of

greenhouse gases. More importantly, investing in the development of

innovative and pioneering technologies will assist California in achieving

the 2020 statewide limit on emissions of greenhouse gases established by

this division and will provide an opportunity for the state to take a global

economic and technological leadership role in reducing emissions of

greenhouse gases." [bold emphasis added - Roger]

California is unlike other states, and other countries, in that there are large amounts of geothermal power available. There are also vast areas for solar power installations. Neither of these are true for many other states and countries. Also, there is not much ice or snow to foul the wind turbines in California, another big factor in other areas. It is therefore not very likely that any other states, or countries, will follow California's lead in these matters. The higher price of electricity in California may be attributed to the high renewable content of the power sold, at least in part. Another factor leading to higher power prices is the low consumption per capita with a large population. California presently has approximately 36 million people. The cost per kWh must increase when per capita usage is low, in order to have sufficient funds to pay for the infrastructure for transmission and distribution to all those customers.

As the climate refuses to warm as the IPCC insists that it will from man's emissions of CO2, and the world-wide recession refusing to end, plus unemployment remaining at historic highs, it will be interesting to see which states, or countries, are dumb enough to follow California's lead in renewable power requirements.

Roger E. Sowell, Esq.

Marina del Rey, California

Global Warming Funds as Investments

A few months ago, I wrote on the question of whether global warming is a good investment. The conclusion was no, as the global fund GWO was underperforming the S&P 500, and by a wide margin. This post shows that a US-based global warming fund, PBW, is underperforming also. In fact, PBW is even worse than GWO. The first chart below shows the performance of PBW since January 2008, through May 21, 2010. The stock fund has declined almost 70 percent in value ($28 per share down to approximately $8.64 per share) see Figure 1 below. (more on the details and holdings of PBW may be found below).

Figure 1

PBW Performance since Jan 2008

A comparison of how PBW fared against the S&P 500 is shown below as Figure 2. The S&P 500 declined along with almost every stock in the crash of late 2008, and has recovered somewhat since then. Yet, the S&P 500 has lost only 25 percent of its value from January 2008, while PBW has lost 70 percent of its value.

As I wrote earlier, this is quite odd since, if the warmists are correct and the Earth must have massive and immediate changes to restrict or eliminate CO2 emissions from man's activities, then the companies represented by PBW should see zooming stock prices. These companies should enjoy rapid growth and investor confidence, as their customers purchase their products and services in a heroic effort to stem the flow of CO2, stop the polar ice from melting, halt the seas from rising, prevent the massive and frequent heat waves, and all the other horrific effects of global warming.

But, investors are a tough lot, with plenty of alternatives in which to place their hard-earned money. PBW is apparently not on that list.

Figure 2

PBW Compared to S&P 500

A description of PBW states "The Fund will invest at least 80% of its total assets in common stocks of companies engaged in the business of the advancement of cleaner energy and conservation." Also, the fund is made up entirely of approximately 52 U.S. stocks.PowerShares WilderHill Clean Energy Portfolio’s top 10 holdings include SunPower Corp., Class A, Echelon Corp., Cypress Semiconductor Corp., Cree, Inc., First Solar, Inc., OM Group, Inc., Universal Display Corp., KYOCERA Corp. ADR (Japan), Suntech Power Holdings Co., Ltd. ADR (Cayman Islands) and Applied Materials, Inc.

DISCLAIMER: I am an attorney, and not an investment broker. Nothing contained herein is legal advice, nor is it to be construed as such. If anyone requires legal advice, he or she should consult an attorney. The views expressed below are strictly my own, as allowed under the First Amendment to the U.S. Constitution. [end disclaimer]

Roger E. Sowell, Esq.

Marina del Rey, California