Clean Power Plan Stayed - Supreme Court

Subtitle: EPA Displeases Supreme Court With End Runs

This week had an extraordinary event from the US Supreme Court that has enormous implications.  The event: the Court ordered the US EPA's regulation on Clean Power Plan to be stayed until disposition of pending litigation at the federal appellate level, including the US Supreme Court.   

This Order has great implications on several levels: 
1) the Order is a split decision along idealogical lines, 5-4 with the liberal justices dissenting;
2) the Order signals that the Supreme Court is mightily displeased with the Executive and Legislative branches - and most specifically the US EPA - in conducting end-runs around the Judicial branch; 
3) the Order signals the US EPA (and by extension, other agencies with intimidation power) that compliance by threat, where the threat is based on unsettled law, perhaps un-Constitutional law, cannot be allowed; and others.   

In short, this Order, and the litigation behind it, is one of the most significant decisions of modern times.   Each of the 3 implications above is discussed in more detail below. 

The actual language of the Order:

"The application for a stay submitted to The Chief Justice
and by him referred to the Court is granted. The Environmental
Protection Agency’s "Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units,"
80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending
disposition of the applicants’ petitions for review in the United
States Court of Appeals for the District of Columbia Circuit and
disposition of the applicants’ petition for a writ of certiorari,

if such writ is sought."  

For background, President Obama has long sought a bill from Congress that he could sign into law to reduce so-called greenhouse gas emissions from US industry, especially the carbon dioxide emissions from coal-powered electrical generating plants.  Congress, not being total fools, declined.   Enough members of Congress recognize the shenanigans and faulty data, the faulty procedures, and other forms of bad science behind the false-alarmists claims of imminent doom from man-made global warming.   Obama, in response (and some would say retaliation) ordered the US EPA to write rules to accomplish his goal, which rules are as shown above, "Carbon Pollution Emission Guidelines..."  

The carbon emission rules come on top of the MATS regulations that have already begun to close coal-fired power plants.  The MATS (Mercury And Toxic Standards rule) was a crucial element in the Supreme Court's displeasure.  MATS requires coal-fired power plants to reduce various emissions or shut down to avoid tremendous penalties.  Lawsuits challenging the legality of MATS were filed, but the deadlines for power plant compliance arrived before the litigation was finished, "disposition" in Supreme Court parlance.   Rather stupidly, the EPA crowed publicly and in writing that the legal cases had no bearing, because the EPA regulations had already forced the coal-fired power plants into submission.   This, then, is an example of an end-run mentioned in point 2 above, and part of the threat mentioned in point 3 above. 

Point 1: Supreme Court Divide Along Political Lines

The Order was decided 5-4, with the four Conservative Justices and the one Moderate Justice in the majority, and the four Liberal Justices in the minority.   Such a split of opinion is all-too-common at the Supreme Court.  It is also an important reminder that the election of a President is much more important that some realize, because the appointment of a Justice can result in such split decisions for decades.   For example, if, and God forbid, our Moderate Justice Kennedy was unable to continue serving, and Obama successfully appointed a Liberal to replace him on the Court, this and all other such 5-4 decisions would turn out the other way.   On such small things turns the future of our country.   Justice Kennedy is in fine health and I wish him long life, health, and more Conservative voting.  

The appellate court for the DC Circuit is known for liberal judges and decisions.  It is quite likely that the appellants will lose in the DC Circuit, and appeal to the Supreme Court.  

Point 2: Supreme Court Displeased With End Runs

This is a big issue.   One displeases the Supreme Court at great peril.   It goes to the very foundations of our country, that no one branch of the government would have free rein to act, but would have checks and balances by the other two branches.   In addition, this EPA action invokes the famous Supreme Court case of Marbury vs Madison.   EPA administrators, and even Presidents, should shudder at the very mention of that case.   The Marbury case was the one in which the Supreme Court stood up and bellowed forth that THEY decide what the law says, and no one else.    If one wants to lose a legal argument, simply put forth an argument - or in this case, conduct proceedings - that causes the Supreme Court to invoke Marbury v Madison.   It is true that the Order in this instance makes no mention of Marbury.   No mention is necessary, especially for attorneys who follow these matters.   The Marbury case is lurking in the background, silent but all-powerful, in the language the Court did use: ". . . stayed pending disposition of the applicants’ petitions for review . . .and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought."   Translation: this regulation is not to be implemented until the US appellate courts, including this Supreme Court via writ of certiorari, has had the full opportunity to hear, and dispose of the appellants' arguments.   In short, we are no longer tolerating the implementation of regulations that, after being litigated, are not legal.  

To do otherwise is to allow the EPA, and by extension, other agencies of the Federal Government, to write any rules they choose, legal or not.  

As a recent article in the Wall Street Journal stated, "The  (Obama) White House has been right about the success of its damn-the-law strategy—so far. Last year in Michigan v. EPA the (Supreme) Court voided a 2012 rule on mercury emissions (MATS). The chief EPA air administrator then gloated on the EPA website that the ruling didn’t matter because “the majority of power plants are already in compliance or well on their way to compliance” and “we are still on track.”"  see link

This is the sort of thing that should invoke the ire of the Supreme Court.   

Point 3:  Supreme Court Displeased with Compliance by Threat of Illegal Regulations

This one is almost mind-boggling that we have arrived at this point.  For decades, the EPA has had an enforcement ability, and has a long list of enforcement actions.  This is acceptable, for those regulations that have been adjudicated and found to meet all legal standards.  There needs to be, in a fair and orderly society, a means to punish those who break the laws, subject to the Constitutional limits on such punishment and the procedures under which the convictions are had.  Part of the punishment is the ripple effect, or deterrence, where those who are merely contemplating breaking the law, or in this case, violating environmental regulations, are given reason to pause and re-think their prospective actions.   

However, the EPA has, on occasion, used the threat of enforcement power to accomplish compliance.  This use of threats is not limited to the EPA, as some state agencies also do this.   In the MATS case above, Michigan v EPA, the coal-fired power plants had already begun their compliance, or achieved it, even though parts of the regulation were struck down.   Other agencies will make an example out of the first few offenders that are caught, knowing that the offenders may have limited means to litigate.  

Conclusion

The grand machinery behind vital regulations that impact all in the society must function properly.  It is wrong for the EPA to write what turn out to be illegal regulations, and force compliance with those illegal regulations simply by imposing a fast-track compliance schedule that occurs before litigation can be completed.   That is not the American way; that smacks of something else, something darker, perhaps totalitarian.    Perhaps, and I hope this is the case, the Supreme Court Justices are aware of the total fiasco that false-alarmism climate science has been shown to be.   Although, it would appear that four of the nine agree completely with the false-alarmists. 

 see link to "US In A Cooling Trend - Winters Much Colder" where unbiased data from pristine locations is used, and see link to "Consensus Does Not Make Wrong Science Right"  where a dozen points are given that refute the claims of 97 percent of scientists agree with man-made global warming. 

Note, however, that US coal-fired power plants have a short life expectancy based on coal reserves.  The US has less than 20 years of coal remaining, at present consumption rates.  see link to "Energy Supply In Post-Coal America"

---------------------------------
Supreme Court Order:

(ORDER LIST: 577 U.S.)

TUESDAY, FEBRUARY 9, 2016 

ORDER IN PENDING CASE 

15A787                      CHAMBER OF COMMERCE, ET AL. V. EPA, ET AL. 

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment. 

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application. 

---  end Order


Roger E. Sowell, Esq.
Marina del Rey, California

copyright (c) 2016 by Roger Sowell, all rights reserved

Supreme Court Slaps Down US EPA Power Grab

Subtitle: EPA Can Only Require BACT for Greenhouse Gases

In a ruling passed down today, the US Supreme Court handed the US Environmental Protection Agency, EPA, a stinging defeat.  The case is Utility Air Regulatory Group v EPA. 573 U.S. ___ (2014)  (page to be added later).   For the entire decision, see link.

The case is about "whether it was permissible for EPA to determine that its motor-vehicle greenhouse-gas regulations automatically triggered permitting requirements under the [Clean Air] Act for stationary sources that emit greenhouse gases."

The Court broke the question into two main issues, the first with three sub-issues and the second with only one issue.  Each is presented and discussed below.  

I-A: The Clean Air Act (Act) does not compel the EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or Title V permit on the sole basis of its potential greenhouse-gas emissions.  

EPA had argued that the Act compelled just that result, ignoring that it (EPA) had "inferred from statutory context that a generic reference to air pollutants does not encompass every substance falling within the Act-wide definition on many other occasions." The Court then listed five separate instances of EPA interpreting "air pollutants" in a narrow, not a broad sense.  

Justice Scalia takes the EPA to task, comparing Carbon Dioxide to other harmless gases including steam and oxygen.  The Court opined: "It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give “air pollutant” a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades."

I-B: The Act also does not permit the EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or Title V permit on the sole basis of its potential greenhouse-gas emissions. 

The Court chided EPA here, noting that EPA has "repeatedly acknowledged that applying the PSD and Title V permitting requirements to greenhouse gases would be inconsistent with—in fact, would overthrow—the Act’s structure and design. In the Tailoring Rule, EPA described the calamitous consequences of interpreting the Act in that way."  The Tailoring Rule from EPA described the millions (6.1 million) new sources that would fall under EPA permitting jurisdiction.  Presently, there are fewer than 15,000 such sources. 

The Court described EPA's own words as to the practical outcome of 6.1 million new sources under regulation: permitting delays would cause "construction projects to grind to a halt nationwide."  Also, statutory limits on permit issuance deadlines would be impossible to meet. 

Finally, the Court gave this reason for striking down EPA's interpretation: "EPA’s interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization."   Such expansion in regulatory authority is not in EPA's power.   As noted in other cases, an agency is to "fill in the details" of legislation passed by Congress and signed by the President.  An agency is not to expand the scope of that legislation as if it were Congress itself.  

I-C: EPA lacked authority to “tailor” the Act’s unambiguous numerical thresholds of 100 or 250 tons per year to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers.  

100,000 tons per year was EPA's tailored value. The EPA chose 100,000 tons per year in order to minimize the administrative burden - and public costs of administration - of literally millions of sources that emit carbon dioxide at threshold levels of 100 and 250 tons per year.  EPA's own documents suggested that it was too burdensome to require compliance at that level.  Therefore, EPA arbitrarily chose the 100,000 tons per year threshold for compliance.  The Court refused this as an acceptable act by EPA. 

The Court concluded that EPA cannot arbitrarily change the express limits in the Act on threshold quantities of emitted gases that will trigger regulation.  That is an unacceptable usurpation of Congressional powers.  Justice Scalia was rather scathing in his writing on that point, saying "An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.’” "

The Court went on to say that EPA's position would create an unacceptable violation of the Separation of Powers expressed in the Constitution.  That is a strong slap, indeed. 

II: EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with BACT for greenhouse gases.

The Court stated that regulating greenhouse gases via BACT could be either by increased energy efficiency, or adding reduction devices to a greenhouse gas source such as a power plant exhaust stack.  EPA stated that such devices would include carbon capture and storage. 

 The Court concluded that BACT was contemplated by Congress in writing the Act.   The Court stated that adding BACT is not disastrously unworkable, and does not impermissably increase EPA's authority.   

In summary, the Court wrote: "We hold that EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions. Specifically, the Agency may not treat greenhouse gases as a pollutant for purposes of defining a “major emitting facility” (or a “modification” thereof) in the PSD context or a “major source” in the Title V context. To the extent its regulations purport to do so, they are invalid. EPA may, however, continue to treat greenhouse gases as a “pollutant subject to regulation under this chapter” for purposes of requiring BACT for “anyway” sources [sources that would require a permit on the basis of other regulated air pollutants]."

All in all, not a bad day for America.  The EPA got slapped down rather severely, and it appears that Justice Scalia had a grand time in writing this opinion.  

Roger E. Sowell, Esq. 
Marina del Rey, California. 

EPA To Curb CO2 Emissions from Power Plants

Subtitle: Will the California Rule Be Their Guide?

[Update 6/1/2014 7:45 pm:  It appears from news reports (WSJ among others) that a 30 percent reduction is the new requirement. -- end update. ]

The news has been heavy lately (see link from WSJ article) with the upcoming announcement by the US EPA of a new regulation that will limit carbon dioxide (CO2) emissions from power plants. The ostensible goal is to stop global warming, on the premise that increased CO2 in the atmosphere causes the global average mean temperature to increase also.   The so-called science behind the CO2-causes-warming is badly flawed, indeed it is Bad Science (BS).   Much has been written about the BS, some of that writing here on SLB, e.g.

Warmists Are Wrong, Cooling Is Coming  see link
From Global Warmist to Skeptic - My Journey see link
Science is Not Settled see link 
Chemical Engineer Takes on Global Warming see link
Questions for Teens on Global Warming see link

I have also written previously on CO2 regulations from US EPA:

EPA Declares GHGs a Danger see link
EPA CO2 Endangerment Finding see link
Texas v US EPA Over CO2 Endangerment Finding see link

As the WSJ article linked above states, there will be many legal challenges to the regulation, and those challenges could take years to resolve. 

California Rule on CO2 from Power Plants

The US EPA new rules may be similar, or even identical, to those passed in California in 2007.  California's rule limits CO2 emissions from power plants such that only a combined-cycle gas turbine (CCGT) plant can comply, unless carbon capture and storage (CCS) technology is applied.   The California law, which was Senate Bill 1368 (Perata), limits CO2 emissions to 1,100 pounds CO2 per MWh of electricity produced. 

Hope for Coal Plants

Coal-fired plants have a double dilemma: the cycle efficiency is lower than from a CCGT, and the fuel has much more CO2 emissions for each million Btu burned, compared to natural gas.   The hope, and it is a very strong hope, is an economic process to capture CO2 from the furnace stack, and prevent that CO2 from entering the atmosphere.  

One such process has been demonstrated, and has a commercial-scale plant under construction with startup slated for 2014.  That process is by Skyonic Corp, an Austin,  Texas-based company founded by chemical engineer Joe Jones, with a patented process to convert CO2 in stack gases to sodium bicarbonate.  The bicarbonate can be sold as a powder.  Skyonic can be viewed online at this link. 

The sales phone must be ringing off the hook at Skyonic's office.  Or, their server is probably full with emailed inquiries.  

I have reviewed the Skyonic patent, their published literature and press announcements, seen the videos, and am happy to state that this technology is based on sound engineering principles.  It works.  The economics also appear solid, as the company claims a three-year payback period on the investment.    Private investors also agree the technology and economics are sound, and put their money into the company.  Disclosure: I have zero financial interest in Skyonic.  

Conclusion

We do indeed live in interesting times.  One of the most interesting parts is that chemical engineers are riding to the rescue.  

Roger E. Sowell, Esq.
Marina del Rey, California

The Truth About Nuclear Power - Part 13

Subtitle: US Nuclear Plants are Heavily Subsidized

In an attempt to revive a dead industry, nuclear power plants have received, and continue to receive strong subsidies. This, the thirteenth article in the series, discusses nuclear subsidies.  Updated 5/28/2014 -- see below for state of Illinois' attempt to bail out money-losing nuclear plants. 

source: Wiki Commons

Previously, the articles on The Truth About Nuclear Power showed that (one) modern nuclear power plants are uneconomic to operate compared to natural gas and wind energy, (two) they produce preposterous pricing if they are the sole power source for a grid, (three) they cost far too much to construct, (four) use far more water for cooling, 4 times as much, than better alternatives, (five) nuclear fuel makes them difficult to shut down and requires very costly safeguards, (six) they are built to huge scale of 1,000 to 1,600 MWe or greater to attempt to reduce costs via economy of scale, (seven) an all-nuclear grid will lose customers to self-generation, (eight) smaller and modular nuclear plants have no benefits, (nine) large-scale plants have very long construction schedules even without lawsuits that delay construction, (ten) nuclear plants do not reach 50 or 60 years life because they require costly upgrades after 20 to 30 years that do not always perform as designed, (eleven) France has 85 percent of its electricity produced via nuclear power but it is subsidized, is still almost twice as expensive as prices in the US, and is only viable due to exporting power at night rather than throttling back the plants during low demand, and (twelve) nuclear plants cannot provide cheap power on small islands.  Links to previous articles are found at the conclusion of this article. 

Carbon Tax   

Nuclear advocates argue, firstly, for a carbon tax so their plants will be economically attractive. The idea is that, since nuclear plants are powered by radiation-spewing uranium fuel that produces no carbon dioxide, these type of plants should be credited for not producing CO2.  Their argument is based on the fundamentally flawed premise that increased CO2 in the atmosphere causes global warming.  Other forms of power generation that burn fossil fuels, coal, natural gas, do emit CO2.  Congress did not pass a carbon tax, but the present administration accomplished the same goal via the US EPA.  The US EPA effectively got the same result by regulating CO2 emissions from power plants so that coal-fired plants must shut down.  Nuclear advocates see this as a huge victory.  In a sense, the EPA regulations are a form of federal subsidy for the nuclear industry.  

UPDATE 5/28/14:  see link  From the Chicago Tribune, Nuclear plants cannot compete economically, so the Illinois Speaker of the House introduces a resolution urging federal policies to subsidize nuclear plants based on their zero-emissions of CO2.    "Three nuclear plants owned by Chicago-based Exelon Corp. failed to secure contracts to provide power to the electrical grid at an annual auction held last week.

Exelon’s Byron and Quad Cities plants in Illinois were priced out of the auction by competing power providers, the company said Tuesday, placing the future of those assets in question. Its Oyster Creek plant in New Jersey, which is slated to close in 2019, also didn’t clear the auction."     also, 

". . . [Illinois] House Speaker Michael Madigan [D - IL] wants to help keep those plants open. They are among the top employers in the towns and counties in which they operate. A resolution sponsored by Madigan was introduced to the House last Friday urging the U.S. Environmental Protection Agency, the Federal Energy Regulatory Commission and the electric grid operators, to adopt policies that are "friendly" to nuclear power. Translation: enact a new rule to curb carbon emissions, which would be a boon to Exelon because its nuclear plants do not release greenhouse gases."  -- end update

Double Standard on Subsidies

Secondly, nuclear advocates also have a double standard in decrying any subsidies for their competition - primarily wind but also other renewable forms of power generation.  Then, the industry happily accepts subsidies of their own, not just the EPA boost from regulating coal-fired plants out of operation.  The nuclear industry also receives subsidies in the form of: 

1) huge loan guarantees from government, approximately $8.3 billion for the Vogtle plant alone.  (Update 5/4/2014: For more on new nuclear projects with loan guarantees, see link -- end update)
2) government legal relief from radiation liability, under the Price-Anderson Act, (see update just below)
3) regulation that no lawsuits during construction will be allowed (with a minor exception),
4) regulation to raise electricity prices during construction to avoid interest costs on construction loans; [UPDATE - 5/31/2014: South Carolina has already increased rates to pay for nuclear construction, now seeks another increase.  "The latest request, if approved, will mean customers will be paying about $20 more per month for their power than they were at the beginning of 2009. "  see link   end update]

 and 
5) operating regulations that are routinely relaxed to allow plants to not spend money to comply. (see Article 15 in the series, link here)  

Each of the five subsidies just listed will may be the subject of a more detailed article.  

Update: 5/11/2014 - Price-Anderson Act, summary.  The Act limits the liability of nuclear plant owners to $10.2 billion, with the US government taking the excess liability above that stated limit.  This is, probably, the greatest subsidy of all.  No nuclear plant would be constructed absent this shielding from lawsuits and damage claims from a major nuclear meltdown and release of radioactive materials.   (see link for more details and analysis on Price-Anderson Act on SLB - Part 25 in TANP series)

The language of the Act states: "The Price-Anderson Act requires owners of commercial reactors to assume all liability for damages to the public resulting from an
‘extraordinary nuclear occurrence’ and to waive most legal defenses
they would otherwise have. However, in exchange, their liability
will be limited to capped amounts established in the Act.
First, each licensed reactor must carry the maximum amount of
insurance commercially available to pay any damages from a severe
nuclear accident. That amount is currently $300 million.
Any damages exceeding that amount are to be assessed equally
against all covered commercial reactors, up to $95.8 million per reactor
(most recently adjusted for inflation by NRC in August 2004).
Those assessments would be paid at an annual rate of no more

than $10 million per reactor. According to the NRC, all of the nation’s 103 commercial reactors are currently covered by the Price-
Anderson retrospective premium requirement.
Funding for public compensation following a major nuclear incident
would therefore include the $300 million in insurance coverage
carried by the reactor that suffered the incident, plus the
$95.8 million in retrospective premiums from each of the 103 currently
covered reactors, totaling $10.2 billion. On top of those payments,
a 5 percent surcharge may also be imposed, raising the total
per-reactor retrospective premium to $100.6 million and the total
potential compensation for each incident to about $10.7 billion.
Under Price-Anderson, the nuclear industry’s liability for an incident
is capped at that amount, which varies depending on the
number of covered reactors, amount of available insurance, and an
inflation adjustment that is made every 5 years.
The Act provides that in the event that actual damages from an
accident are in excess of this amount, Congress will ‘‘thoroughly review’’
the incident and take such action as is necessary to provide
‘‘full and prompt compensation to the public.’’ " -- source: Price-Anderson Act Amendments of 2005. [end update]

Cannot Compete Even With Subsidies

Even with the subsidies in the US, nuclear power has stagnated and is barely limping along on life support.  More plants are shutting down than are being built.

Conclusion

Nuclear power plants in the US are, and have been, heavily subsidized via loan guarantees, liability relief, relief from some lawsuits, a form of a carbon tax that shuts down their coal-based competition, and others.   The only conclusion that can be drawn is US nuclear power plants are heavily subsidized. 

Previous articles in the Truth About Nuclear Power series are found at the following links.  Additional articles will be linked as they are published. 

Part One – Nuclear Power Plants Cannot Compete

Part Two – Preposterous Power Pricing if Nuclear Power Proponents Prevail

Part Three – Nuclear Power Plants Cost Far Too Much to Construct

Part Four – Nuclear Power Plants Use Far More Fresh Water

Part Five – Cannot Simply Turn Off a Nuclear Power Plant

Part Six –  Nuclear Plants are Huge to Reduce Costs

Part Seven -- All Nuclear Grid Will Sell Less Power

Part Eight – No Benefits from Smaller Modular Nuclear Plants

Part Nine -- Nuclear Plants Require Long Construction Schedules

Part Ten -- Nuclear Plants Require Costly Upgrades After 20 to 30 Years

Part Eleven - Following France in Nuclear Is Not The Way To Go

Part Twelve - Nuclear Plants Cannot Provide Cheap Power on Small Islands

Part Thirteen - this article  

Part Fourteen - A Few More Reasons Nuclear Cannot Compete

Part Fifteen - Nuclear Safety Compromised by Bending the Rules

Part Sixteen - Near Misses on Meltdowns Occur Every 3 Weeks

Part Seventeen - Storing Spent Fuel is Hazardous for Short or Long Term

Part Eighteen - Reprocessing Spent Fuel Is Not Safe

Part Nineteen - Nuclear Radiation Injures People and Other Living Things

Part Twenty - Chernobyl Meltdown and Explosion

Part Twenty One - Three Mile Island Unit 2 Meltdown 1979

Part Twenty Two - Fukushima The Disaster That Could Not Happen

Part Twenty Three - San Onofre Shutdown Saga

Part Twenty Four - St. Lucie Ominous Tube Wear

Part Twenty Five - Price-Anderson Act Protects Nuclear Plants Too Much

Part Twenty Six - Evacuation Plans Required at Nuclear Plants

Part Twenty Seven - Power From Nuclear Fusion

Part Twenty Eight - Thorium MSR No Better Than Uranium Process

Part Twenty Nine - High Temperature Gas Reactor Still A Dream

Part Thirty - Conclusion

Roger E. Sowell, Esq.
Marina del Rey, California

EPA CO2 Endangerment Finding Review by OIG

The US EPA’s Office of Inspector General (OIG) released today its report titled “Procedural Review of EPA’s Greenhouse Gases Endangerment FindingData Quality Processes.”

It is important to note that this was a Procedural review and not a Substantive review of the underlying science.   Procedural review merely means comparing the procedures that EPA used to what is required under the various laws and regulations.   Substantive review means evaluating the data and science that EPA relied on in forming their Endangerment Finding.   The Procedural rules that EPA must follow depend on whether the Technical Support Document (TSD) is a “highly influential scientific assessment” or not.  OIG considers the TSD to be a highly influential scientific assessment, but EPA did not.   There is a higher standard of care, or procedures that must be followed, for a highly influential scientific assessment.  It is these additional procedures that OIG found lacking in EPA’s work.

Background

For some background, and a description of a TSD:  As the primary scientific basis for EPA’s finding, the [EPA] relied upon assessments conducted by other organizations [the IPCC, National Research Council, and US Global Change Research Program].  EPA summarized the results of these and other scientific assessments in a technical support document (TSD).  There are specified criteria by which a document is to be judged to determine if it is a highly influential scientific assessment.  OIG presents these criteria in its report as:

“A highly influential scientific assessment is a scientific assessment that: 

·       

• A) Could have a potential impact of more than $500 million in any
  year on either the public or private sector, or
  
  
  B) Is novel, controversial, or precedent setting, or has significant
  interagency interest.”

OIG stated the level of peer review for the highly influential scientific assessments, and goes on to say that:

“For highly influential scientific assessments, OMB guidance requires more attention to peer review consideration such as individual versus panel review, timing, scope of the review, selection of reviewers, disclosure and attribution, public participation, and disposition of reviewer comments. If the material to be disseminated falls within OMB’s definition of highly influential scientific assessment, OMB requires the agency to adhere to the peer review procedures identified in Section III of its bulletin.

OMG guidance also requires that agencies certify compliance with the requirements of the bulletin and information quality guidelines when using influential scientific information or highly influential scientific assessments to support a regulatory action. This certification and other relevant materials should be included in the administrative record for the action.”

Next, OIG discussed what the EPA did procedurally.  “EPA had the TSD reviewed by a panel of 12 federal climate change scientists. This review did not meet all [Office of Management and Budget] OMB requirements for peer review of a highly influential scientific assessment primarily because the review results and EPA’s response were not publicly reported, and because 1 of the 12 reviewers was an EPA employee.”

No public reporting of the 12 scientists’ review, no public reporting of EPA’s response to that review, and having an EPA staff member as one of the 12 scientists were cited as procedural errors. This is essentially, for the first two errors, a lack of transparency.  The public does not know what the reviewers found and reported, nor the EPA’s response, if any.  Were the findings unanimous?  Or, was there a split of opinion?  Did the EPA ignore the review panel’s findings?  At this point, we don’t know.   The obvious conflict of interest from the reviewer who is an EPA staff member should have made his or her opinion or vote irrelevant.   OMB requires an external peer review.

Reasons Given by EPA why TSD was not Considered a Highly Influential Scientific Assessment

“They [EPA} noted that the TSD consisted only of science that was previously peer reviewed and that these reviews were deemed adequate under the Agency’s policy. They also stated that, as described in the final Federal Register notice, the Administrator primarily relied upon assessments conducted by other organizations rather than the TSD, which summarizes the conclusions and findings of these other assessments.”

End Results

It appears that the OIG will allow the Endangerment Finding to stand, and is recommending only that EPA revise its procedures for future.   This could be a wrong interpretation, however nowhere in the OIG report is the EPA required to revise or re-issue the missing transparency documents, nor hold a second and independent review by qualified scientists. 

The fact that only procedures were evaluated means that the clearly false statements and conclusions of many of the peer-reviewed papers and documents were considered acceptable by EPA.  As reported earlier on SLB, the EPA accepted such wildly inaccurate statements as glaciers disappearing in the Himalayas.  Also, as the State of Texas wrote in their recent petition, regarding the Climategate emails,  

"[t]he emails do not reflect the work of objective

scientists dispassionately conducting their work and zealously pursuing the truth. Rather

they reveal a cadre of activist scientists colluding and scheming to advance what they

want the science to be—even where the empirical data suggest a different outcome." Also, "to the extent their [these scientists'] objectivity, impartiality, truthfulness, and scientific

integrity are compromised or in doubt, so too is the objectivity, impartiality, truthfulness,

and scientific integrity of the IPCC report, the CRU temperature data, the NOAA

temperature data, and other scientific research that is shown to have relied on their

compromised research."

Texas' petition also shows how the IPCC authors manipulated the climate temperature data, citing the by-now infamous email of using a "trick" to "hide the decline." Also, especially egregious data manipulation is discussed with Russian and New Zealand temperature data. Such manipulation showed undue warming. Also, the IPCC admitted they have lost critical climate data.

Then the real fun begins, with several major discredited claims, using non-peer-reviewed sources. These include Himalayan glaciers receding faster than anyone thought (the aren't). Also, Chinese temperature data was seriously flawed, and had no source documents. They made up the data. Next, the claim that 55 percent of the Netherlands is below sea level, and subject to inundation from sea level rise. This is erroneous, as only 26 percent is below sea level. The fourth and final example included in the Petition for Reconsideration is the wild claim that "up to 40 percent of the Amazonian rain forest could react drastically to even a slight reduction in precipitation." This was from the non-scientific, but wildly agenda-driven World Wildlife Federation, the WWF.

Apparently, these types of "peer-reviewed" scientific conclusions on the impact of man-made CO2 on the planet's climate are acceptable to the US EPA.  

Roger E. Sowell, Esq. 

Marina del Rey, California