At a recent hearing before a House oversight panel, three Obama administration witnesses — National Highway Traffic Safety Administration (NHTSA) Administrator David Strickland, EPA Assistant Air Administrator Gina McCarthy, and EPA Transportation and Air Quality Director Margo Oge – denied under oath that motor vehicle greenhouse gas emission standards are “related to” fuel economy standards. In so doing, they denied plain facts they must know to be true. They lied to Congress.

House Government Oversight and Reform Chairman Darrell Issa (R-Calif.) put it more diplomatically: “Your statements under oath misrepresented the relationship between regulating greenhouse gases and regulating fuel economy.” By “obstinately insisting” that regulating greenhouse gases and fuel economy are “separate and unrelated endeavors,” the officials “impede the Committee’s important oversight work.”

Why did they “misrepresent” and “impede”? Had the officials answered truthfully, they would have to admit that California’s greenhouse gas motor vehicle emissions law, AB 1493, which EPA approved in June 2009, violates the Energy Policy Conservation Act’s (EPCA) express preemption of state laws or regulations “related to” fuel economy. The officials would also have to admit that EPA is effectively regulating fuel economy, a function outside the scope of its statutory authority.

Strongly Related

That greenhouse gas emission standards implicitly regulate fuel economy is evident from the agencies’ own documents. As EPA and NHTSA acknowledge in their joint May 2010 Greenhouse Gas/Fuel Economy Tailpipe Rule (pp. 25424, 25327), no commercially available technologies exist to capture or filter out carbon dioxide (CO2) emissions from motor vehicles. Consequently, the only way to decrease grams of CO2 per mile is to reduce fuel consumption per mile — that is, increase fuel economy. Carbon dioxide constitutes 94.9% of vehicular greenhouse gas emissions, and “there is a single pool of technologies… that reduce fuel consumption and thereby CO2 emissions as well.”

That EPA and California are regulating fuel economy is also apparent from EPA, NHTSA, and the California Air Resources Board’s (CARB’s) Interim Joint Technical Assessment Report (pp. viii-ix), the framework document for President Obama’s plan to boost average fuel economy to 54.5 miles per gallon by Model Year 2025. The document considers four fuel economy standards, ranging from 47 mpg to 62 mpg; each is the simple reciprocal of an associated CO2 emission reduction scenario. The 54.5 mpg standard is a negotiated compromise between the 4% (51 mpg) and 5% (56 mpg) CO2 reduction scenarios.

CARB’s 2004 Staff Report presenting the agency’s plan to implement AB 1493 is another smoking gun. Nearly all of CARB’s recommended technologies for reducing greenhouse gas emissions (Table 5.2-3) were previously recommended in a 2002 National Research Council study on fuel economy (Tables 3-1, 3-2). CARB proposes a few additional options, but each is a fuel-saving technology, not an emissions-control technology.

Even the text of AB 1493 implies that CARB is to regulate fuel economy. CARB’s greenhouse gas standards are to be “cost-effective,” defined as “Economical to an owner or operator of a vehicle, taking into account the full life-cycle costs of the vehicle.” CARB reasonably interprets this to mean that the reduction in “operating expenses” over the average life of the vehicle must exceed the expected increase in vehicle cost (Staff Report, p. 148). Virtually all such “operating expenses” are expenditures for fuel. The CARB program cannot be “cost-effective” unless CARB regulates fuel economy.

Power Grab

The falsehood that greenhouse gas emission standards are not related to fuel economy standards does more than mask EPA and CARB’s poaching of NHTSA’s statutory authority. It also protects EPA’s efforts to legislate climate policy under the guise of implementing the Clean Air Act (CAA).

To begin with, the falsehood facilitated an extortion strategy enabling Team Obama to convert the auto industry from opponent to ally in any congressional debate over EPA’s greenhouse gas regulations. Although we may never know the details of these machinations, the basic thrust and outcome are clear.

In February 2009, EPA Administrator Jackson decided to reconsider Bush EPA Administrator Stephen Johnson’s denial of California’s request for a waiver to implement AB 1493. Because greenhouse gas emissions standards implicitly regulate fuel economy, because the waiver would allow other states to follow suit, and because auto makers would have to reshuffle the mix of vehicles sold in each “California” state to achieve the same average fuel economy, Jackson confronted the financially-distressed auto industry with the prospect of a market-balkanizing fuel-economy “patchwork.”

Then, in May 2009, in backdoor negotiations conducted under a vow of silence (“We put nothing in writing, ever,” CARB Chairman Mary Nichols told the New York Times), the White House offered to protect auto makers from the patchwork threat if, but only if, they agreed to support EPA and CARB’s newfound careers as greenhouse gas/fuel economy regulators. Specifically, under what President Obama dubbed the “Historic Agreement,” California and other states agreed to deem compliance with EPA’s greenhouse gas standards as compliance with their own in return for auto makers’ pledge not to challenge either the Tailpipe Rule or the California waiver.

The political payoff for Team Obama was not long in coming. In 2010, Alaska Sen. Lisa Murkowski introduced a resolution to overturn EPA’s greenhouse gas Endangerment Rule, the prerequisite for the Tailpipe Rule and all other EPA greenhouse gas regulations. The auto industry lobbied against the resolution, warning that it would undo the “Historic Agreement” and, thus, expose auto makers to a “multitude” of conflicting state and federal standards.

Of course, the threat of a patchwork exists only because Jackson granted the waiver, but to do so she needed the legal cover provided by the fiction that greenhouse gas emission standards are not “related to” fuel economy standards. A patchwork is exactly what the EPCA preemption of state fuel economy regulation was designed to prevent.

EPA then parlayed its new role as de-facto fuel economy regulator into a mandate to regulate greenhouse gases from stationary sources. The Tailpipe Rule – at least as EPA reads the CAA – compels the agency to regulate greenhouse gases from “major emitting facilities.” EPA is now applying CAA preconstruction and operating permit requirements to large CO2 emitters such as coal-fired power plants, petroleum refineries, cement production facilities, steel mills, and pulp and paper factories. EPA is also developing greenhouse gas “performance standards” for power plants and refineries, with greenhouse gas performance standards for other industrial categories sure to follow.

Constitutional Common Sense

EPA contends that its greenhouse gas regulations derive from the CAA as interpreted by Supreme Court in Massachusetts v. EPA (April 2007). The D.C. Circuit Court of Appeals is now reviewing arguments regarding that claim in Coalition for Responsible Regulation v. EPA.

But however that case is decided, Congress has an independent responsibility to assess whether an agency’s agenda comports with the statutory schemes it has created. Whether or not EPA correctly interprets Mass. v. EPA, it should be obvious that the agency has gone rogue.

Congress declined to give EPA explicit authority to regulate greenhouse gases only last year, when Senate leaders pulled the plug on companion legislation to the American Clean Energy and Security Act (ACESA) – the House-passed cap-and-trade bill sponsored by Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.).

One of ACESA’s selling points was precisely that it would preempt regulation of greenhouse gases under several CAA programs. If instead of proposing cap-and-trade, Waxman and Markey had introduced legislation authorizing EPA to do exactly what it is doing now – regulating greenhouse gases via the CAA as it sees fit – their bill would have been dead on arrival.

The notion that Congress gave EPA such expansive authority when it enacted the CAA in 1970, years before global warming was even gleam in Al Gore’s eye, is preposterous.

* In the interests of full disclosure, I testified on the private sector witness panel at the hearing where the three Obama officials denied that greenhouse gas emission standards are “related to” fuel economy standards. My organization, the Competitive Enterprise Institute, is a petitioner in Coalition for Responsible Regulation v. EPA.

This latest entry is an embarrassment, if a rather typical one as I detail on Chapter 1 of Red Hot Lies, “Media on a Mission.” Here are some problems with the article:

“Climate change is real, and man is causing it,” [Dem. Congressman and pro-cap-and-trade voter Baron] Hill said, echoing most climate scientists.

The author does not point to any survey of “most climate scientists,” challenge or even inquire about the source for or other evidence to support that claim. That is because there is no such survey or collective assertion by the critical masses of “climate scientists.” Period. It’s a talking point. But he’s a reporter. If he wanted to be straight about the issue he would at the very least turn to the very inconvenient statement by the Association of State Climatologists. But, again, it’s inconvenient.

When pressed, those who scribble or utter this shibboleth generally expand the universe of “climate scientist” to include anyone who is willing to go on record agreeing in return for being called one of the world’s leading climate scientists. Even if they are anthropology teaching assistants. Read on.

That is, they revert to the UN’s Intergovernmental Panel on Climate Change (IPCC), a collection of (as its name indicates) representatives appointed by governments, which itself appoints anthropology TAs, instructors in “the human dimension of environmental change” (bring own incense, please) and transport policy instructors, for example, to achieve great if still exaggerated (why is that necessary?) numbers of supporters who supposedly (but didn’t) write its proclamations? The IPCC’s “chief climate scientist” and chief “climatologist,” according to outlets like the New York Times and USA Today is, just for the record, actually a… railway engineer.

The piece continued quoting the Member of Congress it sought to defend:

“That is indisputable. And we have to do something about it.”

Except that it is highly disputed, so it must be disputable. Stop and ask: have I not heard great vitriol tossed at scientists who dispute, sign petitions arguing against — and even resign their lifelong membership in professional societies over — this indisputable truth? Have you heard about the Wikipedia gatekeeper now topic-banned from the site for his years of work altering the truth and smearing the many scientists and papers disputing its supposedly indisputable opposite (WSJ notes it nicely, here, subscription required)?

Why would these things be if the argument about man-made global warming isn’t disputable? Or, possibly, is that just a talking point to avoid dispute which, as the years have shown, the alarmists cannot make the case serially stated as fact throughout articles such as this one?

Also unremarked was the salient point that nothing this congressman has ever voted for or voiced support for — meaning, not Kyoto, not cap-and-trade, not ‘green jobs’…nothing — would according to anyone ‘do something’, meaning, detectably impact the climate. So, frankly, it is rather unreasonable to conclude that the prescribed ‘do something’ remedies are in fact about the climate. See “ideological groups,” below.

The piece then adopted a different sort of advocacy, biased and selective characterization:

Groups that help support Tea Party candidates include climate change skepticism in their core message. Americans for Prosperity, a group founded and largely financed by oil industry interests,…

Of course, solar, wind and related industries underwrote the public affairs, lobbying and smear campaigns. In fact, they even teamed up with left-wing ideological groups who love the prescription (Team Soros over at Center for American Progress, plus the Rockefeller and other foundations). Oh, and oil and utility interests, who lead author Ed Markey (D-MA) even publicly thanked for dragging his bill over the finish line in the House. The article continued:

The oil, coal and utility industries have collectively spent $500 million just since the beginning of 2009 to lobby against legislation to address climate change and to defeat candidates, like Mr. Hill, who support it, according to a new analysis from the Center for American Progress Action Fund, a left-leaning advocacy group in Washington.

That’s as far as the reporter got into raising Team Soros, oddly. As a source for its information. But in fact, most of the money spent by such groups appears to have been spent writing and lobbying to pass their favored bill — quick, name an oil company which fought the Waxman-Markey cap-and-trade bill? You’d be wrong, and the utilities’ trade association Edison Electric Institute claimed to have helped craft the bill, which they helped pass the House. But that doesn’t fit the template of activist-journalists who channel “most climate scientists.”

Just as some do not understand that it’s the spending, stupid, largely driving public disgust with the political class, our media friends’ decline is largely attributable to such knee-jerk, unthoughtful bias, preening advocacy shrouded in the aura of objectivity.

Washington appears — appears — to be on its way to reform. Possibly the media can be fixed, too. Most Tea Partiers agree. Of course, I didn’t talk to most Tea Partiers, but I read a lot of my peers saying that. So it must be an indisputable truth.

Thousands of  emails leaked to the Internet from the Climate Research Unit (CRU) of the University of East Anglia in the United Kingdom appear to substantiate a growing body of research that questions the idea of man-made global warming. Climate-gate has the potential to emerge as an unexpected gift to Republican candidates in this year’s midterm elections. But there’s the rub.

With the exception of Sen. James Inhofe (R-Okla.), and a handful of other elected officials, Republicans have been reticent to engage and debate the dubious claims of human induced global warming, laments Steve Milloy, editor and founder of JunkScience.com.

“Too many of them don’t understand the issue and the extremism that stands behind green activism,” he observes. “They are afraid of being labeled as anti-environment and are just not well-equipped or well informed enough to confront policies that could result in an unprecedented expansion of government power.”

At the very least, 2010 Republican challengers could invoke the email scandal to demonstrate how research has been falsified and distorted to advance a political agenda at odds with the economic well-being of many Americans. This in turn could open the way to a larger discussion of global warming science and the role of the United Nations.

Waxman-Markey (H.R. 2494), which passed the House last year by a 219-212 vote in June, calls for reducing total U.S. greenhouse gas emissions by 83 percent below 2005 levels by 2050. The legislation would impose a “cap and trade” regime that limits the amount of carbon dioxide that could be released into the atmosphere. Companies exceeding their prescribed limit would have to buy “carbon allowances” in a government-contrived system.

At least six Democratic senators are now urging the White House to back away from pushing “cap and trade” in the midst of an election year. Sen. Mary Landrieu (D-La.), Sen. Ben Nelson (D-Neb.) and Sen. Kent Conrad (D-N.D.) are among those who have expressed reservations.

Virginia’s Bob McDonnell very deftly turned Waxman-Markey back against his Democratic opponent in last year’s race for governor. His landslide election victory should encourage other Republican candidates looking to capitalize on economic concerns.

“Cap and trade is opposed by most employers in Virginia because they see what it’s going to do to the cost of goods and services,” McDonnell explained in an interview. “It is strongly opposed by the coal industry, for instance, which is vitally important to Southwest Virginia. Cap and trade is just bad policy and the more citizens understand that it’s going to increase their electricity rates over time the more they are going to oppose it.”

Nationwide data measuring the impact of Waxman-Markey in a new study commissioned by the National Association of Manufacturers (NAM) and the American Council for Capital Formation (ACCF) yielded the following results:

• Cumulative loss in gross domestic product (GDP) up to $3.1 trillion (2012-2030)
• Employment losses up to 2.4 million jobs in 2030
• Residential electricity price increases up to 50 percent by 2030
• Gasoline price increases (per gallon) up 26 percent by 2030.

The NAM/ACCF study includes data on all 50 states.

In Virginia, for example, the NAM/ACCF study estimates that at least 41,400 jobs could be lost by 2030 as a result of lower industrial output that would follow from higher energy prices. Virginia residents would also see their disposable income reduced by $103 to $235 per year by 2020 and $608 to $1,096 by 2030 as a consequence of Waxman-Markey.

There’s no question that industrial states stand to lose the most and this should become a point of contention in 2010, just as it was in the Virginia governor’s race. But free market advocates who are looking to unseat cap and trade proponents now have the added benefit of climate-gate.

Even as cap and trade stalls in the U.S. Senate, the Obama Administration now appears poised to use the Environmental Protection Agency’s (EPA) endangerment finding on Co2 to make an end run around democratic channels.

This maneuvering suggests that the economic arguments standing alone will not be sufficient over the long-term and must be co-joined with scientific data that can be included in litigation challenging the endangerment finding. But Republican candidates should get started now in exposing anti-scientific research that underpins alarmist positions on global warming.

In their messaging to voters they can draw from the expertise of numerous, well-credentialed skeptics who have found expression for their own research, despite the best efforts of the scientific establishment.

Over 31,000 scientists, including over 9,000 Ph.Ds, have signed off on a petition circulated through the Oregon Institute of Science and Medicine that states human activity is not responsible for causing catastrophic disruption of the earth’s climate system. Moreover, over 700 scientists have now endorsed a U.S. Senate minority report that questions man-made global warming.

Charles Dunn, dean of the Regent University School of Government based in Virginia Beach, Va., sees opportunities for Republican candidates running in parts of the south and the mid-west especially. As it turns out, these are some of the same states that would be disproportionately affected by cap and trade.

Liberal media organs and Democratic operatives sought to make an issue out of McDonnell’s connection with Regent University during the campaign. In the end, Dunn suspects this coverage may have actually benefitted the Republican candidate in that it further heightened his esteem among social conservatives. Consequently, McDonnell was better positioned to make an issue out of energy policy because his base was already solidified, he surmises.

Throughout the campaign, McDonnell emphasized his support for expanded nuclear power and for offshore drilling. That’s what the public likes to hear and Republican candidates in other states can build on this approach by asking their Democratic counterparts to account for the junk science that constrains American ingenuity.

Though Congress voted to kill federal funding for ACORN in September, funding for the disgraced group could resume as early as December 18th, when the Continuing Resolution, which provides funds to run government while the final budget is complete and contains the funding ban, expires.

The question isn’t whether federal funds will flow again to the ethically-challenged group, but possibly when and how much money will flow.  If cap-and-trade legislation now making its way through Congress becomes law, the flow could be enormous.

In June, the U.S. House passed the American Clean Energy and Security Act (better known as Waxman-Markey), ostensibly to alleviate global warming by mandating an 83% reduction in U.S. carbon emissions by 2050.  A similar bill, introduced in the Senate by Barbara Boxer (D-CA) and John Kerry (D-MA), has been approved by the Senate Environment and Public Works Committee.  Buried in both bills are provisions that would allocate vast amounts of federal money to community development organizations such as ACORN.

Members of Congress who played to public outrage by vociferously objecting to ACORN’s abuses may now want to take the time to read some of the more obscure provisions of the proposed climate bills.

Section 264 in the Waxman-Markey bill provides up to $300,000,000 in funding for “community development organizations” so they can assist businesses and others in low-income neighborhoods with “conservation strategies, supplies, and methods to improve energy efficiency.”

Stephen Spruiell and Kevin Williamson, writing for National Review, help put this funding in perspective: “Think federally-subsidized consultants paid $55 an hour to tell businesses to turn down their AC in the summer.”

The Kerry-Boxer bill contains similar language in Section 156, allocating up to $200,000,000 to “promote green development in distressed communities.”

The bill makes no mention of who would oversee such programs, but the intention is clear: community development organizations such as ACORN.  In the time between the passage of Waxman-Markey bill in the House and the introduction of the Kerry-Boxer bill, reports of multiple ACORN scandals were front-page news.   Seemingly recognizing how politically explosive it would be to include funding for “community development organizations,” Kerry and Boxer apparently deliberately obscured that fact.

One can debate the wisdom of spending hundreds of millions of dollars of “green development” in economically-distressed communities–and how effective this spending would be–at a time when the deficit is already $1.4 trillion and many Americans face financial uncertainty, with the official unemployment over 10% and black unemployment 15.7%.

What we shouldn’t debate is whether it is a wise idea to outsource these programs to community organizers.  We shouldn’t.  In the past such groups have misused federal funding, skirted tax laws, and strayed beyond their missions.

As Big Government readers know, ACORN has become the poster-child for scandal.  During the last election cycle, a number of its members were charged with turning in thousands of false voter registration forms.  Last year, the New York Times reported that Dale Rathke, brother of ACORN founder Wade Rathke, had embezzled nearly $1 million dollars from the organization Most recently, multiple ACORN housing workers were caught on film apparently facilitating prostitution and tax fraud.

ACORN hopes that if its headline-grabbing transgressions become distant memories, it, as the largest community-organizing group in America, would likely become a major beneficiary of cap-and-trade, should some version of Waxman-Markey or Kerry-Boxer become law.  Such funding is even more probable given the large number of ACORN affiliates now promoting themselves as experts on environmental justice.

ACORN will likely also benefit from its close association with key players in the federal government, including President Barack Obama, who once worked closely with ACORN and has shown his continuing loyalty to the group by refraining from criticism, even while reports of its alleged unethical conduct headlined the news.

Groups across the ideological spectrum have rejected the cap-and-trade legislation as a misguided endeavor, likely to impede economic growth while delivering minimal environmental benefit.  Polls show a mere 17% of the public supports federal funding for ACORN.

If sound public policy is the goal, either of these facts alone should consign the cap-and-trade proposal to a richly-deserved death.

These two facts combined should keep cap-and-trade in the grave.  Permanently.

At risk of getting into a peeing match which my time budget may not allow me to finish, I believe that the dispute between Ed Morrissey over at Hot Air and the folks at the WashingtonExaminer joining Sen. David Vitter (and, by implication, I suppose me) is not necessary but worth resolving. Caution: it is also for the legislatively inclined or otherwise the pointy-headed. But, since I arguably joined the fray here on Big Government on Tuesday, here goes.

At issue is a provision buried in both the Waxman-Markey and Kerry-Boxer “global warming” bills.

I had to leave for a few hours after starting my comment on this, in which time I decided not to wage the war over how strongly we need to argue that it prima facie nullifies the rest of the respective legislative language that too many lobbyists tout was carefully crafted to provide “certainty”. Lobbyists of course tend to say things reflecting well on their defense of client interests.

What is inescapable is that this language dispels such notions of certainty. But that shouldn’t be shocking. The bills statutorily establish “global warming” causation, for every existing or new increment of GHGs (read: employers, economic activity), as well as harm caused. And they fail to preempt states and elsewhere EPA as needed, or the National Environmental Policy Act, Clean Water Act or Endangered Species Act, or every other tool that’s already being tried out as a “global warming” law. Let alone the rest of the U.S. Code. All of which is relevant to context, as we shall see.

My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists. Now, if you choose, read on.

The issue is whether this language poses a serious, substantive threat or not, with what I view as the controlling language emphasized:

‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

(a) AGENCY ACTIONS.—The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.—In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So, when viewing the meaning of this provision at issue in the appropriate context in order to view its most likely meaning, we also should note two things. First, no one says that this bill if perfectly implemented would control global concentrations of greenhouse gases – which is the trigger for deciding that “more” is needed, a trigger set where it will be exceeded ab initio – or that it would have a detectable climate impact. Which is to say, going in, we know that the answer by EPA and the National Academy of Sciences (kidding, right?) will be, also ab initio, “more”. Second, bear in mind that this language at issue was important enough to be identically inserted in bills otherwise so different that they range from about 800 pages to 1,300 pages in two different houses of Congress.

Ed styles what he sees as the Examiner’s/Vitter’s questionable reading of this as follows: “If true, it would undermine the entire notion of a cap-and-trade system — and give the President dictatorial powers over energy production and manufacturing.” (emphasis in original)

This is already sufficiently detailed that I do not think the best approach is to address the conflict as whether there are “emergency powers” for the president in the provision – that was rhetorical license, I believe, as there is no such category created here, if that’s the issue for anyone and, if it is, it’s the wrong issue. Although, in practice, a command to exercise any extension of all statutory authority found in the U.S. Code (including this bill), whatever the law or program may be, in the name of attaining some carbon dioxide objective beyond U.S. regulatory control is far too similar to such a description for me to decide that such word choice is the issue.

Instead, the issue appears to be whether this provision opens a floodgate of executive activism, and/or litigation seeking to compel a reluctant executive, such that the idea that the “cap-and-trade” is anything but a floor as opposed to the ceiling and patently phony “certainty” it is sold and, sadly, accepted by many as.

That is, the issue is the objective, first-half of Ed’s framing of things, disregarding for the moment the latter characterization of the language’s possible use.

I think the answer to that is obvious. Yes.

Whether the latter characterization, as allowing (let’s say “plenary”) power over all manner of economic activity requiring federal permits, is found in this language depends upon whether the greens would sue to ensure the letter of the 707(a) authority is followed, and prevail. Now we are speculating. But I speculate yes they would, and their record and that of the courts is that they would prevail more often than not.

Remember. The 1990 Clean Air Act Amendments brought “certainty”. Then EPA started to get clever, and the greens litigious, with the New Source Review provisions. Certainty lost. I suggest that no one familiar with that progression quickly dismisses the above language as anything but a new, substantial threat.

Then we turn to the world before Massachusetts v. EPA “global warming” case which suddenly divined that, well, golly, EPA can regulate carbon dioxide as a pollutant. Compare that to the world after that opinion, which reminds and affirms that – even though the notion of covering CO2 as a “pollutant” under the CAA was debated in 1990, and rejected – once the greens and the courts get together, with a little assist from an activist administration and EPA, we know how things turn out. Far less ambiguity has been tortured by the courts, including now the Supremes (you gotta read Scalia’s Mass. V. EPA dissent), into confessing to things that previously were dismissed far more rakishly than Ed dismisses the concerns expressed by the Washington Examiner and Sen. Vitter.

This also reminds us that the authority for an agency to do something is not the same as a requirement that it do something. That is relevant to what I see as a red herring, the idea that this “shall” language does not create any new powers, be they “emergency” or otherwise. Tru, dat. Yet at the same time it also removes any potential question whether any provision in any law which an activist administration now claims is or can be used as a GHG suppression measure is now authorized to be one. Between that and creating new authority is, I suggest, a distinction without a difference.

Remember. The day this law goes into effect, atmospheric concentrations will already be beyond what the law says is acceptable. And nothing that we do could lower them. But pretty well everything we might possibly try is now authorized. EPA doesn’t even need any new authority to change the acceptable atmospheric concentration from 450 parts per million from to 350. It’s on. All laws on the books are now interpreted, consistent with legislative intent, as tools to reduce or avoid GHG emissions in the name of lowering a global concentration.

This is why I suggest context is so important to understanding the meaning of this language.

I won’t even get into possible separation of powers or delegation issues raised here (if the National Academy of Sciences says jump and how high the federal government of the United States must act? Really?). As such, my conclusion is as follows:

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. So far, even in the absence of such a sweeping declaration, we rarely see the courts declare grants of authority as insufficient for all manner of mischief under the discretion granted EPA and other agencies called “Chevron deference”. That doctrine means that we have a fairly substantial burden of proving she was arbitrary and capricious in her interpretation of authority granted her by Congress.

EPA is already trying to implement the Clean Air Act to allow it to create a carbon dioxide cap-and-trade scheme in the context of a different cap-and-trade program the Agency had concocted despite recent admonition by a federal court that the Agency cannot just make up that very authority as it sees fit. It is also proceeding with what it calls a GHG “tailoring rule” to read the number 250 in the Clean Air Act as 25,000, even though the statute is clear that 250 means 250. And so on, as those of you who’ve toiled in the increasingly troubling field of EPA regulation know all too well.

Adopting such authority as that at issue here is not smart. The provision is not an accident. Remember. No one says this bill will have a climatic impact if the carefully designed caps and timetable are followed. If this legislation is indeed about the climate to its promoters, then this provision is intended just as it reads.

This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference. It effectively makes the cap and timetable mere sideshows, but inescapably ensures that seeking the refuge of “certainty” in this bill, as more and more CEOs have told me their lobbyists promise them is available here, is a fool’s errand.

In context, the reason for ensuring this precise language appeared identically in both “cap-and-trade” bills is clear. This is to be defeated, not dismissed. Guarding against alarmism on our side is proper. We should guard against dismissing broad grants or set-ups for interpretations of authority just as vigilantly.

But you would be wrong, on both counts. The provision is quite clearly installed for green pressure groups to sue to force the chief executives’ hands to seize all manner of power otherwise unavailable to him under our system but desired by the greens and whatever they can convince the federal court’s 9th Circuit is in our interests. That is, the bill actually does mandate that a “climate emergency” be declared by the federal government when global greenhouse gas concentrations – which are not something which the bill or the United States can control and over which we have a decreasing influence each day – reach 450 parts per million. Which the bill’s authors knew would already be the case by the time the bill was adopted.

At that point President Obama, using powers he worked to craft and signed into law, would “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in achieving needed greenhouse gas reductions. Again, it isn’t in the U.S.’s power to bring global concentrations to any particular level, and even if we disappeared off the face of the earth no global warming computer model relied upon by the alarmist industry even says that it would detectably impact the climate.

But as we have been warning you in detail, this agenda transparently is not about GHG concentrations, or the climate.

It’s about what this provision would bring: almost limitless power over private economic activity and individual liberty for the activist president and, for the reluctant leader, litigious greens and courts that in this case would only have two choices. Those are follow the law, or declare it unconstitutional knowing the predilections of the appellate courts and what will very soon be Obama’s Supreme Court.

Louisiana Sen. David Vitter, a Republican, asked Obama’s EPA Administrator what measures this contemplates, and she refused to provide any examples. That could lead to debate, yielding public awareness. However, as Tapscott reasonably asked, “Would the president be empowered to do things like nationalize whole sectors of industry, ban coal use, restrict private automobile use, or whatever else the ‘emergency’ requires?”

Well, that’s the point. And after Obama is gone, just what this means won’t be up to the president any more, but the greens, their lawyers, and activist courts.

The hearing actually has devolved into something of an effort to rehabilitate certain Members who are now imperiled by their vote for the Waxman-Markey cap-and-trade bill, particularly Tom Periello of Central Virginia (my Congressman, who has been hoodwinked by someone into stating, in defense of his vote, that the reason we are losing jobs to India and China is because they’ve already passed Waxman-Markey-type laws. Really. I agree we need to find out who is spreading such scurrilous tales to our lawmakers).

So, Rep. Periello will open the proceedings with a statement. The hearing was already delayed once because he refused to let anyone see what he was going to say in advance. They might ask questions. I don’t think that’s much of a threat.

Anyhow, it seems that pointing out how, where and by whom this practice of AstroTurfing and otherwise of deceitful industry lobbying in the “global warming” context was invented, how it’s been engaged, and employing (with substantiation) inconvenient words like “Axelrod” and “Enron” was deemed non-germane. It addressed AstroTurfing by companies and people pushing this agenda, as opposed to by those opposing it. That’s just not relevant. Anyone can see.

In the face of this objection, on Wednesday evening the principals met. In very brief, the minority has agreed to agree to the majority’s wishes. The hearing will go on with no need to sully things by allowing you to hear the following. I believe that the Republicans will seek to introduce my written statement into the record. But of course, they also… well, never mind.

In the event that lightning strikes twice and the grave offense of introducing contrary thought in the form of my written, substantiated testimony is also objected to by the majority, here’s my slightly shorter oral testimony that would have been delivered. Apparently there’s something very, very dangerous about it. I cannot figure out what that might be given the umbrage being taken at AstroTurfing and the solemn vows to expose the wantonness, so I leave it to you.

Please forgive typos along the lines of “thank you for allowing me to testify” and the like as they are in the original:

DELIVERED TESTIMONY OF CHRISTOPHER C. HORNER, SENIOR FELLOW, COMPETITIVE ENTERPRISE INSTITUTE

HOUSE SELECT COMMITTEE ON ENERGY INDEPENDENCE AND GLOBAL WARMING, HEARING ON “ASTROTURFNG”

October 29, 2009

Mr. Chairman, thank you for inviting me to testify today, and I would like to thank the Members of this Committee for allowing me to address the long-overdue issue of deceptive practices, specifically “Astroturfing,” in the “global warming” policy arena.

Such practices have existed for years throughout environmental policy, both from inside and coordinated with government, environmental pressure groups and industry.

Examples abound of “Astroturfing” and other deceptive practices to push the global warming agenda. Recently, the Environmental Defense Action Fund used Craigslist to recruit paid “activists” to rally support for cap-and-trade in the guise of a grassroots movement.

We all witnessed last week’s dishonest advocacy effort by the activist group “Yes Men”. About this, Daniel Henninger wrote in the Wall Street Journal:^[1]

“…the cable news stations, wire services and Web sites reported that the U.S. Chamber of Commerce had recanted its opposition to climate-change legislation. It was a hoax. Incredibly (well maybe not so incredibly), the hoax was perpetrated by an activist group in a room at the National Press Club in Washington in front of reporters who’ve risen to the top of their industry. The hoaxers had created a fake Web site and faked a Chamber press release. The made-up press conference ran about 20 minutes until someone from the real Chamber of Commerce showed up yelling, ‘This is a fraud!’ Too late. Credulous TV and wire reporters had sent the Chamber’s climate flip-flop into an already confused world.”

The merits of these practices of course do not hinge on whether they agree with one’s position. As AEI’s Ken Green was quoted as saying, however, “When someone else does it, it’s astroturfing; when you do it, it’s community organizing.”^[2]

Astroturfing is no stranger to the energy industry, purportedly perfected by Chicago-based utility Exelon, which hired David Axelrod’s public affairs firm to create a front group to achieve the same end as sought by cap-and-trade, which is a rate increase.

As Newsweek wrote, when an Exelon arm “wanted state lawmakers to back a hefty rate hike”:

“it took a creative lobbying approach, concocting a new outfit that seemed devoted to the public interest: Consumers Organized for Reliable Electricity, or CORE. CORE ran TV ads warning of a ‘California-style energy crisis’ if the rate increase wasn’t approved—but without disclosing the commercials were funded by Commonwealth Edison. The ad campaign provoked a brief uproar when its ties to the utility, which is owned by Exelon Corp., became known. ‘It’s corporate money trying to hoodwink the public,’ the state’s Democratic Lt. Gov. Pat Quinn said.”^[3]

Last year Business Week wrote about this component of Exelon’s $15 million effort to convince ratepayers to agree to pay more for energy, calling the campaign the “gold standard in Astroturf organizing”.

Exelon is of course again in the news of late for leading a campaign, sold by public affairs professionals as an exodus from the U.S. Chamber of Commerce based upon environmental principle but which, upon scrutiny, is a collection of largely “rent-seeking” companies standing to make as much as one billion dollars per year on the backs of ratepayers from cap-and-trade according to media reports.

Most will also recall when gas interest Chesapeake Energy emerged, in the words of a Houston Chronicle writer, as “one of the only companies that has fessed up to funding a recent advertising campaign against Dallas-based TXU’s plans to build up to 11 new coal-fired power plants… with no clear notice of who was behind it. Chesapeake admitted to funding the campaign, at least in part, after reporters did some digging.”^[4]

Several internal memoranda have surfaced about Enron’s pioneering effort in the late 1990s, to leverage green pressure groups to advocate for its new creation called carbon cap-and-trade. One memo in particular stated how:

“Enron now has excellent credentials with many ‘green’ interests including Greenpeace, WWF, NRDC, German Watch, the U.S. Climate Action Network, the European Climate Action Network, Ozone Action, WRI, and Worldwatch.”

“This position should be increasingly cultivated and capitalized on (monitized).”

The misspelling in the parenthetical is in the original but I believe the point is clear. This list is by no means exhaustive, as I note in detail in my written testimony.

As the Journal’s Henninger also wrote, “With fakery everywhere—some of it amusing, some of it not funny—people’s ability to know where things fall on the spectrum between fact and falsity becomes so compromised that they retreat into a shell of cynicism about everything.”

Hopefully today’s effort, allowing an airing however brief of the tactics used to promote the “global warming” agenda, will also assist this ongoing education campaign.

Thank you for the opportunity to provide these remarks today.

[2] “Enviro ad sparks debate — grass roots or AstroTurf?”, E&E Daily, August 27, 2009.

[3] Newsweek June 2, 2008 “Campaign 2008: Obama lobbyist connection”, http://www.newsweek.com/id/138519.

[4]  “The money behind the dirty faces”, Houston Chronicle NewsWatch: Energy blog, February 14, 2007, http://blogs.chron.com/newswatchenergy/archives/2007/02/the_money_behin_1.html  (links in original).