Calling it a Day on Climate Change: Will the Supreme Court End the War on Coal?

The UN’s Intergovernmental Panel on Climate Change (IPCC) four ‘Assessment Reports’ issued through 2007 supply EPA’s war on coal, and backstop its judicial support.


By Richard Bornemann | May 17, 2013

Experts say that the spring of 2013 is cold. In fact, the month of May began as the second-coolest spring on record since 1975. That was a year after Time magazine wondered about “Another Ice Age?” in a famous June 1974 story.

Some of the measuring sticks from back then sound familiar, just used in reverse. Today’s “shrinking” Arctic ice is supposedly stranding polar bears, while yesterday’s cooling crisis was just as self-evident: “Telltale signs are everywhere – unexpected persistence of thickness of pack ice in the waters around Iceland . . . ” and year-round snow in places “once totally free of any now in the summer.” Time noted that while “weather varies from place to place and time to time the atmosphere has been growing gradually cooler for the past three decades.” Humans play a role “ . . . as a result of farming and fuel burning . . . ” Of course, all of this “could be extremely serious, if not catastrophic.”

Now, nobody’s saying that the spring of 2013 alone portends anything. But what if it’s a continuation of a 15-year trend in which there’s been no global warming?

Well, that’s the news from the UK’s purportedly conservative Economist magazine, which had long touted climate alarmism, and woven it into news pieces as freely as our own NPR – until its March 30, 2013 issue acknowledged that “over the past 15 years air temperatures at the earth’s surface have been flat while greenhouse-gas emissions have continued to soar.” The authors hint that alternative climate models might enable us “to adjust to (rather than stop) the greenhouse-gas splurge.

And, it’s the attention given other models – some developed by researchers in Japan and Norway – that may challenge the media and regulatory lock long held by global governance bodies like the UN’s Intergovernmental Panel on Climate Change (IPCC).

The IPCC’s four Assessment Reports issued through 2007 supply EPA’s war on coal, and backstop its judicial support. They are the science-is-settled Word, no matter how thoroughly Senator James Inhofe (R-OK) used his leadership of the Senate Environment and Public Works Committee to expose, witness-by-witness, and e-mail-by-e-mail, the shoddy data selectivity and misuse of models, to defend a wholly synthetic “consensus” on human-caused global warming. (See Senator Inhofe’s The Greatest Hoax WND Books, Washington, DC, 2012).

The IPCC fed the EPA’s 2009 Endangerment Finding under the Clean Air Amendments Act of 1990 (under a section dealing exclusively with car and truck engines) – a finding made possible in the first place because of the U.S. Supreme Court’s 2007 declaration that carbon dioxide and other alleged greenhouse-gases (GHGs) were “pollutants” under the Act.

That finding gave us an all-pervasive EPA triplet: the Tailpipe, Timing and Tailoring Rules, promulgated under the Act’s “Prevention of Significant Deterioration” program. Under PSD, the EPA sets National Ambient Air Quality Standards (NAAQS) for a discreet set of known pollutants, and new and modified sources of these are subject to Best Technology Available (BACT) requirements if they emit – depending on the facility – either 100 or 250 tons per year of a listed pollutant.

Though there’s no NAAQS for carbon, EPA used its Endangerment Finding to require controls for GHGs from car and trucks. EPA then used its Timing Rule to apply mobile source control to stationary sources, like power plants and refineries. Lastly, EPA used its Tailoring Rule to alter the numbers of the law (and isolate political pain and economic damage): the 100/250-ton threshold became a 75,000/100,000-ton threshold.

The DC Court of Appeals upheld this jury-rigged mess last summer. The Endangerment Finding was fine because challenges to the IPCC-based warming consensus were “exaggerated.” (The DC Circuit barely acknowledged any credible scientific challenges to the IPCC.) The Timing Rule was fine, too; it simply followed EPA’s “longstanding” practice of regulating a “pollutant” under all parts of the Act once it was regulated under any single part.

The DC Circuit had a harder time with the Tailoring Rule because agencies can’t just rewrite the plain language of a law. So, the Court declared that EPA’s 75,000/100,000-ton threshold was just a starting point, a phase-in that only begins with the biggest GHG emitters (to avoid chaos and “absurd results”), and progresses, presumably in subsequent regulation, to reach the law’s 100/250-ton threshold. That’s low enough to regulate schools, apartment buildings, libraries, hospitals and shopping centers for their alleged GHGs. Lastly, said the Court, plaintiffs didn’t have standing to challenge the Tailoring Rule; they hadn’t been harmed from a relaxation of the statutory thresholds.

Now comes the Southeastern Legal Foundation (SLF), along with several businesses and Congress’ leading energy experts, which petitioned the Supreme Court for review last month.

The SLF went right after the Endangerment Finding. Believing that the DC Circuit showed “extreme” deference to EPA on the “science” issues, the SLF used actual temperature records – including Time magazine’s 30-year “cooling period,” and the recent “flat period” – to show that there has been no consistent warming trend, and certainly none that correlates with rising CO2 emissions. All in all, EPA’s models have “been discredited by a panoply of failed predictions.” Besides, the 2007 Supreme Court decision that gave rise to the Endangerment Finding was limited to mobile sources – nobody back then had argued about GHGs as “pollutants” from stationary sources.

Similarly, the SLF attacks the Timing and Tailoring rules with equal gusto. The bottom line is that any natural reading of the Clean Air Act shows that Congress never contemplated its being applied to carbon or any other GHG emissions from stationary sources under the PSD program. (GHGs are simply too ubiquitous to fit into the 100/250-ton box).

It’s too early to tell whether the U.S. Supreme Court will relieve us from what the SLF calls “the most expansive regulatory program in the history of the United States.” Odds are that the Court will hear the case because the four dissenters from 2007 are still there: Roberts, Scalia, Thomas, and Alito. But the majority that started it all is also in place, with Justice Kagen having replaced Stevens, and Justice Sotomayor in place of Souter.

Then again, 2013 is not 2007. There’s a long and observable temperature reality that can’t be ignored, and there’s an EPA that took a case about mobile sources, and expanded its authority to cover every activity in the national economy. This time, we might see less agency deference and more agency scrutiny.


Richard Bornemann has provided strategic legislative and regulatory counsel to American energy and surface transportation companies of all sizes for more than 20 years. He is an energy and environment analyst for the Selous Foundation for Public Policy Research, and author of American Energy Independence: A Policy Review 1973-2012. Mr. Bornemann is also a contributor to SFPPR News & Analysis.