Guest essay by James Sawhill

The EPA’s attempt to harness new coal-fired power plant constructions has been exposed as ideological rather than legal. The EPA further ignored the Department of Energy’s (DOE) earlier conclusion that carbon capture and storage (CCS) has not been “adequately demonstrated.” [1]

Thanks to commentary from The Energy and Environment Legal Institute (E&E Legal) the EPA has been forced to retreat from their draft rule. That rule would mandate the use of CCS, a process that would inter carbon dioxide underground which has so far proved to be little more than a thought experiment. To mandate this technology, the court required the EPA to prove CCS was “adequately demonstrated” and “commercially available.” In that they were laid naked by E&E Legal.

We submitted comments for the record explaining that EPA had made a mockery of the interagency review process, ignoring the government’s own experts in order to push an ideological agenda.

and

The truth is that the experts had persuasively argued the opposite, in effect, that carbon capture and storage has been demonstrated to be not viable. Making this more egregious, the Department of Energy had paid a quarter of a billion taxpayer dollars to learn this information and lesson that EPA ignored and even misrepresented.

Chris Horner, lead E&E Legal author. [2]

Apparently that is crucial because if the EPA is not serving as an expert but rather as an ideological actor and misrepresenting the DOE, it would not warrant “deference in court”. Lack of deference implies that the EPA’s beliefs may be ambiguous, at best secondary to other better standards, and therefore not the standards the courts should apply. [3] I will yield to our visiting legal scholars to illuminate “deference in court”, legal ambiguity, and those matters going forward at law.

Implications:

It is likely that the intended purpose of the EPA was to impose a de facto ban on coal-fired power plants. Those stakes are huge. The rule on new power plants could also be the legal predicate for the EPA’s proposed rule regulating existing power plants. That could establish emissions reductions for states and attempts to force them to meet those targets by adopting cap-and-trade tax schemes and other damaging financial and energy practices.

The lack of deference in court decision could potentially make the EPA’s entire global warming agenda vulnerable as also ideological.

While the EPA is not likely to abandon its activism, Horner hopes that the biggest impact of E&E Legal’s exposing of the EPA will be to discredit it enough so that Congress will step in to put a stop to the misuse of the 1970 Clean Air Act. [2]

References:

1] http://www.americancommitment.org/content/epa-plan-ban-coal-hits-major-roadblock

2] http://eelegal.org/?p=3919

full comments in pdf linked here:

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2013-0495-10044

3] http://onward.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions/

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