The Obama Error - Second Edition as Amended

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For an in-depth look at the fenceline question, you can read this post. Just a few weeks later, in February, the Supreme Court overrode that decision with a decision of its own, issuing a stay on the CPP until the litigation was settled. Since, as was inevitable, that replacement plant has sparked a lawsuit, it will end up in court anyway. And a court eventually must.

But it would give a Democratic successor administration free rein to issue a new, stronger CPP which the Resources for the Future analysis says could reduce electricity sector emissions 37 percent above the baseline case by If courts accept the narrow interpretation, it would be an enormous blow to Democratic efforts on climate change going forward, putting the Clean Air Act, at least Section , out of reach as a carbon reduction tool.


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The CPP did not set mandatory carbon reduction targets, but the EPA calculated that if states opted for the most stringent pollution control plans, the CPP would yield electricity sector emission reductions of 32 percent below levels by We now know that most of the emission reductions CPP targeted were going to happen anyway. Thus the need for an updated CPP. ACE, on the other hand, might not reduce emissions at all relative to baseline.

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It might even raise them. How is that possible? Well, remember, ACE applies only to individual power plants coal plants, mostly , and the only way to improve the emissions performance of individual power plants is through efficiency upgrades. But efficiency upgrades — heat rate improvements HRI , in the lingo — make those plants cheaper to run. That will increase their net emissions. First, the agency plans changes to New Source Review — pollution standards that must be met by new or upgraded plants — to make it easier to upgrade coal plants without triggering new standards.

See No. That will have the effect of boosting HRI. In the initial draft release of ACE, those standards changes were included. But the agency still plans to make those changes to New Source Review; by failing to include them in its analysis of ACE, it is deliberately hiding the ball. In fact, coal plants are likely to run more than EPA estimates, will means CO2 will fall less or not at all and other local air pollutants will increase in many states, with all their concomitant health effects. A final note: reductions of 0. Resources for the Future ran an analysis of several different market scenarios and found that even small changes in market assumptions — demand, the price of natural gas, etc.

From an environmental perspective, the original sin of the Clean Air Act at least the and amendments to the CAA was grandfathering. The presumption was that new power plants would be built with modern pollution controls and old plants would gradually phase out and close down.

So if utilities built new plants, they had to meet modern pollution standards. If they upgraded old plants, they had to meet modern pollution standards. Consequently, the US has been saddled with a large, old fleet of dirty coal plants for decades, with utilities making just enough repairs to keep them in operation but not enough modifications and upgrades to trigger New Source Review. The average age of a US coal plant is 39 years — roughly its rated life span.

Environmentalists have complained about these plants for ages, saying that utilities should shut them down. Utilities have also complained, saying the prohibitive costs of NSR are preventing them from upgrading their fleets.

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It would have forced plants to make efficiency improvements, which would have triggered NSR, which would have triggered tighter standards. If a plant reduces its hourly emissions rate, increases its total runtime, and thus increases its total emissions, no problem. New Source Review is one of the very few regulatory tools available to reach these existing, dirty plants, and EPA wants to take it off the table. Long-term, that could free lots of utilities to update their dirty old coal plants to comply with ACE and keep them running even longer.

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The awkward fact for Republicans has always been that air quality regulations work. They produce social, economic, and health benefits well in excess of their compliance costs. There is a robust literature and a long practical history showing as much.

At every new round of regulations, conservatives and polluting industries complain that they are too onerous, that they will destroy the economy, cost jobs, raise energy prices. Compliance proves cheaper than expected, the economy continues growing, and public health improves. Republicans have not responded to this reality by accepting that they were wrong about air quality regulations. That continues in the ACE proposal. A higher rate means we value them less; a lower rate, more. A rate of zero means we value them equally as much as present benefits.

A 7 percent discount rate is at the high end of what markets and governments use for personal investments, i. But applied to intergenerational investments, i.

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Naturally, that makes cutting greenhouse gases look a lot less attractive. Even if the climate benefits of the CPP are cut close to nothing, the other benefits, primarily in reductions of local air pollutants like SO2 and NOx, still more than pay for it. That should be fun to justify to a court. So enjoy this particular EPA analysis yet another triumph of career staff over their political hack bosses. The researchers at Rhodium Group estimate that they will be down 37 percent by That means the CPP reach target for — 32 percent reduction — will likely be achieved in the next few years, just based on current market trends.

This extraordinary progress has been hard-won, utility by utility, and the CPP — even though it never went into effect! The state secrets privilege was first upheld by the Supreme Court in a McCarthy-era case and generally requires judges to dismiss lawsuits against the United States when the government asserts a trial threatens national security. In his declaration, Holder assured Judge Alsup that the government would not be claiming national security to conceal "administrative error" or to "prevent embarrassment" — an assertion that is now nearly impossible to square with the facts. Elizabeth Pipkin, the San Jose attorney who represented Ibrahim in her legal odyssey pro bono , said the Obama administration should be embarrassed.

They are not supposed to be used to cover up government errors. The Justice Department nearly got away with the cover up, which commenced under the President George W. Bush administration. At one point, Judge Alsup dismissed the case.

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A federal appeals court reinstated it in , more than a year after Alsup tossed it. A month before Ibrahim's trial, the judge said he learned the Kafkaesque truth. Last week he laid it out all in his final order in the case, ruling for Ibrahim following a five-day, non-jury trial that was conducted largely behind closed doors in December. At long last, the government has conceded that plaintiff poses no threat to air safety or national security and should never have been placed on the no-fly list.

She got there by human error within the FBI. This too is conceded. This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing, and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept — the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit — human error, yes, but of considerable consequence.

Ibrahim was a Stanford University doctoral student in architecture and design from Malaysia and was headed to Hawaii to give a paper on affordable housing.

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Wheelchair-bound after just having a hysterectomy, she was handcuffed, detained for hours at San Francisco International Airport and denied her pain medication until paramedics arrived in She was eventually released and allowed to fly to her home country of Malaysia. She sued, seeking to learn if she was on the no-fly list and to clear her name. Her case ping-ponged across the legal landscape for years as the government tried everything it could to have the lawsuit tossed.

The woman was even barred a return flight for her own trial. So was one of her daughters, a U. It's not the first time the government pushed the envelop in declaring state secrets in litigation. The same was true when the state secrets privilege was born in a Supreme Court case.

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