The National Association of Manufacturers and 19 other business groups filed a petition in federal appeals court Tuesday challenging the U.S. Environmental Protection Agency’s latest interpretation of the “Johnson Memo,” in which the agency declared its plans to regulate greenhouse gas emissions from industrial and other stationary sources. The EPA intends to impose its mandates by Jan. 2, 2011.

As NAM President John Engler said in the news release:

Today’s challenge is yet another step we are taking to stop EPA from its overreach in regulating greenhouse gas emissions under the Clean Air Act. We believe this issue deserves transparency and debate that should be handled by Congress, not by a bureaucratic agency that has no accountability to the American people.

EPA’s power grab creates uncertainty and adds costly new burdens on manufacturers while further complicating a permitting process the EPA and state environmental enforcement agencies are not equipped to handle. Further, these actions will stifle job creation and harm our competiveness in a global economy by adding compliance, administrative and legal costs.

The trade association petition filed in the U.S. Court of Appeals for the District of Columbia Circuit is available here. The NAM’s Manufacturing Law Center has additional background and filings.

Others filing their own litigation include the American Iron and Steel Institute and Gerdau Amersteel Corp., Inc.  From E&E News: (continue reading…)

The Fifth U.S. Circuit Court of Appeals today concluded that it could not form a quorum to hear an en banc appeal of the lawsuit claiming damages from global warming, Ned Comer, et al v. Murphy Oil USA, et al. Therefore, the court ruled, its earlier order that had the effect of dismissing the original suit stood.

Reached after a convoluted process with an unusual turn of events, the court’s decision that dismisses the suit is welcome news for those who believe the judicial system is the wrong place to handle claims of harm from global warming. The only venue left for the litigation is the U.S. Supreme Court, to which the plaintiffs will no doubt appeal.

Comer v. Murphy Oil was brought by Mississippi residents trying to hold 150 energy and industrial companies responsible for damages caused by Hurricane Katrina. Their theory is that the companies emitted greenhouse gases that cause global warming, which made Hurricane Katrina more destructive, therefore these companies – and only these companies — should pay up.

In August 2007, U.S. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi dismissed the lawsuit, ruling the plaintiffs lacked standing and the tort claims were non-justiciable ones that had to be resolved by the political system. (Opinion here, via Global Climate Law Blog.) The plaintiff’s appealed to the Fifth Circuit, and on Oct. 16, 2009, a three-judge panel ruled two-to-one that the lawsuit had indeed raised justiciable issues that should be heard at trial. (Opinion here.)

The defendants appealed for an en banc hearing by the full Fifth Circuit, which was granted. (The National Association of Manufacturers, American Farm Bureau Federation and American Tort Reform Association had joined in an amicus brief arguing for the hearing, as well.)

In an agreeing to the en banc consideration, the full Fifth Circuit vacated its three-member panel’s ruling on the Comer litigation, anticipating that it would hear the case and make its own ruling. That decision reinstated the district judge’s dismissal of the Comer suit. However — and this is the odd turn of events — right before briefs were due, the Fifth Circuit announced that an eighth judge had recused him or herself. The only reason stated was “new circumstances arose.” (Seven judges had already withdrawn; the usual reason for recusal is stock ownership.)

But the court had constituted itself correctly, and although the judges considered several options for further consideration, they decided that the previous action — dismissal — had to stand. From the Fifth Circuit’s order, filed today:

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

This is hardly the end of climate change litigation, unfortunately. Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts.

But for now, a bad lawsuit has been dismissed. That’s good enough for today.

For more, see the NAM’s Manufacturing Law Center entry on Comer v. Murphy Oil. Earlier Shopfloor.org posts here.

From page three of the final rule, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” the section, “Does this action apply to me?”

Entities affected by this action include sources in all sectors of the economy, including commercial and residential sources. Entities potentially affected by this action also include states, local permitting authorities, and tribal authorities. The majority of categories and entities potentially affected by this action are expected to be in the following groups:

• Agriculture, fishing, and hunting
• Mining
• Utilities (electric, natural gas, other systems)
• Manufacturing (food, beverages, tobacco, textiles, leather)
• Wood product, paper, manufacturing products
• Nonmetallic mineral product manufacturing
• Primary and fabricated metal manufacturing
• Machinery manufacturing
• Computer and electronic products manufacturing
• Electrical equipment, appliance, and component manufacturing
• Transportation equipment manufacturing
• Furniture and related product manufacturing
• Miscellaneous manufacturing
• Waste management and remediation
• Hospitals/Nursing and residential care facilities
• Personal and laundry services
• Residential/private households
• Non-Residential (Commercial)

The final reg helpfully includes the NAISC codes.

You see the list as it appears in the reg, pp 3-5, here.

We took note Thursday of this line from the EPA’s “Fact Sheet” on its new greenhouse gas tailoring rule:

Emissions from small farms, restaurants, and all but the very largest commercial facilities will not be covered by these programs at this time.

Boil it down: The EPA will not regulate emissions from small farms AT THIS TIME.

Soon enough, though.

So what did Secretary of Agriculture Tom Vilsack have to say the implied promise of future regulation of small farms for greenhouse gas emissions? After all, methane is produced by all sorts of farming operations (cows, manure), and it is a potent greenhouse gas.

Secretary Vilsack did issue a statement, but it’s about biomass fuels.

I want to thank the Administrator for agreeing to seek further comment on how to address the greenhouse gas benefits of bioenergy under the Clean Air Act. Energy derived from woody biomass, switch-grass and other sources has potentially enormous benefits for reducing greenhouse gas emissions, developing clean, home-grown energy, and providing economic opportunities for rural America. Markets for woody biomass can also bolster forest restoration activities on both public and private lands that improve the ecological health of our forests

OK. Important issue, but expanding biomass energy conversion is not uppermost on the minds of most farmers. Operating costs and the impact of federal regulations rank higher.

And the EPA’s rule certainly promises a lot of both.

From pages 415-416 of the final rule:

Although the proposal for the Tailoring Rule generally addressed how the statutory requirements for major source applicability (100/250 tpy thresholds) could be phased in in ways that would offer relief to traditional and non-traditional sources, such as residences, farms, small business, and semiconductor manufacturers, it did so by establishing relatively high CO2 thresholds during the early implementation period and lowering the thresholds over time as streamlining mechanisms become available to reduce administrative burdens. We did not propose any permanent exemptions of any kind or temporary exemptions based on source category.

Reuters, “US EPA issues rules on biggest carbon polluters“:

WASHINGTON, May 13 (Reuters) – The Obama Administration finalized greenhouse gas rules for big factories and power plants on Thursday, giving momentum to the troubled climate bill in the Senate.

We see this argument a lot, but the logic fails:

• The Environmental Protection Agency is circumventing the policy-making branch of government, Congress, by effectively rewriting the Clean Air Act to arbitrarily target CO2 emitters of its own choosing.
• The EPA’s actions demonstrate a contempt for the separation of powers and the rule of law, and would impose huge burdens on the economy.
• Therefore, Congress must pass legislation to enact the same things the EPA is attempting to accomplish through regulation.

Shorter version: Congress must punish the EPA’s excesses by doing what the EPA wants!

P.S. Carbon polluters? Talk about perverting science — and language — for political purposes. Makes you dread getting out of bed: Drew my first breath this morning, polluting the world as I exhaled.

From Henry Payne, the Detroit News editorialist and cartoonist, writing at National Review Online’s Planet Gore blog, “Environmental Progress: The Parked Mustang Test“:

Detroit — As Greg noted yesterday, activist Bill McKibben took to the pages of the Washington Post’s Earth Day edition to moan, “Forty years in, we’re losing.”

It is a sentiment echoed by his green allies in the media and public office. To admit progress would strip them of the power of perpetual and proliferating regulation that, incredibly, now encompasses CO2 — the very air we breathe. And yet McKibben’s comment is demonstrably false.

Take a simple benchmark: the iconic American muscle car, the Ford Mustang.

The Mustang’s evolution is a marvel of the relentless advance of engineering in a demanding, competitive consumer market. As Autoweek magazine explains, “the 1970 Ford Mustang pollutes more parked in a driveway than a 2010 Mustang does traveling down the road.”

A further excerpt follows.

Payne, by the way, is always a good read, sharp with the writer’s pen as well as the cartoonist’s. We especially liked the comparison of greenhouse gas emissions, Michigan versus Eyjafjallajökull. What that volcano needs is a good, long recession.

Would it be hyperbole to say that the last two weeks have witnessed the greatest expansion in history of the Environmental Protection Agency’s control over U.S. economic activity and the day-to-day lives of American citizens? If so, we’ll just encourage readers to ponder the substance — and costs — behind the anodyne headlines.

• 4/01/2010 — “EPA Issues Comprehensive Guidance to Protect Appalachian Communities From Harmful Environmental Impacts of Mountaintop Mining“
• 4/01/2010 — “DOT, EPA Set Aggressive National Standards for Fuel Economy and First Ever Greenhouse Gas Emission Levels For Passenger Cars and Light Trucks“
• 3/31/2010 — “EPA Disapproves Air Permitting Exemption Program in Texas“
• 3/30/2010 — “EPA Proposes to Revoke New Source Review Final Rule“
• 3/29/2010 — “EPA Formally Announces Phase-in of Clean Air Act Permitting for Greenhouse Gases/Agency reiterates no stationary source requirements until 2011“
• 3/29/2010 — “EPA to Scrutinize Environmental Impact of Bisphenol A“
• 3/26/2010 — “EPA Proposes Veto of Mine Permit Under the Clean Water Act“
• 3/23/2010 — “EPA Proposes to Add Sources to Greenhouse Gas Reporting System/Requirements target potent and persistent greenhouse gases“
• 3/22/2010 — “EPA Administrator Jackson Outlines New Vision for Clean, Safe Drinking Water“

There’s at least a little flexibility on the margins. Thankfully, “Limited Use of Modified Grenade Simulators Approved for Use at Camp Edwards.”

As the expensive new health care law dominates the public’s attention, EPA continues its relentless drive to impose tighter control over the manufacturing economy. As industry emerges from the most severe recession since the 1930s –- a recession in which the manufacturing sector lost more than 2.2 million high-wage American jobs –- EPA regulators are pursuing an agenda that will dramatically increase energy prices for all U.S. consumers while limiting the public’s energy choices.

During the next 10 months, EPA is expected to impose first-time controls on greenhouse gas (GHG) emissions from industrial sources through the “tailoring rule.” (EPA docket) Regulators also want to ratchet down an air-quality standard for ozone that will impose costly compliance rules on most major U.S. metropolitan areas. This year EPA will also consider reclassifying coal by-products as “hazardous waste,” thereby raising electricity prices. The agency also may seek to impose unachievable emission standards on industrial boilers, which manufacturers use in their plants to expedite production of a variety of goods.

The cumulative cost of these rules is staggering. With respect to the tailoring rule, EPA did not even bother to undertake a detailed economic analysis and concedes that much of the technology to implement GHG controls is nonexistent. Costs of the ozone rule, by EPA’s conservative estimates, could reach $90 billion, most of which will be shouldered by industry through either direct regulation or the passing on of higher electricity costs. The forest and paper products sector estimates that tighter controls on industrial boilers could reach $6.7 billion in capital expenditures, making many of their U.S. operations unprofitable and subject to closure.

Now is not the time to begin piling on additional costs on a sector that traditionally serves as the engine of job-growth and innovation. According to EPA’s own data, we are already making progress in improving air quality for all Americans through current programs, progress that undermines the rationale for moving forward with expansive and unachievable environmental controls.

Federal regulators are moving so aggressively that even state regulators are concerned. During the comment period for the so-called tailoring rule, more than 29 state EPA regulators joined manufacturers and other commenters in urging EPA to slow down its regulatory process. To read an NAM-organized submission from representatives of manufacturing companies, please click here.

Lisa Jackson, Environmental Protection Agency administrator, speaking at the National Press Club Monday criticized citizens who disagree with the power grab(s) being undertaken by the agency to regulate greenhouse gases. Jackson sends an army of straw-men arguments marching into a very important debate about science, our economy, and the authority of an executive branch agency to set policy.

As you might expect, we’re running into the same old tired arguments.

Once again industry and lobbyists are trying to convince us that changes will be absolutely impossible. Once again alarmists are claiming this will be the death knell of our economy. Once again they are telling us we have to choose: Economy? Or environment?

Most drastically, we are seeing efforts to further delay EPA action to reduce greenhouse gases.

This is happening despite the overwhelming science on the dangers of climate change…despite the Supreme Court’s 2007 decision that EPA must use the Clean Air Act to reduce the proven threat of greenhouse gases…and despite the fact that leaving this problem for our children to solve is an act of breathtaking negligence.

Yeah, breathtaking. We get it.

Let’s take a look at Jackson’s claims.

1. “Once again industry and lobbyists are trying to convince us that changes will be absolutely impossible.” Really? Who’s arguing that? Here is a paragraph from the National Association of Manufacturers’ policy on climate change:

The NAM understands the fundamental importance of protecting the environment. Our member companies are committed to greater environmental sustainability, including energy efficiency and conservation and reducing greenhouse gas emissions associated with global climate change. We know we cannot solve the climate change issue alone. The U.S. Congress must engage in a thorough and transparent deliberative process for establishing federal climate change policies to reduce greenhouse gas emissions, while maintaining a competitive level playing field for U.S. companies in the global marketplace.

The policy then lists a set of principles for federal action on climate, stating that policies must be equitable and economywide in scope, include all sectors and recognize the different competitive environments and abilities of sectors. The EPA does not have the authority to accomplish this balancing under the Clean Air Act.

2. “Once again alarmists are claiming this will be the death knell of our economy. Once again they are telling us we have to choose: Economy? Or environment?” Ah, alarmists. Because with unemployment near 10 percent amid inconsistent signs of a recovery, and the United States competing in a global economy, anyone who expresses concerns about a vast new regulatory regime imposing new costs on the energy sector, manufacturers, and transportation is an “alarmist.” Here is a link to a study conducted for the National Association of Manufacturers and the American Council for Capital Formation on the effects of the Waxman-Markey legislation, including a loss of $2 trillion to $3 trillion in economic growth and two million jobs over the 18 years of the bill.

3. “Most drastically, we are seeing efforts to further delay EPA action to reduce greenhouse gases.” Thank goodness for these “most drastic” efforts, also known as legislation. You see, it’s not only industry and lobbyists and citizens who are exercising their First Amendment rights in calling for a delay in the EPA’s unprecedented power grab. It’s Senators, like Sen. Jay Rockefeller (D-WV) and Sen. Lisa Murkowski (R-AK). And Representatives like Rep. Ike Skelton (D-MO), Rep. Collin Peterson (D-MN) and Rep. Jo Ann Emerson (R-MO).

4. “This is happening despite the overwhelming science on the dangers of climate change.” That’s a point of some contention, isn’t it? We see scandal after scandal undermining the credibility of the most prominent scientific polemicists on climate change. (From Iain Murray at the Competitive Enterprise Institute, “Climategate: This Time It’s NASA,” and “The Real Climate Confusion.”)

5. “despite the Supreme Court’s 2007 decision that EPA must use the Clean Air Act to reduce the proven threat of greenhouse gases…” Advocates  often simplify the court’s decision in Massachusett v. EPA as ordering the agency to regulate greenhouse gases. It’s not that direct. The court ruled that the EPA did have the authority under the Clean Air Act to regulate greenhouse gases and is required by the Act to base the decision on a consideration of “whether greenhouse gas emissions contribute to climate change.” In any case, that’s a statutory authority that Congress, as the policymaking branch of government, can remove or modify as it wishes.

6. “and despite the fact that leaving this problem for our children to solve is an act of breathtaking negligence.” Unlike, say, the federal debt? In any case, Administrator Jackson is using the tired political tactic of invoking “the children,” in this case on behalf of a false choice. Opposing the Obama  EPA’s power grab, arguing against the agency’s attempt remake and burden the U.S. economy over the wishes of the public and policymakers does not mean “leaving this problem for our children to solve.” It means accurately identifying the problem, relying on our elected policymakers to address the issue through the political process, avoiding Pyrrhic victories that burn down our economy, and using the best of technological advances to improve efficiency and energy conservation.

What’s breathtaking about that?

Jay Timmons, executive vice president of the NAM, returns home to speak to business leaders. From The Chillicothe Gazette, “Chillicothe native: More small town jobs will help restore economy“: “[The] key to create and maintain jobs in the U.S. is to lowering the corporate tax and changing the polices in Washington. ‘One thing I know for sure is that Americans will still stand in line for manufacturing jobs if they are around,’ he said.”

Milwaukee Journal-Sentinel, “Manufacturing growing slowly: “At the tail of end last year, there was a spike in orders for durable goods. But that was likely due to an expiring pro-investment tax provision for accelerated depreciation of equipment, according to the National Association of Manufacturers, based in Washington, D.C.”

Detroit News, “Blanchard, Engler agree term limits were bad idea“: “[Engler] did say Granholm’s pursuit of alternative energy manufacturing is taking advantage of an opportunity. ‘We’re in on the bottom, I would say, and have an opportunity,’ he said.”

Birmingham News blog, “Alabama one of three states suing the EPA for its ruling that greenhouse gases are a danger to public health“: “‘If EPA moves forward and begins regulating stationary sources, it will open the door for them to regulate everything from industrial facilities to farms to even American homes,’ John Engler, president of the National Association of Manufacturers, said when his organization filed its challenge last week.”