While the case before the D.C. Circuit Court challenges specific actions the EPA is taking to limit greenhouse gas (GHG) emissions under the Clean Air Act, the outcome of the case will not affect the EPA’s underlying ability to regulate greenhouse gas emissions under the Clean Air Act.

Therefore, unless Congress takes the extraordinary step of prohibiting the EPA from making a science-based determination of whether an air pollutant endangers public health and welfare, regulation will almost certainly move forward.

The focus now should be on designing a regulatory program under the Clean Air Act that limits GHG emissions in a cost-effective manner—one that creates policy certainty for regulated entities and, in turn, stimulates investment in innovative energy technologies.

The Tailpipe Rule is already accomplishing that goal for the automobile industry. There, the EPA worked with auto manufacturers, states, environmental groups, and the Department of Transportation to design a predictable pathway to lower GHG emissions from motor vehicles. The automobile industry is already working to achieve the tightening GHG standard by 2016. Overturning that rule would only create business uncertainty and could potentially lead to two standards for automobile emissions—one for California and the states that follow California’s lead, and one for the rest of the states. That would not benefit consumers, the auto industry, or the environment.

Similar opportunities to apply cost-effective standards to stationary sources exist in Title I of the Act. In particular, there is a fair amount of flexibility built into section 111 of the law (commonly referred to as New Source Performance Standards). The EPA is currently developing performance standards for fossil fuel-fired power plants under section 111 and has the opportunity to achieve the broad goals underlying the recent climate policy debate: emission reductions, compliance flexibility, regulatory certainty, and technology innovation.

Notable advantages of regulating GHG emissions under section 111 include:

- The EPA may consider costs when designing a regulatory program under section 111.

- Section 111 requires the EPA to regulate sources of pollution rather than the pollutants themselves, thereby allowing the agency to apply tailored standards that are appropriate for various sectors of the economy.

- Section 111 allows the EPA to regulate GHG emissions from any new or existing sources that already emit other pollutants covered by the section, allowing the agency to enact new regulations relatively quickly. Timely regulation could not only result in environmental benefits, but also provide regulatory certainty to electric utilities and other large industrial facilities as they plan for the future.

- The EPA must periodically update the standards, allowing it to adjust the programs if the costs prove exorbitant or if the science requires more aggressive action.

Power plants and industrial facilities operate for decades. Perpetuating uncertainty by delaying regulation complicates the planning process and may prevent a company from choosing design options that will reduce lifetime operating costs. The alternative—moving forward with regulations for power plants and other major GHG emitters—will not only create a national framework to address climate change, it will also send reliable policy signals to guide business investments and technology innovation.

The climate debates taking place right now in the Court of Appeals and in the court of public opinion have something in common: the purposeful spreading of doubt by the fossil fuel industry. The petitioners opposing the EPA standards and the Heartland Institute have the same single-minded purpose — to cast doubt on what we know about the climate crisis by misrepresenting and challenging the most up-to-date climate science. They are trying to argue that the basic science of climate change is in question. It is not.

This should come as no great surprise to anyone. We know there are well-funded and powerful interests that are spending millions of dollars to preserve the status quo. And it is clear that they are even willing to deny the fundamental reality that climate change exists — denial that flies in the face of mountains of peer-reviewed scientific research crossing multiple lines of evidence. Much like the tobacco companies that spent decades and hundreds of millions of dollars spreading doubt about the health effects of smoking, there is a concerted effort to undermine the reality of climate science.

The campaigns to spread doubt and mistruths cannot and will not succeed. To quote Martin Luther King, "no lie can live forever." The EPA's endangerment finding is based on reams of peer-reviewed scientific research. Their exhaustive scientific review found that carbon dioxide is a pollutant that endangers public health. The EPA is therefore required to safeguard our future by reducing carbon pollution from power plants and vehicles.

False curricula cannot trump scientific fact. In fact, efforts to discredit, distort and misrepresent scientific facts about climate change have only galvanized those who know the climate crisis is real and urgent and requires our focused attention as a nation and around the world. The global movement to solve the climate crisis is energized and growing stronger. Extreme weather events, longer-term shifts in temperatures and sea-level rise, and other impacts are becoming more apparent, not less. Awareness is growing that this is not just a problem for our grandchildren to worry about. It is a problem for all of us right now. Fortunately, building a clean and renewable energy future is a viable alternative, and the technologies are more affordable and widespread than ever before.

The controversy over the Gleick affair is related to the legal fight over EPA’s greenhouse gas regulations by more than just general subject matter (climate change) or the happenstance that both are in the news.

The root cause of both controversies is a by any means necessary mindset, a ‘one law for thee, another for me’ mentality, that is inimical to democracy and scientific integrity alike.

Climate scientist Peter Gleick, an expert in scientific ethics, stole fund raising and budget documents from the Heartland Institute under false pretenses (identity theft) and very likely forged the phony ‘confidential climate strategy memo’ touted by DeSmog Blog and other blogs as exposing a Koch-funded, ‘doubt is our product’ ‘denial machine.’

Gleick still denies he authored the strategy memo, but you don’t have to be a climate skeptic to distrust the self-serving plea of a confessed liar and thief. DeSmog Blog still claims the memo is genuine, despite several lines of evidence to the contrary:

(1) The digital footprint shows that the memo was created in the Pacific time zone, where Gleick lives, rather than in the Central time zone, where all the bona fide Heartland documents (except the IRS 1099 form) were created.

(2) The strategy memo contains an allegedly incriminating phrase -- “anti-climate” – often used by warmists to describe skeptics but never by skeptics to describe themselves.

(3) The memo proposes to keep “Peter Gleick” and other “opposing voices” out of Forbes magazine. How on earth could Heartland pull that one off? Is Heartland the think tank-tail that wags the financial empire-dog? The strategy memo implies that when Heartland President Joe Bast says “jump,” Steve Forbes says “how high?” The strategy memo doesn’t pass the laugh test.

(4) The memo proposes to pay Dr. David Wojick $100,000 to develop a K-12 global warming curriculum. Why? To show that, “climate change is controversial and uncertain – two key points that are effective at dissuading teachers from teaching science.” In other words, Heartland wants to spend $100k to develop curricular materials so that – teachers won’t use them! To believe this, you also have to believe that Heartland produces phone book-sized assessments of the peer-reviewed scientific literature so that people won’t read them.

(5) The ersatz strategy memo boasts that Koch funded Heartland’s climate science program to the tune of $200,000 in 2011. In reality, as Heartland’s 2012 Fund Raising Plan shows, Koch donated $25,000 in 2011, not $200,000, and for Heartland’s health care program, not its climate science program. Heartland seeks a $200,000 donation from Koch in 2012 — for its health care program, not its climate program. Heartland sent the Fund Raising Plan to all members of the organization’s board. Why would Heartland also send board members a memo that gets the amount, type, and year of Koch’s past and projected contributions stunningly wrong? It makes no sense.

Rather than condemn Gleick for behavior beyond the pale, DeSmog Blog lauds him as a whistle blower. Gleick tries to blame the victim, claiming he acted out of “frustration” at Heartland’s efforts to “prevent this debate.” Yet we now know Heartland invited Gleick to debate climate change and Gleick declined – weeks before he published the stolen documents. James Garvey argues that the righteousness of Gleick’s cause – damaging Heartland’s reputation and funding – should be considered an extenuating circumstance. In the 17^th Century, religious partisans invoked the “No faith with heretics” doctrine to justify lying and worse. Gleick and his apologists preach a ‘no faith with skeptics’ doctrine. Medievalism lurks not far beneath the surface of these would-be defenders of science.

Michael Mann and six colleagues suggest that Heartland merely got its comeuppance for cheering the release of the Climate Research Unit (CRU) emails that sparked the Climategate controversy. That, too, is nonsense.

The CRU is a tax-funded organization; thus, its research and work-related emails are subject to freedom of information laws. Heartland is a privately-funded organization; thus, its planning documents are not subject to such laws. As we know from the Climategate emails, CRU scientists stonewalled FOIA requests for years to prevent independent researchers from checking their data and methods. That was a bona fide scandal, not only because evading FOIA is unlawful, but also because scientists who deny independent researchers the opportunity to reproduce (invalidate) their results attack the very heart of the scientific enterprise.

Leaking the CRU emails — for all we know the work of a genuine whistle blower — was the only way to (a) produce documents responsive to valid FOIA requests, (b) expose CRU’s willful evasion of FOIA, and (c) subject CRU research products to the indispensable scientific test of reproducibility.

Fakegate and Climategate are profoundly similar in one respect: both expose scandalous behavior by prominent members of the climate science establishment. As atmospheric scientist Judith Curry observes, “There is the common theme of climate scientists compromising personal and professional ethics, integrity, and responsibility, all in the interests of a ’cause’.”

The ‘by any means necessary’ mentality animating Gleick and the Climategate schemers is also at the heart of the litigation that became Massachusetts v. EPA, the Court’s decision in the case, and the Obama Administration’s climate policy and fuel-economy power grabs.

Whatever the outcome of Coalition for Responsible Regulation v. EPA, the following facts are hard to dispute. (1) EPA and the California Air Resources Board's (CARB) motor vehicle greenhouse gas emission standards implicitly regulate fuel economy. (2) Under the statutory scheme Congress created, one agency – NHTSA – regulates fuel economy through one set of rules – Corporate Average Fuel Economy – pursuant to one statute – the Energy Policy Conservation Act (EPCA). Today, three agencies – EPA, NHTSA, and CARB – regulate fuel economy through three sets of rules pursuant to three statutes – the Clean Air Act (CAA), EPCA, and California Assembly Bill 1943. (4) The CAA provides no authority for fuel economy regulation, and EPCA specifically prohibits states from adopting laws or regulations “related to” fuel economy. (5) Congress never intentionally authorized EPA to de-carbonize the U.S. economy.

The last point deserves further comment. Congress declined to give EPA explicit authority to regulate greenhouse gases in 2010, when Senate leaders pulled the plug on cap-and-trade legislation. That was after nearly two decades of global warming advocacy. Note that a key selling point of the Waxman-Markey bill was that it would preempt EPA regulation of greenhouse gases under several CAA provisions.

If instead of introducing a cap-and-trade bill, Reps. Waxman and Markey had introduced legislation authorizing EPA to do exactly what it is doing now (i.e., regulate greenhouse gases via the CAA as it sees fit), the 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 a gleam in Al Gore’s eye, defies both history and logic.

It is unrealistic to hope that the D.C. Circuit Court of Appeals will undo the damage that judicial and regulatory activists have done to our constitutional system of separated powers and democratic accountability. Congress can restore the balance of powers but only if it has the will to do so. Only one chamber of Congress has the will today. That may change in November.

EPA’s carbon dioxide rules endanger human health and welfare

Legal challenges by states and industry groups over the Environmental Protection Agency’s efforts to regulate carbon dioxide and other greenhouse gases could and should be decided in the challengers’ favor. Whether that will happen in this highly politicized, semi-scientific matter of “dangerous manmade global warming and climate change” remains to be seen. Regardless of what the DC Court of Appeals decides, the case will almost assuredly return to the Supreme Court, where the outcome is equally uncertain.

In Massachusetts v. EPA, the Supreme Court said EPA had the authority (but not the obligation) to regulate CO2 under the Clean Air Act’s “capacious definition of air pollutant.” EPA could do so, the court ruled, if its administrator concluded that GHG emissions “may reasonably be anticipated to endanger public health or welfare.” In other words, the administrator’s opinion was not sufficient. The agency must conduct a scientific study and make a convincing scientific case for taking action.

Not surprisingly, Administrator Lisa Jackson decided that CO2 does endanger public health and welfare, and signaled her intention to regulate these emissions. However, there are serious problems with this.

First, EPA conducted no original research of its own. Relying on work by the Intergovernmental Panel on Climate Change and other agencies, it merely selected existing studies and reports that supported its predetermined outcome – and ignored numerous studies that contradicted its decision.

Second, scientific opinion is sharply divided on the extent to which these gases might contribute to climate change. EPA chose to disregard this inconvenient truth – and continue the shoddy practice begun by the IPCC and alarmist climate scientists of refusing to discuss or debate the validity of computer models, assertions of imminent disaster, and evidence for and against the catastrophic AGW hypothesis.

Third, carbon dioxide simply is not a “pollutant” within the meaning of the Clean Air act. It is not an agent that fouls or contaminates the air, making it harmful to human health. In fact, CO2 is a natural component of Earth’s atmosphere and a key ingredient in photosynthesis. Without carbon dioxide all life on Earth would cease to exist.

Fourth, both the 2007 Supreme Court decision and the IPCC studies relied on by EPA predate the Climategate emails and other scandals that have revealed how contrived, questionable and perhaps even fraudulent global warming disaster “science” actually is. Had those documents surfaced prior to its 2007 deliberations, the Court’s decision might well have been very different.

Fifth, allowing EPA to impose its CO2/GHG regulatory regime would effectively put the agency in charge of every aspect of Americans’ energy use, economic activities and lives. EPA’s unprecedented and exorbitantly expensive rules will severely and adversely affect hydrocarbon use, energy prices, food production, manufacturing, transportation, jobs, home and office heating and cooling, hospital and school operations – and thus human health and welfare.

Finally, and most absurd of all, even eliminating every source of carbon dioxide in the USA – electricity generation, vehicles, industries, humans and animals – would do nothing to reduce other emission sources worldwide. While US carbon dioxide emissions are declining, those sources continue to raise atmospheric CO2 concentrations. Thus, despite their devastating impacts on America’s economy and living standards, EPA’s rules would do virtually nothing to forestall the harms that its pseudo-science predicts.

Into this legal, scientific and regulatory cesspool now comes yet another element, which may yet go down as a key turning point in the debate – more important even than Climategate: Peter Gleick’s February 14 transmission of several stolen documents and a forged memorandum to 15 environmental activists in the United States and possibly abroad.

The stolen documents were taken from The Heartland Institute, a Chicago-based think tank that has received increasing attention for challenging IPCC and EPA global warming doom and gloom dogma, misinformation and propaganda. (Among the documents stolen were lists of HI donors and its entire 2012 budget.) The left and its mainstream media lapdogs had a field day with the information, but focused almost exclusively on the forged memo, which purported to reveal Heartland’s secret “climate strategy” – to make school children, citizens and legislators better informed about actual climate science.

Six days later Gleick, president and co-founder of the Pacific Institute, confessed to the crime. Virtually everyone now agrees the memo is a poor forgery, probably written by Gleick, although he still denies having done so.

Gleick is a prominent member of the global warming clique. His take-down is big news, and one reason this scandal could overshadow Climategate in its impact on global warming debates. Despite all the Sturm und Drang caused by Climategate, no one really paid a price for the gross misbehavior revealed by the leaked emails – even though the actions were funded with taxpayer money and used to promote bogus science, harmful public policies, and massive changes in energy use and living standards.

Gleick has been forced to step down from several positions, including as president of the Pacific Institute, and will likely face civil and criminal charges. His is likely to be only the first scalp that global warming “realists” collect from this incident. Heartland has indicated it will also go after Gleick’s accomplices in major environmental organizations and even in the drive-by media.

The criminal and civil cases will drag out for years, and discovery could uncover even more misbehavior in the alarmist camp than did Climategate. Heartland may also face discovery, but the stolen documents suggest that it has little or nothing to hide.

Why did Gleick target Heartland? As HI president Joseph Bast wrote to climate scientist Judith Curry in a message posted on her blog, Climate Etc: “I suspect he targeted us because we have done so much to document and rebut the assumptions and exaggerations of the global warming alarmists.” He then mentioned Heartland’s monthly publication, Environment & Climate News, its persuasive multi-volume response to the IPCC, Climate Change Reconsidered, and its six international climate conferences. [See http://judithcurry.com/2012/02/24/why-target-heartland/]

Climategate caught the global warming establishment off-guard, but it soon regained its footing, aided immensely by the billions of dollars that governments are pouring into the “climate crisis” industry. Fakegate is rocking their world again, revealing the alarmists’ increasing desperation that the debate they don’t want to have will cost them their credibility, prestige, power and funding. This time, Fakegate may sweep some of them off their feet.

Who knew what Gleick was up to, and when did they know it? Who was Gleick trying to impress by this theft and forgery, and what did he and his accomplices seek to gain?

In the digital era, every email and every PDF document leaves a digital trail. There will be no cover up this time, no white-wash investigations by friendly IPCC and university colleagues. The perpetrator can’t take the Fifth Amendment in a civil suit, and the prospect of time in jail has been known to loosen lips. The whole global warming cabal is wondering when the next shoe will drop, and drop it shall.

The truth will finally come out, and the world will be better for it.

Even without federal regulations, there is a business case to be made for managing carbon emissions throughout the production life cycle of energy, fuels and consumer products. First, management of carbon and energy inputs promotes efficiency and innovation, which in the long run promotes business survival. Recycling of carbon (as with any other side stream from a production process) represents a business opportunity. Second, the emission of carbon, just as with any other waste stream, passes the costs of clean up, recycling, or of the use of clean air and water from businesses to society in general – a classic tragedy of the commons.

There’s a myth that atmospheric carbon emissions provide a free resource to farmers and growers. And that forests provide a free and unlimited resource to soak up and sequester carbon emissions. While forests absorb carbon whatever its source, they are not part of the lifecycle of fossil fuel production.

Biofuels and bioenergy, when they use agricultural and forestry resources, must account for the entire lifecycle of energy inputs and outputs. In fact, under the Renewable Fuel Standard, biofuels are the first and only industry to be formally regulated for emissions. They’re doing just fine, all the same, because they have demonstrated the ability to reduce carbon emissions. If we increase use of biofuels we can reduce carbon emissions even without a regulatory program in place.

David Doniger is a good but clever writer. If petitoners are shooting with blanks, NRDC is blowing smoke. He makes it appear as if anyone challenging EPA is from the wing nut society. The only groups he omitted were the 666 devil society, the Taliban, and Al Qaeda.

He asserts that carbon pollution, which must be different for natural emissions of CO2, are driving dangerous climate change. But for that to be true, atmospheric levels of water vapor must be increasing. They are not. The problems with the so-called peer reviewed work bolstering his case has be well documented in the past as have the differences between the IPCC science assessments and the Summaries for Policy Makers that is written by government representatives not independent scientists.

While the Supreme Court, concluded that EPA had authority under the Clean Air Act it did not mandate EPA to act. And, while he goes to great lengths to show that the Endangerment finding was carefully reviewed, he failed to show that it had been independently reviewed by people who did not have a personal stake in the outcome. Most academic studies of climate change in the US have concluded that the US would be a net beneficiary. So what is the damage to our health that is occurring or will occur in the next decade?

When the Congress debated and reauthorized the CAA in 1990, it explicitly decided not to grant EPA authority to regulate CO2. The Supreme Court simply ignored that action and focused on interpreting one provision of the act in a way that gave leeway to the agency.

Conveniently, it is ok for EPA to interpret Congress in justifying its Tailoring rule while ignoring Congress' intent not to grant it the authority it now seeks to use. It is also expansive for an agency to assume a judicial role in interpreting laws. That use to be the role of courts.

Asserting that the public strongly supports EPA's regulatory juggernaut bears little resemblance to data from most opinion polls where environment and climate don't even make the top 10 of public issues. The public wants a strong economy and lower unemployment, period.

(These comments were submitted by Hans A. von Spakovsky, a Senior Legal Fellow at The Heritage Foundation and a former lawyer at the Justice Department.)

The National Journal asks what’s at stake for “climate change” in the legal fight over the Obama administration’s power to regulate carbon emissions. But the real question is what’s at stake for the future of American industry, manufacturing, energy production, and agriculture.

As the U.S. Court of Appeals for the D.C. Circuit hears oral arguments over lawsuits challenging the Environmental Protection Agency’s authority to regulate greenhouse gas emissions, it is important to keep in mind that the supposed link between such emissions and so-called global warming is not an established scientific fact. There is great dissension in the scientific community. The predictions of the theory and the models have been invalidated by an increasingly broad and robust set of empirical observations, compelling the conclusion that the theory and the models are wrong.

The lawsuits over the EPA’s power to regulate carbon dioxide were given even more importance in 2011 when the Supreme Court unanimously threw out a meritless global warming lawsuit brought by eight states in American Electric Power Co. v. Connecticut. Because the Supreme Court had held in Massachusetts v. EPA in 2007 that the Clean Air Act authorized federal regulation by the EPA of carbon dioxide emissions, the Court held in American Electric Power that neither the states nor any other private party could bring a claim under the federal common law theory of “public nuisance.”

This leaves such regulation in the hands of the EPA, and makes these lawsuits challenging the EPA critical in the fight to stop the Obama administration’s imposition of stringent regulations. The EPA has admitted that subjecting the millions of sources of carbon dioxide to the minimal standards of the law is impossible and that its regulations don’t comport with the statute. The agency is making unproven, unlawful, and highly questionable scientific assertions in its proposed rules that will impose unjustified costs on the engines of American commerce.

The EPA’s seizure of regulatory power is particularly troublesome because over the past three decades, Congress has never passed legislation regulating climate change, only statutes providing for research and study of the issue. The Senate never ratified the Kyoto treaty and Congress passed a series of bills that barred the EPA from implementing its protocols.

If the appeals court requires the EPA to use proper and accepted scientific, economic, and technological means to justify its actions in regulating a non-toxic, ubiquitous byproduct of industrial civilization, then the EPA will be unable to meet that burden and the industries and states that have sued the government will prevail. But if the court gives into the political pressure and political correctness that has dominated so much of the debate over supposed global warming, then the EPA will win.

Such a decision will permanently damage and impede the economic future of the country.

Stripped of all its rhetoric and unnecessary complexity, what is at stake is whether science will be a campaigning tool or a foundation for rationale and objectively defensible policies. Unfortunately, it is being used by climate change advocates as a means of gaining and wielding political power.

The Supreme Court decision that EPA had the authority to regulate greenhouse gases under Section 2 of the Clean Air Act (CAA) was one of the worst decisions that the Court has made in a long time. Not only is CO2 not a pollutant but CAA history makes clear that Congress never intended to grant that authority to EPA. Proposals to do so were rejected when the CAA was reauthorized in 1990. If the Court had followed its own guidance established in Merrill v Daubert, it could not have reached the decision that it did.

But the Court has spoken, and only Congress can change that decision. While the Court concluded that EPA had the authority to regulate CO2, it did not mandate such action. EPA under the leadership of Lisa Jackson has been on a regulatory tear that reveals the power of zealotry over facts. Its endangerment finding and ‘tailoring rule’ should be over turned by the Court of Appeals, and the odds of the Court doing so ought to be better than 50/50.

While computer models predicting continued temperature increases from the continued use of fossil energy and inferences drawn from those model results are the foundation of the Agency’s finding, empirical data and analyses of potential impacts in the U.S. cut the other way. Those analyses show that the U.S. would on balance benefit from increased global temperatures, if indeed they occurred which should not be taken as a given. See the work of Yale’s Robert Mendelsohn.

CO2 is a nutrient that helps plants and crops to grow. The benefits to our agricultural industry are not trivial. Allegations that health will be endangered by higher levels of CO2 or somewhat higher temperatures lack a sound scientific basis just as allegations that the ozone standard must be reduced to protect human health are bogus. An objective analysis of real world data and climate facts as opposed to climate and temperature images produced by computer models and catastrophic advocacy should lead the Court to throw out the endangerment finding. Even if that does not occur, the tailoring rule is a clear violation of the CAA.

Congress usually doesn’t write laws that are easily understood but it did when it established PSD and Title V Emission Thresholds. Under the CAA, sources that have the potential to emit 250 tons per year or more of pollutants subject to regulation (or 100 tons per year or more if a source belongs to a list of 28 specified source categories) are major sources for purposes of the federal PSD program. EPA is attempting to justify a much higher threshold on the theory that compliance with the law would produce absurd results. The Executive Branch is charged with implementing laws not reinterpreting them. Allowing a regulatory agency, especially this EPA to reinterpret what Congress really meant instead of asking Congress to redefine its intent would put the nation on the slipperiest of slopes.

The outrageous action of Mr. Gleick in fraudulently obtaining Heartland Institute documents is just the latest example of the desperation of the climate apocalyptics. Since the science as it evolves undermines their theory, they have intensified their efforts to discredit and damage the reputations of those who express contrary views or whose research shows that CO2 emissions are not the primary driver of climate change.

If the case of climate advocates was as strong as they assert, they should be able to demonstrate that in a real scientific debate or some other open and transparent process. After all they are fare better funded than the so-called ‘skeptics.’ Failing to do that, they have engaged in the politics of personal destruction and character assassination. The Marxist philosophy that ‘the ends justifies the means’ has no place in a free and open society. Such behavior is corrosive and does long term damage to our future.

Until there is a political climate that allows an honest debate and assessment of the state of knowledge about the climate system, options for responding to climate uncertainties, and the economic consequences of energy suppressing proposals, far less progress will be made than is possible. We are not faced with a choice between do nothing and unrealistic emission reduction actions. A long-term challenge needs a long-term perspective. That is missing from the current debate.

The climate change debate, and its intersection of science and policy, profoundly illustrates the need to have a transparent, better-informed dialogue. Some believe that it is a zero-sum issue–either the scientific consensus on global climate change and humanity’s hand in it is correct, or it’s incorrect. Either we try to do something to fix it, or we don’t. Others believe that the scientific research is more along a continuum, and that policy approaches should be more nuanced.

In any event, the stakes are potentially very high, and these topics require serious and open dialogue. Among the stakes of the climate change debate, I would argue, are questions about our ability to have such a dialogue.

For example, what is the capacity of our electorate, and our elected representatives, to understand and limit the possibility of systemic, catastrophic risk? Can a nation that is as large, and as diverse, and as free as America proactively tackle a problem on the scale of climate change? Or do we have to wait until we're facing a crisis?

In some ways, America has been talking about climate change for decades, but most often the statements in this "discussion" have flown past each other. We really haven’t gotten anywhere in terms of reaching consensus in areas where we can largely agree, and sharpening the points of differentiation so that we can focus on them.

It’s time that we see that we’re talking about these issues in the wrong way, and that we do something about it. The National Journal Energy Experts blog is a very good forum, as is our organization’s site OurEnergyPolicy.org. Americans must begin to communicate with each other even where they disagree -- especially where they disagree -- if we are to have any reasonable prospects of responsibly tackling the questions surrounding climate change, our energy system, and our future.

The Clean Air Act (CAA) is the wrong tool to reduce U.S. greenhouse gases and unfortunately will result in a great deal of economic sacrifice for minimal environmental gain.

Last year, I testified before a House Energy and Commerce subcommittee on these adverse impacts. One of the most severe is on business expenses, the cost of capital and on new U.S. investment. U.S. gross private domestic investment was down by $256 billion in the fourth quarter of 2011 relative to the fourth quarter of 2007. Any substantial investment could well exceed EPA’s threshold level of GHG emissions and be subject to yet unknown CAA requirements. The recent historical relationship between investment spending and employment shows that each $1 billion dollar decrease in investment is associated with a loss of 15,500 jobs in the U.S. Conversely, each billion-dollar increase in investment is associated with 15,500 additional jobs.

Other analysis shows that if U.S. capital spending declines by $25 to $75 billion, in 2014 there would be an economy wide job loss of 476,000 to 1,400,000 when direct, indirect and induced effects are included. As a result, GDP would be $47 billion to $141 billion less than the baseline forecast.

Unfortunately, absent any global participation in greenhouse gas reduction by major emitters in developing countries, the reduction in global GHGs will be minimal. Given these economic hardships with little environmental return it makes little or no sense for the EPA to continue down this road and it should be stopped through any legislative, administrative or legal means.

This week a rogues’ gallery of science-denying industry associations, right-wing advocacy groups, Tea Party backers, and ultra-conservative elected officials get their day in court – two days, actually – to challenge the Environmental Protection Agency’s “endangerment finding” and its other actions under the Clean Air Act to start curbing the carbon pollution that drives dangerous climate change.

A three-judge panel of the federal appeals court in Washington (Chief Judge David Sentelle, Judge David Tatel, and Judge Judith Rogers) will hear oral arguments on February 28th and 29th in a collection of cases seeking to overturn EPA’s scientific finding, its landmark clean car standards, and its first steps to cut the emissions of big new industrial polluters.

The challengers have come gunning for EPA, but they are just shooting with blanks.

EPA took these actions in response to the Supreme Court’s landmark 2007 decision inMassachusetts v. EPA. There the High Court held that it’s EPA’s job under the Clean Air Act to protect us from dangerous carbon pollution that threatens our health and drives our increasingly extreme weather. The Court unanimously reaffirmed Massachusetts last year in a second case, American Electric Power v. Connecticut, concerning power plants.

So here’s a rundown on the coming shoot-out.

Who are these guys?

Dozens of lawsuits have been joined together under the name Coalition for Responsible Regulation v. EPA. A partial list of the petitioners speaks volumes:

· Coal companies and trade associations, including the National Mining Association, Peabody Energy, and Arch Coal (new owner of the former Massey Energy)

· Coal-burning utilities, including Southern Company and American Electric Power operating through their litigation arm, the Utility Air Regulatory Group

· Oil companies, through the American Petroleum Institute, the American Fuel and Petrochemical Manufacturers, and the Western States Petroleum Association

· Steel, cement, and other trade groups, including the American Iron and Steel Institute, the Portland Cement Association, and the National Association of Homebuilders

· Agribusiness interests, such as the National Cattlemen’s Beef Association and the American Farm Bureau Federation

· Right-wing climate science deniers including the Koch-funded Competitive Enterprise Institute and FreedomWorks Foundation

· Tea-party politicians, including Texas Governor Rick Perry, Virginia Attorney-General Ken Cuccinelli, and a dozen Republican members of Congress such as Michelle Bachmann and Joe Barton

NRDC has joined with other environmental organizations and state and local governments that have intervened to help defend EPA.

Do they have a case?

The raft of lawsuits is, first and foremost, part of a broader political attack on climate science and EPA that has been building since the Supreme Court’s 2007 ruling inMassachusetts v. EPA. The Court held in that case that when Congress passed the Clean Air Act it gave EPA the responsibility to act when science shows that new pollutants endanger our health or welfare. Carbon dioxide, the Court held, is an air pollutant just like any other substance emitted into the air from our cars or factories. Thus, it was EPA’s job to make a science-based determination whether carbon pollution is dangerous, and to set emission limits if the answer is “yes.”

Flush with support from the same industries and ideological conservatives that have brought these cases, the Republican-controlled House of Representatives hasrepeatedly voted to overturn the Supreme Court’s decision, repeal EPA’s authority over carbon pollution, and undo the endangerment finding and follow-on actions. (For a list of the House’s many climate change votes, go here and click on the links for “search by topic” and “climate change”.) The president promised to veto these measures, and the Democratic-led Senate voted them down.

While there are still loud voices of denial, the public strongly backs EPA. And while the usual suspects in the House of Representatives can still be counted on to attack EPA, their legislation is unlikely to make it through the full Congress.

As lawsuits themselves, these cases aren’t much of a threat. In late 2011, the D.C. Circuit and the New Orleans-based Fifth Circuit denied three separate requests for a “stay” (the equivalent of a preliminary injunction). The D.C. Circuit found that the challengers had failed even to show that they had been harmed: “Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are certain, rather than speculative, or that the alleged harms will directly result from the actions which the movants seek to enjoin.”

So now, after a year of further briefing, the cases have arrived at their final stop. Here’s the lowdown on each one.

The “endangerment” finding

You would be hard pressed to find an independent legal expert who thinks the challenge to EPA’s science-based endangerment finding has a ghost of a chance. EPA is plainly following the Clean Air Act and the Supreme Court’s decision in Massachusetts v. EPA. You could not ask for a stronger record to back EPA’s decision, or a more transparent and thorough process.

The endangerment finding stands atop an enormous, multi-layered pyramid of peer-reviewed scientific research and assessment developed over decades. At the base of the pyramid are tens of thousands of scientific publications, each one peer-reviewed before acceptance in a scientific journal.

This immense body of climate change research was then synthesized in multiple, independent scientific assessments. The three main assessments were performed by the Nobel prize-winning Intergovernmental Panel on Climate Change, the U.S. Global Climate Research Program, and the U.S. National Academy of Sciences. They involved thousands of scientists trained in pertinent fields. Each assessment was subject to rigorous peer-review.

On this base, EPA prepared a detailed summary of these peer-reviewed assessments and the underlying peer-reviewed scientific literature. EPA then subjected its own summary to review by a dozen top federal climate science experts – not once, not twice, but three times. The final endangerment finding stands at the very top of the pyramid.

In this thorough scientific process, no alternative theory – from sunspots, to clouds, to cosmic rays – has gone uninvestigated. And every wild charge of scientific fraud – aka, Climate-gate – has been examined and refuted. The challengers’ briefs throw some of this spaghetti at the wall once more, but none of it will stick. The Massachusetts decision and the D.C. Circuit’s own precedents will lead it to uphold EPA’s endangerment finding.

The clean car standards

In May 2009, President Obama announced the first of three landmark agreements with the automobile industry, auto workers, states, and environmental organizations to set combined carbon pollution and fuel economy standards under the Clean Air Act and the Energy Independence and Security Act. The standards cover model years 2012-16 and, by the fifth year, will cut carbon pollution by 30 percent while saving consumers up to $3,000 over the life of the car. Subsequent agreements have covered heavy trucks and established a second round of money-saving standards for cars, SUVs, minivans, and pickups, doubling miles per gallon and cutting carbon pollution in half by 2025.

The lawsuits next week challenge the first set of clean car standards, claiming the administration should not have set Clean Air Act standards at all and should have relied on the fuel economy standards alone. In that way, the challengers argue, EPA could have avoided triggering pollution limits for new industrial facilities (see below). EPA – joined by both the auto industry and the environmental intervenors – shows that its clean air standards actually result in much greater clean-up and larger consumer savings than the fuel economy standards alone. Further, the Supreme Court already ruled inMassachusetts that the fuel economy law does not trump the Clean Air Act, which requires EPA to set emission standards if carbon pollution is dangerous.

So this case is going nowhere either.

Pollution Limits for New Power Plants and Factories

While the ideological challengers want to tear EPA’s entire house down, the goal of the slightly less radical industry litigants is to block requirements for big new or expanded industrial facilities to obtain permits before construction showing that they will use the best available control technology (BACT).

The pre-construction permit requirement – known as “Prevention of Significant Deterioration” or “New Source Review” – is 35 years old, dating from the 1977 Clean Air Act amendments. The law states that each new or modified source that emits large amounts of pollution needs a permit with limits reflecting BACT for each regulated pollutant. Since 1977, these permit requirements have extended automatically to new pollutants that become subject to health and safety standards under other parts of the Act.

The regulation actually under review is called the “Tailoring Rule,” because in it EPA responded to one anomaly in the operation of the permit requirements. Those requirements nominally apply to each new source that emits at least 250 tons per year of a regulated pollutant. The committee reports on the 1977 legislation show that Congress chose this amount to distinguish between big sources and small ones. Big industrial sources, Congress determined, could and should bear the cost of the permit review and using state-of-the-art pollution controls. Carbon dioxide, however, is emitted in much larger amounts than any other pollutant. EPA found that if the 250-ton cut-off were applied to carbon pollution, it would sweep in much smaller sources than the industrial projects Congress intended to be covered by permitting, and it would overload permitting agencies with thousands more applications than they could handle.

So EPA “tailored” the permit requirements by devising higher cut-offs to use for carbon pollution sources, at least for an initial period. At present, a new source needs a PSD permit for carbon dioxide only if it emits at least 100,000 tons per year; an expanded source needs a permit if its annual CO2 emissions will rise by at least 75,000 tons. At those levels, the permit requirements capture the sources responsible for an estimated 86 percent of all industrial carbon emissions increases. Contrary to the challengers’ claims that millions of tiny industrial, commercial, and even residential facilities will be drawn into the program, the permit requirements remain focused on a few hundred to a few thousand projects at power plants and other really big industrial sources.

The challengers have three big obstacles to overcome. First, they lack “standing.” In order to challenge government action, you have to show that you, or your members, arehurt by that action, and would be helped by the court’s blocking that action. By raising the cut-offs from 250 tons to 75,000 or 100,000 tons, all EPA has done is help industry and state permitting agencies by narrowing the coverage of the permit requirements. They would be hurt, not helped, if their lawsuit succeeded in striking down the change from 250 tons to the higher amounts.

Second, to the extent they are complaining that EPA’s long-standing regulations violate the Clean Air Act by applying the permit requirements to new sources emitting all regulated pollutants, their suit is more than 30 years too late. The Clean Air Act requires petitioners to sue over a regulation within 60 days after it is announced. In fact, industry groups did challenge that specific regulation in 1978 and lost, in case called Alabama Power v. Costle. There are special circumstances permitting suits after that 60-day deadline, but they are not present here. In short, it’s way too late to challenge these regulations.

Finally, if the court reaches the merits, it will find that those 30-year-old regulations merely follow the requirements of the Clean Air Act itself. As this court found in Alabama Power, the law itself provides that the permit requirements apply to new and modified sources emitting each regulated pollutant.

What happens next?

Decisions in these cases are likely by summer. If the appeals court upholds EPA, it’s likely that at least some of the challengers will ask the Supreme Court for review. It’s unlikely the High Court will be interested. As I noted, the Court unanimously affirmed its 2007 Massachusetts decision just last June, holding in American Electric Power that it’s EPA’s responsibility to address power plant carbon pollution, and specifically taking note of EPA’s tailoring rule. The Court is not likely to want to review the appeals court’s decisions on steps that merely implement its prior holdings.

Hopefully, EPA will soon take further actions to protect us from dangerous carbon pollution. After years of delay, EPA is on the verge of issuing the first national limits on carbon dioxide emissions from new power plants to be built over the next decade. Then the agency needs to move on to existing power plants, which put a massive 2.3 billion tons of CO2 into our air each year. On top of the endangerment determination and the clean car standards, those would be big achievements indeed.

(These comments were cross-posted from the Natural Resources Defense Council website.)