Senators Reintroduce REINS Act

WASHINGTON, D.C. –  U.S. Senator Rand Paul (R-KY), along with Senators Chuck Grassley (R-IA), Joni Ernst (R-IA), Todd Young (R-IN), Ted Cruz (R-TX), and 29 other cosponsors, reintroduced the “Regulations from the Executive in Need of Scrutiny” (REINS) Act to increase accountability and transparency in the federal regulatory process. Senator Paul has been lead Senate sponsor of the bill each Congress since 2011.

The REINS Act would rein in unelected federal bureaucrats by requiring that Congress affirmatively approve every new “major rule” proposed by the Executive Branch before it can be enforced on the American people, as opposed to the status quo, where regulations ultimately take effect unless Congress specifically disapproves.

“Last Congress, we made tremendous progress on relieving the burdens placed on the American people by unelected bureaucrats, but much more remains to be done. Passing the REINS Act would reassert Congress’ legislative authority and help us further reduce unnecessary, overreaching government interference in Americans’ everyday lives,” said Senator Paul.

“Even when well-intended, government regulations are all too often ineffective, counterproductive or even outright harmful. Heavy-handed Washington regulators frequently fail to understand the real-world effect of their actions. As the Constitution outlines, laws are written and passed by the people’s branch of government, not by unseen and unknown executive branch employees behind closed doors who can’t be voted out of office. Thankfully, the Trump administration has taken significant action to repeal burdensome regulations. But more needs to be done to reclaim the rightful role of Congress as the lawmaking body of government and restore democratic accountability for rules that impact the lives and livelihoods of Americans,” said Senator Grassley.

“We must increase transparency and hold regulatory agencies accountable to ensure they are upholding the congressional intent of our nation’s laws. The REINS Act gives Congress the authority to review sweeping rules and regulations and is a step in the right direction to rein-in burdensome, out-of-control government regulations that impact Iowans, and all Americans,” said Senator Ernst.

“We have made significant progress reining in costly, job-killing regulations since I first introduced the REINS Act in the House six years ago, but we still have more work to do to protect hardworking Americans. I will continue fighting for the passage of this common-sense legislation in the new Congress,” said Senator Young.

“In an age where unelected federal bureaucrats have unprecedented power to unilaterally invent binding, economically destructive federal regulations, the REINS Act is a necessary step in curbing this excessive power. If enacted, the REINS Act would be the most significant, far-reaching structural regulatory reform ever passed, and I will continue to fight for this important reform,” said Senator Cruz.

Reiterating current federal law, the bill defines a “major” rule as one that the Office of Management and Budget determines may result in an economic impact of $100 million or greater each year; “a major increase in costs or prices” for American consumers, government agencies, regions, or industries; or “significant adverse effects” on the economy.

By passing the REINS Act, the American people – through their elected officials – will once again have the final say on whether or not such rules are the right course for our future.

In the 115th Congress, the legislation passed the U.S. Senate Homeland Security and Governmental Affairs Committee on May 17, 2017, while the U.S. House passed Rep. Doug Collins’ (R-GA) companion legislation by a vote of 237-187 in January 2017.

A Double Win in the Dusky Gopher Frog Case

By a vote of 8-0 (Justice Kavanaugh did not participate), the Supreme Court today gave a rational reading of both the Endangered Species Act (ESA) and its own power to review administrative agency actions. The decision in Weyerhaeuser v. U.S. Fish & Wildlife Service is an important win for property owners against arbitrary agency decisions. See Cato’s amicus brief here.

The case arose when the Fish and Wildlife Service (FWS), which administers the ESA on behalf of the Secretary of the Interior, designated a large parcel of land in Louisiana owned by Weyerhaeuser and a group of family landowners as critical habitat for the endangered dusky gopher frog, a small population of which lives today in Mississippi. The problem, however, was that the frog had not lived in Louisiana for decades and, worse still, the land in question, far from being critical habitat, was no habitat at all since it was unsuitable for sustaining the frog’s life cycles. On appeal, FWS did not dispute that critical habitat must be habitat; it argued instead that habitat includes areas that would require “some degree of modification” to support a sustainable population of a given species. In her dissent from the Fifth Circuit’s decision, Judge Priscilla Owen nicely summarized the immense practical implications of that view: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

Fortunately, Chief Justice Roberts, writing for the Court, today carefully parsed the ESA’s language to avoid that result. And of equal if not greater importance, he did the same to sustain the Administrative Procedure Act’s “basic presumption of judicial review” of agency action, finding here that the ESA requires the Secretary to take into consideration economic and other impacts before making a critical habitat designation. The economic impact to these plaintiffs of losing their right to develop their land was estimated to be $34 million—all to preserve a frog’s uninhabitable habitat. No wonder the decision was 8-0. Still, the plaintiffs had to go all the way to the Supreme Court to vindicate their rights.

The Court sent the case back to the Fifth Circuit to be resolved consistent with today’s opinion.

How to Keep the US Natural Gas Boon Going

America is becoming a major liquefied natural gas exporter. According to the latest statistics, the U.S. liquefied natural gas exports quadrupled from 0.5 billion cubic feet of gas per day in 2016 to 1.94 billion in 2017.

Of U.S. liquefied natural gas exports last year, 53 percent went to Mexico, South Korea, and China, with the largest share, 20 percent, going to Mexico.

A growing share of American liquefied natural gas exports is headed to Europe, too. Since the arrival of the first U.S. liquefied natural gas carrier in the Portuguese port of Sines in April 2016, the European Union has increased its imports of America’s liquefied natural gas from 0 to 2.8 billion cubic meters. NATO members, particularly Poland and Lithuania, have built new liquefied natural gas import terminals.

Given that the global liquefied natural gas market has become increasingly fluid and competitive, the value of U.S. liquefied natural gas exports is expected to be almost $5 billion this year. With plentiful reserves and innovative technologies that have unleashed an energy renaissance, the United States is the world’s leading natural gas producer and exporter and has a vital interest in protecting and expanding world energy trade.

In a welcome move at their July meeting in Washington, President Donald Trump and European Commission President Jean-Claude Juncker agreed to strengthen U.S.-EU strategic cooperation on energy trade, through which the EU would import more U.S. liquefied natural gas to diversify its energy supply and make it more secure.

However, U.S. law still requires prior regulatory approval for liquefied natural gas exports and constrains the timely expansion of much-needed energy infrastructure. These restrictions need to be addressed sooner rather than later so that energy companies can capitalize even further on America’s liquefied natural gas abundance and Europe’s energy demands.

The U.S. needs to make sure it does not get in its own way by keeping outdated and onerous restrictions. Regrettably, more than a dozen export facilities are awaiting permit approval from the Federal Energy Regulatory Commission. In fact, it has been three years since the commission last approved a new liquefied natural gas export terminal.

Heritage Foundation energy policy expert Nick Loris made the case for reformsuccinctly in a recent paper:

[A] burdensome environmental review process and an unnecessary public interest determination made by the Department of Energy slows the process of shipping [liquefied natural gas] to the desired destination. Both administrative and legislative reform will stimulate investment in energy in the U.S. and increase supply diversity for America’s allies, providing greater choices for consumers and creating a more mobile natural gas market. Further, empowering the states would create different and more efficient options for permitting, reducing the time frame in which [liquefied natural gas] reaches the market.

While strengthening relationships with trading partners around the world, America’s liquefied natural gas exports, supported by the timely expansion of much-needed energy infrastructure, would provide an additional boon to the economy and create more jobs.

That means, as The Economist has opined, “a cleaner world and a richer America.” The time to act on that is now.

Commentary by Anthony Kim. Originally published at The Daily Signal.

Court Order for EPA to Ban Pesticide Spotlights Need for ‘Transparency’ Rule

How can Americans be certain that scientific studies that are the basis of costly EPA regulations are accurate, and that the benefits of the regulations outweigh the expense?

Contrary to what critics say about a proposed rule from the Environmental Protection Agency, part of the answer lies in greater openness and transparency by federal officials, according to a new report from the Competitive Enterprise Institute, a Washington-based libertarian think tank.

The rule, called “Strengthening Transparency in Regulatory Science,” would require the EPA to publish the scientific data behind regulations so that the information would be available for public scrutiny.

The value of the proposal became apparent Aug. 9, when a federal appeals court ordered the EPA to ban the pesticide chlorpyrifos within 60 days, says CEI senior fellow Angela Logomasini, who authored the study.

“The Trump administration should certainly challenge this ruling, which goes beyond the bounds of reason and conflicts with all the best science on chlorpyrifos,” Logomasini, who specializes in environmental and consumer issues, said in a press release, adding:

The EPA is currently pursuing a scheduled scientific review on chlorpyrifos, and there is no reason they should stop that because of a misguided activist petition. The Trump administration was right to reject the proposed ban because it was based on a single study that EPA’s science advisory board indicated was inappropriate for drawing any conclusions.

In addition, the researchers refuse to release the underlying data of this study, preventing anyone from doing legitimate scientific review to ensure its validity. This case offers yet another reason why EPA should finalize its pending rule to increase scientific transparency at the agency.

If Congress decided to impose a ban, it would hinder farming and raise consumer prices for food, Logomasini noted in a recent op-ed. Proponents of a ban on chlorpyrifos see a connection between the pesticide and developmental disabilities in children.

report in The New York Times about the order from the U.S. Court of Appeals for the 9th Circuit cites studies concluding that the effects of  chlorpyrifos on children “included lower birth weight and reduced I.Q., with farm workers also reporting loss of working memory and other health consequences that at times resulted in hospital admissions.”

Court watchers consider the 9th Circuit to be one of the most liberal federal courts in the nation, and President Donald Trump hopes to reshape it through his appointments.

What the Rule Would Do

The EPA’s transparency rule would help to counter unsubstantiated claims against pesticides such as chlorpyrifos that protect crops from insects, Logomasini argues.

The proposed rule would require the EPA to “use peer-reviewed information, standardized test methods, consistent data evaluation procedures, and good laboratory practices to ensure transparent, understandable, and reproducible scientific assessments.” It is modeled after legislation that would have banned the practice of “secret science.”

Several versions of the bill passed the House, but not the Senate.

The EPA’s proposed transparency rule includes language similar to the legislation. EPA officials also included provisions that are quite different from what advanced through the House.

“The rule affords the EPA administrator considerable leeway to permit regulators to use research in cases where privacy or other concerns limit public availability,” Logomasini writes, adding:

In fact, under some laws, such as the newly reformed Toxic Substances Control Act, the EPA must use such research if it constitutes the ‘best available science’ on an issue. In that case, even if data were not fully available, the agency would still be required to rely on those critical studies. However, in cases where data can be more transparent without privacy concerns, the EPA could not refuse to release the data on arbitrary grounds.

If implemented, the transparency rule would not cover all EPA regulatory activities, but it would be applicable to regulations that would be expected to cost at least $100 million a year, according to the report. The rule also includes provisions that safeguard “confidential business information” and is “sensitive to national and homeland security,” Logomasini writes.

The transparency proposal has attracted criticism from some researchers who have expressed concern that it would hinder the scientific process. Logomasini analyzes some of these arguments in the report.

For example, John Ioannidis, a Stanford University professor of medicine, warns in a recent editorial that if the rule is implemented, “science will be practically eliminated from all decision-making processes” and that any new regulations “would then depend uniquely on opinion and whim.”

Despite his expressed misgivings toward the EPA proposal, the CEI report notes that Ioannidis raises “some good points” that make a strong case for greater transparency in science.

Transparency as ‘Inherently Pro-Science’

“Many critics of EPA’s transparency rule claim it is ‘anti-science’ and represents an ideological attack on regulation,” Logomasini says in her report. “It is true that those who prefer less regulation hope that the rule would eliminate unnecessary regulations that are based on poor-quality science. And it is also true that many oppose the rule because they fear it will weaken regulation. But irrespective of these ideological views, increasing transparency in science, whether used for government regulation or not, is an inherently pro-science goal.”

Logomasini also addresses claims raised in some news stories that suggest the transparency rule is laced with a “hidden pro-industry agenda” aimed at undermining air quality regulations.

The EPA implemented those rules for the purpose of alleviating airborne particles smaller than 2.5 micrometers in diameter, known as PM2.5. The regulations were based on science produced in a taxpayer-funded study from Harvard and Brigham Young University researchers that the agency kept sealed from public scrutiny.

The 1993 study, known as the Six Cities Study, is built around a statistical analysis that found a relationship between the life span of people living in six cities and the levels of the small airborne particles. The study concluded that people living in cities with higher levels of PM2.5 had shorter life spans than those in cities with lower levels.

Researchers who were part of the Six Cities Study have said they never agreed to release the data attached to the study and cited a need for anonymity. The EPA repeatedly has resisted congressional requests to disclose the information.

>>> Related: EPA Chief Moves to End Reliance on ‘Secret Science’

If researchers have genuine privacy concerns, the transparency rule can accommodate them, Logomasini says in the report. But she also points out that if the study’s findings are accurate, release of the data would serve only to strengthen the case for the air regulations:

Privacy concerns might be a legitimate challenge for releasing some or all of the Six Cities data. If that is the case, the rule, as noted, provides exemptions for rare cases where data cannot be made anonymous and privacy must be maintained. Accordingly, regulators can still use the Six Cities data, if legitimate privacy concerns prevent full release.

In cases where the data can be made anonymous, it should be released regardless of whether it supports weakening or strengthening regulations. After all, if a study’s findings are valid, releasing the data will only strengthen claims about the benefits of these regulations. If the findings are not valid, then we know that regulatory costs may not be justified, and that society actually suffers net negative effects because of those costs.

Indeed, regulation can translate into higher prices for food, transportation, consumer products, and even medicines. The debate over the rule is not about whether it benefits industry or not, but about how it impacts public health and well-being overall.

A Matter of Trust

The EPA’s public comment period for the transparency proposal ended Aug. 16.

Daren Bakst, a senior research fellow in agricultural policy at The Heritage Foundation, submitted comments that same day and credited the agency for recognizing the importance of public participation in the regulatory process.

“A transparent rulemaking process helps to ensure that decisions are being made in a proper fashion,” Bakst wrote, adding:

The public should not be expected to just trust the EPA (or any agency) to promulgate any rule it wants and draw its own conclusions without the public knowing how those conclusions were reached. This expectation does not change simply because the agency is dealing with a scientific study. Further, the EPA is not immune to seeking preferred policy outcomes and using questionable science to achieve those outcomes. Transparency helps to minimize these problems.

But the proposed rule remains the subject of criticism from other researchers and environmental advocacy groups.

The Natural Resources Defense Council, a nonprofit based in New York, argues in a blog post that the rule would “roll back health protections” because it could be used to prohibit studies that were the basis for regulations that protect the public from pollution and other dangers.

“There are many reasons why a  study cannot be made fully public, or replicated,” the NRDC blog says, adding:

For example, the original raw data may no longer exist, the original exposure conditions may no longer exist (such as lead exposures from leaded gasoline), and patient protection and privacy rules may prevent full disclosure of the raw data and information. EPA has long-established and transparent methods for evaluating data in these situations.

Supporters of the EPA proposal view it as a commonsense measure that will bring an added element of accountability to the regulatory process.

“EPA’s proposed rule strengthening science transparency is as common sense as rules come,” Tom Pyle, president of the Institute for Energy Research, told The Daily Signal in an email.

“The public must be able to hold government institutions accountable and that can only be done if the science used to justify costly regulations is rigorous, reproducible, and holds up to independent scrutiny,” Pyle said. “Peer review and factual analysis are hallmarks of scientific research. If the EPA doesn’t have to follow these standards, how can we trust that the rules they put forward are based on sound science and not political science?”

The Institute for Energy Research is a Washington-based nonprofit that favors free-market solutions in setting energy policies.

The EPA said it has begun to review the more than 479,000 comments, a process that could last through fall. The agency then will determine a timeline for making a final decision.

Report by Kevin Mooney. Originally published at The Daily Signal.

Companies blocked from using West Coast ports to export fossil fuels keep seeking workarounds

A year after Washington state denied key permits for a coal-export terminal in the port city of Longview, the Army Corps of Engineers announced it would proceed with its review – essentially ignoring the state’s decision.

This dispute pits federal authorities against local and state governments. It’s also part of a larger and long-running battle over fossil fuel shipments to foreign countries that stretches up the entire American West Coast.

We are sociologists who have studied how people respond to news about plans for big energy facilities in their communities. With President Donald Trump pushing hard for more fossil fuel production and exports, we believe it could get significantly harder for local communities to have a say in these important decisions.

Access to Asia

Oil and gas exports have dramatically increased nationwide over the past decade, ever since technological advances turned the U.S. from a top importer of these fuels to a growing exporter.

Energy companies have sought more access to West Coast ports for decades for routes to Asia and Australia. The region’s deepwater ports, railroad and pipeline networks, and proximity to some of the nation’s most productive oil, gas and coal fields make it particularly attractive for export terminals.

In some cases, exporting through the West Coast is the only economically viable option, as longer overland transportation routes would be too costly. Moreover, shorter trips by sea to reach China and other growing Asian markets cut costs.

Yet Western ports do not export as much crude oil as other American coastal areas.

https://datawrapper.dwcdn.net/9pNWU/2/

In addition, there are no facilities yet in California, Oregon or Washington for exporting liquefied natural gas, a form of the fuel that has been cooled to very low temperatures for easier storage and shipping.

This is not for lack of trying. All the numerous export terminals energy companies have proposed for liquefied natural gas up and down the West Coast have faced significant public opposition that made securing permits hard if not impossible.

https://datawrapper.dwcdn.net/S6ao6/3/

Likewise, relatively small volumes of coal are being shipped abroad from ports on the West Coast despite efforts to build new export terminals there.

https://datawrapper.dwcdn.net/h1P45/2/

Energy dominance

With his “energy dominance” policy, Trump has emphasized expanding production and export of fossil fuels and weakening environmental regulations – including those that address climate change.

His administration is siding with energy companies and landlocked states like Wyoming and Colorado angling to ship coal, oil and natural gas mined and drilled within their borders to lucrative and growing Asian markets.

At the same time, many local and state governments on the West Coast are on board with demands made by environmental activists for renewable energy development and advocates for more local control over development.

Local supporters of fossil fuel exports point to the positive local effects these facilities can have. Labor unions, county governments, business councils and ports frequently argue that bolstering fossil fuel exports would create jobs, entice investment and increase the tax base.

Opponents argue that transporting, storing, handling and shipping fossil fuels – via railroads, pipelines and ships – endangers nearby communities and contributes to climate change.

They point to oil train derailments, the public health perils of increased diesel fumes and coal dust, and pipeline explosions and leaks. They also highlight the climate implications of shipping fossil fuels abroad that may affect the carbon footprints of other countries, where the fuel would be burned.

These people have maintained a virtual blockade against new export facilities so far. But in our study of this issue, we have found it remains unclear if the federal government will overturn or override local and state decisions to deny permits.

https://datawrapper.dwcdn.net/2W42P/6/

Mobilization

Public opinion research indicates both support and opposition for fossil fuel export depending on fuel type. Our 2017 national survey showed that about a third of U.S. citizens sampled opposed exporting natural gas, while about half supported it and almost a fifth were undecided. Our forthcoming survey of Washington residents found similar levels of opposition to natural gas exports. We also detected higher rates of disapproval of oil and coal exports, with about half of residents opposing them.

Activists in the Pacific Northwest have established what they call a “thin green line” of resistance against any big new fossil fuel infrastructure. Their protests have contributed to state and local decisions to deny permits, as well as the passage of ordinances and resolutions limiting such development. Cities like Portland, Oregon, have banned these projects altogether.

Tribal governments have actively opposed many of these proposals, too. For example, the Lummi Nation played an essential role in stopping the Gateway Pacific coal terminal proposed for Bellingham, Washington.

Legal fights have ensued. After Washington denied the permit for the Millennium Bulk Terminals coal export proposal, six interior states and several industry groups joined the company in a lawsuit. They allege that the state’s decision violated the Constitution’s commerce clause, which grants Congress – not states – the power to regulate trade.

In some cases, the courts have determined that local bans are not allowed. In others, companies have simply withdrawn proposals, especially after sustained public protests.

Silencing local voices

The administration is pursuing multiple workarounds for expanding fossil fuel export, including a recent proposal to set up export facilities on retired military bases. Energy companies and energy-producing states are trying to capitalize on the fossil-friendly administration.

For example, senators from Texas, Colorado and Montana have encouraged Trump to use his authority under the North American Free Trade Agreement, or the deal that may replace it, to override Washington state’s denial of the coal export permit.

These moves at the federal level appear to be restricting opportunities for public participation in siting decisions, a development we find troubling.

In the case of the Jordan Cove natural gas export project in Oregon, the federal agency with permitting authority over the proposal used a new process for soliciting public comments in 2017. Instead of taking part in a hearing where those attending could hear all comments, members of the public met one-on-one with agency staff and a stenographer.

In previous research, we have shown how public hearings on energy projects are critical to the formation of active community groups, who use these opportunities to connect with like-minded individuals.

While one-on-one meetings may seem more efficient and less prone to conflict, they may also stifle important local debates on these issues. And they could potentially push activists toward more confrontational tactics because they do not feel their voices are adequately heard through official channels.

In addition, some companies have used existing permits and zoning to start handling a different fuel or expand facilities without undergoing environmental review and associated public comment processes.

Despite years of successfully blocking fossil fuel exports from the West Coast, whether the thin green line will hold is far from clear. Its resilience will partly depend on what happens with global fossil fuel markets and the success of export proposals in Canada and Mexico. Its resilience will also depend on how hard the Trump administration is willing to push and how hard the West Coast is willing to push back.The Conversation

Shawn Olson-Hazboun, Faculty, Graduate Program on the Environment, Evergreen State College and Hilary Boudet, Associate Professor of Sociology, School of Public Policy, Oregon State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Obama Was Wrong on Oil. We Did ‘Drill Our Way Out of the Problem.’

When gas prices topped $4 per gallon in May 2011, President Barack Obama said, “We can’t just drill our way out of the problem.”

Throughout his presidency, Obama stated some version of that sentiment every time he wanted to push to subsidize alternative energy sources.

More than seven years later, human ingenuity, technological innovation, and the power of the free market have proven him wrong. To the benefit of American families across the country, the United States is now the largest global producer of crude oil.

According to a report from the federal government’s Energy Information Administration this week, U.S. crude oil production surpassed that of Saudi Arabia and Russia. When Obama made his statement in May 2011, U.S. monthly production was 174 million barrels (5.67 million barrels per day). In June 2018, monthly production stood at 320.23 million barrels (10.67 million barrels per day).

The dramatic increase in supply shows drilling is not just a “bumper sticker” slogan, as Obama called it in his weekly address in February 2012, but a path to energy independence, prosperity, and jobs.

Domestic extraction has lowered gas prices for millions of drivers and savedthem hundreds of dollars a year at the pump. A number of factors contribute to the price of gasoline, but crude oil is the largest.

In 2017, crude prices made up 50 percent of the price of gas, with federal and state taxes (19 percent), distributing and marketing (17 percent), and refining (14 percent) accounting for the rest. Over the past decade, crude oil accounted for 61 percent of the total cost of a gallon of gas.

The economic benefits of the shale boom extend well beyond crude oil production and lower prices at the pump. When combining natural gas and other petroleum products, the U.S. has been the world leader for seven years.

Thanks in large part to smart drilling technologies, increased energy supplies lowered household energy bills. Businesses are spending less on shipping and electricity costs and can invest in new technologies or hiring more people.

In the last eight years alone, chemical companies have invested more than $200 billion in 333 projects—and cited the shale boom as the reason why they’re investing in America.

There’s no time like the present, but the future of U.S. oil and gas production looks incredibly bright, too. According to a recent report from IHS Markit, production in the Permian Basin of West Texas and New Mexico could double by 2023. The Bureau of Land Management’s lease sale in New Mexico grossed nearly $1 billion in bonus bids for 142 parcels.

In its draft proposed program in January, the Department of Interior listed 47 potential lease sales off the coasts of Alaska, and in the Pacific, the Atlantic, and the Gulf of Mexico, and would make more than 90 percent of the total federal acreage available for exploration and development. These changes stand in stark contrast to the Obama administration’s last order, which placed all but 6 percent of the Outer Continental Shelf off-limits.

Drilling doesn’t have to be the solution. But Obama and others who have dismissed conventional resource extraction are ignoring that drilling has been an extremely effective solution when energy prices get uncomfortably high.

Free, competitive markets are the solution. Higher prices for oil incentivize energy companies to extract and supply more oil and incentivize entrepreneurs to invest in innovative alternatives to oil—batteries, natural gas vehicles, or biofuels.

Drivers will examine their options as well, whether carpooling, finding alternative modes of transportation, or, over time, purchasing a more fuel-efficient vehicle.

Washington does not need to dictate the solutions because it can do more harm than good by catering to special interests and breeding cronyism. A successful energy policy is one that unleashes free enterprise and not government planning, quotas, or subsidies.

Commentary by Nicolas Loris. Originally published at The Daily Signal.

3 Residents Challenge Climate Change Rules at Delaware’s High Court

Delaware regulators have imposed costly and unlawful climate change regulations on industry in violation of legislative directives, according to three citizen activists who took their case to the state’s highest court.

But before the Delaware Supreme Court can address the substantive questions raised in the residents’ lawsuit, it first must resolve a lower court ruling that “failed to apply the correct legal test for standing,” Richard Abbott, their lawyer, said in an interview with The Daily Signal.

The Superior Court of Delaware ruled in June that residents David T. Stevenson, R. Christian Hudson, and John A. Moore did not have legal standing to challenge the state’s participation in a regional climate change agreement.

The trial court judge “applied the wrong legal standard,” their lawyer told The Daily Signal.

The three men had argued that the agreement’s regulatory restrictions on greenhouse gas emissions would raise their electricity bills. But Judge Richard Stokes decided that they failed to demonstrate this would be the case, and therefore did not have standing.

The Regional Greenhouse Gas Initiative, or RGGI, is a multistate agreement that currently includes Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.

State government officials who have joined the initiative argue that greenhouse gases such as carbon dioxide are responsible for dangerous levels of climate change, also known as global warming.

The gases enter the atmosphere during the industrial burning of fossil fuels such as coal, natural gas, and oil. However, a growing number of scientists question theories that link human activity to significant climate change, and instead point to natural forces.

States that are parties to the agreement must impose a “cap and trade” arrangement in which government officials set an upper limit on carbon dioxide emissions from fossil fuel plants. Companies subject to the caps may trade “allowances,” however.

Delaware became part of RGGI when it entered a memorandum of understanding with other states in December 2005. The memorandum of understanding provided the framework for cap-and-trade regulations in each participating state, built around a “model rule.”

Since there will be fewer carbon dioxide permits available for electricity generators to purchase under the regulations, the three plaintiffs argue, the price of the permits will rise in response to the realities of supply and demand, and that these higher costs will be passed along to consumers.

‘Probable Injury’

At the heart of the case is the authority of Delaware’s Department of Natural Resources and Environmental Control. Gov. John Carney, a Democrat who took office in 2017, supports the initiative.

When the lawsuit initially was filed in December 2013, the agency’s regulations had not gone into effect. For Delaware residents to have standing to sue, they needed to show there was a “probable injury” and not an “actual injury,” Abbott, the plaintiffs’ attorney, said in the phone interview.

Abbott argued that the trial court judge, Stokes, should have considered only facts that were relevant when the suit was filed, instead of relying on “postfiling facts.”

The precedent in Delaware, and in other states with cases involving energy consumers who dispute government policies, says that standing must be “broadly and liberally applied,” he told The Daily Signal.

“When making this determination about standing, it’s not supposed to be a stringent straitjacket like this judge wants to make it out to be,” Abbott said, adding:

One reason for the confusion, I think, is that it took more than four years for the court to dispose of the case, and these cases are typically done in a 12- to 18-month time period.

But it’s difficult because DNREC [Department of Natural Resources and Environmental Control] filed all kind of frivolous motions at the beginning of the case, which they always do because the government gets away with filing frivolous motions without being held accountable.

The Superior Court judge identified three methods the plaintiffs could use to establish standing: produce electric bills showing rate increases that can be attributed directly to the regulations; show proof that energy companies pursued rate increases in response to the regulations; or get “expert witness testimony” establishing a connection between the regulations and increased energy costs.

“You can’t show your electricity bills went up at the beginning of a case before the regulations even took effect, and the electricity providers can’t apply for a rate increase before they’ve had an increase in costs,” Abbott said. “This is impossible. Once again, the correct test for standing is what’s happening at the time of filing.”

Challenging Changes to the Cap

In November 2013, the Department of Natural Resources and Environmental Control altered the “size and structure” of the cap on carbon dioxide emissions. The cap became substantially lower and more restrictive than what the Delaware General Assembly approved through the memorandum of understanding with other states, the three plaintiffs say in their brief to the Delaware Supreme Court.

The three residents’ brief says the memo of understanding doesn’t permit “any changes” related to caps on carbon dioxide, requiring the agreement to be “formally amended by all signatory states” before adoption of any regulations reducing the caps from 2014 through 2018.

The caps on CO2 established in the agreement “are mandatory, static, and not expressly permitted to be changed by DNREC’s unilateral regulatory action,” their brief argues.

Delaware regulators routinely file “frivolous motions” and “play the game about standing,” Abbott said, because they want to avoid answering substantive questions about their modifications to the caps on carbon emissions without the approval of elected officials.

Officials at the Department of Natural Resources and Environmental Control “know that if the case ever gets to the merits, they are dead,” Abbott said, adding:

The state legislature said you can adopt regulations that are consistent with the MOU [memorandum of understanding], but they essentially cut the cap in half. There is no question that the regulations are illegal and inconsistent with what was authorized by statute.

I’ve litigated many cases against DNREC and have won every single case because they just ignore the law. This has gone on for decades. There is an institutional problem with this agency, where they have just gotten into the habit of doing whatever they feel like.

The Daily Signal sought comment from the agency’s public affairs department, but officials had not responded by publication time.

Virginia Set to Join Climate Pact

As The Daily Signal previously reported, Virginia Gov. Ralph Northam, a Democrat, has advanced his own regulatory proposal to make his state part of the Regional Greenhouse Gas Initiative.

The Virginia proposal, which could go into effect in December, has attracted criticism from lawmakers, policy analysts, and citizen activists who say the state should not enter the climate pact without the approval of the Virginia General Assembly.

Related: Virginia Governor Set to Bypass Legislature to Join State-Based Climate Agreement

“Gov. Northam is sadly encumbering the state of Virginia with a regulatory monster that will have no impact on the climate even if you believed every claim made by Al Gore or the United Nations,” Marc Morano, a prominent climate change skeptic, told The Daily Signal in an email. “RGGI will do nothing but saddle Virginia with meaningless climate change inspired regulations on Virginia industry.”

Morano, executive editor and chief correspondent of the Climate Depot website and author of the bestseller “The Politically Incorrect Guide to Climate Change,” has been critical of state policymakers who implement climate change regulations without popular support.

“RGGI will make states like Delaware and Virginia less competitive with other states wise enough to avoid this virtue-signaling nonsense,” Morano said. “If Gov. Northam bypasses the legislature to impose these economically strangling regulations, it will prove once again that the governor lacks the support of the people and the legislature to impose this monstrosity on the state of Virginia.”

“The same is true in Delaware, where stringent regulations are imposed without legislative approval,” he said.

New Jersey also is set to join the climate pact. Gov. Philip Murphy, a Democrat, issued an executive order in January reversing a decision by his Republican predecessor, Chris Christie, to keep New Jersey out of RGGI.

California has its own cap-and-trade program covering power plants, factories, and oil refineries.

In Washington state, voters were set to vote Tuesday on a ballot question,Initiative 1631, which would impose the nation’s first tax on carbon dioxide emissions. Gov. Jay Inslee, a Democrat, long has been a proponent of the carbon tax and cap-and-trade proposals.

Report by Kevin Mooney. Originally published at The Daily Signal.