Through the Looking Glass Regulation

EPA’s mercury and air toxics regulation, indeed most of its recent regulations, takes on the appearance of Alice in Wonderland. As Humpty Dumpty said to Alice, “When I use a word, “it means just what I choose it to mean — neither more nor less.” So it is with this regulation. The Clean Air Act means what the EPA Administrator says it means and for this Administration, it means war on fossil energy. And also as the Red Queen said, “verdict first, trial later.” For fossil energy there is only the verdict, no trial.

Just recently in Congressional testimony, Professor Lawrence Tribe of Harvard, Barack Obama’s constitutional law teacher, said “Burning the Constitution should not become part of our national energy policy.” He also pointed out that in 2012, the Supreme Court held, “EPA may not employ [Section 111(d)] if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, [in sections 108 or 110], or the ‘hazardous air pollutants’ program, [in section 112].”

Analyses of this regulation show how EPA routinely overstates benefits and understates costs. It makes worse case assumptions and draws on questionable science to justify its actions. NERA, a well-respected economics consulting firm, concluded that the regulation would accelerate plant closing four times faster than EPA assumes, cost 180,000 jobs, and reduce GDP $84 billion. Analyses have also concluded that the benefits that EPA claims are mostly co-benefits that come from other regulations, in particular EPA’s particulate regulation.

Ironically, EPA uses the toxic effects of mercury, especially to women of child bearing age as a major justification for this regulation even though mercury emissions have been reduced by at least 60% in the last 25 years and blood levels of mercury in women 16-49 years of age are well below the government’s exposure reference dose according to the Almanac of Environmental Trends. What EPA is doing is mandating a solution to a non-existent problem.

To EPA there is a big problem and it is fossil fuels, namely coal. EPA and the Obama Administration are committed to following the EU down the road to ruin. The EU has pursued anti coal green agenda that has resulted in higher electricity prices—almost 3 times higher in Germany–, job losses, and the flight of investment. The EU economies are in perpetual stagnation in large measure to its environmental policies.

Almost 60% of our electricity comes from coal and there is no short-term alternative except natural gas. The forced turned over of the power generation capital stock will lead to higher costs and threaten the reliability of the grid. All of this to suppress carbon dioxide (CO2) emissions even though there is no, repeat no, credible evidence that CO2 harms human health and the environment. Indeed, the evidence points in the opposite direction. CO2 is a nutrient and higher levels will produce agricultural benefits and the continuing greening of the planet as is evidenced from satellite photographs.

The Supreme Court made a tremendous error when it said that EPA could define CO2 as a pollutant in spite of the fact that Congress explicitly denied EPA the authority to regulate CO2. The Court can take a big step in correcting that error by ruling against EPA on this and the clean power plant rule when it works its way to the Court.
This article appeared on the National Journal’s Energy Insiders weblog at

Partner & Fellow Blogs