Endangerment Finding delenda est

Posted on September 5, 2018 by matt ohern
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As the Punic Wars dragged on, Cato the Elder reportedly concluded every speech to the Roman Senate by proclaiming “Carthago delenda est” – “Carthage must be destroyed.”
Ample evidence suggests that the Obama era Environmental Protection Agency’s “Endangerment Finding” was devised in violation of basic scientific and transparency principles that ignored or excluded extensive evidence that contradicted its preordained outcome. The EF was then used to justify anti-fossil fuel rules that seriously harmed the energy security, jobs, health and welfare of millions of Americans.
The Finding must be reexamined. If these contentions are validated, it must be reversed and demolished.
In its 2007 Massachusetts v. EPA decision, the U.S. Supreme Court ruled that EPA must determine whether emissions of carbon dioxide and certain other atmospheric gases “cause or contribute” to “air pollution” that may be “reasonably anticipated to endanger public health or welfare.” If the agency found the answer was yes, then it had to regulate those emissions. The Bush EPA failed to take action.
However, candidate and President Obama had promised that he would eliminate coal-based electricity generation and “fundamentally transform” America. It was thus a foregone conclusion that his EPA would quickly find a dire threat existed. On December 7, 2009, EPA issued its Endangerment Finding (EF): that carbon dioxide (CO2) and five other “greenhouse gases” (GHGs) were pollutants that did indeed “threaten the public health and welfare of current and future generations” of Americans.
The Obama EPA then promulgated its “Clean Power Plan,” which shut down numerous coal mines and coal-fired power plants, eliminated thousands of jobs and severely impacted factories, families and communities across the United States. The CPP also spurred the shift to unreliable wind and solar power.
However, any CPP climate change, health and welfare benefits are at best undetectable, in part because the rest of the world – from China, India, Indonesia and Southeast Asia to Australia, Germany and Poland – continue to build thousands of coal-fired power plants and put millions of vehicles on the road.
Recognizing this, President Trump pulled the USA out of the Paris climate treaty. His EPA has proposed to replace the Obama Clean Power Plan with an “Affordable Clean Energy” (ACE) plan that lets states take the lead in devising GHG emission reduction programs that best serve their individual energy needs.
These are important steps. But they are not enough, because they perpetuate the false claim that plant-fertilizing carbon dioxide is a “dangerous pollutant.” Even worse, leaving the EF in place would enable any future anti-fossil fuel administration to impose new economy-strangling, welfare-degrading rules.
Worst of all, leaving the Finding unchallenged and ignoring the way it was concocted and implemented would sanctify some of the most fraudulent and dictatorial Deep State bureaucratic actions in history.
In devising its EF, the Obama EPA did no new research and made no effort to examine the full range of studies and evidence readily available on natural versus manmade climate change. It just cherry-picked Intergovernmental Panel on Climate Change (IPCC) reports; deliberately excluded studies that contradicted its predetermined finding; and relied on temperature and extreme weather predictions by computer models.
The IPCC itself had long ago ended any pretense of trying to understand the interplay of natural and human influences on Earth’s climate. Instead, for political reasons, it had decided to focus on human fossil fuel use and GHG emissions as the only important factors influencing modern climate change. Its reports reflect that approach – and ignore the growing and readily available body of contrary studies and evidence, such as volumes of studies summarized by the Nongovernmental International Panel on Climate Change.
The Obama EPA team even removed one of its most senior experts, who had prepared a contrarian report.  “Your comments do not help the legal or policy case for this decision,” his supervisor told him. EPA consulted with alarmist scientists and environmentalist groups, but ignored moderates and IPCC critics.
The computerized climate models relied on by EPA are programmed to reflect the assumption that rising atmospheric CO2 levels are the primary factor determining climate and extreme weather. However, the average prediction by 102 models is now a full 1 degree F above what satellites are actually measuring.
In fact, even as atmospheric carbon dioxide levels climbed well above the supposed 350 ppm “tipping point” (they reached 405 ppm in 2017), except for noticeable short-term temperature spikes during El Niño ocean warming events, there has been virtually no planetary warming since 1998 or at least 2002.
Moreover, Harvey finally ended a record 12-year absence of Category 3-5 hurricanes making US landfall. Tornados are no more frequent than in the 1950s. Droughts differ little from historic trends and cycles. Seas are rising at just seven inches per century, and Antarctic and Arctic ice are largely within “normal” or “cyclical” levels for the past several centuries. Indeed, reports of vanishing Arctic ice go back nearly a century and low ice levels were documented by Francis McClintock and other explorers long before that.
In many cases, older temperature records were adjusted downward, modern records got bumped upward a bit, and government-paid scientists relied on measurements recorded near (and contaminated by) airport jet exhausts, blacktop parking lots, and urban areas warmed by cars, heating and AC vents.
Humans might well be “contributing” to temperature, climate and weather events, at least locally. But there is no real-world evidence that “greenhouse gases” have replaced natural forces or are causing unprecedented climate chaos or extreme weather; no evidence that those emissions are “endangering public health and welfare” or that humans can control Earth’s perpetually fickle climate by controlling emissions.
Far from being a “pollutant,” carbon dioxide is the miracle molecule without which most life on Earth would cease to exist. The more CO2 in the air, the faster and better crop, forest and grassland plants grow, and the more they are able to withstand droughts, diseases, and damage from insects and viruses.
In fact, a slightly warmer planet with more atmospheric CO2 would be tremendously beneficial for plants, wildlife and humanity. A colder planet with less carbon dioxide would greatly reduce arable land extent, growing seasons, wildlife habitats, crop production and our ability to feed humanity.
Equally important, over 80% of US energy still comes from fossil fuels – and the countless benefits of those abundant, reliable, affordable fuels (and their CO2 output) exceed the EPA’s alleged “social costs of carbon” and “human health and welfare impacts” by at least 50 to 1, and perhaps as much as 500 to 1.
On a closely related matter, contrary to the “97% consensus” myth, scientific debate continues unabated over recent and future global warming, cooling, storms, droughts, sea levels and other “adverse effects” from oil, natural gas and coal use. Computer models and alarmist climate specialists say the threats are serious. Real-world observations and moderate to skeptical climate experts vigorously disagree.
The Obama EPA’s Endangerment Finding ignored all of this. It likewise dismissed the extravagant raw material requirements of expensive wind, solar and biofuel “alternatives” and their adverse impacts on wildlife and wildlife habitats. That makes the 2009 process even more suspect and fraudulent.
There is no demonstrable, much less dire or unprecedented, danger to American health and welfare from continued CO2 emissions. The danger is from anti-fossil fuel policies justified by the EF and IPCC.
Simply put, in concocting its Endangerment Finding, the Obama EPA violated the cost-benefit analysis policies and basic standards for honest, open, informed, replicable science. With so much of America’s energy, economy, environment, health and welfare at stake, this cannot be allowed to continue.
The Trump Administration must disavow the “CO2 drives climate change” tautology and stop viewing the Endangerment Finding as “established” law and policy. It is no more established or acceptable than were the Supreme Court’s reprehensible 1857 Dred Scott and 1896 Plessy v. Ferguson decisions.
It is time to reexamine the Endangerment Finding, give it the intense Red Team scrutiny it deserves, and relegate it to the dustbin of history. The Endangerment Finding delenda est.
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Federal Tax Cuts Should Spur Real Tax Reform in VA

Posted on August 22, 2018 by matt ohern
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A new battle is brewing here in Virginia. Most Virginians aren’t aware of this, but we need to be because it affects our taxes, our income and the ability of our economy to grow and put more money in our pockets.
The Governor recently announced that he expects $500 million is “new” monies coming into the state treasury thanks to the tax cuts. The implication being that the economy is getting a real boost.
But hidden from public view at this point is that most of these “new monies” being projected for the next year are coming straight out of our wallets unless the state legislature acts to stop it.
For administrative simplicity, most states conform to the federal code in some way for defining taxable income. These states tie their state tax code into the federal code so that changes enacted by Congress are “leveled out” automatically in the states. But that is not the case in Virginia and hasn’t been for a long time.
In our case, the General Assembly normally votes to pretty much conform our tax code to the fed’s code. No controversy. Our elected officials just do it and we move on with our lives. But, this year the General Assembly did not act during its regular session.
While Virginia has usually “conformed” in the past, the feds made major changes of the kind that haven’t been seen for 30 years. This means significant new revenue for the state if no action is taken.
If lawmakers do nothing, the state will collect about $500 million in additional revenue, but not necessarily in ways that policymakers want. Legislators could make tweaks to Virginia’s current code to reverse certain changes to hold taxpayers harmless.
In the legislative session earlier this year, the General Assembly postponed the incorporation of most of the provisions in the new federal law. Some state tax impacts will be felt immediately, while others require legislative action. On the whole, the definition of taxable income in Virginia (the tax base) will now be larger, while rates are unchanged. Without legislative action we will be paying more to the state – and it could be as much as 20% of our new federal tax cuts will be gone.
And already the Governor is talking about what to do with this new money – which is, in reality, our money given back to us by Congress and the President.
However, this new tax discussion gives us the opportunity to review the Virginia Tax Code and see how to re-designed it for the economy of the 21st century. Our current tax code is almost 50 years old, crafted when our economy was dominated by tobacco, textile manufacturing and coal.
Ideally, lawmakers will identify rate cuts or tax reforms intended to improve the Commonwealth’s tax competitiveness while avoiding an unlegislated tax increase. They should look at the “Big Picture,” and not nibble around the edges to satisfy one constituency or another.
We have the opportunity to ask some important questions and make some important long-term decisions to help grow our state economy. For instance we should ask: “If we re-crafted the Tax Code from scratch, what would it look like?” And, “What changes would most stimulate economic growth in a diverse economy like Virginia’s?” Additionally, “What do the federal tax changes enable us to do that we could not do in the past?”
This issue of “new tax revenue” can open up a political debate about what to do with the “new money” which, in reality, is money siphoned off of our own new money provided by the federal tax changes earlier this year. Or, we can look at this as an opportunity to begin a serious discussion about rewriting the tax code to help more people by growing the economy.
As Jared Walczak, Senior Policy Analyst at the Tax Foundation and author of a new paper on this issue co-published with the Thomas Jefferson Institute, said,
“Virginia is thought of as a business-friendly state, and in many respects this is true, but there’s a broad bipartisan consensus that the Commonwealth’s tax structure is outdated. There is significant room for improvement in how Virginia collects taxes. The new federal law gives the state the revenue flexibility it needs to make some potentially beneficial changes.”
We have a real opportunity to reform and update our antiquated tax code to better reflect the realities of 21st century Virginia. We have a rare chance to modernize our tax code. Properly crafted tax reform can encourage economic growth and put more money into the hands of Virginia’s citizens.
Our Governor and our General Assembly are up to this challenge if they choose to be.
(This column first ran in the Richmond Times Dispatch on August 19, 2018.)
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Full Conformity Raises $3.6B In First Five Years

Posted on August 22, 2018 by matt ohern
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Assuming the Virginia General Assembly conforms the state’s tax rules to the IRS code as it exists now, adopting intact the recent federal changes, the state will reap an additional $3.6 billion in revenue over the next five years.
Almost $2.5 billion of that will come from personal income taxes, with an additional $1.1 billion collected from business tax returns. By the sixth year, 2024, the total new state revenue attributed to conformity with the Tax Cuts and Jobs Act of 2017 reaches $950 million per year.
hose figures were revealed Friday by Secretary of Finance Aubrey Layne, having been forecast by a new proprietary revenue model developed for the state by Northern Virginia-based Chainbridge Software LLC. Layne’s presentation went into detail on the state’s revenue results for the fiscal year just ended, the official revenue forecast for the year that just started, and the federal tax conformity debate.
There are two key assumptions behind those Chainbridge projections. The first is that the state makes no changes in state tax brackets or rates or state-specific exemptions, all of which could be changed to reduce the impact on individual or business taxpayers. The second is that taxpayers take full advantage of the new federal rules when the federal benefit exceeds any tax cost at the state level.
While state taxes are projected to grow, federal taxes paid by most of those individuals are projected to decline by far higher amounts. Aggregate federal income taxes on individual Virginia residents are projected to drop by almost $4 billion for 2018, more than ten times the expected state income growth on the same earnings. These are projected totals, and to borrow a common disclaimer individual results may vary.
Governor Ralph Northam, who opened the meeting Friday with his own remarks, has proposed taking advantage of the revenue surge to amend Virginia’s Earned Income Tax Credit (EITC) making it refundable, meaning taxpayers who qualify would get any excess credit – more than their state tax liability – given to them as a tax refund.
He used the example of a lower-income family with a state tax liability of $800 and an EITC of $1000. Right now, Northam said, “Virginia keeps that additional $200.” Under his proposal “we’re giving that $200 back.” Critics of the idea would argue the $200 in question is coming from other Virginians as an income transfer payment.
Previous efforts to make the state EITC refundable have been estimated to cost up to $250 million per year. For tax year 2018, according to Layne’s data, individual taxpayers declaring incomes above $50,000 per year would be paying the state an additional $290 million, only slightly more than the cost of the EITC refunds.
Layne forcefully argued for full state conformity with the federal changes, adopted in early 2019 so the rules can apply to tax year 2018 in full. If Virginia stands still and does not conform, individual taxpayers will have to deal with as many as 20 major differences between their state and federal returns, and for business filers it is more like 30 provisions which would differ. For decades Virginia has traditionally conformed fully, or almost in full, with the Internal Revenue Code.
Passing an emergency conformity bill at the start of the January session, which would need an 80 percent vote, would not preclude a later debate about adjustments Virginia might want to make to rates, brackets, or other provisions. In statements outside the meeting, but not stressed Friday, many Republican legislators have discussed allowing Virginia taxpayers freedom to itemize deductions on their state returns while taking the standard deduction at the federal level.
The policy combinations are endless, and Layne pledged to work with the legislators who have ideas they want to test with the new revenue projection model.
(This article first ran in the August 20, 2018 edition of Bacon’s Rebellion.)

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What you should know about the chlorpyrifos ruling

Posted on August 22, 2018 by matt ohern
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On August 9, a federal court took an extraordinary step by ordering EPA to revoke all tolerances and cancel all registrations for chlorpyrifos. This is to be done within 60 days.
This happened, despite the fact that USDA says it is a mistake to conclude chlorpyrifos is unsafe.
So what happened?
EPA argued that administrative process deprived the 9th Circuit Court of Appeals of jurisdiction. The court basically said nonsense to EPA. The San Francisco court said “…in light of the strong individual interest against requiring exhaustion and weak institutional interest in favor of it, petitioners need not exhaust their administrative objections and were not precluded from raising issues on the merits.”
In plain English, the court said that petitioners did not have to exhaust all of their administrative remedies, which is generally required.
The evidence against chlorpyrifos use is so overwhelming the court will act in EPA’s stead.
The 9th Circuit Court of Appeals was fed up with EPA’s delay regarding taking chlorpyrifos off the market. The court claimed EPA had been delaying a decision on this pesticide since 2007.
The arguments in this case have to do with arcane requirements of the Federal Food, Drug, and Cosmetic Act. This act allows EPA to have a tolerance for a pesticide chemical residue left on a food product which is deemed safe.
EPA and other regulations define safe as “…there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.”
The 9th Circuit Court said there was no reason to restrict itself to federal jurisdiction, which should be “excused” when it determined EPA had failed to regulate the use of a pesticide on foods. The 9th Circuit panel concluded chlorpyrifos created unreasonable adverse effects on the human diet caused from the risk of residues left on any food.
Chlorpyrifos is an organophosphate pesticide. It was used as a nerve gas during World War II and in 1965 it was approved for agricultural, residential and commercial pesticide. It kills insects by impacting an enzyme which acts as a neurotransmitter in various organisms, and of course, kills them.
EPA, in the past, has set chlorpyrifos tolerances for 80 food crops including fruits, nuts, and vegetables. In 2007 the Pesticide Action Network North America, Natural Resources Defense Council, Farm Worker Justice Green Latinos, National Hispanic Medical Association, United Farm Workers, and Attorneys General from Maryland, Vermont, Washington, Massachusetts, District of Columbia, and California filed a petition with scientific studies showing that “…children and infants who have been exposed prenatally to low doses of chlorpyrifos suffer harms such as reduced IQ, attention deficit disorder, and delayed motor development…”
Note that no Midwest or southern farm state Attorney General participated in this case, no farm group and no one from USDA.
In the past, EPA had cancelled all residential uses of chlorpyrifos but allowed the pesticide with extremely low tolerances to be used on food crops. The court relied on a 2008 EPA science-issued paper that “preliminarily” concluded that “…chlorpyrifos likely played a role in low birth rate and delays in infant mental development observed in human cohort studies.”
The court described an EPA science panel had concluded there was persuasive evidence that chlorpyrifos exposure above 1.0 mg/kg could lead to abnormal reflexes and development disorders in children.
The 9th Circuit panel of judges found EPA’s lack of judgment regarding responding to the petitioners’ request “egregious”.
In light of findings by EPA, the court tossed aside any jurisdiction concerns which are of interest only to the lawyers, and substituted its judgment for that of EPA. The court found there need not be an exhaustion of administrative remedies when piecemeal appeals could be avoided. The court claimed it could not excuse going through all the administrative steps when there is prejudice resulting from unreasonable and indefinite time frames set forth administrative action.
One reason for not canceling the use of chlorpyrifos is that it is the only effective option for control of borers in cherry and peach trees. Chlorpyrifos is the only control for ants for farmers in the citrus industry. USDA has been particularly critical of EPA’s health studies. USDA claimed EPA has used epidemiology data to reach conclusions regarding health data but has not released that data to USDA to review. EPA has claimed it does not have enough data on the health impact on chlorpyrifos and applies a default factor of 10. This means you come up with a residue number and lower it by 10 times.
USDA staff argues there is an enormous amount of data available for chlorpyrifos and that it is a mistake to conclude chlorpyrifos is unsafe.
Apparently, none of these arguments were before the panel of judges in the US Court of Appeals for the 9th Circuit. You must ask, in a case like this: who was defending the 40,000 farms and 50 different crops that desperately need chlorpyrifos?
(This article first ran in the August 14 edition of Farm Futures.)
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The New York Times Drops the Ball on Automated Vehicles

Posted on August 22, 2018 by matt ohern
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At times the popular media coverage of transportation makes me cringe. Many news outlets lack a dedicated transportation reporter, and the person whose job it is to cover the story often has little background and even less interest in transportation policy. Automated vehicles, in particular, seem to bring out some of the oddest, most uneducated assertions of all areas in transportation.
Exhibit A is Emily Badger’s New York Times piece, “Pave Over the Subway? Cities Face Tough Bets on Driverless Cars” (July 20, 2018). The article confuses facts and makes bizarre assumptions but its biggest weakness is leading those with limited knowledge to think her piece represents mainstream AV thinking. Princeton AV expert Alain Kornhauser described the piece as “not even … half-baked.”
Several times Badger takes the viewpoint of a small minority and presents it as mainstream. Beth Osborne of Transportation for America argues that city council members, state legislation, and decision-making have been unduly influenced by people who “have imbued autonomous vehicles with the possibility to solve every problem that was ever created in transportation since the beginning of time.”
AVs by themselves don’t solve problems; good policy solves problems. And if most people thought that AVs by themselves could fix all of our transportation issues, that would be a problem. But most people don’t. In fact, polls show that more Americans fear AVs than welcome them. Sixty-four percent of millennials don’t think automated vehicles are safe. Some futurists may have an unrealistic view of AVs, but the public as a whole does not.
Badger repeats this problem with transit—twice. First, she uses the opinion of one person to argue that cities will have to pave over obsolete heavy-rail lines such as the New York Subway. That person, Brad Templeton, is a pioneer AV thinker who comes up with many creative ideas, but he is an expert in technology and software, not mass transit. Ten out of 10 transit experts will tell you the New York City subway will never be paved over. Heavy rail, where it works, transports huge numbers of people. In very dense central cities rail simply cannot be replaced with bus, and I say this as a member of a Transportation Research Board bus transit committee.
Badger then uses Templeton’s idea to suggest that opponents of light rail projects in Detroit, Indianapolis, and Nashville are falling for the “AV will fix everything” argument. Detroit, Indianapolis, and Nashville are nothing like New York City. New York has the super-high-density to make heavy rail work, a large number of jobs and residents near the central business district, and geographic boundaries (rivers) that make car travel challenging. The other cities have very low densities, very few jobs or residents in the central business districts, and no geographic boundaries. As a result, the three struggle to make even quality bus service work. In fact, the transit experts in those three metro areas did not recommend light rail; they recommended bus. Yet, Nashville’s political leadership chose to ignore the recommendation and place a light rail measure on the ballot that polling indicated would fail—as it did.
The lack of understanding that not every U.S. city has the spatial structure of New York or Washington, DC, is pervasive throughout the article. For example, Las Vegas is lauded for planning a light rail line, because there will not be space in downtown for everybody to drive their own AV. Yet no one is suggesting most folks will drive their own AVs. Early predictions are for a large increase in ride-sharing, as automation significantly reduces its cost. But even if many people buy their own AVs, Las Vegas could build a BRT line for less than one-third the cost of a rail line. Las Vegas already has a successful BRT line starting in downtown and running along the Vegas strip. Similar to Nashville, Las Vegas does not have the density to support light rail.
Badger makes one good point about the inflexibility and lack of creativity of many transit agencies. Twenty years ago, city manager Frank Martz of the Orlando suburb Altamonte Springs suggested using computers or kiosks to let people order smaller vehicles with optimized routes. But the leadership of the local transit agency, Lynx, was focused on buses, unions and drivers. The agency simply could not conceptualize on-demand transit. Finally, 20 years later, the city completed a two-year pilot program where it offered discounts on Uber rides. If transit agencies lack creativity and have made mistakes in the past, doesn’t it make sense to consider the uncertainties of automated vehicles when deciding on a transit technology?
This isn’t the first time The New York Times has published a poor transportation article. Earlier this year the newspaper argued that the Nashville rail plan (that the city’s own transit experts argued was bad policy) lost at the polls not because it was bad policy but because Americans for Prosperity bankrolled a campaign of transit-haters. The newspaper mentioned Randal O’Toole’s Nashville speech that compared rail transit to a diamond-encrusted watch. But it did not mention my Nashville presentation on why a bus-based system was a better alternative or other presentations from transit experts on automated vehicles and personal mobility.
The Times should re-assess its goals in transportation policy. If its goal is to run balanced, intelligent articles that are well-respected by professionals, it should follow the lead of the Washington Post (and many other newspapers) and hire one or more dedicated transportation reporters to write balanced feature articles on transportation policy. If the newspaper’s goal is to produce flashy headlines with little substantive news, it should stay on its current track (irony intended). But the New York Times’ leadership should not be surprised when transportation professionals continue to dismiss its work as drivel.
(This article first ran in the August issue of Surface Transportation Innovations.)
Baruch Feigenbaum
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