TT's Lost in Tokyo — by TokyoTom

The coal- and utility-funded “free-market think tank” Institute of Energy Research has a just released another study that tells us the obvious about the regressive consequences of the Waxman-Markey cap-and-trade bill and the benefits likely to flow to its corporate supporters, while masking its own agenda. As an added benefit, the press release includes some one-sided and unsupportable over-statements by Bob Murphy.

A few points:

IER:  “cap-and-trade would precipitate a financial windfall for well-connected
special interests and politically-favored companies.”

me:  No dispute here. It`s perfectly fair to point out who will benefit from the cap-and-trade bills.  But let`s not ignore that coal investors have long benefitted from being able to shift pollution costs to people downstream, under the perverse “rights to pollute” enabled under the Clean Air Act, and under state and federal mining licenses that allow mining firms to force out local residents.

IER:  “The study … details how shareholders,
not ratepayers, will be the primary beneficiaries of cap-and-trade’s
largess.”

me:  Sure, just like how it was shareholders in coal producers and utilities who are the primary beneficiaries of the externalities permitted by the status quo.

Bob Murphy:  “[The] analysis … illustrates just how flawed and skewed this
legislation is toward rent-seeking special interests.“

me:  Sure, but the interest of the coal lobby is that the legislation doesn`t benefit them enough. Do coal investors care MORE about what`s good for the average Joe than do other “rent-seeking special interests”?

Bob Murphy:  “secondly, and more important, [the analysis] shows that cap-and-trade, as
outlined in Waxman-Markey, is nothing more than a transfer of wealth
from the poorest to the richest among us.“

me:  Oh really?  Does the analysis really conclude that Waxman-Markey does “nothing more” than transfer wealth? You mean Waxman-Markey wouldn`t actually raise prices of carbon-based energy or affect consumption and investment decisions by industry, businesses and consumers?

Bob Murphy:  “These new findings should send a clear message to the American people – cap-and-trade helps the powerful and hurts the rest of us.“

me: The message is fine and important. But are coal firms and investors “the rest of us”, not powerful and only concerned about the average Joe, or are they trying to protect their own privileged position? Further, are there any alternatives to cap-and-trade that coal investors support, such as carbon taxes, or even undoing their favored treatment under federal clean air laws and mining laws?

Bob Murphy:  And as Congress’ corporate allies receive the bulk of the benefits
Waxman-Markey has to offer, our environment, along with our struggling
economy, will suffer for years to come. Congress needs to get out of
the business of picking winners and losers and allow the market to
determine which energy and electricity sources should power our
economy.”

me: Ahh yes, forgive me; I forgot that coal firms were a part of the enviro lobby!  But aside from that, I agree strongly that Waxman-Markey is poor policy.  Do coal investors agree with Exxon that rebated carbon taxes would keep Congress “out of the business of picking winners and losers and allow the market to determine which energy and electricity sources should power our economy”?

Thanks, IER for showing us how “political capitalism” works!

* “Political capitalism” is Rob Bradley`s term for “rent-seeking”

Lord knows I`ve got better things to do, but I can`t resist.

Rob Bradley has written extensively on energy regulation from a libertarian viewpoint and spent a number of years as an adviser to Ken Lay inside Enron – apparently seeing up-close (while conscientiously fighting a losing battle to steer Enron away from) the now well-known efforts of Enron to use the power of government to create profitable markets for it. Bradley`s energy commentary came to my attention a few years ago (on the Mises pages), and I have been observing him fairly closely over the past year, particularly after the launch of MasterResource, his “free-market energy blog”.

Unfortunately, even while Bradley has been making some very thoughtful comments on energy policy, he is now rather nakedly involved in precisely the game of
rent-seeking (Rob`s preferred term is “political capitalism”) that he
so loudly decries in practically every blog post or other piece of
“free-market” commentary that he spins out.

Bradley`s activities now include:

• his commentary and support for Institute for Energy Resources –
  a “free market” “think tank” that he founded and remains CEO of but which is
  now staffed by former Republican K Street apparatchiks Essentially the same staff as AEA, noted next), and which has moved froｍ
  Houston to DC, the better to engage in influence peddling, but whose
  cover was blown wide open last year when ExxonMobil (a firm that Bradley has made clear, in post after post, that he adores), announced that it would no longer fund
  IER and others whose activities were tied too closely to anti-climate change
  science and policies that Exxon has decided are counterproductive);

• support for the public lobbying arm of IER, the American Energy Alliance, staffed by former Republican K Street apparatchiks, which
  has been coordinating “grassroots” events to put political pressure on
  Congresscritters from coal-producing and -consuming states; and

• his relentless blogging on climate police at MasterResource –
  his chief soapbox – with co-bloggers who are generally well-regarded
  but nevertheless professionals at the climate policy influence game (such as Chip Knappenberger, who works at a self-proclaimed “advocacy science consulting firm”).

This is clearly a rent-seeker`s game, and Rob is in the thick of it, producing a steady stream of one-sided political, economic and scientific argument after another.

Bradley valiantly pretends simply to be an opponent of some possibly counterproductive government policies (of which there are plenty, to be sure) that various nefarious and/or corrupt interest groups are advancing, but in reality serves as a paid spokesman for that group of interests that have benefitted most from the status quo, and have the most to lose from any form of carbon pricing –  including “King Coal“, as Bradley so aptly names them. Coal merits unfailingly positive references – it`s clean, it`s cheap, it`s the FUTURE – but never any observations of the pollution resulting from coal (significant annual deaths, breaches of fly ash dams, court cases regarding cross-border pollution) or of the negative role of government ownership of coal reserves or of misguided federal regulations (Clean Air Act grandfathering of the oldest, dirtiest plants, and right to pollute; and the federal supplanting of private tort protections regarding air pollution and mountaintop removal practices).

It looks like a pretty good brew that Bradley serves up – he serves his clients well – but it`s always been a bit too strong for me. As a result, Rob has booted me from his bar, and I`ve been left to occasionally grumble outside. I haven`t particularly lost interest so much as run out of time and an ability to keep up, particularly as the flow of rhetoric and partial “analysis” has increased (in step with the legislative agenda).

But in a couple of recent posts by Bradley, the brew of self-righteous, self-serving and self-deceptive rhetoric has proved too rich for me to ignore.

1. The first is a naked appeal to influence the policy leanings of the natural gas industry, in Bradley`s September 8 post, the title of which lays bare Bradley`s clients: “Why Natural Gas Should Not Play the Cap-and-Trade Game (the real enemy is mandated renewables/conservation, not coal)” (geez, has he beat my record for long titles?). Why is this rich? First, because coal is the heaviest producer of GHGs per BTU, so coal is obviously most threatened by climate bills (that`s why Bradley and a legion of others can make a living at this, after all). Next, some of the reasons he trots out, such as his reference to “grassroot” citizens in Houston that Bradley and the American Petroleum Institute organized, and the more straightforward argument that, to be blunt, “Big Coal is too powerful for a Kill Coal bill on the Senate side“.  But despite all of coal`s bluster, Bradley knows that it is THEY that are on the table, not natural gas, and so he argues that it`s really natural gas “as the swing fuel in electricity generation” that loses mostly from a climate bill. Which is why Bradley closes with an appeal to natural gas to help not coal, but “capitalism in its desperate hour”.

2. The second post is a re-post of interesting earlier commentary by Bradley concerning Enron. This is rich because Bradley continually tries to draw important lessons about what went wrong at Enron (while thumping his chest about his own efforts to correct “philosophical errors” at the firm), while blindly ignoring his own present involvement in the self-same “political capitalism” that he decries. Bradley just conveniently overlooks that “political  capitalism” lies not solely in seeking CURRENT political favor, but also in PAST efforts to secure such favor, and in ongoing efforts to preserve it. One wonders whether for Bradley, reciting the lessons he learned from Enron might be serving as a salve for a guilty conscience for actually forgetting the inconvenient part of such lessons (and deeper Austrian lessons about problem solving and the frustration of preferences when government is acting heavy-handedly).

Okay, I`m all out of rants for now.

In April, under a regulatory process that the Bush EPA was compelled to commence by a Supreme Court decision (pursuant to the April 2, 2007 decison in Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Supreme Court determined that greenhouse gases are air pollutants covered under Section 202
of the Clean Air Act, which applies to motor vehicles), the EPA issued
a proposed finding that (i) current and projected
atmospheric concentrations of CO₂ and five other greenhouse gases (methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆) threaten the public health and welfare of current and
future generations (due to their
contribution to climate change), and that (ii) emissions
of such gases from motor vehicles contribute to atmospheric concentrations of
key greenhouse gases and thus to the threat of climate change.

The EPA commenced a 60-day public comment period that ended on June 23, but which it has subsequently determined to keep open while it develops its final findings. If the findings are issued, they will compel the EPA to
develop regulatory standards for new motor vehicles under Section 202
of the CAA, and probably as well to develop regulatory standards for utilities, industry and other parts of the economy under other parts of the CAA, which have essentially identical endangerment finding triggers (but which were not the subject of the Supreme Court decision).

The U.S. Chamber of Commerce has now stirred up a bit of a kerfluffle about the EPA`s looming final  “endangerment” decision, by requesting the EPA to adopt an unusual, time-consuming trial-like procedure in reaching its decision. What`s really going here?

While no doubt the Bush Administration would have been delighted to consider such a device of postponing any endangerment decision, the Obama Administration`s lack of interest in further delay (having already extended the hearing process by several months) has earned for them from some conservative corners (Chris Horner of the NRO`s “Planet Gore”) the judgment that it is the Obama administration that is being “cowardly“.  Surely there are excellent arguments to be made that the Clean Air Act should not be used to regulate U.S. industry on climate matters, but it is Congress that passes laws and the President who signs them  into law, not the administrative agencies. The Bush administration and Republican Congress could have forestalled the present situation by amending the CAA to exclude CO2; their lack of interest in doing so has forced this matter into the hands of the Obama EPA.

On the other hand, the Obama administration`s hands have been tied by the Bush administration`s inaction, though it is not doubt happy to use the dangling endangerment finding as a Damoclean sword to get Congress moving on climate change legislation (and perhaps as a backup in case Congress cannot be persuaded). However, as the EPA has considerable discretion in determining when to issue its final determination, it can withhold the endangerment finding until it decides: it is really serious about passing climate change legislation, is ready to put significant pressure on Congress to get it, thinks it can live with Congress comes up with, and is willing to live with the consequences of “failure”, in which case it will have to move forward on promulagating GHG emissions regulations for new motor vehicles.

It`s useful in looking at this situation to ponder just how much wriggle room the EPA actually has on substantive issue.  The answer?  Very little.  On this, allow me to quote from respected libertarian resource law professor Jonathan Adler (Case Western, and commenter at The Volokh Conspiracy legal blog and at NRO):

1.  In an April 22 post at the NRO`s Corner, Adler answers the question “D[oes] the EPA Have a Choice?” (emphasis added)

“Many folks on the right, including Jonah,
have criticized the EPA’s decision to issue an endangerment finding as
some sort of power grab.  Implicit in this argument is the idea that
the EPA had a meaningful choice whether to conclude that the emission
of greenhouse gases causes or contributes to air pollution that can be
reasonably anticipated to endanger the public health and welfare (the
relevant legal standard under Section 202).  I reject this premise, and
I don’t believe one has to accept apocalyptic climate change scenarios
to reach this conclusion.  For one thing, the standard is somewhat
precautionary — the language empowers the EPA to regulate despite the
existence of uncertainty.  For another, it would be very difficult for
the EPA to justify a contrary conclusion under current law.

“The Supreme Court’s decision in Massachsuetts v. EPA held
that greenhouse gases were air pollutants under the Clean Air Act
subject to EPA regulation.  This means that the only question for the
EPA is whether such GHG emissions meet the standard above.  Whether or
not one believes greenhouse gases pose a serious threat, the EPA does
not get to make this decision on clean slate.  For years the EPA has
been stating that climate change is a serious problem.  Indeed, the
Bush Adminsitration, at the very same time it declined to regulate greenhouse gases under the Clean Air Act,
asserted the Agency’s belief that climate change is a serious problem. 
Therefore, for the EPA to not make an endangerment finding, not only
would it have to argue that the relevant evidence does not support the
conclusion that greenhouse gases could be “reasonably anticipated” to
threaten public health and welfare, but also that the EPA’s many prior
pronouncements about the threat of climate change over multiple
adminsitrations [sic] were wrong.  Even though courts are quite deferential
to agency interpretations of scientific evidence, this would be a
difficult case to make.  Courts are more demanding when an agency
reverses course, and the EPA would have an awful lot of contrary claims
to explain away.  Thus, even if the Obama EPA had been disinclined to
make an endangerment finding, I think such a finding could have been
compelled in court.

2.  Adler also commented earlier at The Volokh Conspiracy on the likelihood of the EPA prevailing in the case of any industry legal challenge to an endangerment finding, and the next regulatory steps after the endangerment finding (emphasis added):

The proposed findings will now go through a 60-day public comment
period. Shortly thereafter, the findings will be finalized. Industry
and anti-regulatory groups will almost certainly challenge the findings
in court, and their legal challenges will almost certainly fail. Even
if one doubts the accumulated scientific evidence that anthropogenic
emissions of greenhouse gases contribute to climate change and that
climate change is a serious environmental concern, the standard of
review is such that the EPA will have no difficulty defending its rule.
Federal courts are extremely deferential to agency assessments of the
relevant scientific evidence when reviewing such determinations.
Moreover, under the Clean Air Act, the EPA Administrator need only
“reasonably . . . anticipate” in her own “judgment” that GHG emissions
threaten public health and welfare in order to make the findings, and
there is ample evidence upon which the EPA Administrator could conclude
that climate change is a serious threat. This is a long way of saying
that even if climate skeptics are correct, the EPA has ample legal
authority to make the endangerment findings.

Once the findings are finalized, the EPA will then be required to
develop regulatory standards for new motor vehicles under Section 202
of the Act. As a practical matter, the EPA will also have to prepare to
regulate greenhouse gas emissions under other portions of the act, as
the relevant endangerment findings necessary to trigger such regulation
are effectively identical to that which triggers motor vehicle emission
regulation under Section 202. Even if the EPA sought to resist such
regulation, it would be relatively easy to force the EPA’s hand through
additional citizen suits, much like the suits that set the EPA on this
course in the first place.…

Regulating greenhouse gases under the Clean Air Act will not be a
particularly cost-effective way to reduce the nation’s greenhouse gas
emissions. The EPA and White House understand this, but they also
recognize that, under Massachusetts v. EPA, the agency does not
have much choice. Moreover, the threat of Clean Air Act regulations on
greenhouse gases will create significant pressure upon Congress to
replace such regulation with some alternative, such as the
cap-and-trade program.

The incessant calls for – and criticism of – government-funded/mandated “green/clean power” pork both ignore root causes and potential common ground.  As a result, both sides of the debate are largely talking past each other, one talking about why there is a pressing need for government policy to address climate change concerns (concerns underscored by the May 19 MIT study), while the other is concerned chiefly about the likelihood of heavy-handed mis-regulation and wasted resources.  This leaves the middle ground unexplored.

While there are plenty of root causes for the calls for legislative and regulatory mandates in favor of clean / green / renewable power, such as:

• concerns about climate change,
• the political deal in favor of dirty coal under the Clean Air Act, 
• the enduring role of the federal and state governments in owning vast coal fields (the royalties from which it does not distribute to citizens but go into the General Pork Pool), 
• the unwillingness of state courts, in the face of the political power of the mining industry, to protect persons and private from pollution and environmental disruption created by mining,
• the deep involvement of the government in developing, encouraging and regulating nuclear power,

the most obvious and proximate root cause is something that attracts far too little attention – the frustration of consumer demand for green energy, and the inefficient and inaccurate pricing and supply of electricity.  It`s prettty clear that the grant of public utility monopolies and the regulation of the pricing and investments by utilities greatly restrict the freedom of power markets, from the ability of consumers to choose their provider, to the freedom of utilities to determine what infrastructure to invest in, to even simple information as to the cost of power as it varies by time of day and season, and the amount power consumers use by time of day or appliance.

With freer markets, we would see much more competition, better pricing, much more cost-saving (and conservation), and more money flowing into green power. So why is so little attention being paid to all of the gains that could be achieved from less – and more rational – power regulation?

Allow me to provide a few quotes and links to those interested:

1.  Lew Rockwell, President of the Ludwig von Mises Institute, “The Real Cause of Blackouts” (July 27, 2006):

Now, if markets were in charge, a heat wave would not be looked at as a problem but as an opportunity. Entrepreneurs would be swarming to meet demand, just as they do in every other sector that is controlled by markets. The power companies would be praying for heat waves! …

Just who is in charge of getting electricity to residents? A public utility, which, in the absurd American lexicon, means “state-run” and “state-managed,” perhaps with a veneer of private trappings. If you look at the electrical grid on a map, it is organized by region. If you look at the jurisdiction of management, it is organized by political boundaries.

In other ways, the provision of power is organized precisely as a central planner of the old school might plan something: not according to economics but according to some textbook idea of how to be “organized.” It is “organized” the same way the Soviets organized grain production or the New Deal organized bridge building.

All of centralization and cartelization began nearly a century ago, as Robert Bradley points out in Energy: The Master Resource, when industry leaders obtained what was known as a regulatory covenant. They received franchise protection from market competition in exchange for which they agreed to price controls based on a cost-plus formula — a formula that survives to this day.

Then the economists got involved ex post and declared that electrical power is a “public good,” under the belief that private enterprise is not up to the job of providing the essentials of life.

What industry leaders received from this pact with the devil was a certain level of cartel-like protection, the same type that the English crown granted tea or the US government grants first-class postal mail. It is a government privilege that subjects them to regulation and immunizes companies from business failure. It’s great for a handful of producers, but not so great for everyone else.

There are many costs. Customers are not in charge. They are courted only for political reasons but they are not the first concern of the production process. Entrepreneurial development is hindered. Our current system of electrical provision is stuck in time. Meanwhile, sectors that provide DSL and other forms of internet and telecommunication services are expanded and advancing day by day — not with perfect results but at least with the desire to serve consumers. …

How New York and California consumers would adore a setting in which power companies were begging for their business …. Competition would lead to price reductions, innovation, and an ever greater variety of services — the same as we find in the computer industry.

What we are learning in our times is that no essential sector of life can be entrusted to the state. Energy is far too important to the very core of life to be administered by a bureaucracy that lacks the economic means to provide for the public. How it should be organized we can’t say in advance: it should be left to the markets. …

What we need today is full, radical, complete, uncompromised deregulation and privatization. We need competition. That doesn’t mean that we need two or more companies serving every market (though that was common up through the 1960s). What we need is the absence of legal barriers to enter the market.

2.  Lynne Kiesling, Senior Lecturer in Economics at Northwestern University and former director of economic policy at the Reason Foundation; participant in debate at Reason online “Carbon: Tax, Trade or Deregulate?“

3.  Paul Joskow, current President of the Alfred P Sloan Foundation and former head of theMIT Department of Economics (now on leave) and former director of the MIT Center for Energy and Environmental Policy Research; speech at the National Press Club in September 2008:

For almost 50 years this sector was stuck in an organizational and regulatory framework that may have been well matched to the electricity generation and transmission technology available in 1935, but was surely poorly matched to changes in technology, new technological opportunities, contemporary investment needs, or current economic and environmental challenges. Then in the early 1980s, electricity sector reformers began to stir, responding to concerns about the system of regulated vertically integrated monopolies inherited from the 1930s. The “good old days” of regulation represent a view to the past with rose colored glasses. The system of regulated vertically integrated monopoly was plagued by cost overruns associated with nuclear power plants, poor operating performance for both nuclear and large fossil-fueled plants, poor fuel procurement decisions, wide price differences between neighboring areas, excess generating capacity, inefficient dispatch and economy energy trading between generating companies, regulatory incentives to keep old inefficient plants operating rather than retiring them, too many small utilities to take advantage of economies of scale, institutional and technological barriers to using the transmission network to access lower cost power, productivity lags, and inefficient retail prices. The system …was unnecessarily costly and inefficient.

Reformers looked to the favorable experience with restructuring, competition, and regulatory reform in other sectors and with electricity in other countries to help to solve the problems associated with the fragmented electric power sector made up of over 100 vertically integrated geographic monopolies. Municipal distribution companies and large industrial customers were especially aggressive at promoting reforms focused on open transmission access, the creation of transparent organized regional competitive wholesale markets, and (in the case of large industrial customers) retail competition.

A large number of states initially embraced this restructuring, competition, and regulatory reform vision and began to implement it. In 2000 it looked like restructuring and competitive market reforms were going to sweep the U.S. electric power industry.

Then came the California electricity crisis, the collapse of Enron and a number of merchant generating companies, increased volatility to natural gas markets and associated volatility in wholesale electricity market prices, and a long march upward in fossil fuel prices ultimately resulting in rising retail electricity prices in both regulated and restructured states. Most of the states that were leaders in restructuring during the late 1990s, when natural gas prices were low and there was excess capacity, initiated reforms during a period when regulated prices for generation service were expected to be much higher than perceived comparable competitive wholesale market prices. The expectation was that over time retail prices would fall. This forecast was based on the assumption that low prices for natural gas in particular would continue and that a new system built on efficient CCGT technology would evolve. At that time, a major “problem” that many of these states had to cope with were the “stranded generation costs,” primarily associated with what were perceived to be costly nuclear power plants, that were expected to result from the introduction of real wholesale and retail competition. This was expected to be a “transition problem” because it was expected that competition would result in market prices that would fall to levels below the embedded costs of nuclear plants and older fossil plants that would have otherwise been used to calculated (higher) regulated retail prices.

However, as natural gas and coal prices continued to rise far above anyone’s expectations, many of these states soon found that competitive market prices were rising dramatically along with natural gas prices (which affect competitive wholesale electricity prices in most regions of the country) — arguably rising to levels above what regulated prices would have been today under the status quo ante (though this requires a difficult counterfactual analysis). This, of course does not mean that these electricity sector reforms were a failure. In states that adopted the restructuring, wholesale and retail competition model, retail prices now reflect marginal supply costs, as they should to give consumers the right price signals to use electricity wisely. Rather it means that regulated prices are or would have been too low to give consumers appropriate incentives to make wise consumption decisions.

In evaluating restructuring, competition and regulatory reform one must understand all of its efficiency and distributional properties, not just at short run price effects. From an efficiency perspective, the restructuring reforms implemented at the federal level and in some states have led to numerous cost reducing successes in the face of rising fossil fuel prices.  These include dramatic improvements in the performance of divested nuclear plants, significant improvements in the performance of fossil plants that now face market incentives, roughly 200,000 GW of new (mostly merchant) gas-fired generation has been added to the system between 1999 and 2004, while the risk of cost overruns, fuel price fluctuations, demand variations, and availability problems experienced by some of these plants were shifted to their owners through the market rather than borne by consumers through cost-of-service regulation. There is good empirical evidence that the expansion of the boundaries of RTOs (e.g. PJM) have led to significant changes in power flows and more efficient dispatch of power plants, while inefficiencies are observed at the boundaries of RTOs that have not agreed to be consolidated (e.g. NY/NE). Gradual improvements in wholesale market designs have increased the efficiency of these markets and have restored investment incentives. Moreover, retail prices now respond quickly to changes in wholesale market prices, providing consumers with the right price signals rather than the wrong price signals resulting from retail price regulation. And these price signals are properly differentiated by time and location to reflect marginal supply costs, rather than the depreciated original cost of generating plants built 50 years ago. Demand management programs linked to short-term supply and demand conditions are expanding quickly as well in the reform regions.

Of course, the full reform program has not been implemented in large areas of the South, the West, and portions of the Midwest. The partial electricity reform equilibrium that we appear to be in now will not serve the country well and is potentially quite unstable. We have a system that is 1/3 reformed and 2/3 stuck in the structural and regulatory paradigm of the 1935s or somewhere in between.

The problems created by an antiquated industry structure and incompatible mix of state and federal regulation have not gone away. They are lurking out there to undermine achieving the goals that I enumerated earlier. Absent a comprehensive national electricity policy framework this sector is and will perform poorly in meeting the four sets of goals that I discussed earlier.

Joskow has spelled out his specific proposals for reform, which I note here.

4.  Google, September 19, 2008 press release – “Partnering with GE on clean energy“:

Today we announced that we’re joining forces (PDF file) with GE to use technology, information and corporate resources to drive the changes necessary to empower consumers with better energy choices. We will focus on improving power generation, transmission and distribution – a combination of technologies that could be known as the “smart grid.” (It would be fair to refer to electricity technologies in common use today as a “grid of only average intelligence.”)

The existing U.S. infrastructure has not kept pace with the digital economy and the hundreds of technology opportunities that are ready for market. In fact, the way we generate and distribute electricity today is essentially the same as when Thomas Edison built the first power plant well over one hundred years ago. Americans should have the choice to drive more fuel efficient cars – or even electric cars – and manage their home energy use to reduce costs, and buy power from cleaner sources, or even generate their own power for sale to the grid.

We all receive an electricity bill once a month that encourages little except prompt payment. What if, instead, we had access to real-time information about home energy use? What if our flat screen TVs, electronic equipment, lights and appliances were programmed to automatically adjust to save money and cut energy use? What if we could push a button and switch the source of our homes’ electricity from fossil fuels to renewable energy? What if the car sitting in our garage ran on electricity – the equivalent of $1 per gallon gasoline – and was programmed to charge at night when electricity is cheapest?

This vision is what unites Google and GE. We’ll start by working together in Washington, D.C. to mount a major policy effort to enable large-scale deployment of renewable energy generation in the United States.[deregulation? mandates?] We’ll also work on development and deployment of the “smart” electricity grid that will empower consumers, utilities, and technology innovators to manage electricity more efficiently and lower their carbon footprint. Finally, we’ll collaborate on advanced energy technologies, including technologies to enable the large-scale integration of plug-in vehicles into the grid and new geothermal energy technologies known as enhanced geothermal systems (EGS).

As I have noted elsewhere, 

5.  Jerry Taylor, senior fellow at Cato Institute, “The Right Way to Fix the Grid“, August 19, 2003 (New York Post):

Yes, the need for more investment in the grid seems clear. The system was designed to handle a limited number of transactions, not the large interstate exchanges of electricity now common. Moreover, transmission capacity has been stagnant relative to the growth in power generation, stressing the system even more.

Why has the grid deteriorated?

* Transmission projects are considered, approved and paid for at the state level – but the benefits cross state lines. And state-level decision-makers understandably resist using ratepayer dollars to pay for investments that will mainly help out-of-staters.

* In much of the country, incumbent utilities and state politicians actively resist improving the grid. Vertically integrated companies (which own the generating plants, transmission lines and distribution networks within a service territory) often fear that a more robust transmission system would boost potential competition.

Many politicians also oppose grid improvements because new transmission capacity would make it easier for out-of- state customers to bid-away the cheap power from in-state consumers.

* Returns on transmission are regulated, so utilities have found that they can make more money by investing in virtually anything besides transmission infrastructure.

* With many regulatory fights still unresolved, and the potential for profit thus unclear, investors have delayed risking their money on the grid.

The solution now in vogue to solve these problems is to give the Federal Energy Regulatory Commission more authority over transmission investment. State regulation of transmission is, after all, an archaic relic of another era; and all who use the transmission system are vulnerable to the weakest links in it.

But forcing utilities to invest in transmission upgrades through increased federal regulation is too crude and blunt a policy hammer. It may get the job done to some degree, but running industries by federal dictate is less efficient than ensuring that proper incentives exist for the industry to operate efficiently on its own.

Instead, why not try deregulating the grid? Kill the cap on transmission profits. Jettison the state regulations that protect transmission companies from competition. Cease the endless political debate over how the transmission lines ought to be organized and managed and let grid owners discover for themselves how to most efficiently run their businesses – something market agents are more adept at learning than legislators or regulators.

Most analysts are convinced that the transmission system is a natural monopoly, and so recoil at the very thought of competition to the grid. But it already exists, in the form of natural-gas pipelines.

All new power plants, after all, are natural gas-fired. They can be located far from urban areas and their product shipped to urban areas via the electricity-transmission system, or they can be located in urban areas and their output shipped locally.

The competition between gas and electric transmission is no worse than the competition between cable and satellite television service providers.

Deregulation would also mean an end to rules that force grid owners to do business with anyone who wants access to their wires. Transmission providers should be allowed to negotiate the terms and conditions for both putting power into the lines and for taking it off.

Those who own the power lines, after all, have a greater incentive to ensure that their lines run safely than do the regulators who watch over them, particularly since they wouldn’t be able to rely on regulatory bodies to guarantee them a rate of return on their investments.

Deregulation can’t guarantee that blackouts would never again occur. But it would almost certainly lead to a faster flow of dollars into overdue investments in reliability and a far wiser use of such dollars than would the orders and mandates being contemplated in Washington.

More by Taylor on power regulation here and here.

Any Austrians who have read through this may be familiar with these words from Roy Cordato:

“by placing environmental problems within the context of personal and interpersonal plan formulation, we discover that they are not about the environment per se but about the resolution of human conflict. …

“Humans cannot harm the environment. Instead, they can change the environment in such a way that it harms others who might be planning to use it for conflicting purposes.”

“The focus of the Austrian approach to environmental economics is conflict resolution. The purpose of focusing on issues related to property rights is to describe the source of the conflict and to identify possible ways of resolving it.”

“Environmental problems are brought to light as striking at the heart of the efficiency problem as typically seen by Austrians, that is, they generate human conflict and disrupt inter- and intra-personal plan formulation and execution.” 

Do Austrians and others have their problem-solving caps on, focussed on aiding conflict resolution?  Or are they instead simply fighting over the wheel of government, in a way that ensures the continuing frustration of the concerns that many have about apparently very serious climate change risks? 

Sadly, so-called “free-marketers” are often so busy smacking down bad arguments from greens that they fail to note, much less acknowledge, that they’re fairly frequently making bad arguments themselves or ignoring gaping inconsistencies in their own positions.  Of course it IS awfully easy to get caught up in partisan conflict, which provides a nice rush of self-righteousness, but it probably also helps if you’re being paid to post by fossil fuel interests, like the folks over at the supposedly “free-market” MasterResource energy blog, of Rob Bradley‘s Institute for Energy Research.  In any case, it’s disappointing, not solely because it comes from “free-marketers”, but because it offers no hope of engaging productively with those with whom they disagree.  In other words, more of Culture Wars “R” Us.

I’ve already commented quite a number of times here about Rob Bradley and his co-bloggers at MasterResource, but I continue to be astonished by the inability of the bloggers (and some commenters) to notice when they are being inconsistent or are taking anti-market/anti-lbertarian positions.  A recent post by Rob Bradley on the limitations of wind power, with follow-on comments by others, is a case in point.  In his post, Rob trots out some very old literature to make some perfectly fine – if rather obvious and well-known – points about the limitations of wind power; I observed that of course one can make similar observations about the short-comings of other energy sources, such as the social costs of coal. 

While Rob fails to respond, a visitor and one of his guest bloggers, Tom Stanton, senior energy fellow at the Pacific Research Institute (which bills itself as a “champion [of] freedom,
opportunity, and personal responsibility for all individuals by
advancing free-market policy solutions”) ride to his rescue, with strawmen and astonishingly non-libertarian (indeed, utilitarian) commentary.  Why can’t the right do better than this?

For the interested, I excerpt the relevant comments below (emphasis added):

1
TokyoTom { 03.04.09 at 12:09 pm }

Rob, thanks for this; you are right of course about the drawbacks to wind.

Now can I interest you in some very, very old tracts on how dirty
coal is, both in mining and combustion, or newer ones about deaths,
health costs, damages to property that are still ongoing and
uncompensated?
BTW, while you are obviously an advocate for coal, are you also an
advocate that coal producers and consumers bear their own costs? Or is
shifting those costs to others a right that they have homesteaded?

Andrew { 03.04.09 at 6:45 pm }

Tom,
the question isn’t “is coal bad?” its “is it better than (essentially)
nothing?” It is. Coal, I submit, has save far more lives than it has
cost, and has improved quality of life more than damaged it.

TokyoTom { 03.05.09 at 3:58 am }

Andrew,
the question is NOT whether “coal is it better than (essentially)
nothing?”, just as it is not whether wind or any other energy source is
perfect or preferable.

The question is whether those who engage in economic activities are
bearing the costs or risks of those activities, or whether those
activities appear relatively preferable to the people involved because
they are able to shift damages, costs, risks and/or responsibilities
for consequences to others.

True libertarians insist that individuals (and firms) bear full
responsibility for harms caused to others; some in fact insist that
those who are harmed without their consent have the right to use courts
to enjoin the damaging activity. Maybe this all seems a little quaint
to you?

My point is simply that Rob is ignoring, rather obviously and perhaps deliberately, the human costs of the use of coal.

Tom Tanton { 03.05.09 at 9:15 am }

The
“human cost of coal” has been extensively studied as have most other
energy (nay, all economic) technologies. That study are most often
referred to as “externalities”–Guess what? The economic ‘costs’ of coal
are mostly, if not completely, offset by the economic benefits. The
negative externalities are NOT enough to offset the higher cost
premiums of technologies like wind that never quite mature (most likely
because of the heavy per unit subsidy they’ve become dependent on after
35+ years.)
Now let’s see about human costs–in countries with coal (or nuclear or
any meaningful) baseload power isn’t the average life span about twice
that of folks living in countries with no or primitive energy? Aren’t
THOSE folks also less educated, and less free? Do they even have 15
minutes a day of “leisure time”?Aren’t those folks also burdened with
spending every daylight hour finding a piece of wood (or dung) to cook
their measly daily bread and using unsanitary water to boot?
I don’t believe Rob is ignoring the costs of coal. I believe Sir you’re
ignoring the economic and human benefits of coal and modern energy.

TokyoTom { 03.05.09 at 12:08 pm } [links added]

Tom,
it seems that you understand little, if anything, about free markets or
libertarian principles. Murray Rothbard`s paper on air pollution makes
it clear that it was utilitarian arguments like yours – “the damage my
pollution does to you is fine because people want to but my products” –
that industry used in the 1800s to subvert the common law and run
roughshod over property rights, leading to the “pollution is free”
philosophy and ruinous competition where the non-polluter went
bankrupt. The upshot was the horrible pollution in the 50s, 60s and 70s
that led to tremendous citizens` movements to use government to bring
pollution under control – with laws signed by Republican presidents.

No externalities? Where were you? What motivated the Clean Air Act, Clean Water Act, SuperFund?

As for coal vs. wind, please spare me the strawman. I`m not at all
suggesting that wind OUGHT to be subsidized. I`m just asking for a
little intellectual honesty that will recognize that coal use IS
subsidized, by being allowed to shift real and significant costs to
others, and that we`d all be better off if those socialized costs were
internalized.

Perhaps someday it will occur to those who (correctly) want to bash
greens for their stupid proposals that they might be more successful if
they were a little more consistent themselves and started exploring
common ground. Where`s the post praising the federal court decision
forcing TVA to do a better job at cleaning flue gases than required by
the CAA in order to limit harm caused in NC, for example? Where`s the
post calling for the privatization of the bumbling, polluting TVA,
which keeps generating costs for taxpayers and ratepayers?

But that`s not what this blog is all about, is it? You guys are more
into making enemies and fighting over government than in truly shifting
risks and regulation back to markets and the courts.

As for countries abroad, this is of course unrelated to a discussion
local/regional costs and energy alternatives in the US. But since you
bring it up, don`t forget that the real reason why these other nations
aren`t developed yet is that they`re still kleptocracies that don`t
sufficiently protect private property rights and returns on
investments.  Why are you cheering on poor governance, instead of
suggesting that they could become wealthier sooner by accelerating
their move up the Kuznets curve (which is an artifact not only of
preferences, but of insufficient information and laws that protect the
elites over private property of the masses)?

Jerry Taylor of Cato is one careful observer of the carbon follies who sees the handwriting on the wall for some type of carbon pricing system coming from the Congress during the Obama Administration.  Strikingly, in an interesting post up at MasterResource (a new self-styled “free market” energy blog spearheaded by former Enron speechwriter Robert Bradley), Jerry is cheering on environmental hard-liners!

It’s worth a gander to understand why.

Jerry’s post borrows the “Bootleggers and Baptists” lingo of Bruce Yandle to comment on the dynamics by which both  Baptists/moralists (in this case, the enviros) and the bootleggers/rent-seekers (in this case, the firms trying to reap benefits from government prohibitions) are seeking to come to terms on new carbon-related government policies.  Jerry  first explains and warns that the core of the mandatory cap-and-trade program proposed by the United States Climate Action Partnership (USCAP a coalition of big business and environmental groups) includes “a replay of the old-source/new-source standards incorporated in the Clean Air Act (CAA), which likewise established tough emissions standards for future power plants but much lighter rules for plants currently in operation”.

Because his concern over this replay of a costly aspect of the CAA, Jerry cheers on the criticism of this plan coming from other parts of the environmental community, in particular from Joe Romm, a former Acting Assistant Secretary of the U.S. Department of Energy who comments frequently on climate change policy issues at the ClimateProgress.org blog of the Center for American Progress.  Says Jerry:

Why should a libertarian skeptic about the dangers of climate change applaud environmental absolutism in this case? Several reasons.

First, the bifurcated old-source/new-source regulation makes no economic sense whatsoever. It distorts the power market by artificially advantaging older plants relative to newer plants. It spawns a huge legislative/legal-industry to fight over old-source/new-source distinctions until the end of time, creating substantial deadweight losses. It creates huge, unearned windfalls for politically clever corporations and thus encourages future market-rigging mischief. It would be far, far better to settle on one standard and apply it across the board to old sources and new sources alike.

Second, without corporate support, … that bill would likely be rendered economically toothless, with loopholes and timetables delaying serious emissions reductions until some time relatively far into the future. I am unaware of any significant environmental initiative that was successfully signed into law that didn’t manage to scare-up significant, widespread corporate support.

Third, there is a virtue in political honesty. If politicians want to argue for laws that will seriously reduce anthropogenic greenhouse gas emissions, then let’s have an honest discussion about the costs and benefits of those proposed laws. Symbolically potent gestures that are more empty than real feeds the public belief in free lunches. While one could argue that it’s better to get an empty gesture than a real one, when the latter has far more costs than the former, I can’t believe that any good will come from a culture of political dishonesty and voter illusion.

(emphasis added)

Well, I agree that casting a light on potential political deals may be a valuable way to influence the outcome in ways that improve policy, but it may very well be that voter “dis-illusion” with political dishonesty is just what the doctor ordered, in getting voters to demand both greater honesty and less government in general.

I appreciate that guys like Jerry Taylor are trying to point out how members of USCAP are trying to lock in advantages for themselves over competitors and new entrants, but why isn’t there now (and why wasn’t there during the Bush administration) any concerted focus by libertarians on less-costly and market-friendly alternatives that still address enviros concerns, like public utility deregulation and allowing immediate depreciation of investments in energy inffrastructure, prizes for carbon-capture and fusion technologies, and making sure that information about climate change (and corporate performance on various yardsticks) is widely disseminated? 

As I have previously noted,  Iain Murray of CEI, Bruce Yandle of Clemson and PERC, Gene Callahan and Jonathan Adler at Case Western have all made suggestions in this regard – to deafening silence from libertarians in general.  At Mises, scorn of enviros and of their preferences with respect to open-access commons seems to be the order of the day.  Let’s wave the white flag, shall we?

Libertarian law professor Jonathan H. Adler, of Case University, The Volokk Conspiracy law blog and NRO contributing editor,  has a post up at NRO explaining why conservatives ought to be pushing for  a “revenue-neutral carbon tax” as the best way to head off what he sees as a looming train wreck of damaging regulatory actions by the EPA, that he argues are mandated by a recent Supreme Court ruling that. 

Here is Jon’s summary of his post:

I have an article up today explaining how the EPA is required to begin regulating greenhouse gases as a consequence of Massachusetts v. EPA.  Of potential note, the new EPA Administrator agrees, telling EPA staff in a memo that she will fulfill the agency’s “obligation” to regulate GHGs under the Clean Air Act while the Obama Administration develops new climate legislation.

Regulating greenhouse gases under existing law will be a disaster, but what’s the alternative?  I’ve endorsed the idea of a revenue-neutral carbon tax.  My friend Chris Horner thinks this is preemptive surrender, but what’s his alternative?  Absent new legislation, EPA is poised to regulate cars, trucks, factories, power plants, and much, much more.  The number of facilities covered by the PSD program alone will increase ten-fold or more without a legislative fix.  I know Horner would like a clean Clean Air Act revision, simply excising greenhouse gases.  But assumig that’s impossible — or, perhaps, once that measure fails — what is his Plan B?

Adler has posted slightly longer summary at The Volokh Conspiracy.

[Update at bottom.]

Neocons, conservatives, libertarians and Exxon`s Rex Tillerson have recently joined arch-warmer Jim Hansen in calling for rebated carbon taxes in lieu of massive cap/trade rent-seeking and industrial planning.

I`ve blogged extensively on the reasons why I and others view carbon taxes – particularly if rebated to citizens – as a far better alternative to a domestic cap and trade program.

With the Obama inauguration looming, starting late last month a wide range of voices on the right have started to weigh in – each with their own reasons – in support of carbon or similar taxes, in order to shift the debate away from cap and trade and other extensive industrial policy.  Is it too late?  In any case, it`s worth taking a look at what people are saying recently:

Climate scientist Jim Hansen, who with his wife rather boldly sent to Barack and Michelle Obama a personal letter and background paper (with a discussion draft first made public in November).

Neocon Charles Krauthammer proposed a substantial “net-zero” gas tax in the December 27 (now updated to January 5) Weekly Standard, with intentions in part to cut off the flow of oil money to unfriendly (and Muslim) regimes abroad.

Republican Congressman Bob Inglis and economist Arthur Laffer argued in the December 28 New York Times  for a carbon tax coupled with tax-cut stimulus.

On January 9, the Wall Street Journal reported on ExxonMobil CEO Rex Tillerson`s recent speech in DC calling explicitly for Congress to enact a tax on greenhouse-gas emissions as a “more direct, a more transparent and a more effective approach” than cap and trade.  This is not as new as the WSJ would have it; as I note on an earlier post, ExxonMobil came out rather explicitly in favor of carbon taxes a year ago.

Libertarian and natural resources law prof – and NRO and Volokh Conspiracy blooger – Jonathan Adler applauds and explains these developments for various reasons, noting particularly that a train wreck seems headed our way, and that Congressional action is needed to avoid having the Obama EPA attempt to implement climate change policy via the Clean Air Act (for which a Supreme Court case last year paves the way).

Of course there is reasoned (both reasonable and passionate) disagreement, such as from businessman Jim Manzi at NRO on December 30 and blogger Tony Quain in response to Krauthammer, and by Chris Horner of the Competitve Enterprise Institute on January 7.

All are worth a look.

[Update:  Although liberal economists and commentators have tended to diss a carbon tax as a political non-starter, I note that in a December 27 New York Times op-ed, Thomas Friedman voiced support for a revenue-neutral carbon tax or gas tax on roughly the same grounds as Krauthammer.

Friedman and the others noted above join a long list of economists and political commentators on both sides of the political spectrum (including AEI, George Will and Barbara Thoring on the right) who strongly prefer carbon taxes over cap and trade.

I note that I do not buy all of the arguments for a carbon tax, particularly the argument that a gas tax would be an effective foreign policy tool.  However, I summarized previously some economists’s discussions of using a domestic tax to limit the flow of revenues to oil-exporting countries.

Dan Rosenblum of the Carbon Tax Center (which is a great complier of information on carbon taxes vs. cap and trade policies) has an excellent summary on recent developments in the December 30 Huffington Post.

My view is that a carbon tax would be much preferable to a cap and trade system and, if rebated or offset by reductions in income or other taxes, may improve incentives for savings and investment.  Further, it would undercut arguments and justifications for other obviously counterproductive market inverventions like the CAFE standards and subsidies for supposedly “green” sources of energy (including ethanol). 

Of course the fact that a carbon tax is much more transparent than a cap and trade and other policies interventions is one of the chief reasons that politicians and rent-seekers prefer more complex and obscure ways to provide favors to various industries and interest groups.]

[Further update:　I note that Cato devoted its August 2008 edition of Cato Unbound to a debate over climate change, anchored by an essay by Jim Manzi that specifically advocated substantial government in improved global climate prediction, carbon capture and storage, and  geo-engineering
projects.

In addition, libertarians Ed Dolan, Gene Callahan and Sheldon Richman all feel that climate change deserves serious consideration, Reason online`s Ron Bailey and libertarian/energy expert Lynne Kielsing supports climate change actions,  Bruce Yandle, CEI`s Iain Murray, Cato`s Indur Goklany has advanced a specific climate change-targeted proposal, and AEI`s Steven Hayward and Ken Green have provided relatively balanced analyses.]

More at the Washington Times:  http://washingtontimes.com/article/20080414/NATION/676175489/1001

And at the Wall Street Journal’s enviro blog:  http://blogs.wsj.com/environmentalcapital/2008/04/14/green-bush-white-house-to-push-climate-package/?mod=WSJBlog

And, finally, at a press briefing at the White House: http://www.whitehouse.gov/news/releases/2008/04/20080414-3.html

But there are more questions than answers here about Bush’s motives and intentions.  Given Bush’s lame duck staus in the face of a Congress not controlled by Republicans, what is he hoping to achieve?  Is his focus on making some kind of breakthough with China and India, where he probably has the greatest room to act, or is he just trying to fend off the regulatory changes that his own recalcitrance – with the help of environmentalists and courts – have boxed his administration into regarding regulating CO2 under the Clean Air Act and protecting polar bears under the Endangered Species Act?

For convenience, I’ve excerpted the relevant portions of the press briefing (by Dana Perino) below:

Q You said this morning that the story that was in The Washington Times pretty much laid out where the administration was in terms of this global warming thing. It said, basically, that, you know, he was ready getting ready to propose something. So where are we, exactly, and —

MS. PERINO: No, I think if you read it carefully that is not exactly true.

Q Well, that’s what the lead says —

MS. PERINO: We’ll back up —

Q The lead says that “We’re poised to change course and announce as early as this week” —

MS. PERINO: Well, I didn’t say he got everything right. (Laughter.)

Q Okay. Well, maybe you can sum up more where we are and what we’re doing.

MS. PERINO: I will; let me sum up for you, and let me just walk you through —

Q And also is there a change of course?

Q What are you guys working on?

MS. PERINO: Well, for those of you who follow this issue — and I think that in the White House briefing room, reporters here have to dip in and out of this issue because you cover all the issues that we deal with at the White House. So let me take you back through just a little bit of what we’ve been doing.

Over the course of several years the President has advocated a range of policies, both legislative and regulatory, to address the global challenges of climate change. Last year in the State of the Union address, the President called for reducing traditional gasoline use by 20 percent in 10 years; it is called 20-in-10 program. In December of 2007 he largely got what he wanted, except it didn’t go as far and as fast as he wanted to, to help us wean ourselves off of traditional uses of oil.

Also, last May he gave a speech in which he said that the United States would lead an effort to establish a post-Kyoto discussion for nations of the world to address the global challenges of climate change, and that in this process we would work to include China and India and other developing nations who were excluded from the Kyoto process, and which we believe made it unworkable. So discussions have been ongoing in the administration to follow up on these policy processes.

After that speech in May last year, he went to the G8, in which he presented this to the G8 — and it was well received. Then in September of 2007 the President hosted a meeting here at the State Department, in which he gave a speech and talked about how the major economies of the world needed to work together to help solve this problem, and that we would all establish a national goal, and that each country would come forward with its own plan as to how they were going to reach that goal.

We are a part of that process as well. And so as we’ve moved along and to try to follow up and continue to be the leader in the major economies process, we’ve had ongoing discussions, and we have kept Congress informed along the way. That includes getting ready for this week’s major economies meeting, which is being held in Paris and hosted by President Sarkozy.

On a separate track — or at the same time, I should say — here in this country we are dealing with what we call a regulatory train wreck. We have several different laws that were never meant to deal with — to address climate change, heading down a path that we believe is not reasonable, nor sustainable, would hurt our economy, and is not good public policy. This would have the Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act all addressing climate change in a way that is not the way that they were intended to.

At the same time on Capitol Hill, we are getting ready for a legislative debate. And Senator Reid, I believe, has called for the first week of June to be the one where they bring up these bills for debate in the Senate.

We have been in discussions with Congress. Internally, we have conversations. We have conversations with Congress to let them know where we are. And we have been not shy about saying that we don’t support legislation that is currently on the Hill. We think that it would be bad for the economy, and that it wouldn’t — ultimately, it wouldn’t address the problem. And so while there’s nothing on the schedule this week yet for the President to actually make a speech, we do have Jim Connaughton and Dan Price of the National — CEQ and the National Security Council, respectively, who are headed to Paris later in the week, to be there Thursday and Friday, and they’ll be representing the United States as we work towards the G8 time frame, which is in July, which will be held in Japan, in which these countries would lay out their national goals.

So we are having these discussions and we are moving forward and talking about how to deal with it.

Q The U.S. national goal, is that what you’re saying?

MS. PERINO: They’re working towards what we would establish as our national goal.

Q So it would have to pass Congress then, right?

MS. PERINO: We believe that the regulatory path that we are on right now is not sustainable; it will not solve the problems —

Q It’s a legislative proposal?

MS. PERINO: There are legislative proposals up there as well. We haven’t come forward yet and said definitively where we are, and that’s because we’re having a very robust discussion. And I think that it’s fair to say that in this administration there is — we have had more discussion about climate change in a thoughtful, deliberative way, a way that thinks about all the different aspects of it, from the way it would affect different regions of the country. And one of our big concerns is that developing nations in the Kyoto Protocol weren’t included.

So what happens in that regard is you have major economies like the United States who under the agreement would have had to ratchet down their emissions. So if we ratcheted down the emissions, that’s important, that would be a good thing. But if you ratchet down too far and too fast and the technologies can’t keep up, and you force businesses in America to find another place to manufacture, they’re likely going to go to a place that doesn’t have those emission limits or doesn’t have any sort of environmental control. And those jobs that we’ve seen over the past have moved to countries like China and India.

But the problem when you deal with a global problem though, is if you have emissions that are going up — if all you’ve done is move the emissions from here over to Asia, then you’ve not addressed the global warming problem, and that’s what we’re trying to do.

Q I don’t want to dominate here, but I just want to know what you’re mulling. Are you mulling a legislative proposal? Are you mulling executive action of some sort?

MS. PERINO: There’s a — well, there’s a basket of things that we are dealing with. And we are considering whether or not — we are considering how to move forward on the regulatory path that we have. We are considering how to respond to legislative proposals that are in front of Congress right now. It’s not as clear cut as I think you’re asking me to make it. There’s a range of issues that we have to work on.

Q How much urgency is there? I mean, you’re inside seven months to Election Day. How much urgency?

MS. PERINO: Well, we have a couple of different things. One, if you look to, like, the 20-in-10 program that we passed last year, we are in the middle of implementing that law and that is not easy. One of the things that was a part of that law was mandating 35 billion gallons of alternative or renewable fuels to replace traditional fuel use. Those regulations have to be implemented and that has to take place across the board.

But at the same time, while those things are ongoing, you have a legislative debate that you’re going to have in June. And we think that the reasonable and responsible thing to do is to have a conversation that takes into consideration all of the different issues and figures out what is the right way to do something and what is the wrong way to do it.

I have commented extensively on the decision last year by the Scalia majority in the Supreme Court’s decision in Citizens United.

An important point is that it is perfectly clear that (1) the Founders hated corporations and were seeking to protect inviduals against government in the First Amendment, and that (2) in the Fourteenth Amendment the Congress and states were trying to secure the liberty of freed slaves and non-citizens (like the many Chinese at work on railroads) against excesses by states. But the most important point is that corporations are not real flesh-and-blood people, but the creations of states, which thus have every right to condition the grant of corporate status (and the special benefits included in such grant, such as legal entity status, limited liaibility of shareholders, unlimited purposes, unlimited life, etc.) on a curtailed ability to influence political decision-making. Limits on “corporate speech”do not, of course, pose any limits on the rights of speech of the individuals who own, manageor work within particular corporations).  Related points are that the incentives faced by decision-makers within corporations are different from those faced by individuals within communities, that corporations have special advantages over citizens in seeking to influence government, and that corporations are becoming increasing entangled in rent-seeking behaviors.

These are fundamental points that far too many are overlooking.

I recently stumbeld across a June 23 article at The Atlantic by Garrett Epps, a former reporter for The Washington Post, who is a novelist and legal scholar, and teaches courses in constitutional law and creative writing for law students at the University of Baltimore. Epps was writing in response to further, recent judicial developments in the wake of Citizens United.

While I don’t agree wholly with Epps and find his analysis incomplete, I thought it worth bringing his article to your attention. Epps kindly agreed to allow me to cross-post his article here.

I note that the bolding is mine:

Constitutional Myth: Corporations Have the Same Free-Speech Rights as Individuals

By Garrett Epps

Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified. . . . Thus, following Citizens United, individuals and corporations must have equal rights to engage in both independent expenditures and direct contributions. They must have the same rights to both the “apple” and the “orange.”