Twenty Two Climate Truths & One Rant (Updated)

From WUWT, a particularly good summary of the gaping holes in Anthropogenic Global Warming theory (hereinafter, "AGW"):

The 22 Inconvenient Truths

1. The Mean Global Temperature has been stable since 1997, despite a continuous increase of the CO2 content of the air: how could one say that the increase of the CO2 content of the air is the cause of the increase of the temperature? (discussion: p. 4)

2. 57% of the cumulative anthropic emissions since the beginning of the Industrial revolution have been emitted since 1997, but the temperature has been stable. How to uphold that anthropic CO2 emissions (or anthropic cumulative emissions) cause an increase of the Mean Global Temperature?

[Note 1: since 1880 the only one period where Global Mean Temperature and CO2 content of the air increased simultaneously has been 1978-1997. From 1910 to 1940, the Global Mean Temperature increased at about the same rate as over 1978-1997, while CO2 anthropic emissions were almost negligible. Over 1950-1978 while CO2 anthropic emissions increased rapidly the Global Mean Temperature dropped. From Vostok and other ice cores we know that it’s the increase of the temperature that drives the subsequent increase of the CO2 content of the air, thanks to ocean out-gassing, and not the opposite. The same process is still at work nowadays] (discussion: p. 7)

3. The amount of CO2 of the air from anthropic emissions is today no more than 6% of the total CO2 in the air (as shown by the isotopic ratios 13C/12C) instead of the 25% to 30% said by IPCC. (discussion: p. 9)

4. The lifetime of CO2 molecules in the atmosphere is about 5 years instead of the 100 years said by IPCC. (discussion: p. 10)

5. The changes of the Mean Global Temperature are more or less sinusoidal with a well defined 60 year period. We are at a maximum of the sinusoid(s) and hence the next years should be cooler as has been observed after 1950. (discussion: p. 12)

6. The absorption of the radiation from the surface by the CO2 of the air is nearly saturated. Measuring with a spectrometer what is left from the radiation of a broadband infrared source (say a black body heated at 1000°C) after crossing the equivalent of some tens or hundreds of meters of the air, shows that the main CO2 bands (4.3 µm and 15 µm) have been replaced by the emission spectrum of the CO2 which is radiated at the temperature of the trace-gas. (discussion: p. 14)

7. In some geological periods the CO2 content of the air has been up to 20 times today’s content, and there has been no runaway temperature increase! Why would our CO2 emissions have a cataclysmic impact? The laws of Nature are the same whatever the place and the time. (discussion: p. 17)

8. The sea level is increasing by about 1.3 mm/year according to the data of the tide-gauges (after correction of the emergence or subsidence of the rock to which the tide gauge is attached, nowadays precisely known thanks to high precision GPS instrumentation); no acceleration has been observed during the last decades; the raw measurements at Brest since 1846 and at Marseille since the 1880s are slightly less than 1.3 mm/year. (discussion: p. 18)

9. The “hot spot” in the inter-tropical high troposphere is, according to all “models” and to the IPCC reports, the indubitable proof of the water vapour feedback amplification of the warming: it has not been observed and does not exist. (discussion: p. 20)

10. The water vapour content of the air has been roughly constant since more than 50 years but the humidity of the upper layers of the troposphere has been decreasing: the IPCC foretold the opposite to assert its “positive water vapour feedback” with increasing CO2. The observed “feedback” is negative. (discussion: p.22)

11. The maximum surface of the Antarctic ice-pack has been increasing every year since we have satellite observations. (discussion: p. 24)

12. The sum of the surfaces of the Arctic and Antarctic icepacks is about constant, their trends are phase-opposite; hence their total albedo is about constant. (discussion: p. 25)

13. The measurements from the 3000 oceanic ARGO buoys since 2003 may suggest a slight decrease of the oceanic heat content between the surface and a depth 700 m with very significant regional differences. (discussion: p. 27)

14. The observed outgoing longwave emission (or thermal infrared) of the globe is increasing, contrary to what models say on a would-be “radiative imbalance”; the “blanket” effect of CO2 or CH4 “greenhouse gases” is not seen. (discussion:p. 29)

15. The Stefan Boltzmann formula does not apply to gases, as they are neither black bodies, nor grey bodies: why does the IPCC community use it for gases ? (discussion: p. 30)

16. The trace gases absorb the radiation of the surface and radiate at the temperature of the air which is, at some height, most of the time slightly lower that of the surface. The trace-gases cannot “heat the surface“, according to the second principle of thermodynamics which prohibits heat transfer from a cooler body to a warmer body. (discussion: p. 32)

17. The temperatures have always driven the CO2 content of the air, never the reverse. Nowadays the net increment of the CO2 content of the air follows very closely the inter-tropical temperature anomaly. (discussion: p. 33)

18. The CLOUD project at the European Center for Nuclear Research is probing the Svensmark-Shaviv hypothesis on the role of cosmic rays modulated by the solar magnetic field on the low cloud coverage; the first and encouraging results have been published in Nature. (discussion: p. 36)

19. Numerical “Climate models” are not consistent regarding cloud coverage which is the main driver of the surface temperatures. Project Earthshine (Earthshine is the ghostly glow of the dark side of the Moon) has been measuring changes of the terrestrial albedo in relation to cloud coverage data; according to cloud coverage data available since 1983, the albedo of the Earth has decreased from 1984 to 1998, then increased up to 2004 in sync with the Mean Global Temperature. (discussion: p. 37)

20. The forecasts of the “climate models” are diverging more and more from the observations. A model is not a scientific proof of a fact and if proven false by observations (or falsified) it must be discarded, or audited and corrected. We are still waiting for the IPCC models to be discarded or revised; but alas IPCC uses the models financed by the taxpayers both to “prove” attributions to greenhouse gas and to support forecasts of doom. (discussion: p. 40)

21. As said by IPCC in its TAR (2001) “we are dealing with a coupled non-linear chaotic system, and therefore the long-term prediction of future climate states is not possible.” Has this state of affairs changed since 2001? Surely not for scientific reasons. (discussion: p. 43)

22. Last but not least the IPCC is neither a scientific organization nor an independent organization: the summary for policy makers, the only part of the report read by international organizations, politicians and media is written under the very close supervision of the representative of the countries and of the non-governmental pressure groups.

The governing body of the IPCC is made of a minority of scientists almost all of them promoters of the environmentalist ideology, and a majority of state representatives and of non-governmental green organizations. (discussion: p. 46)

Do read the entire post along with the explanatory appendix. This is as good a summary as I've seen in some time. The first two facts noted by the author are really the meat of it all. The foundational theory of AGW is that, as more CO2 is pumped into our atmosphere, temperatures will rise proportionately. There is no support for this theory in the historical record predating modern temperature records, nor does the theory find any empirical support in the modern records, given that we have been pumping large amounts of CO2 into the air since 1997 with NO corresponding rise in temperature.

I am always amazed when the left, most of whom seem to embrace the AGW theory, accuse the right of being "anti-science" or "science deniers." It stands reality on its head. In a sane world, the gaping holes in AGW theory would lead scientists to discard the theory and start anew. The reality is that, as more facts show the fatal flaws with AGW theory, the left just becomes more strident in trying to shut down debate and in their claims that "the science is settled."

The truth is that there is much more than science at stake for the AGW crowd. For a very significant number of players, there are hundreds of billions of dollars at play in this scam, whether from carbon credits, renewable energy scams, cushy jobs at foundations, or even outright transfers of wealth from wealthy countries to third world nations (all to be administered by the UN, of course). And there seem to be more than a few watermelons (green on the outside, red on the inside) pushing this AGW canard for whom the thought of saving Gaia comes with an underlying motivation to do away with capitalism and democracy. Then there are the scientists riding the gravy train of grants and recognition who have, in some cases, falsified or presented deeply misleading research, as well as attempted to severely restrict the voices of any who would raise questions about AGW. And lastly, there are the useful idiots at the bottom who unthinkingly embrace AGW and go to bed thinking themselves not only morally superior for doing so, but as they are constantly told by AGW cheerleaders, much smarter than those on the right who object to AGW on the basis of unreliable and contrary data.

No area of science is more bastardized than "climate science." I have no problems following science experiments wherever they might lead, so long as the scientific method is practiced. But all too often in climate science, there is a complete failure in this regards. It is criminal the number of climate scientists who fail to adhere to the scientific method, trying to claim peer review as the gold standard of reliability rather than a complete posting of their experiment in such detail as to allow for reproduction and verification by other scientists. Even as I write this, the EPA is preparing to issue regulations that will cost our economy tens of billions of dollars, and which regulations are based on "secret science" that has never been made public so as to subject it to reproduction or verification. It is a mockery to call it "science." It is faith being sold as science.

Yet another significant concern I have is with the numerous unexplained changes to the historical record of our temperature data, something that Jim Hansen, then at NASA, started doing in the late 90's and which continues to this day. As it stands, I have no faith whatsoever in the historical temperature record relied upon by the UN IPCC. Though, it should be noted, those records only begin about the 1880's, with the first relatively reliable efforts to collect data from thermometers.

This is not an academic debate about AGW. People's lives across the world are being effected by this scam. Hundreds of billions of dollars that could be used productively are being wasted in this fraud. Economies are being strangled by regulations designed to drive out a trace gas necessary for life on this planet. It is a travesty and, indeed, criminal. A very large number of people need to be jailed over this fraud.

Update: A perfect illustration of why such green energy scams are unforgivable in their impacts on people's lives comes from Germany:

According to EU data, Germany’s average residential electricity rate is 29.8 cents per kilowatt hour. This is approximately double the 14.2 cents and 15.9 cents per kWh paid by residents of Germany’s neighbors Poland and France, respectively, and almost two and a half times the U.S. average of 12 cents per kWh. Germany’s industrial electricity rate of 16 cents per kWh is also much higher than France’s 9.6 cents or Poland’s 8.3 cents. The average German per capita electricity consumption is 0.8 kilowatts. At a composite rate of 24 cents per kWh, this works out to a yearly bill of $1,700 per person, experienced either directly in utility bills or indirectly through increased costs of goods and services. The median household income in Germany is $33,000, so if we assume an average of two people per household, the electricity cost would amount to more than 10 percent of available income. And that is for the median-income household. The amount of electricity that people need does not scale in proportion to their paychecks. For the rich, $1,700 per year in electric bills might be a pittance, or at most a nuisance. But for the poor who are just scraping by, such a burden is simply brutal.

HT: Instapundit

While here at home, we are but a half step behind Germany:

The Environmental Protection Agency (EPA) is preparing to finalize its Clean Power Plan, which aims to reduce power plant carbon dioxide emissions by 30% from 2005 levels over the next 15 years. Looking at some of the best-case scenarios for CO2 reductions, the plan could potentially cut roughly 300 million tons of CO2 annually. Because global man-made CO2 emissions reach roughly 30 billion tons annually, it’s estimated that the EPA plan could result in a possible 1% reduction in annual man-made CO2. Overall, man-made CO2 accounts for only 4% of total atmospheric CO2. So the true atmospheric reduction in CO2 from the EPA plan would be approximately 0.04%. The cost for this plan is estimated at $50 billion annually, with the loss of roughly 15,000 U.S. jobs each year. Increases in household utility bills could reach $100 billion annually.

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Obama & The Death Of Our Republic

The people of Fairfax County, Virginia are up in arms. They have every right to be. Obama's federal government has dictated that they adopt a new, controversial social policy which they never voted to approve, nor did their representatives in Congress:

A plan to add “gender identity” to a Virginia school’s nondiscrimination policy has enraged parents and preachers, but leaders of the nation’s tenth largest school district say unless they make the change, the U.S. Department of Education could withdraw federal funding.

Critics warn the Fairfax County Public School policy would allow boys who identify as girls to use the locker rooms and bathrooms of their choice – as well as participate on athletic teams of their choosing.

Martin Baker, the pastor of Burke Community Church, warned that “the damage and destruction to our children, teens and impacted adults will be incalculable.”

“Everything from locker rooms to bathrooms will be potentially open for people who simply feel that their inner sexuality does not match their outer, physical sexuality,” he wrote in an email to the 3,000-member congregation.

“This is not just shocking, it is morally and spiritually abhorrent, and that is why I am convinced this is one cultural issue where we, as a church, must speak up and out with clarity, compassion and conviction,” he added.

But the deputy superintendent of Fairfax County Public Schools said they have no choice but to provide specific protections for transgender students. A vote on the issue is expected Thursday night.

“The Office of Civil Rights of the U.S. Department of Education is requiring that school divisions revise their non-discrimination policies to include gender identity,” Deputy Superintendent Steven Lockard wrote in a memorandum to school board members.

He also said the federal government was requiring the district to hire a consultant to advise them on how school divisions should handle individual cases of transgender students.

“If FCPS refuses to amend its policy, OCR has the right to recommend the termination of federal funding to FCPS,” Lockard wrote.

There is not a law that has been passed through Congress providing civil rights for the transgendered. That is an issue of social policy on which the people have the Constitutional right to be heard through their elected representatives, period. So how has it come to pass that the Office of Civil Rights of the U.S. Department of Education has bypassed Congress and unilaterally opted to impose this new social policy on our nation and on Fairfax County, Virginia?

In 2014 the Title IX civil rights law was updated to address sex discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and protect students “who do not conform to sex stereotypes.”

Title IX, when it was passed by Congress in 1972, was directed to providing equality in educational opportunities between the male and female gender. This new update is nothing more than an outrageous reinterpretation by the Obama DOJ that goes far beyond the Congressional intent of the law as passed. It is now being used to force leftist social policy on our nation.

Art. 1, Sec. 1 of the Constitution provides that Congress is the sole body with the authority to legislate. The problem posed by the DOJ's willingness to interpret laws so ridiculously divorced from their intent as to constitute new legislation is one part of the problem of our out of control federal government.

Yet a second problem is posed by President Obama himself. He has caused an existential Constitutional crisis with his plan to grant rights and a path to citizenship to millions of illegal aliens. It is a legislative act for which he has no Constitutional authority. Acting without the consent of Congress, that amounts to tyranny. We fought a revolution over that to become a nation in the first place.

The third problem - the rise of agencies with the authority to pass regulations with the full force and effect of law, yet which have never been voted upon by our elected representatives. Particularly abhorrent is the FCC's recent unilateral decision to assume regulatory control over the internet based on a 1934 law that applied to monopolistic phone companies. But perhaps the most damaging of the out of control agencies at the moment is the EPA. The EPA has claimed vast powers - some of which failed to pass Congress as recently as 2009 - to regulate our energy sector. This from City Journal:

. . . [T]hough Congress refused to pass a law addressing climate change, Tribe points out, the EPA is behaving as if it has the authority Congress refused to give it, wielding the Clean Air Act in ways Congress not only didn’t authorize but also expressly forbade in the Act itself. Moreover, though Tribe doesn’t say so, it is clear that this executive-branch agency is trying to use its non-existent legislative-branch mandate to carry out a highly contentious, highly partisan policy of the Obama administration. As the New York Times quotes one anonymous former administration official, “Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan.” Moreover, Tribe reports himself mystified as to how the EPA has the gall to contravene the federal government’s “promotion of coal as an energy source,” and to envision, in contravention of the Fifth and Tenth Amendments, shutting down not just a major industry, but also the way of life of whole communities and indeed a whole region of the country.

What is most important about Tribe’s involvement in this case is that he lends his considerable professional authority and impeccable liberal credentials to an increasingly loud chorus that questions the constitutionality of the Administrative State that has developed ever since the establishment of the Interstate Commerce Commission in 1887. Unlike the Founding Fathers, Progressive politicians, with Theodore Roosevelt and Woodrow Wilson in the lead, envisioned government not of, by, and for the people, but rather by highly trained, nonpartisan experts who would use the latest scientific knowledge to make better regulations for people than they could make themselves through their elected representatives.

This enterprise was unconstitutional, even un-American, in itself. But as the administrative agencies developed — as they violated the Madisonian principle of separation of powers by merging together executive with legislative power, which the legislature had no constitutional right to delegate, and with judicial power, which the legislature most certainly had no right to delegate — promulgating rules, charging people and corporations with violations of them, and exacting penalties without the benefit of grand or petit juries, in defiance not only of the American Bill of Rights but even of the Magna Carta, they evolved into an utterly unaccountable government that is nothing like the democratic republic the Founders envisioned. What’s more, with lobbyists having so much sway over them and often writing their regulations, the administrative agencies turned into the guarantors of crony capitalism, protecting giant corporations against competition from upstarts, just as the ICC protected the railroad cartel 132 years ago.

The fourth problem is perhaps the most dangerous -- unaccountable, activist judges who feel free to impose their social policy preferences on our nation under the guise of Constitutional interpretation. We've seen this in countless areas, such as with religion and abortion. The issue of the hour is "gay marriage." One federal court after another has struck down laws defining marriage as between a man and a woman using a laughable interpretation of the Equal Protection clause. No one can claim with a straight face that, when the Equal Protection clause was enacted shortly after the end of the Civil War, that the people voting for it meant it to apply to homosexuals. Homosexuality was under legal disability throughout most of the states at the time and remained so for over a century. That makes gay marriage an issue of social policy for each state to decide on its own unless and until our Constitution is amended in respect thereof. In no event is this an issue to be decided by five unelected judges sitting as a sort of politburo and dictating to our nation what they personally want our new social policy to be.

In 1787, as Ben Franklin emerged from behind the doors of the Pennsylvania State Hall, at the conclusion of secret deliberations of the Constitutional Convention, a woman asked him "Well, Doctor, what have we got, a republic or a monarchy?" Franklin famously replied, “A republic, if you can keep it.”

For over two centuries, we did manage to keep it, more or less. But no longer. Our Founding Fathers would not recognize our form of government today, despite the fact that there have been no substantive Constitutional Amendments to alter its design.

While our Republican form of government managed to coexist with activist courts and a parallel legislature in the regulatory bureaucracy for decades, it is only under the Obama regime that the left has truly come to warp and exploit the entire panoply of our government institutions to work non democratic fundamental changes to our nation. We have ceased to function as a republic and now function as a sort of hybrid tyrannical regulatory bureaucracy. This needs to end and the course corrected soon else we will never be able to return this nation to a republican form of government absent bloodshed. The 2016 election will be one of existential importance to our nation.

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Stonewalling & A Government Unafraid

In 2012, Landmark Legal Foundation submitted a Freedom of Information Act request to EPA. By law, EPA was required to timely respond. They didn't, and indeed, they seem to have purposely clouded their actions so that, even at this date, it is not clear whether the EPA ever fully responded to the request and whether they destroyed evidence. The Landmark Legal Foundation brought suit against EPA for these failures, and in a depressingly useless 25 page opinion issued yesterday, Judge Royce Lamberth castigated the EPA, found misconduct, yet held no one, including the EPA itself, liable. There are no criminal or professional referrals. Indeed, the Judge even bemoaned the fact that the EPA would very likely continue its pattern of misconduct despite the findings in the case.

This is par for the course in our country today. No one is held liable. There are no consequences for those in government.

- The travesty of the IRS investigation has been going on for two years now. The IRS may well have tipped the balance in the 2012 election. We now know that people have been lying about the availability of documentary evidence, and yet no one is being held accountable.

- In Benghazi, the government refused for years to provide relevant information. They claimed to have conducted an internal investigation -- a whitewash that deliberately excluded the upper echelons of the State Dept. -- and reassigned a few people.

- After years of stonewalling on the Fast and Furious documents, the Obama administration claimed executive privilege, turning discovery into a snails pace.

- We have Obamacare today because the DOJ prosecuted Sen Ted Stevens of Alaska under false pretenses. Stevens lost his re-election bid but the DOJ attorneys, whose "egregious" acts included hiding evidence from the defense. To date, those in charge of the prosecution in the upper levels of the DOJ have not been held liable.

- In 2007 we suffered the worst economic crisis since the Great Depression. While it's causes were firmly rooted in government, at least some aspects of our economic system were criminally corrupted, in particular the bond rating companies that gave AAA status to subprime loans. Yet not a single individual has been held liable for any of that, and with Dodd Frank, many of the practices that led to our economic crisis are being repeated.

As Hillary famously asked about Benghazi, "what difference does it make?"

Well, to answer, it's the difference between liberty and tyranny. It is the difference between repeating catastrophic errors and or correcting for them. But, because the DOJ and the MSM are, today, largely arms of the Democrat Party, and because Congress is largely supine, none of this will be addressed. It will not change. Judge Lamberth can shake his fist at the EPA all he wants. Until there are heads on pikes, it is useless. And until then, our government will become ever more corrupt.

Update: The NYT has broken a story apparently leaked from the Benghazi Select Committee being chaired by Congressman Trey Gowdy. One of the mysteries surrounding the Benghazi intestigations has been why so little correspondence was produced from then Sec. of State Hillary Clinton. Today we learn, because Hillary, in a clear violation of protocol and almost certainly the law, routed all her correspondence while Sec. of State through a personal e-mail account, one that she set up on the day of her confirmation hearings for Sec. of State. I really want to hear her under oath asking "What difference does it make?" The likelihood that she'll be held to account for this . . . I won't recommend holding your breath.

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Obama & The Anti-Science Of EPA's War On Coal

. . . The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public. To the extent permitted by law, there should be transparency in the preparation, identification, and use of scientific and technological information in policymaking. . . .

President Barack Obama, Memorandum, Subject: Scientific Integrity, 9 March 2009

Ah, remember those idealistic days of 2009, when our Moralizer In Chief Barack Obama promised to "restore" scientific integrity to our government. Well, those days are long gone.

Obama is using the EPA to conduct a war on coal, promoting new guidelines under the Clean Air Act that will stop the creation of any new coal fired power plants and force the shut down of many existing plants as they reach a point of needing to upgrade. Since coal is the primary source for our nation's electricity needs, this will end up costing our nation dearly - with the poor and middle class being the hardest hit.

The justification for these new guidelines is that they will save lives. The EPA is basing this assertion on two longitudinal, observational scientific studies, the Harvard Six Cities Study (HSCS) and the American Cancer Society’s Cancer Prevention Study II (CPS II):

Both studies showed that exposure to fine particle air pollution (that is, particles with a diameter of less than 2.5 microns, or PM2.5) was linked with increased mortality. Their results provide the basis for most EPA regulations targeting air quality because, the EPA claims, such regulations will save a large numbers of lives.

There are some real questions about the reliability of the conclusions reached by the researchers. For Instance:

The association of PM2.5 with mortality shows geographic heterogeneity – no such association is seen in the western US, where the climate is dry and PM2.5 make-up differs from that in the eastern US.

Second, the results of the studies have been presented in a way that focuses narrowly on PM2.5 and precludes putting the association in perspective relative to other predictors of mortality, including cigarette smoking, income, and other factors.

Third, reports from these two studies tend to cite only supporting studies and to ignore studies that have not found an association of PM2.5 with mortality."

But here is the kicker. Those two studies are . . . wait for it . . . secret.

What what what?

Yes, the EPA is claiming that the data, meta-data, computations - in short, everything about the "scientific studies" that would allow the studies to be subject to vetting and reproduction (i.e., the scientific method) - are secret and cannot be released.

This is the polar opposite of scientific integrity.

And, believe it or not, it gets worse, the same people who "carried out the studies used by the EPA as the basis for regulation and are also involved in the implementation of EPA policy."

The ostensible reason given for not releasing the information regarding these studies is the claim that to do so would violate third party confidentiality rules:

[I]f third parties are given access to the data, the identity of study participants could become public, in violation of the researchers’ guarantee of confidentiality. The lead researcher on the CPS II study has made this argument. Supporters of the subpoena argue that the dataset could be stripped of personal identifiers.

In fact, the issue of confidentiality appears to be a dodge since large datasets of this type are routinely stripped of personal identifiers to protect subject confidentiality and enable use by researchers.

The EPA should be shut down over this. Republicans have been trying to have the EPA provide this data for over two years. The EPA has steadfastly refused. Republicans have now filed a subpoena to which Democrats have objected - their grounds:

The ranking Democratic member Eddie Bernice Johnson (D – TX) characterized Chairman Smith’s action as an attempt to make the data available to “industry hacks” in order to discredit the research and weaken clean air regulation.

The scientific method - the ability to pour over another's experiment line by line and either prove it or disprove it - is the sina que non of scientific integrity. Rep. Johnson either doesn't seem to know that or otherwise puts it in a back seat to politics. This, from Obama's EPA, is just politicized science at its very worst.

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Our Non-Democratic Bureaucratic Government

George Washington Univ. Law Prof. Johnathan Turley, writing at the Wapo, has had an epiphany:

[Our federal government] is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. . . .

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. . . .

Welcome to the party Prof. Turley. Or as Stephen Heyward srites at Powerline of the professor, In Praise Of Slow Learners. As I wrote last year in a detailed post, End The Tyranny - Stop Regulation Without Representation, this as the single greatest systemic threat to our form of government.

To his credit, Prof. Turley concludes likewise:

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

The problem is that this is completely off the radar screen in our national discourse.

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EPA - Out Of Control & Lawless

I wrote below on how Obama is wholly bastardizing our Constitutional form of government by governing through the regulatory agencies. The worst of these is the EPA, an organization being used to legislate a radical green war on coal and oil, as well as to further the interests of entrenched green interests. Most recently: the EPA is tasked to base its decisions on science, but it has ignored that to issue new regulations requiring gasoline to be mixed with 15% ethanol; and the EPA is fraudulently using the courts and friendly plaintiffs to gain powers it is not authorized by its own regulations.

Ethanol mandates are a result of Bush era laws that require ever increasing amounts of ethanol from a variety of sources to be blended with gasoline through 2022. It is an insane boondoggle that benefits no one other than select agricultural special interests, and its impact on food prices and land use has been both substantial and extremely negative. The current EPA mandate for gas to contain 10% ethanol is no longer sufficient to meet legal mandates, so the EPA is now requiring refineries to increase ethanol to 15%. The problem - ethanol burns much hotter than octane while providing significantly less energy. There is real concern as testing shows that an E15 gasoline mix can ruin engines of all types, not merely autos. And yet:

In 2010 and 2011, EPA gave the green light to use E15 - the 15 percent ethanol gasoline blend - in model-year-2001-and-later cars and some other vehicles. EPA's action was irresponsible. EPA knew E15 vehicle testing was ongoing but decided not to wait for the results.

This was a political decision by the EPA, one taken irrespective of current reality.

But far more troubling is the EPA's fraudulent use of our court system as an end around the limits of the EPA's regulatory authority. It is referred to as "sue and settle." A friendly radical green plaintiff brings a law suit, the EPA doesn't contest the suit, but rather agrees to take certain actions that go beyond its authority, either by extending its authority or creating de facto new regulations without going through the procedures required by law to create such regulations. The most recent case, discussed in detail here, involves imposing new draconian federal regulations on coal usage in states, justified on the basis of a "sue and settle" court order, irrespective of the fact that the law provides for state primacy in that particular area.

I have been saying for years now that the laws that allow for greens to have standing to bring law suits based on environmental and endangered species laws - and equally, that provide for payment of plaintiff's attorneys fees - are massively corrupt and need to be changed. The cost to our economy from abusive law suits are massive. But the corruption involved in "sue and settle" suits is criminal. Government officials should be put in jail over this.

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The EPA: The Worst Of Obama's Out Of Control Regulatory Bureaucracy

As I have written before, the single greatest systemic crisis we face is a regulatory bureaucracy operating extra-constitutionally outside of Congressional control. And the worst of the worst is the EPA. Two recent stories highlight the EPA's vast overreach under Obama.

This from Reason:

In accusing the Environmental Protection Agency of trying to regulate “water itself as a pollutant,” Virginia Attorney General Ken Cuccinelli is not showing an excess of exactitude. But his looseness is rhetorical and harmless. The EPA’s is neither.

Last week federal judge Liam O’Grady sided with Cuccinelli when he ruled that the EPA had overstepped its bounds. As a measure of just how far the EPA had overreached, note that Cuccinelli’s suit against the EPA was joined by Fairfax County, led by Board of Supervisors chairman Sharon Bulova.

Bulova, a Democrat, is nobody’s idea of an environmental menace. A longtime advocate for commuter rail and mass transit, she started a Private Sector Energy Task Force to increase energy efficiency, sustainability, and “green-collar” jobs in the county. Nevertheless, she and other county leaders objected when the EPA tried to limit the amount of stormwater runoff into the 25-mile-long Accotink Creek, which empties into the Potomac. “When people talk about federal agencies running amok, this is exactly what [that] looks like,” said GOP Supervisor John C. Cook in July. “The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.”

Concerned about sediment in the Accotink, the EPA had sought to cut stormwater runoff nearly in half—a proposal that would have added perhaps $200 million to the roughly $300 million cost of addressing sediment itself.

But as O’Grady noted, while the EPA can regulate sediment, which is considered a pollutant, it has no authority to regulate stormwater—which is not.

The EPA claimed—notably, “with the support of Virginia[‘s Department of Environmental Quality]”—that it could regulate stormwater as a proxy for sediment itself, even though it had no legal authority to do so, because nothing explicitly forbids it to do so. As Cuccinelli said, “logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.”

Why would the EPA insist on regulating stormwater, which it has no authority over, instead of simply regulating sediment? After all, it has written rules for sediment literally thousands of times. That insistence makes no sense. But it does look like part of a larger pattern.

Last spring, the Supreme Court ruled against the agency in the case of Mike and Chantell Sackett. The Sacketts owned a piece of land, a little larger than half an acre, in a growing lakefront development in Idaho. They were building a vacation home on the spot when the EPA declared it might be a wetland and ordered them to cease construction, and restore the land to its prior state or face fines of up to $75,000 a day. The agency decreed that the Sackettshad no right to challenge the order in court.

The Supreme Court unanimously call that bunk. It’s not easy to get Justices Antonin Scalia and Ruth Bader Ginsberg on the same page, but the EPA managed to do so. The agency also drew the wrath of The Washington Post, which editorialized that “The EPA Is Earning a Reputation for Abuse.” The editorial began by condemning the now-infamous remarks of now-former EPA administrator Al Armendariz, who compared his enforcement philosophy to Roman crucifixions: “They’d find the first five guys they saw and they’d crucify them. And then, you know, that town was really easy to manage for the next few years.”

Troubling stories about the EPA just keep piling up. In Texas, the agency went after Range Resources Corp. for allegedly polluting two wells. The company racked up more than $4 million in fees defending itself before the EPA grudgingly admitted it had no proof Range Resources had contaminated anything.

In July, the federal district court in D.C. ruled that the EPA had overstepped its bounds regarding Appalachian coal operations. That ruling followed another concluding the EPA had no business revoking a waste-disposal permit, issued by the Bush administration, for a West Virginia mine. Judge Amy Berman Jackson—an Obama appointee—called the agency’s action “a stunning power for the EPA to arrogate to itself,” and accused the agency of “magical thinking.” . . .

One of the things that makes the EPA's decision to claim the power to regulate storm water run off as a pollutant particularly outrageous is that, during 1986 amendments to the Clean Water Act, Congress considered whether to give EPA this power and opted against it. The EPA just unilaterally decided that they could claim the power under Obama. These people need to be tarred and feathered.

Moreover, one of the examples the Reason column misses in their list of recent EPA outrages is the EPA's decision to circumvent the normal process set down by law and instead, to rely on wholly hypothetical scenarios to deny a permit to the Pebble Mine in Alaska:

The Environmental Protection Agency's efforts to bypass normal regulatory procedures to stop a mining project in a remote part of Alaska could have profound implications for domestic mining across the U.S., according to Dr. Bonner Cohen in a scathing new report, "The EPA's Pebble Mine Assessment Puts Politics Above Sound Science."

The report . . . has been submitted to the House Oversight and Government Reform Committee for use in an investigation of the EPA related to the proposed Pebble Mine project.

"Pre-empting the permitting process, EPA issued an assessment on the possible impact of Pebble Mine on Alaska's Bristol Bay watershed before the project's developers had even submitted a formal plan to government agencies for approval," stated Dr. Cohen.

Using a "Hypothetical Mine Scenario" based on a fictional mine, the EPA created an "ecological risk assessment." According to Dr. Cohen, the EPA then drew far-reaching conclusions on the mine's impact, bypassing and preempting a permitting process that is supposed to review real plans for real mines, not imaginary ones.

. . . Charles Slaughter, a hydrologist at the University of Idaho, called the EPA process "pure hogwash."

"By circumventing the well-established permitting process, EPA undermines the trust of the entities it regulates and taxpayers who provide the agency's funding," Dr. Cohen points out. "Once the precedent is set that EPA can preemptively shut down any mining project before plans are submitted for permit review, what investor will risk time and capital in a doomed effort to win a regulatory game EPA has rigged?"

The proposed Pebble Mine has the potential to triple America's strategic reserves of copper and more than double her strategic reserves of gold. It could also nearly double America's reserves of molybdenum, allowing the U.S. to rival China as a global leader in the production of this critical metal used to harden steel for U.S. manufacturing and construction industries. Dr. Cohen's informative report details how the EPA stifles vital business activity by preempting the permitting process through the creation of imaginary, hypothetical business scenarios. . . .

The EPA is the worst of the out of control regulatory agencies under Obama. It is an organization under the control of radicals with no respect for the limitations imposed on them by law.

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Court Slaps Down A Vast EPA Overreach

Q: When can unpolluted rainwater be considered a pollutant?

A: When the EPA calls it storm water run off in a vastly expanded interpretation of the Clean Water Act. Or at least they could until the other day, when a Federal judge in Virginia ruled against them.

The EPA reinterpreted its authority under the Clean Water Act some months ago to claim authority over storm water run off. They did so under the theory that storm water run off would eventually pick up pollutants and deliver them to a water source covered by the Clean Water Act. This reinterpretation would potentially have expanded EPA authority to every creek, flood plain, and water drainage path in the U.S., and then from there to include all the land up to the covered water source. It would make of the EPA the final arbiter on acceptable land use and development over a massive portion of our nation's land. It would also have given the EPA authority to order plans of remediation on such land - and if you don't know how onerous and draconian such orders can be, here is but one example.

The Clean Water Act itself proffers EPA jurisdiction over bodies of water with a "significant nexus" to "navigable waters." This has been subject to a great deal of interpretation over the years, but none has come close to interpreting this to mean mere creeks and drainage sites. More importantly, Congress considered giving the EPA authority to regulate storm water run off during the 1986 amendments to the CWA and opted not to grant the EPA such authority. No problem for the today's EPA - they just unilaterally claimed the authority. (As I have written here, the out of control regulatory bureaucracy, operating extra-constitutionally as a super legislature outside of direct Congressional control, is the single greatest systemic threat to our nation today.)

This from Fox News:

Virginia officials scored a key victory Thursday in their battle with the Environmental Protection Agency over what EPA critics describe as a land takeover.

U.S. District Judge Liam O'Grady in Alexandria ruled late Thursday that the EPA exceeded its authority by attempting to regulate stormwater runoff into a Fairfax County creek as a pollutant. O'Grady sided with the Virginia Department of Transportation and the Fairfax County Board of Supervisors, which challenged EPA's stormwater restrictions.

"Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it," O'Grady said. . . .

See, not all judges need to tarred and feathered. That said, all bets are off as to how the Circuit Court or Supreme Court will rule on this issue. If the Obamacare mandate can be considered a valid tax, you can bet that John Roberts and four other activists on the Supreme Court can find that storm water run off is a pollutant, irrespective of Congressional refusal to grant EPA that authority.

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Obama's Fracking Vendetta

Fracking is, to our economy, a god send. The modern fracking technique has only been in use since 1998, and has led to a budding energy revolution for our nation. A big part of its success is that it hasn't been saddled by crushing federal regulation.

Fracking is, to radical environmentalists and Arab oil potentates, a curse that must be shut down at all costs - and they are certainly not above cooking the books to make it happen. Nor are they above making use of propaganda. The just released film "Promised Land" a film written by the noted scientist, Matt Damon and that explores all the unproven evils of fracking, was bankrolled by the UAE.

As anyone in the radical green movement will tell you, he quickest way to shut down any sort of activity is to get our government to regulate it to the point that it is no longer economically feasible. The environmentalists have done it with refineries, they are in the midst of doing it with coal, and now their sites are set on the enormously successful practice of fracking.

Enter Obama's EPA. It has already been caught cooking the books on fracking in Texas. It is now doing it again in Pavillion, Wyoming. On 8 Dec., the EPA issued a draft finding that fracking there was causing groundwater contamination.

The problem for the EPA - another branch of the government (one that may well find itself under new leadership soon) the U.S.G.S., conducted their own tests right alongside the EPA, and their findings are at polar ends of the spectrum. This from the WSJ:

The Pavillion study involves two water wells drilled by the [EPA] in 2010 to test groundwater quality. Experts from the Wyoming Water Development Commission and elsewhere sharply criticized the EPA's results on several grounds, including that EPA investigators didn't follow their own guidelines on the timeliness of the testing and the purity of the water samples. The federal Bureau of Land Management said that "much more robust" testing would be needed to properly draw conclusions.

So the EPA agreed to test the wells again, in April and May of last year 2012. In October, it claimed again to have found contaminated water. But this time there was a new wrinkle: The U.S. Geological Survey had conducted tests alongside the EPA, and its investigators reported different results. Unlike the EPA, the USGS failed to find any traces of glycols or 2-butoxyethanol, fracking-related chemicals that could cause serious health issues if they entered the water supply at levels the EPA considers contamination.

Meanwhile, the USGS found significantly lower concentrations of other materials identified by the EPA—including phenol, potassium and diesel-range organics—which might not have resulted from the fracking at all. The phenols were likely introduced accidentally in the laboratory, for example, and potassium might be naturally occurring or the result of potash contained in the cement used to build the EPA wells.

The USGS also noted that in constructing the monitoring wells, the EPA used a "black painted/coated carbon steel casing," and EPA photographs show that investigators used a painted device to catch sand from the wells. The problem is that paint can contain a variety of compounds that distort test results—so it is poor scientific practice to use painted or coated materials in well-monitoring tests.

After initially neglecting to disclose this information, the EPA eventually acknowledged it, but only while attempting to deflect criticism by releasing more test results and claiming that its data are "generally consistent" with the USGS findings. These actions only muddied the matter and postponed the peer-review process until after Jan. 15.

As the Tulsa-based energy and water-management firm ALL Consulting concluded: "Close review of the EPA draft report and associated documents reveals a number of concerns about the methodology, sampling results, and study findings and conclusions. These concerns stem from apparent errors in sampling and laboratory analysis, incomplete information that makes it difficult to assess the validity of the results, and EPA's failure to seriously consider alternative explanations for the results of its investigation. . . . Taken together, these concerns call into question the validity of EPA's analytical results and their conclusions regarding the sources of the reported contamination."

Anyone want to bet that none of this stops Obama's EPA from finalizing their finding to justify extensive regulation of fracking. That is their holy grail, and actual science is secondary. And the left calls us "anti-science." When Newt Gingrich said during the primaries that the EPA was beyond salvage and needed to be replaced, he was spot on. It is agenda driven and corrupt.

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Who Voted For The End To Coal?

The Obama EPA's war on coal is nearly complete. On Tuesday, the EPA issued it's first proposed rule for green house gases that will effectively prevent any new coal plant from being built, at least beyond the 20 or so in the pipeline today. This from the CS Monitor:

The Obama administration on Tuesday proposed the nation’s first-ever restrictions on greenhouse gas emissions from US power plants. If approved, the restrictions are expected to sharply curb construction of new coal-fired power plants nationwide.

The proposed restrictions, unveiled by officials at the Environmental Protection Agency, would apply only to new fossil-fuel-burning power plants – limiting them to no more than 1,000 pounds of carbon dioxide emissions per megawatt generated.

A typical coal-fired plant produces more than 1,700 pounds of carbon dioxide per megawatt. Most natural-gas fired plants – the majority of power plants under construction today – emit less than the new standard, around 800 pounds per megawatt.

The Obama EPA's other recently issued rules, the Cross State Air Pollution Rule, Boiler MACT, and Mercury and Air Toxics Standards, all attack existing coal fired power plants. Coal provides nearly 50% of our electrical generating capacity today.

We may be lucky. Obama, when he started the war on coal, sold the fantasy of replacing coal with solar and wind - yet neither are any closer to being cost effective at scale today than they were in 2009. That said, natural gas, which has exploded in recent years, may provide a replacement. Still, the overhead costs of building new LNG plants to replace working coal plants prior to the end of their natural period of operation will be significant. Then there is the question of how much the price of natural gas will rise as demand increases exponentially to replace coal. So whatever happens, electric costs are going to rise, the only questions are by how much and whether we will experience significant disruptions of electric service as part of this top down forced replacement of coal.

All of that said, the question that we should be asking is this, did any of our elected representatives vote into law a bill driving coal from our energy marketplace? No, quite the opposite, when the President's energy plan was presented two years ago, it couldn't make it out of the Senate. So why is it that something so fundamental to our nation is being decided based on regulations made without the approval of our elected representatives and in contravention of Article I, Section I of our Constitution (all legislative power is vested in Congress). This out of control, extra constitutional regulatory bureaucracy is the single greatest systemic problem our nation faces. As I wrote in a prior post, End The Tyranny - No Regulation Without Representation.

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End The Tyranny - No Regulation Without Representation (Updated)

Update: The House has proposed passage of the REINS Act. After reviewing the entire text, I am satisfied that it is the solution needed to restore the Constitutional balance between Congress and the Executive on this most critical issue.

In a dictatorship, laws are passed by unelected government bureaucrats without reference to the will of the people, nor subject to review by elected representatives. So what's the difference between that and our form of government? Today, not so much.

Our Founding fathers created by the Constitution a republic. In Art. I, Sec. I of the Constitution, they vested all legislative powers of our republic in Congress. The Founders further provided a framework that allowed Congress to, at any time, review prior law and, if appropriate, vote to repeal it. And most importantly, the Founding Fathers provided that each Congressman voting for or against the laws was directly subject to the ballot box. We no longer live in that world.

Today, Congress does not solely wield the legislative power of our nation. Indeed, Congress is very far from even being the most important source of our legislation.   Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureacrats.  In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern the regulatory bureaucracy.

This is a grave issue under Obama, but it is also much bigger than just his wholesale abuse of the regulatory bureaucracy. The growth and dictatorial power of the regulatory bureaucracy is a systemic toxin overlaid upon our government by FDR, and its substantial growth now threatens to wholly undermine our form of government, taking our most important legislation completely outside the purview of our elected representatives.

This has reached crisis proportions under Obama and his administration, who have utterly run amok, passing mountains of regulations drastically effecting our nation, all of which have bypassed Congress.

Under Obama, the size of the Federal Register, wherein all new regulations and modifications to existing regulations are published, grew from 68,000 pages in 2009 to over 82,000 pages in 2011. And Obama is just warming up. A tsunami of new regulations wait in the wings from Obamacare, Dodd-Frank, the FCC and the EPA, none of which will ever be voted upon by a single elected representative. This from Heritage:

During the first three years of the Obama Administration, 106 new major federal regulations added more than $46 billion per year in new costs for Americans. This is almost four times the number—and more than five times the cost—of the major regulations issued by George W. Bush during his first three years. Hundreds more regulations are winding through the rulemaking pipeline as a consequence of the Dodd–Frank financial-regulation law, the Patient Protection and Affordable Care Act, and the Environmental Protection Agency’s global warming crusade, threatening to further weaken an anemic economy and job creation.

The most important consideration as regards these regulations is that, almost to a virtual certainty, none of the major regulations promulgated under Obama could ever have passed Congress to become law - even during the first two years of Obama's administration when Democrats controlled Congress. A partial list of the extra-constitutional regulations and executive actions of Obama's regulatory agencies includes:

- The EPA's decision to regulate carbon dioxide as a pollutant, despite lack of any Congressional authority and in the face of Congress's refusal to pass the proposed energy bill which would in fact have authorized such regulation.

- The EPA's promulgation of the Boiler MACT rules that will cost our nation an estimated $20 billion to reduce certain pollutants emitted from boilers. The regulation was made without reference to health risk thresholds for the pollutants.

- The EPA's promulgation of the Cross State Air Pollution rule requiring 27 states "to cut their sulfur dioxide emissions from 8.8 million tons per year to 2.4 million tons per year (73 percent) and their nitrogen oxides emissions from 2.6 million tons per year to 1.2 million tons per year (54 percent)," at an estimated cost of "up to $120 billion by 2015" and a reduction in the nation’s power supply by more than 55 gigawatts (almost 4 percent), according to the Brattle Group, an economic consulting firm."

- The EPA's promulgation of Mercury and Air Toxics Standards "which could cost an estimated $100 billion by 2017," require modification of over 700 electrical generating plants, and because "it will not be technically possible for some coal-fired power plants to comply, roughly 1 percent of U.S. net electrical capacity will be shuttered."  These new standards were not made in reference to health risk thresholds.

- The EPA, in what can only be described as a war on coal (which provides roughly 50% of our nation's electricity) has through its permitting process, virtually - and unlawfully - shut down all applications for new coal mines. In one particularly egregious case, the EPA cancelled a permit issued in 2007 after it reinterpreted its own regulations.

- The EPA has made yet another power grab, assuming the authority to unilaterally issue fuel standards for vehicles, providing that in 2025, vehicles must get an average of 54.5 mpg.

- The EPA, as part of its rules on biofuels has provided that oil refiners must pay a significant penalty if they fail to mix cellulosic biofuels with their gas.  Cellulosic biofuels, while mandated, are not being produced commercially, thus rendering compliance impossible.  

- The Interior Dept.'s Gulf oil drilling unlawful permatorium in the Gulf after their falsification of a report to justify imposing the permatorium.

- The Interior Dept.'s decision to unilaterally put the eastern Gulf of Mexico, the Atlantic coast, and the Pacific coast off limits for development, effectively banning drilling in those areas for the next seven years.

- The Interior Dept.'s decision to unilaterally cancel 77 leases for oil and gas drilling in Utah.

- The Interior Dept.'s decision to break an agreement with Utah done in settlement of a lawsuit and reinstate an ambitious nationwide plan to unilaterally take more land and ocean territory under federal government control, putting the land off limits for development.

- The FCC power grab, without any grant of authority by Congress, to assume the right to regulate the internet.

- The FCC decision to order the the big wireless providers to sign ‘data-roaming’ agreements with smaller carriers, thus allowing smaller carriers to free-ride on the mammoth investments by the big carriers. "In addition, the FCC made it clear that it is willing to set the price for each data roaming agreement if it doesn’t like what the big carriers are offering–effectively reinstituting price regulation for the most dynamic sector of the economy."

- The DOE's war on Yucca Mountain as a nuclear waste repository that is still continuing. "In 2009, Administration arbitrarily broke federal law and derailed the most studied energy project in American history when DOE announced intent to withdraw 8,000 page Yucca Mountain licensing application with prejudice. American people have paid more than $31 billion (including interest) through percentages of electric rate fees towards the project and taxpayers have footed an addition $200 million in legal fees and over $2 billion in judgments against the DOE for breaking contracts associated with Yucca Mountain."  Note as an aside that Obama's NRC appointee, Gregory Jaczko, did all in his power to thwart the Yucca Mountain project, including quashing an NRC staff report, altering a scientific staff report on the safety of the Yucca site, and withholding critical information from fellow commissioners.  Jaczko, like Holder, still inexplicably retains his position.

- An EEOC letter stating that businesses may be violating a job applicant's rights under the ADA if they require that the applicant have graduated from high school.  

- New DOJ regulations that require, at significant cost, every public pool in America be fitted with a permanent lift for disabled individuals or face stiff fines.

- The NLRB decision to file a frivolous complaint against Boeing for making the decision to open up a plant in right to work South Carolina, thus strong-arming Boeing into a sweetheart deal with the closed union shop plant in Washington.

- The NLRB decision to institute Card Check via the back door, thus dispensing with the right of employees to demand a secret ballot on whether to organize and thus making the union organizing system ripe for coercion and corruption.

- The NLRB, in what poses to be a particularly insidious decision, has approved micro-union organizing of workers holding the same job title in a businesses, regardless whether the majority of employees in the business reject the union.

- The NLRB, in cases where unionizing elections are held, has now provided for "snap elections" by shortening the time frame for such elections to 10 to 21 days after notice to the employers demanding a vote.  This severely prejudices the ability of employers to make the case against unionization among their employees.

- The decision of the National Mediation Board to to make it easier for unions to organize the railroad and airline industries.  "The law, as written by Congress, clearly requires a support of a majority of a group of employees before their employer can be forced to bargain with their union. For 75 years, the NMB interpreted it the same way.  At the AFL-CIO’s request, the NMB changed the rule. There is now no requirement that a union ever demonstrate that it has the majority support of all the employees it will represent.

- The decision of the Dept. of Education to circumvent Congress and make unilateral changes to the No Child Left Behind Law.

- The HHS Mandate that will require religious individuals and institutions who are employers to fully fund free contraception and abortion plan B pills for female employees, irrespective of whether it violates their 1st Amendment rights of conscience.

- An IRS power grab to require that all tax preparers be licensed by the IRS. "The IRS wasn't granted the authority to do this by Congress, they just decided to go for it."

This is out of control and tyrannical.  It is near the polar opposite of what our Founding Fathers envisioned when they drafted our Constitution.  It must end or it will destroy our nation.

How we got here is the story of FDR and a Supreme Court that has utterly failed to defend the plain language of our Constitution. As one Cato Institute expert, Jerry Taylor, pointed out in testimony before Congress in 1996:

Before the New Deal, wholesale delegation of legislative authority to the executive was largely unknown in the United States, at least during peacetime. With the coming of the Great Depression, President Franklin Delano Roosevelt sought sweeping authority to manage the U.S. economy. With the passage of the National Industrial Recovery Act of 1933, he got it. The NIRA authorized industrial and trade associations to draw up codes designed to raise prices and restrict production; if the president found the codes acceptable, he was empowered to immediately issue and enforce them. Upon hearing of the NIRA, Benito Mussolini exclaimed, "Ecco un ditatore!" ("Behold a dictator!")

In 1935 the Supreme Court emphatically rejected the industrial code provisions of the NIRA in A.L.A. Schecter Poultry Corp. v. United States. The Court, led by Chief Justice Hughes, argued that "Congress is not permitted. to abdicate or to transfer to others the essential legislative functions with which it is thus vested." In his concurring opinion, Justice Cardozo famously characterized the industrial code provisions as "delegation running riot." But after Roosevelt's 1937 attempt to subvert the judiciary's independence by enlarging the Court, the Court never again struck down a New Deal statute on delegation grounds. Fear of Court-packing concentrated the mind wonderfully, and the judiciary chose not to stand in the path of the administrative state.

And so it has been ever since. In the 1944 case Yakus v. U.S., the Supreme Court put the final imprimatur on their Constitutional retreat, holding that "Congress could delegate to an executive agent the power to set maximum prices for virtually all goods throughout the economy." They rendered Art. I Sec. I of our Constitution a nullity.

But there was more to come. The final nail in our coffin came with the 1983 Supreme Court decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council. In that case, the Court granted "extraordinary deference to administrative agencies interpretations of their own authority." The Court held that "when a statute is silent on a particular issue, Congress can be understood to have delegated the power to make the law to the agency." That decision grants deeply non-democratic regulatory agencies vast power - and we can see its effect today in the many power grabs enumerated above in this post.

As Mr. Taylor summed up in his testimony before Congress:

With the judiciary's abdication of its constitutional role, we are left with a legal status quo that effectively centralizes all governing functions in the executive branch agency: Congress passes a statute endorsing a high-minded goal--accommodation of the handicapped, safe drinking water, protection of wildlife--the executive branch agency then issues and enforces the rules governing individual behavior; the judicial branch, for its part, grants "controlling weight" to the agency's interpretations of its own authority. In this way, the modern administrative state comes perilously close to realizing the Framers' definition of despotic government, articulated by James Madison in the Federalist 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny."

Newt Gingrich oversaw passage of the Congressional Review Act during his term as Speaker. It is a law meant to give Congress the authority to quickly stop burdensome regulations. Unfortunately, it has not proven effective. Under the Act, Congress can raise an objection to a regulation within 60 days of its passage. Only a majority in the House and in the Senate are required to quash the regulation - but only if their joint resolution to quash is signed by the President. That makes the Congressional Review Act virtually useless.

The whole problem is a President governing our nation like a dictatorship through the regulatory agencies that are directly, or in some case indirectly, under his control. Thus the Cong. Review Act must be amended to remove the role of the President, requiring only an act of the elected body with "all legislative powers" to decide whether a regulation is to be approved or quashed.

Further, all regulations should be treated precisely as laws. As it stands today, regulations enjoy what amounts to a presumption of treatment as if they were a duly enacted law by Congress. In other words, it will remain in place unless repealed by an act of Congress that passes the House and a super-majority in the Senate.

Regulations should not be easier for government to create and leave in place than the laws of Congress itself. If an objection to a regulation is raised by a member of Congress, then that regulation should only pass into force - or remain in force - if Congress votes to approve it subject to the same standards as any law. That means it must be approved by a majority in both Houses, and as to the Senate, by a super majority if a filibuster is invoked.

Lastly, the time frame of 60 days to object to a regulation must be removed. Just as all laws are subject to being withdrawn by Congress at any time, so must all regulations be forever subject to Congressional review under the framework above.

The above recommendations would do nothing more than put regulations on the same footing as all other laws in our Constitutional system. Let there be no regulation without representation. Our nation's fate hangs on it.

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Warmies Meeting Cold Reality

There is a lot of warmie news this week that I just haven't had time to blog:

- Warmies have just seen a stake put in the heart of "Glaciergate," the wholly unsupported claim out of the IPCC that the world's glaciers were melting at incredible speed and, of course, threatening a global catastrophe. A recent study based on satellite data shows that the Himilayas have lost zero ice in the past ten years.

- From Dr. Judith Curry at her blog, responding to the meme that we should all accept the absolute truth of global warming becuase there is a scientific consensus:

The climate community worked for 20 years to establish a consensus. The impact of the consensus probably peaked in 2006-2007, at the time of publication of the AR4. Courtesy of the CRU emails, we now understand the sausage making that went into creating the consensus. Manufacturing a consensus in the context of the IPCC has acted to hyper-politicize the scientific and policy debate, to the detriment of both. Its time to abandon the concept of consensus; consensus matters far less than simply being right and the arguments themselves that ought to be the focus for discussion.

- "A paper published this week in the journal Climate of the Past analyzes an "unprecedentally large network of temperature...proxy records" [a total of 120] and concludes that warming of the 20th century was "within the range of natural variability over the last 12 centuries." Only two of the eight types of temperature proxies analyzed indicate 20th century warming exceeded that of the Medieval Warming Period."

- Despite a warm 2012 January in the U.S., overall January temperatures over the last 15 years have fallen off a cliff - falling at a minus seventeen degrees per century rate.

- Real Science goes climbing behind the numbers used by NASA's Jim Hansen to show global warming:  "The bottom line is that his warming trend since 1880 is primarily based on non-existent temperature readings in the Arctic. Is Hansen the worst scientist in history?"

- It wasn't that long ago that San Francisco, with all its "low flow" toilets, began stinking like a ces pool because there wasn't enough water to pipe away the human waste.  One would think the greenies would have learned from this, but obviously not:

Students at a high school in Boca Raton, Florida, must step over rivers of urine and endure the stench of rancid waste after a plan to bring 'green' waterless urinals into bathrooms backfired.  School officials at Spanish River High School thought they had found an environmentally-friendly, cost-saving solution for their bathrooms when they installed Falcon Waterfree urinals in their boys bathrooms. But with no water moving through the school's copper pipes to flush the urine into the sewer system, the waste produced noxious gases that ate through the metal, leaving leaky pipes that allowed urine to drip into walls and flow onto floors.

- How to create a dutiful, unthinking warmie?  Get them while they are young and fill their heads full of bile.  And on that note, the USA Today tells us that a "Tree-hugging Dr. Seuss character will be marketeer"

The Lorax, perhaps the most famous anti-industrial crusader from children's literature, is about to become a big-time corporate spokesman.

With a host of commercial tie-ins — albeit for eco-friendly products —Universal Pictures will begin promoting "Dr. Seuss' The Lorax" this month. The animated movie, set for release March 2 in North America, is about a creature who "speaks for the trees" and fights rampant industrialism in a retelling of the Dr. Seuss children's book first published in 1971.

The studio's nearly 70 launch partners — including the U.S. Environmental Protection Agency and Whole Foods Market — are seeking to latch onto the Lorax's nature-friendly message. . . .

Interestingly enough, if you read the rest of the article, you will see that the "partners" are going to use Lorax to push a lot of things that one does not normally associate with kiddies. Clearly the expectation is that children, once properly conditioned, will work on their parents to also act to save the planet from the evils of industrialization.  It was Lenin who famously remarked, "education, education, education."  He, like our modern left, knew the value of indoctrination.

- And lastly, if you haven't seen it, read Der Spiegel's exceptional interview with Germany's newest global warming heretic, former German Environment Minister Fritx Vahrenholt.

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