The Crumbling of Net Zero in the U.S.

Voters last November rejected the grandiose plans of the Biden Administration to abandon gasoline- and diesel-powered engines, natural gas hot water heaters and other appliances, and coal- and gas-fired power plants. But who foresaw the total reversal of the anti-business regulatory climate of the past fifty years?

When Richard Nixon announced the creation of the Environmental Protection Agency in 1970, it was the heyday of environmental protest. Earlier in the year, Wisconsin Senator Gaylord Nelson had launched the nation’s first Earth Day, hailed as a national awakening by a diverse mix of New Leftists, conservatives, businessmen, citizens, and anticommunists.

Rachel Carson’s seminal book Silent Spring in 1962 had sparked concerns over the environment in an America that a decade earlier had emerged from World War II as the planet’s dominant economic power. To maintain control over the burgeoning movement, Nixon consolidated responsibilities of 15 different federal entities and appointed Wiliam Ruckelshaus as the first EPA administrator.

Just days later, Nixon signed the Clean Air Act of 1970, and two years later he signed the Clean Water Act of 1972. Ruckelshaus’ first move was to order Cleveland, Detroit, and Atlanta to come into compliance with water quality standards, and in 1972 he fulfilled Carson’s call for a ban on DDT.

By 2020, the agency’s larger mission of reducing “criteria pollutants” had been wildly successful, with combined emissions of particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide, lead, and volatile organic compounds cut by 78%. In truth, the job had been essentially completed a decade earlier.

By contrast, fifty years after passage of the Clean Water Act, half the nation’s waterways were still impaired by pollution, wetlands were still being destroyed, and pharmaceutical waste had become a genuine water pollution concern. Rather than addressing these matters, the EPA’s focus turned to extending its control to include intermittent streams it dared call “waters of the U.S.”

With the clean air mandate essentially under control, and clean water essentially abandoned, the bureaucracy demanded new missions to ensure its growth and increase its power. Thus was born the designation of life-giving carbon dioxide as a “criteria pollutant,” despite the lack of any legal basis in the Clean Air Act for doing so.

The Supreme Court’s 1984 “Chevron deference” decision that granted federal agencies almost unlimited power to “interpret” federal environmental laws emboldened the EPA to stretch its authority to new horizons. By 2011, the Court had allowed the EPA to regulate carbon dioxide as a criteria pollutant whose emissions must be controlled.

These two declarations gave the agency – and lawmakers and policy wonks – carte blanche to wage war on fossil fuels, a war the Biden Administration much preferred to combating violent crime, inflation, or matters of national security. The biggest front, as it had been for Barack Obama in his eight years, was an assault on coal, oil, and natural gas – and massive subsidies for often bankrupted, often environmentally damaging, “renewable energy” projects.

To their great consternation, even Europe’s green revolutionists were unable to meet “modest” interim timetables for “emissions” reductions. Meanwhile, China, India, and other nations were redoubling their reliance on dreaded fossil fuels even as China in particular was cornering the market on the raw materials needed to fulfill the fossil-free dreamers’ Solstice Stockings.

Cracks in the armor began as evidence mounted that federal agencies had been manipulating both historic and current temperature data and relying on flawed numbers in areas impacted by the urban heat island effect in order to persuade people that their failure to control “climate change” had reached crisis stage.

The crowning blow to regulatory agency power came just last year when the Supreme Court voted 6-3 to reverse its long-held Chevron deference which had given federal agencies the power to interpret the laws they are empowered to administer – ceding their own constitutional power to interpret laws and the Constitution to an unaccountable bureaucracy.

Chief Justice John Roberts, who wrote the new majority opinion, called the Chevron doctrine “fundamentally misguided.” Justice Elena Kagan, by contrast, lamented that the loss of Chevron as a tool of the state “will cause a massive shock to the legal system,” given that it had been cited by federal courts more than 18,000 times to empower the bureaucracy to prevail against citizens.

The final blow to the regulatory state came in November, when Donald Trump was reelected to the nation’s highest office. Shortly afterward, Trump named former New York congressman Lee Zeldin as EPA Administrator. Zeldin recognized that much of the EPA’s regulatory system was grounded in both the Chevron deference theory and the EPA’s declaration that carbon dioxide could legally be regulated under the Clean Air Act.

So it should have been no surprise that Zeldin last week announced the EPA will undertake 31 “historic” actions to strip the EPA of unlawful and/or counterproductive regulatory power. Taking a cue from those who support separation of church and state, Zeldin said, “We are driving a dagger straight into the heart of the climate change religion to drive down the cost of living for American families, unleash American energy, bring auto jobs back to the U.S., and more.”

Among the actions, Zeldin said the EPA will reconsider the 2009 endangerment finding, Biden’s entire “Clean Power Plan,” motor vehicle regulations, fine particulate matter standards, mercury and air toxics standards, and the regional haze program. Also on the chopping block are Biden’s anti-coal standards for steam electric power generation, the concept of the “social cost of carbon,” and the structure of EPA advisory committees.

Just last weekend, 28 industry leaders signed a letter calling on Zeldin and President Trump to void all subsidies authorized under Biden’s misnamed Inflation Reduction Act, including subsidies that ostensibly were in their firms’ and industry’s benefit. Their unanimous opinion?

“This is the only moral and practical path forward if we are to truly unleash American energy.”

Subsidies, the signers agreed, take money away from efficient producers and taxpayers and hand it to less efficient producers, resulting in less efficient production and thus higher consumer costs. They pointed to solar and wind subsidies as the worst offenders for paying electric utilities to invest huge sums of unnecessary money to produce intermittent energy.

They might have added that offshore wind, onshore wind, and huge solar arrays cause irreparable environmental damage – and add to the national debt — facts not even given consideration by those who enacted the Biden agenda. Moreover, subsidies that benefit special interests risk making the U.S. more like Europe, where industries success not by providing the best value to consumers but by providing the best favors to politicians.

Topping off what has been a very bad month for the green money machine, a North Dakota jury found Greenpeace International, Greenpeace USA, and Greenpeace Fund Inc. liable for defamation, trespass, nuisance, civil conspiracy, and other acts and ordered the three linked entities to pay more than $660 million in damages to plaintiffs Energy Transfer and Dakota Access.

Should Greenpeace lose its promised appeal, the lawbreaking organization could be forced into bankruptcy.

The times they are “a changing.”

Duggan Flanakin is a senior policy analyst at the Committee For A Constructive Tomorrow who writes on a wide variety of public policy issues.