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Trump’s Clean Power Plan replacement gets thrown out by a court



Enlarge / DUNKIRK, NEW YORK, UNITED STATES – 2016/10/09: A NRG owned coal fired energy facility that plans to convert to a natural gas facility.

Today, the US Court of Appeals for the District of Columbia vacated the Trump administration’s attempt to take a minimalist approach to the regulation of carbon dioxide emissions. The ruling was a lopsided victory for the long list of groups opposing the Trump EPA’s approach, with the entire rule being vacated. Thus, the Biden administration will start unencumbered by its predecessors’ attempts to gut carbon dioxide regulations.

Here we go again

Some of the legal issues here date back to the Clinton administration, when states sued to force the EPA to regulate carbon emissions under the Clean Air Act. That issue was ultimately clarified by the Supreme Court, which, during the George W. Bush administration, ruled that carbon dioxide could be regulated as a pollutant as defined by the Clean Air Act. Early in the Obama administration, the EPA issued an endangerment finding for greenhouse gasses that provided the scientific rationale for regulations. Those regulations came in the form of the Clean Power Plan, issued during Obama’s second term.

While the Clean Power Plan completed the federal rule-making process, it was held up by lawsuits when President Obama left office. Trump issued an executive order that directed the EPA to replace the Clean Power Plan. The EPA’s eventual replacement, the Affordable Clean Energy rule (ACE), went well beyond simply ending or limiting the Clean Power Plan. Instead, ACE attempted to narrow the regulation allowed under the Clean Air Act by having states regulate each individual source of emissions, rather than regulating the state’s total emissions. As an added bonus, it also stretched out the timeline for states to bring their emissions into compliance.

Under this view, the EPA’s regulations could only force existing coal-operating plants to function more efficiently; the rules couldn’t promote having them switch fuels to natural gas or biomass, much less have them closed and replaced by natural gas or renewable power sources. Needless to say, this approach was pretty ineffectual at limiting carbon emissions, with the EPA itself predicting that ACE would cause them to fall by only 1 percent.

Not even wrong

The new ruling eviscerates the EPA’s logic, finding it so flawed that the entire rule has been vacated.

“The central operative terms of the ACE Rule and the repeal of its predecessor rule, the Clean Power Plan, hinged on a fundamental misconstruction of… the Clean Air Act” the decision reads. “In addition, the ACE Rule’s amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious.”

The ruling’s primary focus is on Section 7411 of the Clean Air Act, which indicates that EPA regulations could compel changes in pollution “achievable through the application of the best system of emission reduction.” The EPA wanted to interpret this as meaning the best system that could be applied at individual sources of pollution, such as a single power plant, rather than treating the power grid as a unified system. The court found that this reasoning came up short, and badly short, writing, “It fails for at least three reasons, any of which is alone fatal.”

The court noted that Section 7411 has a list of limitations on its applicability, and none of them include the idea that the EPA is limited to considering individual sources. In addition, the EPA’s interpretation of the Section requires the insertion of words that aren’t present in the statute’s text. Finally, to cancel an existing rule, the EPA’s interpretation has to be the only one that’s consistent with Section 7411’s language, which the court notes is clearly not true.

The ruling also held that the EPA wasn’t even internally consistent when making its decision: “Recognizing that sources generally have ‘broad discretion’ in how they comply with state standards, the EPA nonetheless categorically excluded two specific measures from the States’ consideration: averaging and trading, and biomass co-firing.” This inconsistency makes sense if the EPA specifically wanted to encourage coal use (the EPA head at the time was a former coal lobbyist), but it doesn’t make for federal rule-making that holds up to legal challenge.

Odds and ends

The EPA had also argued that its new interpretation required a review under something called the “Major Questions Doctrine,” but the court found that unpersuasive, as the EPA had been managing regulations under its previous view of Section 7411 for decades. Many of these regulations had withstood multiple legal challenges. Oddly, two coal mining companies joined the suit claiming that ACE was adopted without an endangerment finding; the court dismissed this due to the fact that the earlier greenhouse gas endangerment finding was still operative. Other groups that sued lacked standing, as their only claim for joining the case was that they paid for electricity.

The court also rejected the EPA’s attempt to lengthen the timeline for states to bring their electric grids into compliance, which would delay even the feeble emissions cuts that would result from ACE. In essence, the court found that there was insufficient reason given for these changes: “Because the challenged regulations lack reasoned support, they cannot stand.”

In its decision, the court cites the US’ National Climate Assessment in providing a rationale for regulating greenhouse gas emissions. The court notes that the assessment concluded, “The evidence of human-caused climate change is overwhelming and continues to strengthen” and “the impacts of climate change are intensifying across the country.” The importance assigned to the assessment is likely why the Trump administration placed noted climate contrarians at NOAA, in what was thought to be an attempt to weaken the next edition of the National Climate Assessment.

Where to from here

The federal rule-making process that established ACE also eliminated the Clean Power Plan, and the court’s decision doesn’t revive it, according to Ben Levitan, a senior attorney at the Environmental Defense Fund. Levitan said at this point, it was unclear whether anyone involved in the case will seek further review, as there were a number of parties beyond the EPA involved (the list of parties occupies 13 pages of the decision). But it’s safe to assume that the Biden EPA is unlikely to want to appeal a decision that, in Levitan’s view, rejected an attempt to “undermine the Clean Air Act and deprive Americans of the protections they deserve.”

Which means that the Biden administration will likely start from scratch. And, given the changes that have taken place since the Obama administration, that’s almost certainly the most appropriate course. Due to the plunging prices of renewable energy, fossil fuels in 2021 will account for less than 20 percent of the new generating capacity added to the US grid, and all of it will be natural gas, furthering the precipitous decline of coal use. Biden also intends to promote an even higher pace of renewable energy use as part of his pandemic recovery package.

Given those facts, the original Clean Power Plan has been made obsolete, and any future regulations would need to reflect the new reality.

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NASA selects SpaceX as its sole provider for a lunar lander



Enlarge / Rendering of SpaceX’s Starship vehicle on the surface of the Moon.


In an extraordinary announcement on Friday, NASA said that it has selected SpaceX and its Starship vehicle to serve as the lunar lander for its Artemis Program. This is NASA’s plan to return humans to the Moon later this decade.

About a year ago, NASA gave initial study and preliminary development contracts for Moon landers to SpaceX, Dynetics, and a team of aerospace heavyweights led by Blue Origin. The cost of SpaceX’s bid was about half that of Dynetics, and one-fourth the amount received by Blue Origin. That frugality, at least in part, led NASA on Friday to choose SpaceX as the sole provider of landing services during the down-select phase.

“We looked at what’s the best value to the government,” said Kathy Lueders, chief of the human exploration program for NASA, during a teleconference with reporters on Friday.

NASA said it will award SpaceX $2.89 billion for development of the Starship vehicle and two flights. One of these missions will be an uncrewed flight test of Starship down to the lunar surface and back. The second mission will be a crewed flight—the first one of the Artemis program—down to the Moon.

Starship offered several advantages, NASA officials said. It has a spacious cabin for astronauts, two airlocks, and ample payload capability to bring large numbers of experiments to the Moon and return samples to Earth. Significantly, the NASA engineers also praised the vehicle’s innovative design and future-looking technology that might also one day be used on Mars.

Ultimately, the selection criteria were based on a company’s technical proficiency, management, and cost. SpaceX scored well in all three. But budget appears to have been the biggest factor. The space agency has had difficulty securing funding from Congress for the lunar lander aspect of the program. For the current fiscal year, NASA said it needed $3.3 billion in funding to meet the goal of landing humans on the Moon by 2024. Congress provided just $850 million, and as a result, NASA acknowledged that 2024 was no longer a realistic target.

Making Artemis affordable

At the direction of the Trump administration, NASA formally created the Artemis Program about two years ago to send humans back to the Moon in a sustainable way and establish a base there. The goal was to move beyond the flags-and-footprints forays of the Apollo Program and gain the knowledge needed to eventually send humans to Mars. The Biden administration has endorsed this basic goal, and it’s working to update the Artemis Program with a more realistic timeline given the budget predilections of Congress.

Friday’s announcement is part of that process of making Artemis more affordable. A sole-source award to SpaceX for the Human Landing System will certainly not be particularly popular in Congress, where traditional space companies such as Lockheed Martin and newer entrants like Blue Origin have more established lobbying power. But it sends a clear message from NASA and the White House to budget writers in the House and Senate.

This award effectively says that NASA is serious about getting to the Moon with the funding it has. And if Congress were to fully fund the Human Landing System program, NASA could bring on a competitor. Ideally, of course, there should be competition. This approach has worked well for NASA’s commercial cargo and crew programs. But NASA is getting a small fraction of what it needs to run a lunar lander competition.

In addition to this development award, NASA said it would soon move to procure “recurring landing services” from industry. This contract will be for operational missions to the lunar surface, and it seems like SpaceX would have a significant advantage in winning the award. However, there may be an opening here, if Congress provides more funding for the Human Landing System, for either Dynetics or the Blue Origin-led team to play a role in human landings.

Self-funding Starship

SpaceX has largely self-funded development of the large Starship vehicle for about five years, with the intent of using it to settle humans on Mars one day. Starship is a fully reusable upper stage that will launch atop the Super Heavy rocket. SpaceX is in various states of testing and developing both of these vehicles at its facility in South Texas.

As part of the Artemis Program, SpaceX has proposed launching a modified version of its Starship vehicle to lunar orbit. Shortly afterward, a crew of NASA astronauts would launch inside an Orion spacecraft on top of a Space Launch System rocket, both of which were developed by NASA. Orion would rendezvous with Starship in lunar orbit, board the vehicle, and go down to the surface. Starship would then lift off from the lunar surface and link back up with Orion, and the crew would come back to Earth in the smaller capsule.

Left unsaid is the reality that SpaceX is also planning to launch humans on Starship from Earth. It does not seem like all that much of a stretch to question the need for the much more costly Orion and Space Launch System rocket, when lunar crews could simply launch in a Starship into low-Earth orbit, undergo refueling there from another Starship, and then go to the Moon and back. But NASA knows that Congress—which is heavily invested in Orion and the SLS rocket, and their jobs across all 50 states—would not support a SpaceX-only program.

The choice of SpaceX was applauded by some industry officials on Friday. “The selection of SpaceX as the sole-source developer of the Human Lander System is a sign of how far both the company and their relationship with NASA has come over the last ten-years,” said Lori Garver, a deputy administrator for NASA under President Obama. “SpaceX’s involvement in Artemis is sure to elevate public interest and will hopefully lead to our soonest possible return to the Moon.”

For years, space industry leaders like Garver have advocated for NASA to increase support for commercial space companies that have sought to drive down the costs of spaceflight. After all, SpaceX’s bid for the entirety of its Human Landing System, $2.9 billion, is about what NASA spends each year on the Space Launch System and associated ground systems development. Now, the space agency appears to be boldly embracing such a future.

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Arkansas representatives pass bill to allow creationism in schools



Enlarge / The Arkansas state capitol.

Last week, the Arkansas state House of Representatives passed a bill that would amend state education law to allow teachers in public schools to teach creationism as “a theory of how the earth came to exist.” As it stands, the act promotes blatantly unconstitutional behavior as made clear by a precedent set in a 1982 case involving the Arkansas Board of Education. Despite that, the bill passed 72-21, and it already has a sponsor in the state Senate.

The body of the bill is mercifully short, consisting of two sentence-long amendments to the existing Arkansas code:

A teacher of a kindergarten through grade twelve (K-12) science class at a public school or open-enrollment public charter school may teach creationism as a theory of how the earth came to exist.

This section is permissive and does not require a teacher to teach creationism as a theory of the earth came to exist.

But those two sentences are enough to land teachers and their local school system in a world of trouble, in that the permission given runs afoul of a lot of legal precedent. In a key case that involved Arkansas itself, McLean V. Arkansas Board of Education, a group of plaintiff’s banded together to challenge a state law that mandated the teaching of “creation science” in public schools. The judge in that case correctly recognized that creation science was actually religious in nature, and therefore it violated the constitution’s prohibition against the establishment of state religion.

That ruling wasn’t appealed, meaning the legal precedent only applied to Arkansas. But later in that same decade, a similar case from Louisiana made it to the Supreme Court, and it reached the same conclusion. The prohibition against creation science has applied nationally since.

These precedents only apply to the teaching of creationism as science; there are other contexts, like a comparative religion class, where it might be appropriate to teach this idea. But the bill’s use of “theory” clearly indicates that it’s intended to insert the concept into science classes.

While the state might end up being sued if this law passes, it’s just as likely that a teacher in Arkansas will exercise this permission and the suit will end up targeting the teacher and the school board they work for. If the local school board loses (which it would), there is a good probability it will end up liable for the legal fees of whoever sues. Thus, the legislation serves as an invitation for local school districts throughout the state to rack up enormous legal bills.

Although the legal history of creationism is available to anyone with a working Internet connection, the bill passed with 72 representatives, all Republicans, voting in favor. Of the chamber’s 22 Democrats, 21 voted against it, and one other didn’t vote.

It’s not clear whether these legislators are simply unaware of the legal precedents or if they are simply using this bill as an opportunity to signal their cultural affiliations. We’ve contacted its two sponsors to find out. As of the time of publication, neither had responded.

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SARS-CoV-2 variant found in Brazil: More infectious, may limit immunity



Enlarge / COVID-19 has taken a terrible toll on Brazil.

Almost from the moment it made the jump to humans, the SARS-CoV-2 virus has been picking up mutations and creating new lineages as it expands into different populations. In practical terms, the vast majority of these mutations make absolutely no difference; the resulting virus has the same properties as the unmutated form it’s derived from.

But there have been a number of cases where variants surge in frequency. Early on in the pandemic, this was often the product of the variant moving into a previously unexposed population—a matter of chance rather than a feature of the virus. Separating out these cases from instances where mutations make the virus more dangerous is a serious challenge. But this week, an international team of researchers has published evidence showing that a variant first characterized in Brazil is likely to represent a significant additional threat.

There’s a lot of uncertainty about the details, but the virus appears to be more infectious and more likely to infect those who have immunity to other viral strains, and it might even be more lethal. And as of when the paper was written, the lineage had been detected in over 35 countries.

The second wave

Earlier this year, we described the situation in the Brazilian city of Manaus, which the first wave of coronavirus infections had hit hard. But that was followed by a long period of low infections, despite an indifferent response to the pandemic by the Brazilian government, leading some to suggest that the city might have reached a level of infection sufficient to provide herd immunity.

That hopeful thought was brought to an end in December, when a second wave of infections started up in the city, straining its health care systems and causing another surge in deaths. The infection rates were so high that it raised the suspicion that there might be a new strain of virus that could evade the immune response generated by infections that occurred during the first wave.

Brazilian healthcare workers responded to the rise in cases by sequencing the genomes of some of the viruses causing the second wave of infections. Prior to this second wave, only seven viral genomes had been obtained from Amazonas, the state where Manaus is located. The new effort increased that number by 184, although not all of these were complete genomes.

The genomes revealed the presence of a lineage researchers call P.1, which is an offshoot of a strain that had been present during the first wave. Since then, P.1 had picked up a large number of mutations, including 17 individual mutations that altered the amino acid sequences of the proteins it encodes, one insertion of new bases, and three deletions of bases. That’s a substantial number of changes and suggests a high level of mutations picked up since March. Timing estimates suggest that P.1 originated in November, just before the start of the large second wave in Manaus.

Over the course of the second wave, the P.1 variant went from not being detectable in the samples taken to accounting for 87 percent of viruses sampled just seven weeks later. Viral genomes from elsewhere in Brazil indicated it was also spreading rapidly within the country, showing up in cities that were on popular flight routes from Manaus first. This indicates that P.1 likely originated in the city.

What is this thing?

Tests for the virus that use polymerase chain reaction (PCR) involve a cyclical amplification of the virus’s genome. As a result, if you start with more viral genomes, you’ll reach a detectable level of signal in fewer cycles. This is thought to mean that the cycle count needed for detecting the virus provides a rough measure of the viral load carried by the person the sample came from. In the case of the P.1 strain, tests showed a fairly consistent, if small, indication of increased viral load.

Because the samples came at different times after infection, however, the researchers can’t tell whether this is indicative of higher maximum levels of the virus or a longer infection duration. Neither is especially good.

To try to understand how P.1 might have influenced the second wave of infections in Manaus, the researchers developed an epidemiological model that allowed them to track two different strains of the virus. The first strain was set up with the typical properties of SARS-CoV-2. For the second, they were able to adjust the properties of the virus, such as the immunity provided by prior infections and its transmissibility. This let them determine which properties were consistent with the dynamics of the second wave in Manaus.

Overall, the model suggests that P.1 is very likely to be more transmissible than prior strains of SARS-CoV-2, and it’s likely to be roughly about twice as infectious. There’s also an indication that it can evade the immune response generated by past infections to some extent. The model suggests there’s at least a 10 percent chance that the variant can evade immunity, but it’s unlikely to be more than a 50 percent chance.

There was some evidence of enhanced lethality due to infection by the P.1 strain. But the timing of the strain’s rise was such that the evidence came from a period where the hospitals were on the verge of being overwhelmed. So the authors are treating this possibility cautiously.

What might be causing these changes? At least 10 of the mutations seen in the P1 strain affect the virus’s spike protein, which the virus uses to latch on to cells it infects. At least eight of those mutations seem to have been selected for over the course of the strain’s evolution, suggesting they assist in making it more infectious. Three of the specific changes have also been seen in another lineage of virus that has caused concerns, and at least one of them has been shown to interfere with antibodies that attack the virus.

So while this data isn’t really a decisive indication that P.1 poses a distinct threat to us, it’s all certainly consistent with that concern. And it would help explain why Manaus had two distinct waves of infection that seem to have hit a substantial fraction of the city’s population. Still, as the authors of the new paper point out, we don’t fully understand the consequences of mutations that alter proteins targeted by antibodies. Until we get a grip on that, we won’t really know how worried we need to be about P.1 and other variants.

Science, 2021. DOI: 10.1126/science.abh2644  (About DOIs).

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