The Off-Switch Is Inside the Fenceline
The Obama Administration’s Clean Power Plan would require utilities to improve efficiency at coal-fired power plants and reduce the use of those plants in favor of generators using natural gas or renewables. Head of EPA Scott Pruitt claims EPA can only require CO2 cuts that can be accomplished by utilities “inside the fenceline” of a power plant. Under his interpretation, EPA could require a utility to increase the efficiency of a coal-fired plant. But, he assumes, his interpretation would rule out requiring a utility to reduce use of the coal-powered plant and obtain power elsewhere. In other words, the efficiency improvements for coal-fired plants would still be required, but not the requirement to reduce use of coal-fired plants in favor of other sources of electricity, because obtaining electricity elsewhere is something that happens outside the fenceline. That’s his justification for proposing to completely repeal Obama’s entire Clean Power Plan, which was the Obama Administration’s most important climate change initiative. In its favor, it’s true that most pollution regulations do operate “inside the fenceline” in that they require changes to the specific polluting facility, like adding a scrubber to a power plant.
Pruitt’s “fenceline” interpretation …
Lucas v. South Carolina Coastal Commission was the high-water mark of the Supreme Court's expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation. Lucas epitomized the late Justice Scalia's crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government's power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Twenty-five years later, it is striking how little impact the case has had.
Understanding the reasons requires something of a deep dive into the case and its complicated legal setting …
An earlier version of this post appeared on Legal Planet.
Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how.
Today, the administration is taking the first step with the release of a proposed rule repealing the CPP. EPA is relying wholly on the argument that it can interpret the statute in question (section 111(d) of the Clean Air Act) to cover only regulations within the fenceline of a power plant, not regulations that require the owner to obtain power from cleaner sources elsewhere.
The action is notable in part for what the agency did not do, some good and some bad. Here are some things that …
What happens in Washington gets a lot of attention. You probably also follow what's going on in your own state. But it's very hard to know what's happening in states across the country.
In an effort to get a better sense of that, I've explored state activity on climate change and energy in a series of posts. This wasn't a fifty-state survey, or even a statistically valid random sample. But it does indicate what's happening in a range of states, some Republican and some Democratic, some on the coasts and others in the heartland.
Overall, I was struck by two main points. First, there's a lot going on in Blue States and states with mixed party control. It's certainly not just California that's taken action, even though it gets a lot of the publicity. But places like Hawaii …
Rolling back EPA regulations is one of the Trump administration's priorities. The most notable example is Obama's Clean Power Plan, which aimed to cut CO2 emissions from power plants. The other rule that has gotten considerable attention is the so-called WOTUS rule, which defines federal jurisdiction to regulate wetlands and watersheds. But these are not the only rules in the crosshairs. EPA has announced plans to reconsider a rule limiting emission of toxic substances from power plants, rules dealing with methane emissions from oil and gas operations and from landfills, a chemical plant safety rule, and a rule dealing with water pollution from power plants. EPA plans to replace some of these rules and eliminate others altogether. Some of these rules are still the subject of litigation, so EPA is seeking to have the court proceedings put on hold, or to have the courts send …
A sign of the times: Fox News has reported, without comment, that the Kentucky Coal Museum is installing solar panels to save money. This is part of a larger trend.
On Saturday, the New York Times reported on shifts in power production in states like West Virginia and Kentucky. For instance, Appalachian Power has “closed three coal-fired plants and converted two others to gas, reducing its dependence on coal to 61 percent last year, down from 74 percent in 2012.” In response to an inquiry from the Governor, the company said it has no plans to build another coal plant. In Kentucky, the Public Utility Commission has advised companies about offering renewable energy packages in order to attract large corporations, many of whom have strong green energy programs.
Similarly, in Wyoming, Microsoft made a deal to get wind power for its new data center. In fact, according …
President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court.
The Current State of Play
To set the stage, WOTUS (short for “Waters of the United States”) is a response to the Rapanos decision, in which Justice Scalia and three others judges argued for a very narrow definition of federal jurisdiction over streams …
The U.S. government obviously isn't going to be taking a global leadership role regarding climate change, not for the next four years. At one time, that would have been the end of the story: the only way to accomplish anything internationally was through national governments. But we live in a different world today, and there are other channels for international action against climate change. Today, transnational networks of state and local governments, private firms, and NGOs are actively addressing climate change and other environmental problems, with or without the help of their national governments.
The Under2 MOU is a great example outside of the formal framework of international law. Here are the key facts:
The Under2 Coalition is a diverse group of governments around the world who set ambitious targets to combat climate change. Central to the Under2 MOU (Memorandum of Understanding) is an agreement …
At a national meeting of state utility regulators, the head of the group recently said that the Clean Power Plan was basically dead, but this might not matter because "arguably, you're seeing market-based decarbonization" due to technological changes. Case in point: Texas.
Market trends are pushing Republican stronghold Texas toward a cleaner grid. ERCOT, which operates nearly all of the state's grid, recently projected that in the next fifteen years, Texas will add almost 20 gigawatts of solar, equivalent to 15-20 new nuclear reactors. In fact, under virtually every scenario ERCOT considered, the only new capacity is solar, with no new fossil fuel plants expected. ERCOT also expects to retire about a third that amount in coal generation along with some older, inefficient natural gas plants. Regulatory changes could nudge these numbers upward or downward. Both the use of renewables and the fossil fuel retirements …
It's smart to take precautions against climate change. More can be done, even in the Trump era.
At night, you can hear the hooting of owls in the vineyard. The owners have deployed owls and falcons to control the pests that threaten the Kendall Jackson vineyards due to milder winters. But birds of prey aren't the only things flying above the vineyard. There are also drones, which are used to observe small differences in the color of the vines that are clues to water needs and other issues. The goal is to help the vineyard flourish despite a drier, warmer climate.
Kendall Jackson certainly has reasons to be concerned. As the New York Times reports, one study suggests that "by 2050, many regions in Europe, including much of Italy and swaths of Southern France, could become unsuitable for wine grapes" and "California production could fall …
