The 'Advancing Coal Energy' Rule? EPA's Misguided Approach to Carbon Emissions from the Dirtiest Power Plants
The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running.
A bit of background first for those who aren't familiar with the rule. The United States has made a great deal of progress cleaning up its power plants so they emit less air pollution – not just carbon dioxide, but also particulate matter, sulfur dioxide, and other damaging pollutants. But much of the remaining air pollution comes from older power plants built before health-promoting clean air regulations were in place. Pollution from coal plants alone accounts for one-quarter of the value of all environmental damage in the United States, and all power plant pollution contributes to approximately 52,000 premature deaths in this country every year.
The Clean Power Plan, which was the EPA's previously finalized rule for carbon emissions from existing (older) power plants, set a numerical limit on carbon emissions from these facilities. It then set state "goals" (which were actually requirements). These goals established emission reductions that states had …
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David Flores. So what, if anything, is EPA going to do about the many shortcomings in the state WIPs?
From the looks of it, not nearly enough. The first indication that EPA's evaluation was not going to be a satisfactory response to the problematic WIPs was buried in a footnote. In the second footnote on the first page of each of the WIP evaluations, EPA says that it …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?
Monday's judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort …
In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time.
The legal theories these lawsuits pursue do not come from statutes, but instead rely on constitutional law, natural law, and the common law. This is the kind of litigation that is most likely to draw criticism not only from the governmental and industrial institutions it seeks to constrain, but from within the environmental community itself, as some worry that …
Originally published on Legal Planet.
The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science.
- Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support for advanced energy technologies (ARPA-E) and EPA's climate change research office. The proposal would also eliminate funding for the Sea Grant program, which funds environmental research on the coasts. The budget proposal is unlikely to become law, given that similar proposals were rejected even when the Republicans controlled both houses of Congress. But they are indicative of the administration's values.
- Toxic chemical risks. A report by …
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of particulates are below the NAAQS. Scientists see no reason to think that particulates in those areas are harm-free. But EPA now seems poised to ignore those saved lives. There’s a seeming logic behind that stance, but it’s fundamentally wrong.
The logic is simple — as simple as a magician pointing out she has nothing up her sleeves. The NAAQS is supposed to be set …
Originally published on Legal Planet.
To do its part in keeping climate change to tolerable levels, the United States needs to cut its carbon emissions at least 80 percent below 1990 levels by 2050. That’s not just a matter of decarbonizing the electricity sector; it means changes in everything from aviation to steel manufacture, and reducing not only CO2 but also other pollutants like HFCs and black carbon.
In a new book, Michael Gerrard and John Dernbach have assembled a team of authors to look at 35 different issue areas and figure out the legal actions that will be needed to drive this change. Their work builds on earlier planning efforts, particularly in California. The book runs more than 1100 pages and weighs in at over four pounds. Even the title has heft: Legal Pathways to Deep Decarbonization in the United States. I can’t claim …
Pop quiz: What do marshes, pipelines, forests, and underground parking structures have in common?
The answer is they are all infrastructure – part of the "underlying foundation," as my dictionary puts it, "on which the continuance and growth of a community depend." A lot of that foundation, like pipelines and parking structures, is artificial. But most of the goods and services we rely on come from the natural environment, itself, like clean water, breathable air, and a stable climate.
Ideally, both kinds of infrastructure – gray and green – would work together to provide the food, transport, and energy we need. But the story of gray and green infrastructure is often one of conflict. In the Upper Midwest, oil pipelines tear through important forest habitat and spoil wetlands that filter water and are vital to the ecosystem. In Houston, six-lane highways have covered grasslands that used to slow …
This op-ed was originally published by The Revelator. It is reprinted under Creative Commons license BY-NC-ND 3.0.
Climate change has already had serious effects, but as we know from the steady and increasingly loud drumbeat of projections from various scientific bodies, the dangers will grow much greater in future decades.
But what does this actually look like?
Projections of life in 2050 or 2100 seem like the stuff of science fiction, yet those seemingly distant decades are not so far off. The 22nd century is roughly one lifetime away. The great majority of today’s young adults will see 2050, and many children currently in your local daycare or elementary school will see 2100.
It seems difficult for us to plan for developments that are decades away, but climate science is clear that our actions today and over the next few years will make a profound …
Originally published on Legal Planet.
Every day seems to bring more news of the Trump administration's dogged efforts to reduce environmental protections and accelerate climate change with increased carbon emissions. But, as has been true since Trump took office, the picture at the state level is much different. State governments across the country have accelerated their efforts to decarbonize while efforts to save the coal industry have foundered. Here are some of the latest developments.
Earlier this month, Maryland's legislature adopted a 50 percent renewable energy mandate for 2030. The law also doubled the target for obtaining power from offshore wind. Governor Larry Hogan had vetoed an earlier increase in the renewable energy mandate in 2017 but was overridden by the legislature. Hogan, a possible primary challenger to Donald Trump, is still thinking over his next move at this writing.
In mid-April, New Jersey adopted a 50 …
