Do Not Blame Us
This op-ed was originally published by The Regulatory Review. Reprinted with permission.
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.
We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding of Section 111(a) of the Clean Air Act.
In West Virginia v. EPA, the Court held that the U.S. Environmental Protection Agency (EPA) was powerless to bring about a reduction in greenhouse gas emissions from coal-fired power plants by inducing them to shift electrical generating capacity from dirty coal-fired plants to …
This post was originally published by Legal Planet. Reprinted with permission.
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.
The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.
The Clean Power Plan has no practical significance today: the deadlines in …
This post was originally published on Legal Planet. Reprinted with permission.
Coal- and gas-fired power plants are a major source of U.S. carbon emissions. The Obama administration devised a perfectly sensible, moderate policy to cut those emissions. The Trump administration replaced it with a ridiculous token policy. The D.C. Circuit appeals court tossed that out. Now what?
It wouldn't be hard to redo the Obama policy based on all the changes in the power industry since he left office, which would result in much more rigorous emissions controls. The problem is that the ultra-conservative majority on the U.S. Supreme Court is likely to be very skeptical of the legal basis of any plan that, like Obama's, requires states to expand use of renewable energy.
Opponents of Obama's plan made two legal arguments, which both came up again in the litigation over the Trump rule …
Originally published on Legal Planet. Reprinted with permission.
The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.
The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."
The Clean …
Originally published on Legal Planet.
Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids.
Efforts to cut climate change right now aren't likely to have a big effect on climate in the next decade or two. But there are more immediate benefits from cutting carbon. Increasing energy efficiency will cut electricity bills, and stricter fuel efficiency standards will cut gas bills, so these measures pretty much pay for themselves. Moreover, a side effect of cutting carbon is reducing air pollution, which is especially important for people in our age group. When it issued Obama's Clean Power Plan, EPA estimated it would …
Originally published on Legal Planet.
To hear President Trump talk, the point of deregulation is to reduce the burden of regulation on industry. But weirdly enough, that doesn't turn out to be true of Trump's effort to repeal Obama's Clean Power Plan (CPP) and replace it with his own Affordable Clean Energy (ACE) rule. Both rules regulate carbon emissions from power plants (though Trump's rule covers only coal plants). According to his own EPA, however, the Trump administration's approach will actually increase costs to industry.
It's actually a kind of perfect storm. First, the rule eliminates a trivial amount of carbon and handicaps any future climate efforts. Second, it imposes significant economic costs (many of them avoidable). Third, it reduces state governments to the role of unpaid engineering consultants. And – to mix metaphors – the cherry on top is that the ACE rule is actually likely to be …
The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP.
The ACE identifies a range of potential heat-rate improvements (usually efficiency improvements) at coal-fired power plants and then lets the states determine which of these "candidate technologies" are feasible at which plants. The states then embody these performance requirements in state implementation plans (SIPs) subject to EPA approval. Energy system planning plays no role in controlling emissions.
In contrast, the CPP, formally repealed at the same time as the ACE was finalized, set the stage for state-level energy system planning. Under the CPP, utilities or plant owners could not only …
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 …
Cross-posted from Legal Planet.
In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid. The grid is in the process of changing even more. It was designed for some relatively straightforward tasks. The main power plants, mostly burning coal (but sometimes natural gas or nuclear energy), ran day and night. They were supplemented by other power plants when needed to meet load (customer demand). All the power flowed from these central power plants and was instantly used by consumers, who were billed based on their total consumption and sometimes on their peak demand. The fundamental rule was that increasing demand for power allowed for greater economies of scale, reducing costs. Thus the goal of electric utility companies was to increase demand for electricity, thereby lowering average production costs and increasing their profits.
Power systems today have begun …
Cross-posted from Legal Planet. Click here for the follow-up post.
If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line like requiring more use of renewable energy of a coal or natural gas generator. I've blogged previously about why this argument might not even apply because reducing your operating hours is something you can accomplish without getting close to the fence, let alone crossing it.
But today I want to talk a little more generally about why EPA should have some flexibility in interpreting the law to …
