As expected, the Trump Administration today rolled out their proposed alternative regulation to the Obama-era Clean Power Plan to reduce carbon emissions from the U.S. power sector. The administration was in the somewhat awkward position of having to promulgate a climate rule by order of the U.S. Supreme Court, so the basic tack is to make the regulation effectively meaningless.
Here are some of the low-lights:
- EPA’s draft rule is expected to lower annual U.S. emissions by 0.7 percent to 1.5 percent by 2030 compared with a business-as-usual scenario, compared to 19 percent below the business-as-usual scenario with the original Clean Power Plan.
- The “foregone benefits” of the proposed rule means more pollution compared with the Clean Power Plan, particularly affecting residents in the Midwest, east to Pennsylvania, and West Virginia, with increases in premature death and morbidity (“foregone avoided deaths”), as my colleague Sean Hecht explains.
- The rule contains a new regulatory loophole that allows existing dirty fossil fuel plants to increase their hours of operation without triggering any new environmental review, as my colleague Meredith Hankins describes.
- The proposed rule has no standard for states to meet in terms of reducing greenhouse gas emissions from their power sector.
So for me there are four ultimate takeaways for the proposed rule:
- It is a giveaway to the coal industry at the expense of cheaper, cleaner power sources,
- It has multiple legally dubious provisions that will likely take years to resolve in court.
- It replaces an unfortunately weak rule in the Clean Power Plan, which was not going to push the power sector much more than existing state policies on renewables and the current supply of cheap natural gas.
- It means the real action on the U.S. power sector will occur when Democrats regain Congress and the Presidency, at which point they should (and probably will) prioritize some sort of national greenhouse gas standard for the U.S. power sector, as part of a federal response to climate change.
Until the politics change, however, we’ll have to watch this rule work its way through the courts.
The Obama EPA’s proposed “Clean Power Plan” was that administration’s big effort to regulate carbon pollution under the federal Clean Air Act. But now the Trump administration is set to propose an alternative approach this week that is likely to lead to more pollution and ironically less flexibility for the business community (similar to how the auto industry got an unwelcome full-scale rollback of clean car standards with potentially years of litigation and uncertainty to come).
The Obama Clean Power Plan was a response to the U.S. Supreme Court case Massachusetts v. EPA (2007), in which the court ordered EPA to treat greenhouse gases as a traditional air pollutant under the statute. So when it came to implementing the order for the U.S. power sector, EPA’s Clean Power Plan was an effort to limit carbon emissions from power plants, particularly dirty coal-fired ones.
EPA’s approach was to regulate the whole system of power within a state, not just the plants themselves. This approach allowed states to come up with their own plans to meet federal targets set by EPA. The key was that these plans could regulate “beyond the fence line” of fossil fueled-power plants, to provide more flexibility to meet these targets. States could use a mix of energy efficiency, renewables, carbon trading, and energy storage to reduce the overall carbon footprint of the power sector as a whole.
The alternative “inside the fence line” approach would have required massive and expensive on-site upgrades to coal-fired power plants to reduce their carbon emissions, most likely through unproven and costly carbon capture and storage approaches, in which the carbon would be captured from the smokestack and pumped underground. Costs would have been passed on to ratepayers.
The upside of the “beyond the fence line” approach was that utilities and states would have significant flexibility to meet these EPA carbon targets in the most cost-effective, technologically proven way. The downside was the legal vulnerability it created, by calling into question just how far EPA’s reach could go in regulating the power sector.
Needless to say, coal industry leaders feared the negative impacts this plan would have on their power plants. And in Trump they’ve found a receptive audience.
According to the New York Times, the Trump EPA will reportedly release a new plan this week that will task states with coming up with their own plans and targets — even deciding not to set carbon targets at all. Furthermore, all of the regulatory action must happen “inside the fence line.”
The result of this weak approach will likely be a new lease on life for many coal plants in the U.S., and ironically much less flexibility for utilities and grid operators to meet any stringent targets set by states that truly want to reduce carbon from the power sector.
As with any Trump regulatory action, the new regulation will be litigated, and so far the Trump administration has been on an epic losing streak in the courts. And the continuing price declines of renewable energy and natural gas has generally made coal non-competitive going forward anyway.
This new move is yet another attempt by Trump’s team to rescue a dirty and dying industry through regulatory favoritism. Meanwhile, the litigation that will result may not be finalized by the time of the next presidential election, giving some hope for a political resolution and better result in the meantime.
Yesterday was a frustrating day for those who care about tackling climate change. Donald Trump’s executive order to roll back most of the Obama Administration’s efforts to reduce greenhouse gas emissions is probably a futile attempt to resuscitate the dying coal industry, while putting America’s climate leadership on ice for at least the next four years. In other words, it’s a pointless, counter-productive exercise.
Yet while the moves are disappointing, they’re not devastating. The executive order will set in motion a regulatory process that will take years to play out and that will likely face strong resistance from the courts. But they mean a giant delay in needed actions.
I commented on the moves yesterday in some media outlets in both Los Angeles and the San Francisco Bay Area. First, I appeared on KPCC radio’s AirTalk in Los Angeles, discussing the impact of the order.
In the afternoon, I spoke with ABC-7 News in the Bay Area. Video here:
So the action now will shift to the courts, and we’ll see what the administration does with the Paris agreement on climate change going forward.
Today is a pretty big day in the world of U.S. environmental policy. The D.C. Circuit Court of Appeals will hear oral argument on state challenges to the U.S. Environmental Protection Agency’s “Clean Power Plan.” The Plan, promulgated under existing Clean Air Act authority, represents one of the centerpieces of the Obama Administration’s efforts to combat climate change. It also underlies the U.S. commitment to the Paris climate agreement signed in December.
So the stakes are high. Folks were lining up early to get a spot in the courtroom today, as Denise Grab of NYU Law’s Policy Institute tweeted at 5:30am:
75+ people already in line at 5:30 am in the rain for #CleanPowerPlan oral argument. That’s dedication. pic.twitter.com/gvblZqAefp
— Denise Grab (@denisegrab) September 27, 2016
The court debate will hinge on whether or not the EPA is limited to only regulating sources like power plants “behind the fence line” — in other words, only requiring on-site emissions reductions technologies — or whether the EPA can require grid-wide emissions reduction policies, like cap-and-trade or energy efficiency programs.
My UCLA Law colleagues Ann Carlson and Cara Horowitz, along with William Boyd (University of Colorado Law), describe the basic argument here on Legal Planet:
The Clean Power Plan uses the grid’s interconnectedness to reduce power-sector emissions in an efficient, effective way. The Plan would cut carbon dioxide emissions significantly by 2030 – to about a third below 2005 levels. The rule justifies that level of reduction by calculating, among other things, the potential for shifting generation toward low- and zero-emitting sources and away from coal-fired power plants. Yet the coal industry and conservative attorneys general who are challenging the CPP claim that we should ignore the interconnected electricity machine and treat its component parts – power plants – separately.
The case magnifies the intensity of the coming presidential election. Regardless of the outcome today, the case will likely be appealed to the U.S. Supreme Court. Due to a Republican senate blockade on Merrick Garland, President Obama’s pick to fill the open seat from Antonin Scalia’s death last February, the court only has eight justices. A 4-4 tie on this appeal will let the circuit court opinion stand.
So whichever candidate is elected president and fills that seat (or causes Republicans to buckle and confirm Garland in the lame duck session) will have a major impact on the national and international climate fight.
And as last night’s presidential debate showed, the candidates diverge sharply on this issue. Hillary Clinton was the only candidate to mention clean energy jobs and attack Donald Trump for his past statements on climate change as a hoax by the Chinese to gain a competitive advantage. He denied making that claim, but his 2012 tweet says otherwise. Meanwhile, his campaign manager affirmed today that he doesn’t believe in the science that humans are causing climate change.
So the choice could not be clearer on this issue in November. And the court decision stemming from oral argument today will loom large, regardless of how much the media pays attention to climate change during this campaign.
Since I did the look-back on 2015 yesterday, now’s the time to offer the three big things to watch in 2016 on the fight to reduce greenhouse gas emissions:
3. Presidential Election: This is huge, as the current leading Republican candidate would say. The November election will determine whether the US sticks with the Paris agreement, continues support for renewable technologies and corresponding lack of support for coal, and fights for the EPA Clean Power Plan. The EPA finally released this plan in 2015, as required by a 2007 Supreme Court decision, and the plan underlies the US commitment to greenhouse gas reduction enshrined in the Paris agreement. While the final legal outcome won’t happen for a few more years (it will assuredly go to the Supreme Court), a Republican administration will try to gut the proposed rule from within.
2. Electric Vehicle Progress: As I mentioned yesterday, electric vehicle sales were down in 2015. But with the new Chevy Volt coming out, a slightly improved LEAF, and the much-hyped Tesla Model X all hitting the road, it will be important to see progress on the sales front this year. As a related honorable mention, we’ll need to see continued decreases in battery prices, not just for vehicles but for energy storage more generally.
1. California’s SB 32 2030 Climate Goals: The state has been an international leader fighting climate change, thanks to 2006’s AB 32, which set carbon reduction goals for 2020. But the effort to extend and ramp up the targets by 2030 failed spectacularly in the Assembly last year. It’s vital for the climate fight that the law pass this year. Otherwise, existing legal authorities to continue carbon reduction beyond 2020 are weak, and the signal a failure would send to the country and world would be detrimental. Meanwhile, the state would risk undermining the progress it has made nurturing in-state clean technology industries. While federal action on climate is important, California’s role as the guinea pig and pioneer on climate has been central to showing leaders in advanced economies how to decarbonize while growing the economy.
And with that, let’s see what the new year brings.
Last week the U.S. Congress came together to pass a big sprawling budget agreement. Environmentalists are touting the big wins, such as the extension of the 30% investment tax credit for renewables, plus a few other goodies like finally giving equal tax benefits for commuters who take transit as for those who drive to work.
Certainly there’s much for them to celebrate, especially what didn’t happen. Namely, Republicans wanted to repeal the EPA’s “Clean Power Plan.” In exchange for giving up this provision, Republicans secured a lifting of the ban on U.S. oil exports.
Certainly it makes sense for environmentalists to celebrate winning this battle over the Clean Power Plan, although it’s unfortunate that the oil export ban was lifted. But I would think they would be concerned about the precedent it sets. What will Republicans demand next year to avoid rolling back the Clean Power Plan? And the year after? The Republican majority isn’t going away anytime soon, at least in the U.S. House, so it seems like it will be an ongoing bargaining chip. Meanwhile, they’ll continue to attack the Plan in the courts.
But in the meantime, the Plan will live to see another day, and environmentalists can end the year on another post-Paris high note. For now.
The U.S. Environmental Protection Agency (EPA) will finally release its “Clean Power Plan” today to regulate carbon emissions from the power sector. The agency was required to do so by a 2007 Supreme Court decision. Yet due to what must be the brutal politics of trying to regulate coal-fired power plants, the Obama Administration dragged its feet until now — six years into the Obama presidency.
The final rules require a 32 percent drop in emissions by 2030 from 2005 levels. But this target is extremely watered down, to the point where it actually projects a slower rate of progress going forward on carbon emissions than we’ve been experiencing since 2005 to date, given that we’re already halfway to those targets with business-as-usual progress. Yet this is still better than the draft rules, which had targets so low that five states (!) were actually already in compliance with the 2030 goals.
Michael Grunwald pretty much sums it up in Politico:
If you’re really ranking them, the Clean Power Plan is at best the fourth-strongest action that Obama has taken to combat climate change, behind his much-maligned 2009 stimulus package, which poured $90 billion into clean energy and jump-started a green revolution; his dramatic increases in fuel-efficiency standards for cars and trucks, which should reduce our oil consumption by 2 million barrels per day; and his crackdown on mercury and other air pollutants, which has helped inspire utilities to retire 200 coal-fired power plants in just five years. The new carbon regulations should help prevent backsliding, and they should provide a talking point for U.S. negotiators at the global climate talks in Paris, but the 2030 goals would not seem overly ambitious even without new limits on carbon.
I couldn’t agree more with Grunwald on his rankings. The stimulus in particular is underestimated in its impact on boosting the clean technology sector. The sad part is that even this weak action today on climate will provoke endless litigation. And if a Republican wins the presidency in 2016, expect the EPA to gut and delay these rules and approve weak state implementation plans.
All relatively depressing, but these rules are still better than nothing. And maybe we can hold out hope that they will be strengthened over time.
