After last night’s presidential election results, it’s easy to despair that we’ve lost the fight against climate change. Trump will likely kill the federal Clean Power Plan and pull the U.S. out of the Paris agreement. He’ll also probably pull back regulations that make it harder to permit coal-fired power plants and conduct other business activity that furthers a fossil fuel-powered economy.
Yes, California’s climate program will continue, as a bright spot. But the state relies on the federal government in crucial ways to lessen the economic burdens to Californians of the transition to a clean economy. The immediate examples that come to mind are the federal tax credits and research on solar and wind energy, tax credits for electric vehicles and associated charging infrastructure, and general support for and research on energy storage technologies. Without that support, California’s climate policies will likely become more expensive and potentially politically unpopular.
So where do climate advocates go from here? My colleague Dan Farber’s post on Legal Planet is right on: use political leverage, the courts, and continued state action. But I fear the first two options will be made more difficult given the potential for a coming breakdown in our governance system, as the full weight of “11/8” is felt in our institutions, from the courts to congress to the media.
That leaves state action. And in this respect, as Dan described, there may be cause for hope. In fact, given the hostile national politics during even the Obama years with a Democratic congress, this election may be an important wake-up call about the most viable path forward, politically speaking — even had Clinton won. Especially since the federal Clean Power Plan, which represents the high-water mark for federal action given congressional resistance, has pretty weak targets that won’t set in for years.
California is the obvious state leader here, but so are other west coast and northeast states. We’re long past the time when those states should join together for unified policies to boost clean technologies and price carbon. Those coalitions are happening fitfully but need to be accelerated. That means unified carbon markets, incentives for renewables, and a common market for electric vehicles, among other policies.
Internationally, the Paris agreement was always just a paper commitment. Action to achieve the ambitious international targets will still require courageous policies at the state and subregional level. And now that the Paris agreement is called into question under a Trump administration, we can see the wisdom of California’s approach to sign up subnational entities to commit to this fight. The “Under 2 Coalition,” as it’s now called, represents 136 cities and states with 832 million people and $22 trillion in GDP. It’s the brainchild of Governor Jerry Brown’s senior advisor Ken Alex, and it may represent the world’s best hope to achieve the goals spelled out in the Paris accord.
So while many climate advocates will be playing defense at the federal level for the foreseeable future, the offensive play, to my mind, is through state coalitions and bolstering of the Under 2 Coalition. It’s not going to be easy, but it was always an uphill battle anyway. And while the climb is now steeper, we still have a way 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.
Lots of pundits are trying to explain the unexpected dominance of Donald Trump in the Republican primaries, following his Super Tuesday victories yesterday. For example, Professor Bainbridge at UCLA Law offered a relatively convoluted explanation that centered on cultural factors and vague policy grievances among Trump’s supporters.
But to my mind, there’s one chart that explains it:
There’s only so long that the middle class will tolerate being left out of the economic growth in this country. Sure, there are cultural factors at play, and you can’t discount the unique individual appeal of a celebrity businessman who’s made it his life’s work to build a personal brand and sell it.
But context matters, and the relative economic decline of America’s middle gives rise to a candidacy like his.
Could environmental policy be helpful here? In the broad sense, yes. Policies that encourage more downtown development in rural areas, deregulate land use to boost housing production in economically successful areas, and boost clean technology such as microgrids and renewable energy could provide an economic help for many communities.
But larger economic trends related to offshore manufacturing and the rise of the service and technology economy will leave these areas in the dust, unless we develop a national plan to resuscitate America’s middle.
Otherwise, what we’re seeing this election cycle may just be the tip of the iceberg.
