Posted on November 29, 2016
President Obama’s Clean Power Plan is in trouble, both in the courts and politically. I believe that Plan is a lawful exercise of EPA’s regulatory power and deserves support from the public. But it is far more likely that by January 21, 2017 the new EPA Administrator will, at the direction of the White House, seek to rescind or eviscerate the Clean Power Plan because of both aversion to regulatory action in general and campaign promises to the coal industry. That would be a disaster for the U.S. (and global) environment since coal plant emissions are the largest single source of Greenhouse Gas (GHG) emissions in our nation and our refusal to reduce them will lead other nations to slow their own efforts to cut GHG emissions. The resulting international reaction, perhaps including threatened carbon charges on U.S. exports, will put intense pressure on the White House to take climate change more seriously.
There is, however, a way for the new Administration to reduce GHG emissions even more effectively than the Clean Power Plan – and without EPA regulatory action. The White House could simply ask Congress for authority to purchase the nation’s approximately 350 operating coal plants and then promise to close half of them in five years and the balance in 10 years. Such a plan would do far more than the Clean Power Plan to eliminate coal as a major source of GHGs in the US, and would do it faster and with more certainty than EPA’s complex and potentially unenforceable regulations. Investors in renewable energy projects would also have a clear path forward, without the prospect of continued coal competition, so that such projects could once again accelerate even without large-scale subsidies.
This purchase alternative, which I call “Plan A,” could also be attractive both to existing coal plant shareholders and their workers. Coal plant shareholders and lenders now face the prospect of near-term loss of their entire investment as bankruptcies ripple across the nation’s coal fields. Workers too face near-term unemployment with or without the Clean Power Plan. Under Plan A, workers would receive generous compensation as part of the purchase of their plants, along with assistance in meeting outstanding mortgage, car loan and medical bills, scholarship assistance for themselves and their children at nearby community colleges and priority in filling jobs at new renewable energy projects.
Given the age and condition of the coal plants being purchased and the relatively small number of coal workers still active in the country, the total cost of this Plan A alternative would likely be less than or equal to the public health benefits that EPA estimated would result from closing down only a portion of those plants under the Clean Power Plan. In short, Plan A could be a win-win solution for GHG emissions without relying on EPA regulations but on Executive and Congressional action that would dramatically improve the global environment and challenge other nations to do the same.
Posted on August 31, 2016
Spencer Johnson’s classic came to mind when I learned of new plans for the Burger power plant on the Ohio River. The Burger plant has had a makeover from an electric generating facility to a massive chemical plant feasting on the abundant natural gas in the Marcellus and Utica regions of Western Pennsylvania and Eastern Ohio.
When I returned from active duty, my employer said, you will practice environmental law. Because I was accustomed to taking orders, I said "yes sir". That led me to cooling towers for the Davis Besse and Perry Nuclear plants on Lake Erie. More dramatically, however, it led me to years of dealing with coal-fired generation in Ohio. Rich with coal and numerous coal-fired plants on Lake Erie and the Ohio River (and other rivers as well), I thought Ohio would supply cheap, coal-fired energy for many people for years. Unfortunately, I did not predict the obsolescence of coal-fired electric generation or the recent emergence of natural gas as the leading source of fuel for power. I saw clients invest billions of dollars in pollution control equipment only to see the emission reduction goal posts moved beyond reach as regulators adopted progressively more stringent measures to address new national ambient air quality standards, lake breeze fumigation, long range transport, acid rain, regional haze, hazardous air pollutants, and greenhouse gas emissions.
When I started my practice, virtually all of the Ohio base load units burned coal. And thousands of Ohio miners worked and their families prospered. Barges carried coal down the Ohio River or unit trains took coal to the Lake Erie plants. I saw Little Egypt take big bites of coal and overburden in southeastern Ohio. I remember when an interstate (77) was closed to let the mammoth excavator proceed to the next seam of coal on the other side.
I have stood on the air pollution control deck of a massive Ohio River power plant that spans a highway. I have wiped the floor with white gloves of a coal fired plant on Lake Erie. I have worked with the dedicated professionals who took pride in maintaining those plants. So it saddens me to read that talented engineers are being laid off from engineering companies in Akron, and major utilities are selling megawatts on the Ohio River. AEP and First Energy have announced plans to auction generating units.
Some of us remember that our success was measured in jobs retained while reaching a reasonable accommodation with the environment. I hope my successors have that opportunity .
So with sadness and regret – but also an appreciation that my career started in 1973, at the beginning of the burgeoning practice of environmental law, when "Coal Was King" and the Burger plant was alive and well – I hope you watch this short video of the demolition of the Burger coal-fired power plant to make way for a natural gas cracker. Here is the demise of the Burger "tall stack." May Burger rest in peace.
Posted on August 4, 2016
This post started as a piece about a recent Fifth Circuit decision: Texas v. EPA. In that case, the state of Texas (and others) challenge EPA’s disapproval of Texas’s (and Oklahoma’s) plans for controlling regional haze and EPA’s decision to impose its own haze-control program instead. To make my drafting process more entertaining (and the task of posting more challenging for our official poster, Colin Gipson-Tansil), I set a goal for myself: to include within my post at least 25 valid links to others’ posts during the past year. Fortunately for me, there is almost nothing in Texas v. EPA that doesn’t link to one or more recent posts.
Jurisdiction and Venue. Many of the past year’s posts point out problems caused by the failure of the Clean Water Act to state unambiguously which federal court has jurisdiction to hear a specific challenge to an EPA action under that statute. Stoll’s 9/2/2015 post, Glick’s 10/9/2015 post, Horder’s 11/3/2015 post, Perdue’s 2/5/2016 post, and Uram’s 4/5/2016 post. Texas v. EPA demonstrates that choice-of-court problems also exist under the Clean Air Act’s judicial review provision, §307(b)(1).
Clean Air Act §307(b)(1) – said the Fifth Circuit – is a two-fold provision: first, it confers jurisdiction on the courts of appeals, and then it delineates whether the appropriate venue for challenges will be the regional circuits (if the challenged action is locally or regionally applicable) or the D.C. Circuit (if the action is nationally applicable). Believing EPA’s disapproval of its regional haze program to be locally or regionally applicable, Texas filed its challenge in the Fifth Circuit. EPA moved to dismiss or transfer the case to the D.C. Circuit based on a separate, not-as-well-known prong of §307(b)(1), which directs that a petition for review of what seems like a non-national action may be filed only in the D.C. Circuit if the action is “based on a determination of nationwide scope or effect and if in taking such action [EPA] finds and publishes that such action is based on such a determination.” After an exhaustive de novo evaluation of that portion of §307(b)(1), the Fifth Circuit determined that because the challenged EPA actions are locally or regionally applicable and because they are not based on any determinations that have nationwide scope or effect, the Fifth Circuit is the appropriate court to hear the case.
But wait. There are other link-worthy aspects of Texas v. EPA, including the following.
Explanations of Decisions to Stay Challenged Actions. During the past year, posts have discussed whether and how much a court needs to explain the basis on which it stays a challenged rule pending completion of litigation concerning that rule’s validity. Jaffe’s 2/10/2016 post, Gerrard’s 2/10/2016 post. If it is a lengthy explanation you seek for when and why a court should stay an EPA action pending completion of litigation, the Fifth Circuit provides that in Texas v. EPA.
Deference. Other recent posts have addressed when deference to an agency interpretation is – or is not – appropriate. Kovar (12/10/2015); Percival (1/27/2016); Field (2/11/2016); Haynes (2/19/2016); May (6/9/2016); Civins (7/5/2016); Jaffe (8/2/2016). In Texas, the Fifth Circuit put clear limits on deference, holding that the level of deference owed to an agency’s conclusions is “substantially diminished when the subject matter in question lies beyond the agency’s expertise.” Thus, while the Fifth Circuit was prepared to defer substantially to EPA’s views on environmental science, it declined to defer to EPA’s views on whether its actions would impair the reliability of the electricity grid. Since “EPA has no expertise on grid reliability” (that is FERC’s domain), the “deference owed to EPA’s assertions about grid reliability [is] diminished and the agency must support its arguments more thoroughly than in those areas in which it has considerable expertise and knowledge.”
That limitation on deference could have an impact on the most talked-about case by ACOEL members this past year: West Virginia v. EPA, in which more than two dozen states and many other parties challenge EPA’s Clean Power Plan. Jaffe’s 9/10/2015 post, Gerrard’s 2/10/2016 post, Jaffe’s 10/23/2015 post, Jaffe’s 12/9/2015 post, Percival’s 12/16/2015 post, Stoll’s 12/21/2015 post, Perdue’s 2/5/2016 post, Jaffe’s 2/10/2016 post, Field’s 2/11/2016 post, Session’s 2/17/2016 post, and Freeman’s 3/2/2016 post. The Fifth Circuit’s limit on deference is the basis of a recent Federal Rules of Appellate Procedure 28(j) letter sent to the D.C. Circuit by the petitioning states in West Virginia. According to those states, the Fifth Circuit’s decision in Texas v. EPA supports, among other things, the petitioning states’ argument that EPA has failed to show that the Clean Power Plan will not detrimentally affect grid reliability.
Perhaps the link in which I take the most pride, though, is this last link – to Seth Jaffe’s October 2, 2015 Brief Rant on Cost-Effectiveness Analysis. In that post, Seth argues that if the purpose of a rule is to improve visibility, EPA should use a measurement of visibility – a deciview (dv) – to assess visibility improvement. Well, in Texas v. EPA, the Fifth Circuit seemed to be heading in the direction of agreeing that in considering the cost of a regional haze program, EPA should use the $/dv metric. Alas, at the last minute, the court pulled back on a complete endorsement of the $/dv metric: because the petitioners had a “strong likelihood of establishing other flaws” in EPA’s actions, the court said it did not need to decide whether EPA “fell short of its obligation to consider the costs of its regulations” by failing to use $/dv metrics. So, Seth may have to wait a while longer before seeing a court mandate for EPA’s use of $/dv metrics to evaluate visibility improvements. I, however, achieved my goal of including a record number of links in this post.
Posted on July 19, 2016
Twenty-five years ago, as a young EPA official, I was part of the US government team that negotiated the Framework Convention on Climate Change. In the final weeks running up to the 1992 Rio Earth Summit at which the new climate change treaty was to be presented for signature, I remember being taken aside by the famous Canadian environmental leader, Maurice Strong, who was the Secretary General of that 1992 Earth Summit. He warned about the limits of international agreements. Specifically, he urged me to be aware that when hundreds of Presidents, Prime Ministers, and other world leaders gather – as was to be the case at Rio – only two outcomes are possible: success and real success. For nearly two decades after the 1992 treaty came into effect, we had claims of “success” but little real progress on reducing greenhouse gas emissions.
In Paris last December, the world community came together with great fanfare to conclude a new climate change agreement. With its focus on “solutions,” commitment to broader public engagement (going beyond national governments to focus on actions by cities, states, companies, and community groups), creative climate change finance, and metrics to track progress, the 2015 Paris Accord offers a foundation for real success.
But it is not clear that the requisite follow-through will occur. In the United States, President Obama’s Clean Power Plan – the central mechanism to drive progress toward a clean energy future – is on hold pending court review. And there already seems to be some loss of momentum in developing the action plans needed to deliver the on-the-ground changes in behavior in many sectors that will be required to change our nation’s energy trajectory.
At the core of the limitations in environmental law in the 20th Century was a failure to move from the intentions expressed in statutes, regulations, and international agreements to action. Words – even ones cast as law – do not alone make change happen. A concerted focus on implementation is required for real success.
But significant investments required to deliver a clean energy future will not be forthcoming – particularly in the critical corporate arena -- as long as America’s commitment to decarbonization is clouded by legal and political uncertainties. While some business sectors, notably the investment world, are moving ahead with actions to address climate change, broader momentum toward a clean energy future will not be fully restored until after the DC Circuit Court’s decision on the Clean Power Plan this Fall and the November election results.