In less than two weeks, nine judges on the Court of Appeals in Washington will hear arguments over the Clean Power Plan, the centerpiece of this country’s action on climate change. At stake are limits on the nation’s biggest single source of dangerous carbon pollution—some 1500 coal and gas fired power plants that together emit nearly two billion tons per year of carbon dioxide. That’s more than a third of U.S. climate-changing pollution and almost three times the pollution from the next ten industrial source categories combined.
The first thing that might strike a neutral observer when reading the briefs is that the two sides are coming from completely different planets. They are presenting such starkly different factual pictures.
To be sure, the Clean Power Plan’s supporters feel the fierce urgency of acting on climate change. The climate deniers and big polluters on the others side, not so much. But that is not the main difference I want to emphasize here.
At the heart of their case the Clean Power Plan’s challengers have painted an enormous fiction: A picture of a stable, healthy coal-based power industry happily supplying everyone with low-cost electricity, until the big bad EPA came along and disrupted everything, forcing the industry into tumultuous change, and destroying the American energy economy.
By any objective measure, this apocalyptic vision is plainly wrong. The electricity industry already is—and has been for years—in a rapid transition away from coal and towards cleaner generation—a transition driven mainly by fundamental market forces such as lower gas prices, lower costs for wind and solar power and energy efficiency, and by state and federal policies and company planning decisions that long predated the Clean Power Plan.
Every neutral analyst expects these market-driven trends in the generation mix to continue, and to be boosted by Congress’s five-year extension of federal wind and solar tax incentives late last year. Because of these trends, analysts expect the power sector to be well-positioned to meet the Clean Power Plan’s carbon pollution limits in 2022 and beyond. This independent research is summarized in a new analysis NRDC released last week.
These are the reasons why US coal consumption for electricity declined 31 percent between 2008 and 2015.
These are the reasons why Southern Company, the power company with the second-largest carbon emissions, reduced its coal generation by 60 percent over the last 10 years, and reduced its carbon pollution 25 percent.
These are the reasons the wind industry is booming in Oklahoma—one of the challenger states—which is on track to pass California as the nation’s #3 wind producer, behind Texas and Iowa.
Check out the booming growth trends for wind and solar power:
As the lead challenger, West Virginia Attorney General Patrick Morrisey, acknowledged in May, “the marketplace was moving in a particular direction” quite apart from the Clean Power Plan.
The underlying trends are so strong that even the Supreme Court’s February stay “doesn't really change anything,” according to Quin Shea, an Edison Electric Institute vice president. Shea added: “We're still reducing CO2, and the general curve, that's not going to change.” “You don't simply put the genie back in the bottle when it comes to major strategic investments that the captains of industry are making.”
Just as King Canute could not hold back the incoming tide, King Coal cannot hold back the rise of the seas—or the clean energy transition.
Seen in this light, there is nothing radical or transformational about the Clean Power Plan. To be sure, like other air pollution control rules, it requires somewhat more than the marketplace will deliver on its own. That should be totally understandable: the marketplace does not capture the externalities that dangerous air pollution imposes on our communities, our children, and our climate. That’s why we have a Clean Air Act.
The false story of apocalyptic impacts is fundamental to the challengers’ legal arguments. Take that away, and the Clean Power Plan is unexceptional, just the latest of a long line of clean air standards to curb the public health and environmental toll that the power industry—the nation’s biggest polluter—exacts on the American people. I am confident that the Court of Appeals will see through the fictions on which the challengers’ case depends.
The challengers cannot question whether the Clean Air Act covers climate-changing air pollutants. The Supreme Court already decided that in Massachusetts v. EPA. They cannot question whether the Clean Air Act covers carbon dioxide pollution from power plants. The Supreme Court already decided that in American Electric Power v. Connecticut.
So they challenge how EPA has regulated. And here they paint a second picture that stands in contrast to the facts.
To hear them tell it, the Clean Air Act requires EPA to assume that every power plant operates on its own, isolated from the others, like Edison’s original plants back in the 19th century.
But that’s not how they work. Power plants are part of an interconnected electric grid. They are jointly operated to supply exactly the amount of electricity demanded at any given time. When one plant increases generation, other plants generate less. Power companies and grid operators routinely shift generation among facilities to meet demand within economic and environmental constraints.
It’s a fact of life that some power plants are used less, and others used more, when fuel prices change, for example. The same is true when new air pollution limits take effect.
EPA took these facts into account—and the fact that CO2 mixes evenly in the atmosphere regardless of its source—and designed a flexible, cost-efficient way to reduce emissions. Each coal-fired plant has a set of tools to meet its emission limit. These tools include so-called “inside the fenceline” measures—a range of technologies and fuel choices to reduce the emissions of the plant itself—and the ability to use credits reflecting the emission reductions that result from ramping up generation at cleaner plants.
This is, in fact, the very system many power companies and states asked EPA to allow for compliance purposes. It is the very system the power sector has supported in numerous prior power sector regulations. It’s the system that power company intervenors representing some 10 percent of U.S. generation, joined by amicus Dominion Resources, have stepped in to defend here.
In this case, the challengers are asking the Court to adopt an unprecedented one-sided proposition: let us use all these flexible tools to comply with standards. But forbid EPA from considering these tools, and the cost-effective emission reductions they enable, when the agency determines the stringency of the standards themselves.
That’s like the golfer who wants his handicap set playing 18 holes with one club, and then wants to play against his handicap with all the clubs in the bag. The PGA doesn’t work that way, and the Clean Air Act doesn’t either.
I’ll close by briefly addressing another argument—one the challengers made up out of whole cloth late in the game, after the Supreme Court decided in American Electric Power that Section 111(d) of the Clean Air Act does indeed authorize EPA to curb the carbon dioxide emissions of the nation’s power plants.
Congress adopted Section 111(d) in 1970 expressly to fill any gaps—to make sure there was authority to curb any dangerous air pollutants from industrial sources that were not taken care of by other parts of the law, including Section 112 on hazardous air pollutants. Now the challengers claim that the 1990 Congress amended the law to open the very gap Section 111(d) was intended to fill. They claim Congress made EPA choose between regulating power plants’ carbon pollution under Section 111(d) or their mercury pollution under Section 112.
I am confident the Court of Appeals will not be persuaded that Congress intended to create this Sophie’s Choice.
The challengers have lately invented a theory that Congress wanted to protect power plants and other sources from so-called “double regulation” under two parts of the Clean Air Act. But a quick look at the Clean Air Act will show you that power plants are subject to regulation under at least six different part of the law, for different pollutants and different adverse effects on health or the environment. That’s the statutory plan, which ensures a way to curb all of the dangerous emissions from sources.
I suppose one could argue that it would be better to have a new statute that provides one comprehensive approach to regulating all of the dangerous pollutants that emanate from power plants. But no one would design a system that says that if EPA chooses to protect the public from Dangerous Pollutant A—in this case, mercury—it may not protect the public from Dangerous Pollutant B—in this case carbon dioxide. There’s simply no evidence that this is what the 1990 Congress intended to do.
So I am confident that the Court of Appeals will see through the fictions on which the challengers’ case depends. The power industry is in rapid transition due to market forces, and the Clean Power Plan asks for a modest amount more to control a very dangerous form of pollution than the unregulated marketplace on its own. Power plants operate together in an interconnected grid, and it is reasonable for EPA to take those facts into account in assessing cost-effective pollution control measures. And because power plants emit many dangerous air pollutants that are subject to many parts of the Clean Air Act, there is no plausibility to the story that Congress wanted EPA to pick one poison and let the other go free.