Introduction

This is the second article in the Civil Notion series—Erasing Trump’s Environmental Legacy—about the barriers a Democratic victor in the 2020 presidential election—President X— will face in an effort to put a national climate defense plan on the books.

As I had written in the first article of the series, undoing the damage done by Trump to the environment and the regulatory framework that protects it will prove more difficult—certainly more time consuming—than climate defenders imply in their various policy proposals.

The way forward for any climate defense plan—moderate or progressive—will be cluttered with the flotsam of the Trump administration, e.g., rolled back regulations, extant lawsuits, and the loss of the many experienced government professionals needed to implement a pro-environment agenda.

Unfortunately, there’s no magic wand President X can wave that will immediately restore critical protections and reverse the damage done to the environment by Trump’s policy actions. For example, the administration’s elimination of efficiency standards covering nearly half the lightbulbs currently on the market will increase annual energy usage by an estimated 80 billion kilowatt-hours—an amount roughly equal to the electricity needed to power all the households in Pennsylvania and New Jersey.

Erasing Trump’s environmental legacy is going to take time. A return to the Obama standard would undoubtedly require a new rulemaking—a time-consuming process that would likely be met with legal challenges once the final rule came into force. (See Figure 1) Rulemaking is a time-intensive process—made longer by lawsuits waiting at the end of it.

The obstacles President X’s administration will encounter stretch across all three branches of government. Under any realistic scenario, the time required for overcoming them will be measured in months and years, not days and weeks.

There is no getting around the fact that putting needed climate defense policies and programs in place cannot be done overnight. With forethought and planning, however, the amount of time it takes can be kept within reasonable limits.

The chokepoints are identifiable and can be planned for well in advance of the time a Democratic administration is sworn into office. The work, for the most part, is not dependent on which of the dozen or so Democratic candidates standing for election as the 46th president emerges the winner or which proposed climate defense plan becomes the lawmakers’ guiding light.

The Erasing Trump’s Climate Legacy series is an effort both to motivate and educate the climate defense community. My motive is to encourage organizations in the climate community to work together to begin a mapping process that will give an incoming Democratic president information that can begin to be acted on—on Day 1, and all the days thereafter.

Part 1 of the series offered readers an overview of the Trump administration’s completed, and anticipated actions to deregulate the environment and market fossil fuels, e.g., leasing portions of public lands to oil and gas companies and freezing auto emission standards at the 2020 level. It also discussed a president’s constitutional power to order executive agencies to act and the often fragile nature of those pronouncements.

Today’s article focuses on the arduous trek of the Clean Power Plan (CPP) from its roots in the 2007 landmark case of Massachusetts v. EPA to its rescission and replacement by the Affordable Clean Energy (ACE) rule on June 19, 2019. CPP’s 16-year journey[i] offers critical lessons for today’s climate champions. Lessons that should be factored into the pre and post-election strategies of both lawmakers and climate advocates.

The two rules reflect very different points of view about the seriousness of Earth’s warming and the required role of the federal government in preventing, forestalling, combatting, and surviving its consequences. It should be said that neither the CPP nor ACE is adequate to the task of keeping the US and the rest of the world on the right side of the 1.5 degree Celsius threshold to which climate scientists are urging nations to aspire.

The CPP was crafted at the direction of a president who believed the mainstream science community when it said climate change is the greatest existential threat to the natural environment and the health and welfare of current and future generations.

The CPP pales in comparison to audacious climate policy concepts like the Green New Deal. However, as Michael Wara of the Stanford Woods Institute for the Environment has said:

The Clean Power Plan was a big deal; it was the first time the U.S. placed any limit on greenhouse gas emissions from power plants. It placed the first limits, but we assumed not the final limits.

A plan like the CPP updated to reflect today’s realities would still be a big deal—if far from a complete green new deal.

ACE was drafted at the direction of a denialist president who berates climate change as the product of socialist politicians, a corrupt media, and “disingenuous scientists” who would prefer begging for federal research dollars over working an honest job.

Would the courts allow it; Trump would use his Sharpie to strike all federal climate protections off the books in a single swoop.

Fortunately, the US Supreme Court has decided that the federal government is obligated by the Clean Air Act (CAA) and EPA’s own endangerment finding to regulate greenhouse gases (GHGs) coming out the tailpipes of motor vehicles and up the stacks of electric power plants.

The US Supreme Court confirmed the federal government’s CAA authority to regulate greenhouse gases in Massachusetts v. EPA . Although the Court acknowledged that the Act’s language is unclear, it held: that EPA has statutory authority to regulate GHG emissions under CAA Section 202(a)(1), which requires the EPA Administrator to set emission standards for “any air pollutant” from motor vehicles “which in his judgment cause[s], or contribute[s] to” air pollution which “may reasonably be anticipated to endanger public health or welfare.”

The ruling was interpreted by the Obama administration to require a review of the available scientific evidence[ii] and to issue an endangerment finding in advance of rulemaking. EPA released its endangerment finding in December 2009. The finding formed the basis for the light-duty vehicle GHG emission standards and corporate average fuel economy (CAFE) standards issued jointly by EPA and the National Highway Traffic Safety Administration (NHTSA) in May 2010. Although EPA’s authority over vehicle emissions was clear, its obligation to regulate emissions from electric power plants was not established until 2011.

The Supreme Court explicitly ruled in American Electric Power Co. (AEP) v. Connecticut that “air pollutant” includes GHGs when applied to power plants under Section 111 of the CAA. The Agency published its proposed—Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units—on June 18, 2014.

EPA finalized the CPP rule on August 3, 2015, after evaluating over 4.3 million comments during the extended public process. The regulation came into force on October 23, 2015—the same day 24 states and a coal mining company filed a lawsuit against it.

In February 2016, the Supreme Court voted 5 to 4 to stay its implementation until West Virginia v. EPA was decided. The case is still pending in federal court.

The 2016 election brought the Trump administration to power, and on March 28, 2017 Trump signed the Energy Independence Executive Order directing EPA to suspend, revise, or rescind the CPP. On April 21, 2018 EPA announced the proposed replacement rule and on June 19, 2019 released the final ACE Rule along with the formal repeal of the Clean Power Plan[iii].

On August 13, 2019, a coalition of 29 states and cities[iv] petitioned the US Court of Appeals for the District of Columbia seeking a determination that the rule is unlawful and must be vacated. Other legal challenges have also been docketed, including the first-filed petition on July 8, 2019 by the American Lung Association and American Public Health Association.

A case of deja vu all over again?

Eight years have passed since the Supreme Court in American Electric Power ruled that EPA had the authority to regulate GHG emissions from power plants. Today there’s still no power plant regulation in operation.

The Trump administration now finds itself in the same place the Obama administration was in after its release of the CPP—a federal courtroom. Today’s litigants are much the same as yesterday’s, e.g., states, public interest advocacy groups, utilities, fossil fuel companies, manufacturers, and health organizations. What’s changed is the side the litigants are on. Climate defenders are now the challengers (plaintiffs), while denialists are the friends of an administration (the defendant) looking to regulate the environment as little as possible.

Despite the vast difference of opinion between litigant deniers and defenders, the core legal questions posed by the cases are essentially the same—with the notable exception that EPA’s authority and obligation under the CAA to regulate GHG emissions from power plants is now considered “settled” law. Had the Trump administration thought otherwise, it would have rescinded both the endangerment finding and the CPP without offering a replacement.

The exact nature of EPA’s authority is not entirely clear. Critical questions remain. Until they are answered by the courts or settled by Congress through new and amended legislation, executive agency efforts to regulate GHG emissions from power plants will remain in legal limbo. The questions most in need of resolution are presented in the following paragraphs.

Does the regulation of power plants under Section 112 of the CAA preclude power plant regulation under Section 111 (d)?

The opponents of the CPP point to conflicting language within the Clean Air Act as amended in 1990. The 1990 update inadvertently included two conflicting amendments—one passed by the House and the other by the Senate. Due to an oversight, both were included in the final act.

The House passed version of the bill stated that if EPA was already regulating power plant pollutants under a separate section of the Act, it could not create new regulations under Section 111(d). The Senate version of the amended legislation allowed such overlaps.

Section 112 of the CAA addresses the regulation of hazardous air pollutants (HAPs) like mercury from various emission sources, including stationary power plants. Because coal-fired power plants are already regulated under Section 112, opponents of the CPP argue that a strict interpretation of the language of the Act renders it impermissible.

The Obama administration interpreted Section 111 (d) to exclude any hazardous pollutant otherwise regulated under Section 112. The administration reasoned to do otherwise would force EPA to choose between regulating Section 112 or Section 111 pollutants, leaving a “gap” that would allow the unregulated emission of pollutants not listed as ‘hazardous’ or ‘criteria,’ but which nevertheless endangered public health and welfare.

The conflict between the provisions has yet to be settled by the courts. Challengers to ACE are arguing that the Obama interpretation of the CAA is the correct one. The Trump administration and its supporters, e.g., America’s Power, the US Chamber of Commerce, the National Mining Association and the National Rural Electric Cooperative, argue that the literal reading of the two provisions requires a much narrower regulatory scheme. Because the West Virginia litigation has been stayed and no other case involving the question has made its way to the High Court, the issue remains unresolved.

Why this would matter to President X is straightforward. An aggressive national climate defense plan would undoubtedly include federal regulation of existing stationary power plants. Until the conflict between Sections 112 and 111 is resolved, President X’s proposed rules would be open to legal challenges from red states, a coal mining company, and others.

In the immortal words of Yogi Berra, it’s déjà vu all over again.

Is the Trump administration’s narrower interpretation of “best system for emission reduction” the right one? Does federal regulatory authority under the CAA stop at a facility’s fence line?

The second set of critical questions that remains to be decided is whether federal authority to regulate a power plant’s GHG emissions stops at the fence line? The answer is contingent on the definition of “best system for emission reduction” (BSER).

The Trump administration contends that the CAA’s BSER language—like other portions of the Act—is ambiguous and, therefore, subject to agency interpretation. The Clean Air Act directs EPA to establish emission standards for air pollutants based on what is achievable under EPA’s determination of BSER.

The administration also believes that the CPP exceeded the federal government’s Clean Air Act authority by setting national GHG emission reduction goals and mandating CO2 reduction targets that cannot be achieved only by controls on individual power plants. Trump and company claim that averaging and trading across fuel sources is inconsistent with the correct interpretation of BSER.

The Obama administration recognized three BSER measures that a state could use to meet its EPA assigned targets. In addition to heat-rate improvements to coal-fired power plants, the Obama plan encouraged states to go beyond the fences of existing coal-powered generating units by swapping them out for natural gas combined cycle units and renewable energy systems. The Trump administration also opposes the CPP’s encouragement of states to establish and expand GHG emissions trading systems like the Regional Greenhouse Gas Initiative.

The he said, she said dilemma

A federal court will often accept an agency’s construction of an ambiguous statute they administer—this is known as the Chevron deference. The ACE versus CPP situation is unusual in that the same agency is interpreting the same law in very different ways.

The CPP rules were challenged in court but never decided because the West Virginia case was stayed and no other one has come along. According to Boston University law professor Jack Beerman, it gives rise to an additional unanswered question under Chevron: should a court defer to an agency interpretation that has been disavowed by the agency before judicial review is completed?

The lack of any judicial precedence, along with the ambiguity in the statutory language, has created a he said, she said situation. A dilemma that will only be made worse by a third administration’s interpretation. A situation that will repeat itself every time a new administration opposed to the policies of a sitting administration is voted into office wanting to regulate fossil-fueled power plants.

There are two ways to break the déjà vu all over again cycle—neither one of which is an executive order for reasons I’ve stated in Part 1 of the series. First, a case hinging on these questions is decided by the Supreme Court. Second, Congress cures the conflicts and removes any ambiguities in the Clean Air Act by amending it. Procedures that will require several years to accomplish, if history is any predictor.

For President X amending the CAA would be the preferred option. A high degree of risk attaches to a case wending its way through the federal court system and up to the Supreme Court. Given the newly conservative tilt to the High Court, a literal reading of the CAA could well result in its agreement with the administration’s position—notwithstanding the decisions in Massachusetts and American Electric Power.

As UCLA professor Carlson has noted if the Supreme Court agrees with the Trump administration, then you can’t have anything that looks like a Clean Power Plan. Why, if Massachusetts is “settled law” would there be any doubt?

The decision in Massachusetts was 5 to 4 and included a strongly worded Scalia dissent. Justice Gorsuch, who was Trump’s nominee to fill the Scalia seat on the Court, has exhibited a willingness to overturn precedent and an impatience with more reticent colleagues.

Justice Kavanaugh replaced Justice Kennedy on the High Court bench. Kennedy was the fifth vote in Massa-chusetts—much to the consternation of conservative Republicans. Kavanaugh is on the record as more accepting of climate science than many conservative Republicans. Although a textualist, he appears more reticent than Gorsuch to veer from past decisions. I would hate to bet the farm on the outcome of either the CPP or ACE case.

Interestingly, the Trump administration has petitioned the US Court of Appeals for the District of Columbia to hurry along the ACE case and set oral argument for April 2020. The “why” of it is because the administration understands that an ACE rule that carries the Supreme Court’s stamp of approval would be more difficult for an incoming Democratic president to rescind.

Finally, readers will note that I’ve left out any discussion about whose plan—Obama’s or Trump’s—is stronger from a scientific perspective. Although mainstream science would appear to be on the side of Obama, the fact is that the science of climate change may be a matter of indifference to a court of law.

There are multiple examples of a judge admitting that climate change is real and a threat to the health and welfare of society while taking the side of the deniers or a major oil and gas company. In the City of Oakland v. BP et al., for example, a federal district court judge did just that.

The presiding judge in City of Oakland stated clearly in his written opinion that the issue was not over science. He further noted that all parties agree that fossil fuels have led to global warming and ocean rise and will continue to do so. The issue is a legal one.

Judge Alsup wrote his opinion after ordering the parties in the case to brief him for several hours on climate change and what the science community has to say. How extraordinary was it for defendant oil companies to stand in open court and agree with the overwhelming majority of the world’s climate scientists? Although, as officers of the court attorneys are sworn to tell the truth.

Judge Alsup also wrote in his opinion—

The problem [of climate change] deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.

It is, I believe, an even more vast scale than can be supplied by the US Supreme Court.

The most efficient and, I dare say, permanent way for President X and his administration to put a green new deal of any depth together is by working with Congress to amend the foundational laws that need amending and write new legislation to fill the gaps.

Look for the next installment in the Erasing Trump’s Climate Legacy series when I will focus on additional environmental laws like the Clean Water and National Environmental Policy Acts and more climate politics.

[i] The Massachusetts plaintiffs filed shortly after EPA had determined in 2003 that it lacked authority under the CAA to regulate GHGs.

[ii] In truth it would be the second time EPA reviewed the literature. A majority of the justices in Massachusetts thought the initial review inadequate. Their view was not shared by Justice Scalia, see here for his dissenting opinion.

[iii] For a more detailed listing of the various actions on the CPP up to and through ACE see https://eelp.law.harvard.edu/2017/09/clean-power-plan-carbon-pollution-emission-guidelines/

[iv] Joining New York’s attorney in the suit – filed in the US Court of Appeals for the District of Columbia Circuit – are the Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia, and the chief legal officers of Boulder, Chicago, Los Angeles, New York City, Philadelphia, and South Miami.