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Debating the EPA’s Clean Power Plan Proposal: Abandoning the Clean Power Plan is the Wrong Move for U.S. Climate Policy

Editor’s Note: The post is part of a discussion on the EPA’s Clean Power Plan proposal between Philip Wallach, a fellow in Governance Studies at Brookings and the author of the upcoming book, Legality, Legitimacy, and the Responses to the Financial Crisis of 2008 (Brookings Press, 2015), and Bob Sussman, former senior policy counsel to the EPA administrator.

Phil Wallach’s latest post makes clear that no fix to EPA’s Clean Power Plan would address his concerns and that his real objection is to using existing legal authorities to tackle climate change. The Clean Air Act, he argues, is not “an adequate platform for the nation’s climate policy — legally, politically or economically.” What is more, invoking the act is worse than doing nothing because it will only “disappoint“ those who care about climate change and “foreclose better options.” Wallach instead advocates sitting tight and waiting for a “broad and solid coalition” in support of legislation, which he believes would better reflect “democratic decision-making” than administrative measures under the act.

The Danger of Delay

Not surprisingly, Wallach provides no timetable for achieving this elusive legislative consensus and, as he surely knows, there is little reason for optimism on this score. Signs of bipartisan cooperation on climate emerged in the second George W. Bush term, with Senators John McCain and Joe Lieberman joining forces to advance legislation, but the Obama years have only resulted in increased polarization. House passage of the Waxman-Markey cap-and-trade bill in 2010 occurred over nearly monolithic Republican opposition and, with the House now in Republican control, there is no foreseeable prospect of a new climate bill coming to the floor. This impasse is not a function of differing legislative approaches (for example, cap-and-trade vs. a carbon tax) but of deep-seated resistance to any congressional action at all. One hopes that this resistance will soften over time but, barring a major political realignment, climate legislation will remain a casualty of pervasive partisan gridlock on Capitol Hill.

Waiting for an epiphany by die-hard opponents of climate legislation is a dangerous strategy.  As the scientific evidence mounts and the impacts of climate change become increasingly visible and disruptive, the imperative for action has never been greater. Rising global emissions of greenhouse gases (GHG) have created a near certainty of dangerous increases in atmospheric levels of carbon dioxide that are predicted to result in a harmful rise in temperatures in the next 50-100 years. Changing these trends requires immediate large-scale emission reductions — not 15 or 20 years from now but today.

Power plant emissions, which account for a dominant share of the emissions inventory in the U.S. and internationally, are an obvious place to start. Recent developments like low natural gas prices, the growth of non-emitting renewable power, and innovations in energy efficiency create confidence that these emissions can be reduced with little cost to consumers or economic disruption. As I previously showed, EPA’s Clean Power Plan is designed to take advantage of these developments, which form the basis for its four Building Blocks.

Wallach claims that some states will likely find that EPA’s renewable targets are “unreachable” and that others will need to resort to extreme and unworkable measures (i.e. “to implement massive demand-side reduction programs or subsidize greater utilization of gas plants”) but he offers no evidence to rebut EPA’s findings that the proposed reductions are readily implementable and will impose only modest costs.

The Presidential Bully Pulpit

Wallach creates the impression that the plan is a desperate maneuver by frustrated environmentalists, aided by creative EPA bureaucrats, with no real political backing. This narrative ignores the central role of presidential leadership in designing and promoting the plan.   Mr. Obama announced a comprehensive climate action strategy in a major speech at Georgetown University in June 2013 and, as a cornerstone of the strategy, directed the EPA to reduce power plant emissions under section 111 of the act. 

Author

B

Bob Sussman

Visiting Lecturer in Law - Yale Law School

Adjunct Professor - Georgetown University Law Center

Although Wallach describes the Clean Power Plan as a “highly technical regulatory matter” that the EPA hopes will “fly under the radar,” the president and his team have mounted an extensive public education campaign that links the plan to the urgency of reducing emissions and avoiding the dire consequences of climate change.  Wallach apparently thinks that only legislation can mobilize the public against the global warming threat but, as history shows, the presidential bully pulpit is a powerful tool to shape public opinion and President Obama is using it proactively to build a constituency for the EPA’s power plant proposal.

The Suitability of the Clean Air Act

Like any agency tackling a complex and controversial issue, the EPA faces legal and political challenges in finalizing and implementing that proposal, but that doesn’t mean that the proposal is an illegitimate exercise of the agency’s responsibilities. Wallach repeats the familiar mantra of climate skeptics that the Clean Air Act is “unsuitable” for addressing GHG emissions but the Supreme Court (hardly a bastion of liberal opinion) decisively laid that claim to rest in 2007. The court majority did not simply announce a technical interpretation of the act’s wording but went further and, after describing in some detail the science of climate change and the history of international negotiations, placed an affirmative obligation on the EPA to use its authority to reduce GHG emissions unless it found that they did not threaten public health and welfare. Although the court majority did not mention the status of legislation, it is hard to escape the impression that, in the face of increasingly compelling scientific evidence, the justices wanted to create a mechanism to compel executive branch action should Congress remain silent.

Wallach misleadingly suggests that climate activists initially dismissed the Clean Air Act as a badly flawed vehicle to reduce GHG emissions, useful only to prod Congress into action, and belatedly changed their tune when legislation faltered. It is true that climate activists and the White House itself viewed (and still view) legislation as the preferred vehicle for climate policy. But this is very different from writing off the Clean Air Act as a legitimate tool to reduce emissions.

From the moment it took office, the Obama administration’s EPA undertook diligent and largely successful efforts to implement the Supreme Court’s decision.  A finding in 2009 that GHG emissions “endangered” public health and welfare based on extensive scientific evidence was followed by two sets of regulations, in 2010 and 2012, requiring deep reductions in GHG emissions from light-duty vehicles. The EPA also put in place in 2010 permitting requirements for new and modified sources of GHG emissions. Despite many nay-sayers, these actions survived judicial review largely intact and proved effective and workable. The Clean Power Plan is a more ambitious step than previous efforts but it builds on a solid track record of emission reduction under the act.

To be sure, there is a small bloc of states (nearly all with Republican governors) who will fiercely oppose the plan in the courts, and the House leadership will continue to look for vehicles to stop it in its tracks. This divisiveness is unfortunate but it doesn’t mean that the plan is doomed to failure, as Wallach grimly predicts. Legal challenges and Republican opposition are now a fact of life for all major EPA regulations (including many unrelated to climate) but the agency can point to an impressive winning streak in the courts and a growing list of successful programs that have survived attack.  Several states will strongly back the plan, and a significant industry constituency (including many progressive utilities and suppliers of equipment for wind, solar, and natural gas generation) is likely to rally to the EPA’s defense. Even as their elected leaders remain on the fence, state regulators are quietly developing plans to implement the EPA rules and preparing constructive comments to improve the final version. There is no assurance of ultimate success, of course, but Wallach’s vision of a beleaguered agency forced to retreat under overwhelming legal and political pressure is not rooted in reality.

Undermining International Progress

Apparently, Wallach believes that the U.S. should come to the upcoming round of international climate negotiations empty-handed and instead plead for some vague form of “genuinely international action . . . to reduce global emissions.” But how could the U.S. possibly make a credible case for international action while conceding that we could not do our share because our Congress is gridlocked and we are unwilling to use existing authorities? With the U.S. unable to deliver on any set of reciprocal emission reduction commitments by the major economies, the incentives for agreement would quickly disappear.  By contrast, announcement of the Clean Power Plan in June reportedly stimulated serious movement in China toward proposing a cap on emissions during the run-up to the 2015 Paris conference of the parties.

Abandoning the Clean Power Plan would be a huge step back for U.S. and international efforts to combat climate change. If we want meaningful greenhouse gas reductions, let’s fix the plan if it has flaws and make it work.

The findings, interpretations and conclusions posted on Brookings.edu are solely those of the authors and not of The Brookings Institution, its officers, staff, board, funders, or organizations with which they may have a relationship.

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