| Politico | - |
The
carbon rule that the Environmental Protection Agency issued Monday is
President Barack Obama's last best hope for a legacy on climate change,
and could fulfill environmentalists' hopes for dramatically lessening
the United States' reliance on coal.
EPA carbon proposal faces major hurdles
The carbon rule that the Environmental Protection Agency issued
Monday is President Barack Obama’s last best hope for a legacy on
climate change, and could fulfill environmentalists’ hopes for
dramatically lessening the United States’ reliance on coal.
But first, the proposed rule has to overcome some obstacles: the courts, the states, opponents in Congress and whoever occupies the White House after 2016.
Continue Reading
(Also on POLITICO: Why Obama Had to Act on Climate)
Here are some ways its potential hurdles could come into play:
1. The courts
Advantage: EPA
The Supreme Court has been clear that the Clean Air Act allows the EPA to regulate greenhouse gases to combat climate change, but the agency will face a huge legal fight on the rule’s specifics. Several states and the coal industry will be the first in line to sue, and some parts of the utility industry will challenge the rule, too.
The EPA’s plan relies on a rarely used section of the law, one reserved for pollutants not dealt with elsewhere in the Clean Air Act. The section has seen virtually no legal precedents.
(Also on POLITICO: Climate rule a campaign talking point)
A major point of contention will be the EPA’s decision to set emission-reduction goals for each state that lump all their coal- and gas-fired plants into one system, rather than setting plant-by-plant targets. EPA’s approach can achieve much bigger pollution cuts, for instance by encouraging statewide efforts to reduce the demand for power, but opponents will argue that the agency is overstepping its legal authority.
Critics also will contend that the required cuts are too steep.
But the EPA has had a lot of success lately in the courts, which have said the agency has much leeway to make complicated scientific and policy decisions, particularly when it comes to greenhouse gases.
“It’s such an economy-changing action that I think courts may provide as much latitude to EPA as they can,” said utility industry attorney Jane Montgomery, a partner at Schiff Hardin.
The recent winning streak also has bolstered the agency’s confidence, several EPA attorneys told POLITICO.
(Also on POLITICO: Obama, GOP spar on new EPA rules)
However, opponents see a potential weakness in the EPA’s legal armor: a related rule it announced in September for greenhouse gases from future power plants.
Legally, that rule probably has to be done before the agency can finish Monday’s rule — so if the September regulation fails in court, the EPA could be in some trouble. Last fall’s rule faces a tough legal battle over its requirements that future coal-fired power plants capture their carbon emissions, which opponents argue runs afoul of a provision of a 2005 energy law.
2. The states
Advantage: chaos
The EPA’s proposal requires power plants to cut a percentage of their carbon emissions, but it’s up to the individual states to decide how to get there.
Some may have an easier time than others. For instance, the nine Northeastern states already involved in a cap-and-trade program have seen their carbon emissions drop roughly 40 percent since 2005. About 30 states have legislation on the books requiring increasing use of renewable power, and roughly the same number have energy efficiency programs designed to drive down demand.
But others will make a fuss.
“Any state that’s really coal dependent is going to fight,” Montgomery said. “So you’ve got Indiana, Kentucky, Ohio — you can pretty much guarantee they’re going to have words with the agency.”
States like West Virginia and Texas also are likely to try to delay or block the regulations, based on their past run-ins with the EPA.
Environmentalists are nevertheless optimistic, noting that cleaner sources like gas and wind already are on the rise in some traditionally coal-friendly states.
“I can’t really predict who’s going to dig in their heels,” said Sierra Club Executive Director Michael Brune. “Even in the states that are generally more hostile to the administration — let’s say Texas, or deeper red states, Oklahoma or Kansas or Kentucky — even in most of those states, there is so much clean energy coming on line so quickly that I think the antagonism coming from those states is likely to be muted.”
The states will have time to make up their minds.
The EPA is due to issue a final rule next June, and then states will have between one and three years to submit plans showing how they’ll meet the requirements. The EPA will have a year to approve or deny the plans. If a state refuses, the agency can implement a federal plan in its place.
But the rule appears to offer no details on how the EPA would choose such a plan, and it seems to offer no “model” for a federally run program.
A senior EPA official and a spokeswoman wouldn’t answer questions about the federal fallback option Monday, instead insisting that states would rather craft their own plans. However, similar hopes fell short when it came to expecting states to set up their own health care exchanges under the Affordable Care Act — instead, 36 states rely on federally run HealthCare.gov.
But first, the proposed rule has to overcome some obstacles: the courts, the states, opponents in Congress and whoever occupies the White House after 2016.
Continue Reading
The rule’s other big enemy could be the clock.
The regulation would require states to cut carbon emissions from
existing coal- and gas-fired power plants an average of 30 percent below
their 2005 levels by 2030. It would have widely differing effects on
each state, which could choose from many options for complying —
including joining cap-and-trade networks, encouraging energy efficiency
or relying more on natural gas, nuclear, solar or wind.(Also on POLITICO: Why Obama Had to Act on Climate)
Here are some ways its potential hurdles could come into play:
1. The courts
Advantage: EPA
The Supreme Court has been clear that the Clean Air Act allows the EPA to regulate greenhouse gases to combat climate change, but the agency will face a huge legal fight on the rule’s specifics. Several states and the coal industry will be the first in line to sue, and some parts of the utility industry will challenge the rule, too.
The EPA’s plan relies on a rarely used section of the law, one reserved for pollutants not dealt with elsewhere in the Clean Air Act. The section has seen virtually no legal precedents.
(Also on POLITICO: Climate rule a campaign talking point)
A major point of contention will be the EPA’s decision to set emission-reduction goals for each state that lump all their coal- and gas-fired plants into one system, rather than setting plant-by-plant targets. EPA’s approach can achieve much bigger pollution cuts, for instance by encouraging statewide efforts to reduce the demand for power, but opponents will argue that the agency is overstepping its legal authority.
Critics also will contend that the required cuts are too steep.
But the EPA has had a lot of success lately in the courts, which have said the agency has much leeway to make complicated scientific and policy decisions, particularly when it comes to greenhouse gases.
“It’s such an economy-changing action that I think courts may provide as much latitude to EPA as they can,” said utility industry attorney Jane Montgomery, a partner at Schiff Hardin.
The recent winning streak also has bolstered the agency’s confidence, several EPA attorneys told POLITICO.
(Also on POLITICO: Obama, GOP spar on new EPA rules)
However, opponents see a potential weakness in the EPA’s legal armor: a related rule it announced in September for greenhouse gases from future power plants.
Legally, that rule probably has to be done before the agency can finish Monday’s rule — so if the September regulation fails in court, the EPA could be in some trouble. Last fall’s rule faces a tough legal battle over its requirements that future coal-fired power plants capture their carbon emissions, which opponents argue runs afoul of a provision of a 2005 energy law.
2. The states
Advantage: chaos
The EPA’s proposal requires power plants to cut a percentage of their carbon emissions, but it’s up to the individual states to decide how to get there.
Some may have an easier time than others. For instance, the nine Northeastern states already involved in a cap-and-trade program have seen their carbon emissions drop roughly 40 percent since 2005. About 30 states have legislation on the books requiring increasing use of renewable power, and roughly the same number have energy efficiency programs designed to drive down demand.
But others will make a fuss.
“Any state that’s really coal dependent is going to fight,” Montgomery said. “So you’ve got Indiana, Kentucky, Ohio — you can pretty much guarantee they’re going to have words with the agency.”
States like West Virginia and Texas also are likely to try to delay or block the regulations, based on their past run-ins with the EPA.
Environmentalists are nevertheless optimistic, noting that cleaner sources like gas and wind already are on the rise in some traditionally coal-friendly states.
“I can’t really predict who’s going to dig in their heels,” said Sierra Club Executive Director Michael Brune. “Even in the states that are generally more hostile to the administration — let’s say Texas, or deeper red states, Oklahoma or Kansas or Kentucky — even in most of those states, there is so much clean energy coming on line so quickly that I think the antagonism coming from those states is likely to be muted.”
The states will have time to make up their minds.
The EPA is due to issue a final rule next June, and then states will have between one and three years to submit plans showing how they’ll meet the requirements. The EPA will have a year to approve or deny the plans. If a state refuses, the agency can implement a federal plan in its place.
But the rule appears to offer no details on how the EPA would choose such a plan, and it seems to offer no “model” for a federally run program.
A senior EPA official and a spokeswoman wouldn’t answer questions about the federal fallback option Monday, instead insisting that states would rather craft their own plans. However, similar hopes fell short when it came to expecting states to set up their own health care exchanges under the Affordable Care Act — instead, 36 states rely on federally run HealthCare.gov.
