This past week, a federal appeals panel rejected an effort to block the Clean Power Rule while the rule is being challenged in the federal court system. Although the latest decision does not mean that the courts will uphold the rule, it does mean that the process of implementation will not be delayed by current legal challenges. In recent months, 27 states and a group of fossil fuel corporations have sued to block the Clean Power Rule. This regulation requires states to meet ambitious greenhouse gas reductions, including a 32% reduction in greenhouse gas emissions by 2030 from a state's power plants. This type of reduction will not be possible unless most of America's coal-fired power plants are shut down.
The rule gives the states fourteen years to make the transition to clean energy and it is a neither radical nor economically dangerous mandate. It would give coal-dependent states the time to make a gradual shift away from coal. It would also signal to businesses that the renewable energy industry is not a passing fad but an economic necessity. While one could easily imagine a better designed policy instrument to bring about this change than the blunt command and control regulation being utilized, our dysfunctional national legislature has left us little choice but to base climate policy on a piece of legislation first enacted in 1970. The Clean Air Act may not reflect the changes in technology and policy analysis of the last four decades, but it was a forward-looking piece of legislation and it will have to do.
The current policy stalemate reminds me a little of the early 1970s when EPA's first administrator, William Ruckelshaus, regulated water pollution by using a 19th-century law designed to ensure that ships could freely navigate in America's rivers and harbors. But that was a temporary measure. Back then, support for clean water was so strong that by 1972, a huge bipartisan majority enacted the Federal Water Pollution Control Act and then upheld it over the veto of President Richard Nixon. Ah, the good old days. I don't expect the Clean Power Rule to be replaced by a more elegant and modern climate change rule (but it would be nice).
Instead, we will need to defend and implement the Clean Power Rule. Like many environmental regulations, it provides industry and government with plenty of time to adjust to the new reality--but only if they use the time wisely. If the states and businesses fighting the rule are hoping that a President Trump or Cruz would reverse it, they are forgetting that the rule was a response to a Supreme Court decision issued when George W. Bush was president. A number of states had sued EPA to force the agency to regulate greenhouse gases as a dangerous pollutant that was subject to the Clean Air Act. The Supreme Court agreed, and though the Bush Administration dragged their feet on developing the new regulation, eventually the Obama Administration embraced it as the heart of their climate change policy. While a Republican administration might slow down and modify the Clean Power Rule, unless they have the votes to amend the Clean Air Act to declare that greenhouse gases are not dangerous, they are stuck with a law that requires federal control of greenhouse gases.
Hopefully, the courts will uphold EPA's regulation, and if they do, a degree of certainty and permanence will attach to federal climate change policy. This in turn will stimulate investment in renewable energy and speed the transition to a renewable resource-based economy. In the short run, the effort to undermine the certainty of climate policy will continue and intensify. Writing in Environmental Leader on January 21st, Jessica Lyons Hardcastle reported that the:
National Association of Manufacturers senior vice president and general counsel Linda Kelly, said the court's decision today "leaves manufacturers with continued uncertainty, unanswered legal questions and unknown costs. NAM is one of the industry groups that sued to block the Clean Power Plan from taking effect. "Our arguments are strong, the legality of the regulation is questionable, and we will continue to fight for pro-growth, pro-manufacturing regulations," Kelly says.
Of course, the uncertainty and unknown costs are entirely self-inflicted. For NAM and the other interest groups opposing the Clean Power Rule, the artificial sense of hysteria is simply good for the lobbying business. Anti-climate policy lobbyists make their money by convincing businesses that the Administration's climate policy is illegal and illegitimate, when it is neither. If America's business community were willing to accept the Clean Power Rule as a new way of doing business, their decisions would be based on a high degree of certainty. Still, the business of interest group politics is as American as apple pie and not likely to fade from the scene anytime soon. And it is a business. These groups make their money off of real and manufactured conflict. As the renewable energy business grows, so too will the power of the lobbyists they hire. And the two sets of lobbyists will battle each other from the halls of Congress to the boardrooms of K Street.
But it's really time to stop these discussions of "job-killing regulations" that create rules that dampen America's entrepreneurial spirit. Sure, some rules are stupid and harm business. But most rules are simply laws that ensure that we can live together in a growing global economy without harming each other. A traffic light is not an "auto-killing regulation" unless it never turns green. Many businesses and many voters understand the need for government to set and implement environmental rules. Americans who travel to China, Mexico, India and other places without effective environmental regulations see the impact of environmental lawlessness.
The Clean Power Rule will harm some old businesses, but much of its impact will foster economic growth. The rule will create a wide range of business opportunities: nanotech-based solar cells and batteries, microgrids, smart grids, green buildings, electric vehicles and charging stations, new energy efficient appliances, building materials, and of course consulting services to plan and manage the whole thing. The old industrial coal-fired economy and the entire fossil fuel industry will not just disappear, but will gradually be replaced. The Clean Power Rule gives American industry the opportunity to lead the new renewable resource-based global economy. If the courts uphold the regulation, the transformation will take place with greater speed. If they overturn it, the next president will still be required by law to try again.
The politics of climate change remains contentious, with Democrats more concerned about the issue than Republicans. What is most interesting about the polling data is that young people are far more concerned about climate change than older people. This is true of young Republicans, Independents and Democrats. While we do not have the consensus we see over issues like water pollution (say, for example, in Flint, Michigan), it appears that over the next several decades it is likely that the environmental consensus we saw in the United States in the 1970s could fully reemerge. When public opinion is united behind an environmental issue, it tends to have great force in the American political system. The momentum behind climate change policy is growing and the forces attacking the President's gradual and reasoned approach may come to wish they took the good deal offered by the Obama EPA.
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