When the Obama administration unveiled its plan to make the most significant move ever to tackle the carbon pollution that causes climate change, it expected opponents to throw everything they had, even the kitchen sink, against it.
So it can be hard to keep track of all the tactics that critics in Congress, the states, and industry have been using to keep the administration from regulating carbon dioxide from power plants. Some are redundant, some are doomed to fail, and some have a chance of stopping or fatally delaying the rule.
But first, it’s important to keep in mind what the carbon rule actually is.
The proposed rule, part of the Clean Power Plan, provides states with the flexibility to craft their own plans to reduce carbon emissions from the electric power sector. Those plans altogether would have to meet the national goal of a 30 percent drop in carbon emissions from existing power plants by 2030 from 2005 levels. It’s the result of a 2007 Supreme Court ruling that greenhouse gases should be regulated under the Clean Air Act if they endanger public health — which it did.
Each state would have a broad menu of carbon-cutting options, including energy efficiency improvements, adding clean energy, implementing a carbon tax, joining a cap-and-trade system, or instituting their own. For the most part, states will look to transition from the worst heavy-pollution coal-fired power plants to cleaner-burning natural gas and renewables. Even more importantly, the rule is a major part of America’s international commitment to reduce its greenhouse gas emissions 17 percent below their 2005 levels by 2020 — which has already encouraged other countries to make commitments of their own.
The fight to solve the climate crisis is itself a race against time, and the Clean Power Plan (CPP) is no less than that same race distilled down into an American political fight. Opponents have taken this to heart, and have made delaying implementation of the rule one of their main goals, utilizing many different tactics to gum up the works long enough with the hope that a Republican president would stop things entirely in 2017. The Democratic field, from Hillary Clinton to Bernie Sanders to Martin O’Malley to Lincoln Chafee, are each supporters of serious climate action, while it’s difficult to find a Republican that takes the issue seriously.
Here is how opponents will try to stop or slow the rule before 2017.
To the courts
The most direct and immediate method that opponents of the Clean Power Plan have used thus far has been to make the case that the rule is illegal. Though cases thus far have found little traction because the proposed rule is not yet final, it will become final later this summer. Then judges will be asked to wrestle with myriad questions brought by state and industry plaintiffs, and it is hard to imagine this not going to the Supreme Court.
Fifteen governors of coal-dependent states told President Obama in a letter that they believed the CPP is illegal. The state lawsuits claim that the proposed regulations “impose impermissible double regulation” because the EPA already regulates general air pollution from power plants.
However the idea to use the Clean Air Act to cut carbon pollution has passed legal scrutiny before — the EPA is required to regulate CO2 if it finds that it endangers public health, which it has. Last year, a 7-2 majority ruled in a separate case that EPA had the authority to regulate greenhouse gases from stationary sources already subject to the Clean Air Act’s permitting requirements.
This will not stop a blizzard of lawsuits from descending upon the courts once the final rule is released in the summer. These will be tied to subjects as varied as the intricacies of the passage of the Clean Air Act, whether states can incorporate emissions reductions “beyond the fenceline” of power plants, the likely impact on the coal industry, and the Tailoring Rule, which allowed the EPA to target only the largest emissions sources. The administration will no doubt vigorously defend the rule from all of these cases over the next year and a half. Many of the following tactics, however, depend on these cases dragging on or gaining enough of a victory to upend the final rule, causing the EPA to have to go back to the drawing board.
If the courts don’t slow down the carbon rule, opponents have no shortage of representation trying to halt, gut, or delay things in Congress. Electric utilities, coal operators, and the oil and gas sector, upped their donations to Republicans last election and it paid off. As displayed in hearings hostile to the carbon rule, Congress is even more energized to attack the EPA through hearings, rhetoric, and legislation than normal.
Sen. Shelly Moore Capito (R-WV) introduced legislation last month that would scuttle the carbon rule and tie EPA’s hands if it attempted to get the process moving again. The Affordable Reliable Energy Now Act has one Democratic cosponsor, fellow West Virginian Joe Manchin. The bill’s sponsors said they see that bill as a starting point, with potential to change it to attract more cosponsors.
In the House, Rep. Ed Whitfield (R-KY) introduced legislation that did not go quite as far, but like the Senate bill allowed governors to opt their states out of the regs, and delayed compliance until all litigation finished. This would essentially kill the plan — and the House bill is more moderate. Capito’s bill would require EPA to produce 50 different plans targeted at each state (instead of allowing each state to come up with their own, alongside a model), as well as detailed climate modeling and global emissions reporting. The House is likely to pass their version and it is an open question as to whether Capito’s bill, or some version of it, would pass the Senate. It is less likely that such legislation would survive a veto.
However, a bill focusing mainly on delay, positioned as a moderate compromise, could get enough votes from moderate Democrats from coal states to get close to overriding a veto. Earlier this year a nonbinding McConnell amendment that would prevent EPA from withholding highway funds from states that failed to submit an implementation plan received 57 votes, including Sens. Manchin, Heidi Heitkamp (D-ND), and Joe Donnelly (D-IN).
The Congressional Review Act (CRA) allows Congress to repeal a final rule issued by the Executive Branch within 60 legislative days of being published in the Federal Register. Senate Majority Leader Mitch McConnell (R-KY) has promised to push a CRA vote on the final carbon rule. McConnell did his best to begin the CRA process early, well before the proposed rule was final, and he failed. This time, he will likely succeed in getting it through Congress, though the President will assuredly veto, and it is unlikely McConnell has the votes to override.
Republican leaders in Congress know very well that overriding a veto is beyond their reach for most legislation. One tactic to get around that would be to attach a bill as a rider to a must-pass piece of appropriations. The government needs a budget to function, and as the world has learned over the last few years, it will shut down if Congress and the President cannot come to a compromise agreement.
There will no doubt be pressure to attach a bill gutting the Clean Air Act or delaying the Clean Power Plan to budgetary legislation. The question is whether House and Senate leadership want to have that fight with the President over this. Environmental groups are confident the president will not blink, but if conservatives decide they can gain more by having that fight, they could decide to pull the trigger.
State legislative action
A number of state legislatures have been busy, as dozens of bills tie the hands of the states to make it difficult for governors to comply with the CPP. Arizona, Nebraska, and South Dakota legislators want their environmental agencies to submit reports of how the plans would impact the economy before submitting it. Minnesota, Montana, and West Virginia legislators introduced bills that make the executive branch submit plans to the legislature for approval before going to the EPA.
Kentucky passed a law that prevents any plan it implements from increasing energy efficiency, renewable energy, or gas-fired power plants at the expense of coal ones. It passed both houses unanimously and was signed by Democratic Governor Steve Beshear last year. However, as coal plants retire on their own due to external market forces, Kentucky could get close to complying despite trying not to.
The Koch-funded group Americans for Prosperity (AFP) has been able to place op-eds in at least 16 local newspapers, telling state legislatures to fight the EPA’s proposed carbon rule. The authors are identified only as state officials for AFP, with no information about oil industry ties or backing from the Koch brothers.
These legislative approaches are popular with the conservative bill mill ALEC, yet on the whole they have been met with limited success so far. Moreover, electric utilities oppose this kind of meddling on the part of the legislature. They want the governor of the state to have the ability to make the state plan with them, and don’t want their hands tied at the state level.
If watering down, delaying, or interfering is not enough, there’s always fossil disobedience.
Last year, coal industry lawyers published a paper arguing that states did not have much to lose by not filing a State Implementation Plan. The idea took off, with new Sen. McConnell writing an op-ed in March telling states to “think twice about submitting a state plan.”
Still, to even the most recalcitrant states, not having a Plan B is worse than the thought of beginning to comply. The environmental agencies of nearly every state are looking into plans that could meet the emissions reduction rule. The Clean Air Act is federal law, and it will be difficult for states to trump it no matter the opposition.
Governor John Hickenlooper (D-CO), often a skeptic of EPA actions he believes interfere too much with Colorado, responded to McConnell’s letter with one of his own, stating that his state would be complying with the CPP.
Oklahoma Governor Mary Fallin issued an executive order preventing agencies from working to comply with the proposed rule, although it could be argued that she did that to preserve gubernatorial power as the legislature attempts to take it away during the plan-drafting process.
The Clean Power Plan is in a race against time. The timing of each proposed and final rule was spaced out in order to get everything in place by the end of President Obama’s second term, cementing it in place as best as a new regulation can be. The proposed rule for new power plants came out in 2013, with the final rule released a year later, giving it two years to sink in. The proposed rule for existing sources got released that year and soon it will become final, giving states a year and a half to submit their compliance plans. Any significant delay could allow the next president and Congress to walk back, destroy, further delay, or otherwise complicate the regulations.
Opponents’ arguments about electric bills, jobs, and reliability are compelling to some. However, a large majority of American voters — including 63 percent of Republicans — support federal efforts to regulate greenhouse gases from existing power plants.
Some environmental groups are optimistic that the CPP can beat the lawsuits, legislation, state action, state inaction, and budgetary showdowns — and begin helping states cut their carbon pollution.
“The administration is working this very hard,” said David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council. “All the elements are there to complete the CPP on time, to prevail against legislative challenges and lawsuits, and to work with stakeholders for timely, smart, and cost-effective state plans.”
Eyes around the world are watching the plan’s progress, as the world prepares to negotiate a serious climate agreement in Paris at the end of this year.