The Short Life of the Clean Power Plan

Since the late 1900s, environmental policy has become an increasingly important element of the duties of the United States federal government. The creation of the Environmental Protection Agency (EPA) in 1970, and subsequent laws and regulations passed by the government, were meant to protect the earth’s resources, prevent pollution, and slow climate change. In 2014, the EPA published the proposed Clean Power Plan (CPP) as a way to reduce carbon dioxide (CO₂) emissions from electrical generation in power plants, with President Obama officially announcing the plan in 2015. However, a chorus of critics, conservatives, and members of the fossil fuel industry argued that the the plan would negatively impact the economy and those who hold jobs in fossil fuel. Some also believed that the plan was illegal and took the issue to the court system. In the end, the Clean Power Plan was halted by a vote along party lines in the Supreme Court, but several states continue to follow the standards that the CPP had set up before it was repealed under the Trump administration.

This case study will examine how problems developed that led to the need for change in environmental policy in the US; what economic, social, and political factors set the scene for the adoption of the Clean Power Plan in 2014; and the political difficulties it has faced. This paper will analyze the content and substance of the CPP, how the CPP was implemented through the executive branch, where it was debated in the legislative branch, as well as how it was contested in the judiciary. Through an examination of not only what the atmosphere was like in the U.S., but also that of the international community, at the time of the plan’s implementation, this study will highlight why the CPP was almost– but not quite– adopted in this timeframe and why it has faced such controversy. It will also look towards the future to predict how President Trump will handle such environmental policy and whether regulatory policy like the CPP might ever be able to make it through Congress or the Supreme Court.

Historical Context:

Birth of the Clean Power Plan:

As part of the Obama administration’s overall “Climate Action Plan”, President Obama issued a Presidential Memorandum, directing the EPA to “use [its] authority under sections 111(b) and 111(d) of the Clean Air Act to issue standards, regulations, or guidelines, as appropriate, that address carbon pollution from modified, reconstructed, and existing power plants and build on State efforts to move toward a cleaner power sector” (Barack Obama, 2013). After publicly committing to the Paris Climate Agreement, demanding U.S. action on reduction of emissions and pollution, environmental policy moved to the forefront Obama’s legislative agenda. With pressure mounting from the international and scientific communities to take further action on climate change, he introduced the Clean Power Plan to a country that was still split on the issue of environmental protection and fossil fuel industry regulation.

The Clean Power Plan was an attempt to address climate change at large by enforcing the reduction of carbon dioxide emissions from fossil-fueled power plants. Fossil-fueled power plants are the greatest producers of CO₂ in the United States, producing 37% of the total US carbon dioxide emissions as well as 30% of all US greenhouse gas emissions (Carbonell pp. 404). This push to reduce carbon emissions came after a series of increasingly hot years, with 2014 being the hottest year on record at the time that the CPP was proposed, according to the EPA. Moreover, President Obama had just approved the first global agreement to limit greenhouse gas emissions in the Paris Climate Conference (White), thus compelling him to meet the emission reductions standards set forth in the agreement. Consequently, when the Clean Power Plan was announced on August 3, 2015 by Obama and the EPA, the ultimate goal was to address Obama’s environmental agenda and abide by the standards set in the Paris Climate Accord to reduce CO₂ emissions in the United States.

More recent efforts in the environmental policy arena before the Clean Power Plan had been regarded as inadequate to deal with the progressively adverse effects of emissions on climate change. President George W. Bush refused to sign the Kyoto Protocol, an international treaty intended to take action on global warming, in March of 2001, citing its possible negative effects on the American economy (Borger). Then, in 2006, several states, cities, and organizations petitioned the EPA to regulate carbon dioxide and other greenhouse gases as pollutants. The case, Massachusetts v. EPA, ruled in favor of the petitioners and remanded the EPA to study the effects of emissions on public health and pollution under the Clean Air Act of 1970 (Carbonell pp. 406) Therefore, it fell on Obama’s shoulders to reinvest in international climate change policy, leading to the Paris Climate Accord, as well as encourage scientific study of the cost of greenhouse gas emissions domestically. However, the Clean Power Plan ran into many legislative roadblocks before it was even implemented.

Barriers to Implementation:

Much of the dispute over the Clean Power Plan revolved around the question of whether or not the EPA had the authority to regulate states on emissions from power plants. There existed intense disagreement over whether the possible costs (negative impact on the economy, job loss, more federal oversight) outweighed the benefits (stronger action on climate change, decrease in pollution, sticking to the Paris Climate Agreement). Many different groups’ interests were at stake, from the Obama administration to coal mining companies to environmental scientists to political interest groups. Much of the credit and blame was given to Obama, as– just like the Affordable Care Act– the CPP was the cornerstone of one of the major issues on Obama’s agenda that he hoped to address during his term. As a result, sometimes the debate over the CPP became fiercely drawn along ideological lines.

A little over two months after the CPP was official announced by President Obama in conjunction with the EPA on August 3, 2015, a coalition of 24 states filed lawsuits against the EPA, claiming the rule was an overreach and abuse of power. The states– Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming– asked the Court of Appeals for the District of Columbia to overturn the CPP as well as stop its implementation as it works its way through the courts (Korte). These states, as well as many conservative legislators, began fighting the Clean Power Plan the very first day it was published in the Federal Registrar.

On October 26, 2016, Republican Senator Capito of West Virginia submitted a congressional challenge to the CPP. The challenge, known as S. J. Res. 24, resolved “that Congress disapproves the rule submitted by the Environmental Protection Agency relating to ‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units’ […], and such rule shall have no force or effect” (Senate 2015). For Senator Capito and the 48 other senators who co-sponsored the resolution, the goal was halt the “blow of [the] misguided approach to energy production”, as stated by Capito in 2017. This “resolution of disapproval” would have nullified the Clean Power Plan, and although it was approved by both the Senate and the House, Obama vetoed the resolution on December 18.

While lower court battles raged on, the Supreme Court dealt a significant blow to the Clean Power Plan on February 9, 2016 by ordering that all EPA efforts to set regulations and enforce standards on emissions for power plants be halted. This stay, the ruling said, would remain in place until the various legal challenges to the CPP made their way through the Supreme Court. The decision was a 5-4 split between conservative and liberal justices, giving the outcome a significant slant in favor of Republicans (Wolf). Today, this means that the CPP is more or less a dead letter, as lower courts did not push it through before the end of President Obama’s term. President Trump has refused to sign the Paris Climate Agreement and severely limited the powers of the EPA (Office). Under his administration, the new administrator of the EPA, Scott Pruitt, announced on October 10, 2017 that he planned to repeal the Clean Power Plan fully (Meyer).

Analysis:

Under Obama’s leadership and through his passion to push climate legislation, the Clean Power Plan had the potential to make a drastic difference in carbon emissions over the course of the coming years. Yet strong legislative and judicial opposition along party lines caused the implementation of the rule to stall out. While supporters praised the act– some even arguing that it did not go far enough in its regulations– opponents believed that the the CPP would put the EPA in control of all the decisions about energy in America, pulling the power to regulate completely into the hands of the government (Scherman, 406). Ultimately, the outcome of the CPP represented a stark difference in opinion between Republicans and Democrats over federal government’s ability to regulate industries and if that importance precedes the importance of acting on climate change.

What the Clean Power Plan Did Right:

While the intention was to address the effects of carbon emissions, the CPP quickly devolved into a legal battle over the validity of EPA regulation, over ideological differences, and over public opinion. To public health groups, the CPP was hailed for its action to protect the public from unclean air. The scientific community also gave the CPP almost unanimous support, with some even said that it did not go far enough to address the issue of climate change (Union). The business sector was split in support and opposition, but arguably the majority of businesses supported the plan. Many of America’s biggest companies, such as Amazon, Apple, Google, and Microsoft, filed briefs in support of the plan in the various court proceedings (Semuels). Environmental protection groups were and still continue to be in support of the Clean Power Plan, saying that it could have been the first real step in not just slowing greenhouse gas pollution in the United States, but actually reducing it by a large amount over the years.

According to the U.S. Energy Information Administration’s calculations, the Clean Power Plan could have effectively reduced reduced emissions a great amount. Projections for the year 2030 indicated that power sector emissions levels would have been cut by up to 36% relative to 2005 emissions (U.S. Energy). The Obama administration also cited public health as a reason to support the CPP, projecting that by the year 2030, implementation of the CPP would have avoided thousands of premature deaths, asthma attacks in children, heart attacks, and hospital admissions (White). Moreover, the announcement of the Clean Power Plan put the United States in a leadership position in global climate change efforts, often seen as setting an example for the rest of the world. Now, however, the United States is the only country in the world that is not a part of the Paris Climate Agreement after Syria became the last other country to join on November 7, 2017 (Meyer). America is no longer on the road to reducing greenhouse gas emissions, second only to China in top greenhouse gas-emitting countries. So why did the CPP fail?

The Downfall of the Clean Power Plan:

In the end, Obama’s leadership was the catalyst for both the introduction and the death of the Clean Power Plan. Although he used his executive power to stop opposition legislation twice, he also became the figurehead of what opponents saw as just another federal government abuse of power in his attempt to regulate industry. This debate over the Clean Power Plan has proven that environmental policy has greatly become an ideological argument influenced by wealthy outside groups. A major element of the Republican Party’s beliefs is that the government should not be able to regulate the private sector, although the energy sector sometimes falls into a gray area between private and public. That gray area is where the case of the CPP lies. Nearly all of the senators and representatives who opposed the CPP argued that it would be detrimental to workers in the fossil fuel industry, that it would damage the American economy, and that it was an illegal overstep of power by the EPA.

Interest groups also played an important role in the the opposition against and demise of the Clean Power Plan. American Coalition for Clean Energy, and the American Legislative Exchange Council lobbied hard to oppose EPA regulations on carbon pollution (Union). The Heritage Foundation, among others, published articles expounding on the “many problems of the EPA’s Clean Power Plan and Climate Regulation”, denying the negative impact of greenhouse gas emissions on the environment and claiming that the costs include “higher energy prices, fewer jobs, and less growth” (Loris). Fossil fuel giants like Exxon Mobil, Peabody Energy, and Southern Company were effective in making legislators take action against the rule through their financial support (Union). The impact of all of these groups on the ability of the EPA and Obama administration to effectively implement the CPP demonstrates the need for not only positive public opinion, but also positive opinion from corporations and organizations.

The Clean Power Plan also falls between the relationship of another two sectors: courts and agencies. In King v. Burwell, a case about the Affordable Care Act, ruled that the writing of statutes of the ACA should be interpreted to be “compatible with the rest of the law” rather than reading exactly how it is written. The final rule of the CPP reveals the EPA as an agency responding to King, “with an attempt to read texts to harmonize rather than conflict even in cases of presumptive statutory error, and with a resulting preference for definitive answers rather than retained agency flexibility” (Harvard pp. 1156). It is interesting to note that both the ACA and the CPP used King to justify expanding federal powers under the Obama administration, much to the chagrin of Republicans. Not only was the Clean Power Plan controversial in its intent, but its application was questioned on judicial grounds for overreach and improper interpretation of the language of the Clean Air Act.

Conclusion:

At a time when the world called for action on climate change, the Environmental Protection Agency, under the Obama administration, responded with the Clean Power Plan. Citing this plan, the EPA gave mandates to the states that they had to reduce their carbon emissions along a timeline and used its power to target new and existing power plants using fossil fuels. This was opposed by Republicans who are against any policy that could damage coal jobs, but the primary area over which the battle for the CPP was fought was the question of whether the federalist system awards the power regulate such power plants to the national government. Before it was even implemented, the CPP stalled out in the courts following multiple lawsuits and a stay by the Supreme Court.

Under the Trump administration, EPA power has shrank and many environmental protections have been undone. The CPP was repealed by the EPA and President Trump left the Paris Climate Agreement. Additionally, when discussing President Trump’s Energy Independence Executive Order, a senior administration official said that the official White House position is that there is no obligation on the government to regulate greenhouse gases under the Clean Air Act (Office). This means that it is unlikely that the United States will see any form of regulation on emissions, at least for the next few years. As both a candidate and a president, Trump has advertised his opposition to environmental protection policy, even called climate change a “hoax” on multiple occasions.

Although the current state of the environment is grim in terms of the alarming climate change and continuous efforts by the administration to remove protections, there is hope for the future. With many countries around the world finally recognizing the importance of responding to climate change, even without the U.S., improvements can be made. 17 states filed a legal challenge against the current administration’s efforts to roll back climate change regulations (Valdmanis). It is in this general awakening of the world to the realities and the devastating effects of climate change that the Clean Power Plan was proposed. It was a culmination of necessitated action from the Paris Climate Accord, fulfilling campaign promises, and following the ruling in Massachusetts to do something about the public health risk associated with greenhouse gases.

However, the failure of the Clean Power Plan was its overreach; its “paradigm shift in energy regulation away from energy regulators” (Scherman pp. 355). Not only did the plan call into question whether a government should regulate the energy sector at all; it gave almost complete regulatory powers over the entire fossil fuel industry in the United States. The rule was the second major piece of legislation that Obama had a hand in (with the other being the ACA) that generously expanded and deepened the ability of the government to regulate the private sector. This is where the CPP lost its footing; yes, it was controversial ideologically, but the argument that had more legal weight was the argument that it was an overreach of EPA power.  Although the CPP may have had all the research it needed to prove that it was beneficial for the environment and for the health of the United States, it could not succeed against such powerful opponents as the fossil fuel industry and the majority of Republican legislators when it was seen simply as a power grab. The Clean Power Plan marks the beginning of a debate that the United States must have as a country as to how much power we are willing to give to our government to regulate and control both the citizens and the private sector in the name of environmental protection.

 

 

Appendix

Borger, Julian (2001, Mar. 29). Bush Kills Global Warming Treaty. The Guardian. Retrieved from: https://www.theguardian.com/environment/2001/mar/29/globalwarming.usnews

Capito, Shelley M. (2017, Oct. 9). Capito Statement on EPA’s Clean Power Plan Announcement. Retrieved from: https://www.capito.senate.gov/news/press-releases/capito-statemen t-on-epas-clean-power-plan-announcement

Carbonell, Tomas (2015, Oct. 25). EPA’s Proposed Clean Power Plan: Protecting Climate and Public Health by Reducing Carbon Pollution from the U.S. Power Sector. HeinOnline. Retrieved from: http://heinonline.org/HOL/Permalink?a=YW1lcmljYW4uZW R1&u=http%3A%2F%2Fheinonline.org%2FHOL%2FPage%3Fhandle%3Dh ein.journals%2Fyalpr33%26g_sent%3D1%26casa_token%3D%26collection%3Djou rnals%26id%3D413

Harvard Law Review (2016). Vol. 129(4). pp. 1152-1159. Retrieved from: http://harvardlawreview.org/wp-content/uploads/2016/02/1152-1159-Online.pdf

Korte, Gregory (2015, Oct. 23). 24 states challenge Obama’s Clean Power Plan as rules go into effect. USA Today. Retrieved from: https://www.usatoday.com/story/news/politics/2015/ 10/23/24-states-file-legal-challenge-obamas-power-plan/74472236/

Loris, Nicolas (2015, July 7). The Many Problems of the EPA’s Clean Power Plan and Climate Regulations: A Primer. The Heritage Foundation. Retrieved from: http://www.heritag e.org/environment/report/the-many-problems-the-epas-clean-power-plan-and-climate-re gulations-primer

Meyer, Robinson (2017, Mar. 29). How the U.S. Protects the Environment, From Nixon to Trump. The Atlantic. Retrieved from: https://www.theatlantic.com/science/archive/2017/0 3/how-the-epa-and-us-environmental-law-works-a-civics-guide-pruitt-trump/521001/

Office of the Press Secretary. (2017, Mar. 27). Background Briefing on the President’s Energy Independence Executive Order. The White House. https://www.whitehouse.gov/the-p ress-office/2017/03/27/background-briefing-presidents-energy-independence-exec utive-order

Scherman, William S., Jason J. Fleischer (2015, Nov. 16). The Environmental Protection Agency and the Clean Power Plan: A Paradigm Shift in Energy Regulation Away From Energy Regulators. Energy Bar Association. pp. 355- 407. Retrieved from: http://www.gibson dunn.com/publications/Documents/Scherman-Fleischer-The-EPA-and-the-Clean-Po wer-Plan-Energy-Law-Journal-11-16-2015.pdf

Senate Joint Resolution 24. 114th Cong. (2015). Retrieved from: https://www.congress.gov/bill/114th-congress/senate-joint-resolution/24

Semuels, Alana (2017, Oct. 10). The Myth That ‘Business’ Hates Obama’s Clean Power Plan. The Atlantic. https://www.theatlantic.com/business/archive/2017/10/business-clea n-power-plan/542529/

Union of Concerned Scientists (2016). Who’s Fighting the Clean Power Plan and EPA Action on Climate Change? UCSUSA. Retreived from: http://www.ucsusa.org/global-warming/fig ht-misinformation/whos-fighting-clean-power-plan-and-epa-action-climate#bf-toc-4

United States Environmental Protection Agency (2014). Regulatory Impact Analysis for the Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants. Retrieved from: https://archiv e.epa.gov/epa/sites/production/files/2014-06/documents/20140602ria-clean-power-pl an.pdf

The United States Environmental Protection Agency (2016). Clean Power Plan. Retrieved from: https://19january2017snapshot.epa.gov/cleanpowerplan/fact-sheet-overview-clean-po wer-plan_.html

U.S. Energy Information Administration (2015). Analysis & Projections: Analysis of the Impacts of the Clean Power Plan. Independent Statistics & Analysis. Retrieved from: https://www.eia.gov/analysis/requests/powerplants/cleanplan/

The White House (2016). A Historic Commitment to Protecting the Environment and Addressing the Impacts of Climate Change. The Record. Retrieved from: https://obamawhitehouse.archives.gov/the-record/climate

Valdmanis, Richard (2017, Apr. 6). States Challenge Trump over Clean Power Plan. Reuters. Retrieved from: https://www.scientificamerican.com/article/states-challenge-tru mp-over-clean-power-plan/

Wolf, Richard (2016, Feb. 9). Supreme Court blocks Obama’s climate change plan. USA Today. Retrieved from: https://www.usatoday.com/story/news/politics/2016/02/09/supr eme-court-halts-obamas-emissions-rule/80085182/

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