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The Essential 13: Greenhouse Gases Rule

What's at Stake?

Scientists estimate that we’ve already locked in a 1.4-degree-Fahrenheit increase in average global temperatures since the beginning of the Industrial Revolution, which is more than enough to create long-lasting, if not irreparable damage to the planet. September was the 355th consecutive month in which the global average temperature exceeded the 20th century average—a streak that has now reached nearly 30 years.[i] The average concentration of carbon dioxide in the atmosphere exceeded 400 parts per million (ppm) every day in April, a level that hasn’t been reached in at least the 800,000 years.[ii]

We are already suffering the consequences of these drastic changes to Earth’s fragile atmosphere. Researchers estimate that the total area damaged by massive wildfires increased at a rate of 90,000 acres per year between 1984 and 2011, due in part to higher temperatures and worsening drought conditions brought about by global climate disruption.[iii] Researchers project that the annual total area of wildfire damage could increase by a further 100 percent by 2050, with just the climate change-induced wildfires alone costing the United States as much $60 billion every year by 2050.[iv] Over the last few years, large parts of the country have endured some of the worst droughts in decades, and scientists agree that the higher temperatures brought about by climate disruption have worsened their effects, including through massive declines in winter mountain snowpack—which are essential for sustaining rivers and reservoirs—and decreased soil moisture levels.[v] Researchers estimate that these drought effects will cost California farmers $2.2 billion and 17,100 jobs in 2014 alone.[vi]

Global average sea level has risen by eight inches since the 19th century, which is already wreaking havoc for Americans living in coastal areas. The beach at Chincoteague National Wildlife Refuge in Virginia has been washing away at a rate of 10 to 20 feet every year,[vii] while Miami Beach, Florida has resorted to building a complex pumping system at a cost of $400 million to tackle the increasingly common floods the city faces.[viii] The rising air and sea temperatures are also aiding the spread of harmful invasive species, enabling them to displace native species and disrupt entire ecosystems across the United States and its surrounding waters. For example, the lionfish, normally a tropical species, has spread as far north as the North Carolina coast, destroying parts of the fragile Atlantic reef system along the way.[ix] Similarly, global climate disruption is enabling dangerous infectious diseases—such as Valley Fever and Naegleria fowleri, the so-called “brain-eating amoeba”—to expand throughout the United States.[x]

Things will likely get worse, even if the global community does somehow make good on the agreement it reached at the 2009 United Nations climate summit in Copenhagen to limit global temperature rise to the artificial target of 3.6 degrees Fahrenheit. More and more, climate experts agree that meeting this target will not achieve the global community’s stated goal of avoiding “dangerous” global climate disruption; they argue that the world has passed too many tipping points, making dangerous global climate disruption essentially a foregone conclusion. Instead, meeting the Copenhagen target may be what is necessary for avoiding “very dangerous” global climate disruption.[xi] But, we are not even close to being on the right path for meeting that target. The international accounting firm PricewaterhouseCoopers recently reported that the world is instead on course to see average global temperatures rise by 7.2 degrees Fahrenheit by 2100. The report also projects that at this rate the world will have exhausted its “carbon budget”—that is, the maximum amount of carbon dioxide emissions it can release before the end of the century—by the year 2034.[xii]

To have any hope of averting the most catastrophic effects of global climate disruption, the United States will need to significantly “decarbonize” its power sector—that is, we will need to minimize the country’s reliance on fossil-fueled power generation so that each unit of electricity that is produced results in drastically lower carbon dioxide pollution emissions. The Environmental Protection Agency’s (EPA) pending national performance standards for both new and existing fossil-fueled power plants offers the most realistic opportunity for achieving this goal—especially in the face of continued Republican intransigence on enacting comprehensive legislation to address global climate disruption. Because fossil-fueled power plants are the largest single U.S. source of greenhouse emissions—accounting for nearly a third of all such emissions—these rules would go a long way toward promoting a greener economy.[xiii] Developing the technology to build a climate-friendly power sector would also create important economic opportunities, as the U.S.-based companies would be well positioned to export their innovations to markets in other countries working to tackle global climate disruption. By serving as a world leader, the United States would also enjoy greater diplomatic leverage to negotiate meaningful agreements with its international partners to ensure they are taking adequately ambitious steps to reduce their own greenhouse gas emissions.

As proposed, the EPA’s national performance standards for power plants would deliver significant public health and environmental benefits once fully implemented. The rules would reduce power plant emissions of carbon dioxide by about 730 million metric tonnes, which is roughly equivalent to the emissions produced by two-thirds of the country’s automobiles. As an important bonus, the agency also estimates that the rules would annually prevent up to 6,600 premature deaths, 3,300 non-fatal heart attacks, 150,000 asthma attacks in children, and 490,000 missed school and work days.[xiv] These critical public health co-benefits would be achieved as the rules would encourage greater reliance on clean energy sources, such as solar and wind, as a replacement for dirty coal-fired power plants, which are not only responsible for large amounts of greenhouse gas emissions, but also other air pollutants—including ozone and particulate matter—that are harmful to human health.

What’s the Holdup?

The EPA’s pending national performance standards to limit greenhouse gas emissions from fossil-fueled power plants have been met with intense opposition from a wide variety of business groups, including the coal mining industry and much of the power sector. These groups have already launched a series of specious lawsuits aimed at blocking the pending rules, despite the fact that longstanding administrative law principles generally forbid such legal challenges until after a rule has been finalized.[xv] Although the cases have little chance of succeeding on the merits and are procedurally flawed, these suits nonetheless serve as an intimidation tactic that industry can deploy to discourage the EPA from working as expeditiously as possible on the rules.

These industry groups have also worked with allied conservative think tanks and other outside influence groups to push anti-regulatory Members of Congress to oppose the rules. Their efforts have been rewarded with a series of bills that would block the specific rules or otherwise prevent the EPA from taking any actions to limit greenhouse gas emissions from power plants and other industrial sources.[xvi] They have also succeeded in attaching “policy riders” to must-pass appropriations bills that would prohibit the EPA from using any appropriated funds to support development of the pending national performance standards.[xvii] While many of these bills and policy riders have passed the Republican-controlled House of Representatives, so far none have cleared the Senate. Beyond these legislative actions, anti-regulatory Members of Congress have held several hearings aimed at undermining support for the EPA’s greenhouse gas rules. These hearings have provided these members and industry opponents with high profile opportunities to cite and recite their same fallacious talking points against the rules: the EPA lacks the legal authority to issue them; the rules would not make any meaningful contribution toward limiting greenhouse gases or yield any other public health or environmental benefits; and global climate disruption is a hoax.[xviii] Business groups and their conservative allies have also sought to block meaningful action by pushing a years-long campaign aimed at sowing doubt among the American public about whether global climate disruption is real or whether it is caused by human activities.

While the Obama Administration has publicly committed to completing these rules as expeditiously as possible, the efforts by industry groups and their conservative allies to make the EPA’s national performance standards for fossil-fueled power plants controversial appears to be having some effect. For example, the Obama Administration just agreed to extend the already abnormally long comment period for the rule on existing power plants by an additional 45 days. The Administration claims that despite this delay it still expects to complete the rule by its self-imposed deadline of June 2015.[xix] It remains to be seen whether the Administration’s claim will hold true.

What Should the Rules Do?

For future power plants, the EPA should issue a rule that sets ambitious limits on greenhouse gas emissions for coal- and natural gas-fired power plants, respectively. The EPA’s proposal would restrict coal-fired power plants’ emissions to 1100 pounds of carbon dioxide per megawatt-hour and gas-fired power plants to 1000 pounds per megawatt-hour. The standard for gas-fired plants should be stronger, though; in the final rule, the EPA should lower the limit to no more than 800 pounds per megawatt-hour.

For existing power plants, the EPA is developing a program under the Clean Air Act that would require states to develop implementation plans for meeting emissions targets, each of which are tailored to the state’s unique circumstances. The program would grant states significant flexibility in designing their implementation plans, such as developing cap-and-trade programs with fellow states and relying on “outside the fence” approaches for cutting emissions including energy efficiency programs and switching to renewable energy sources. This flexibility will ensure that states’ implementation plans are cost-effective and feasible. As proposed, the EPA’s program for existing power plants seeks to cut their greenhouse gas emission by 30 percent below 2005 emissions levels by the year 2030. Given all the flexibility the program would afford to states, the EPA should finalize a rule that sets even more ambitious reduction targets, though. For example, an analysis by the Natural Resources Defense Council finds that a rule similar to the EPA’s proposal could reduce greenhouse gas emissions by 35 percent below 2005 emissions levels by 2020 without imposing excessive costs.[xx] In addition, the final rule should maintain ambitious interim targets leading up to the year 2030 to ensure that the states’ plans are making adequate progress.

What’s Next?

Update: In August—a few months behind schedule—the EPA released the final future power plants rule and the final existing power plants rule, along with its proposed federal implementation plan. (Once finalized, the federal implementation plan will be available for the EPA to use for those states that fail to submit an adequate state implementation plan, and it will provide guidance to states to help them design their own state implementation plans.)

In both cases, the agency instituted several changes for both final rules from what was originally proposed. For the future power plants rule, the EPA weakened somewhat the maximum pollution level for future coal-fired power plants to 1400 pounds of carbon dioxide per megawatt-hour—though, this level appears to still be low enough to require some degree of partial carbon capture and sequestration. The EPA made several key changes to the final existing power plants rule. First, it strengthened the rule’s overall goal, calling for a 32-percent reduction of greenhouse gas emissions by 2030 as compared to 2005 emission levels. Second, the agency eliminated demand-side energy efficiency as one of the rule’s original four building blocks, though states would still be free to use demand-side energy efficiency as a compliance option. Third, the final rule recalculates most states’ individual greenhouse gas reduction goals, generally assigning greater greenhouse gas reduction obligations for states that have historically done little to reduce their emission and easing the obligations for states that have already made significant progress on decarbonizing their power sector. Fourth, and perhaps most significantly for implementation, the final rule delays states’ obligation to submit a final implementation plan by two years to September 2018. In effect, this change will punt key implementation steps to the next presidential administration.

Once the final rules are published in the Federal Register, industry groups and conservative states opposed to the rules will likely challenge them in court. One key early issue is whether the reviewing court will stay implementation of the rules until all of the legal challenges have been resolved—a process that would take several years. If a stay is granted, this would serve to delay implementation even further, increasing the likelihood that the rules could be blocked by a future presidential administration or Congress that is hostile to action on climate change. The advantage of the change in the final existing power plant rule to delay submission of state implementation plans by two years is that it reduces the likelihood that a stay would be granted. In addition, the rules are under threat from conservative members of Congress, who are considering a variety of legislative measures—including appropriations riders, standalone bills, and Congressional Review Act resolutions of disapproval—aimed at blocking this rule.

For a comprehensive examination of the rules and future implementation issues, see CPR’s August 2015 Issue Alert The Clean Power Plan: Issues to Watch.

Update 2: Following publication of the final rule for existing power plants, industry groups and anti-clean energy states wasted little time in bringing a court challenge.  The Court of Appeals for the District of Columbia Circuit, which has jurisdiction over the case, rejected the industries groups’ and states’ request to stay the rule, but instead set an expedited schedule for hearing the challenge.  In a highly extraordinary and unprecedented move, the rule’s challengers sought a stay request at the U.S. Supreme Court.  To the shock of nearly all observers, the Court, by a politically-divided 5-4 vote, granted the stay request without explanation, potentially setting a dangerous precedent for premature interventions by the Supreme Court in future cases involving judicial challenges of regulations.  Following the Court’s decision, legal observers have debated what significance it holds for a final decision on the rule’s merits.  Many predict that the D.C. Circuit will uphold much if not all of the rule for existing power plants, given that the panel there is seen as favorable to environmental issues.  In contrast, they predict that the conservative majority in the U.S. Supreme Court would spell doom for the final rule.  The recent unexpected death of Supreme Court justice Antonin Scalia, viewed by many as a likely foe of the rule once its reached the Court for review, has once again thrown into doubt the future of the EPA’s regulation to control limit carbon dioxide emissions from existing power plants.

Next: Preventive controls for processed foods

 

 

[i] Paul Heltzel, Earth Just Had the Warmest September on Record, Discovery News, Oct. 15, 2014, http://news.discovery.com/earth/global-warming/earth-just-had-the-warmest-september-on-record-141015.htm (last visited Oct. 31, 2014).

[ii] CO2 Hits Climate Milestone, Climate Central, May 1, 2014, http://www.climatecentral.org/gallery/graphics/co2-hits-climate-milestone (last visited Oct. 31, 2014).

[iii] Doyle Rice, Climate Change Increasing Massive Wildfires in West, USA Today, Apr. 19, 2014, available at http://www.usatoday.com/story/weather/2014/04/19/western-wildfires-climate-change/7874841/.

[iv] Peter Howard, Flammable Planet: Wildfires and the Social Cost of Carbon (Carbon Cost Project, 2014), available at http://costofcarbon.org/files/Flammable_Planet__Wildfires_and_Social_Cost_of_Carbon.pdf.

[v] Justin Gillis, Science Linking Drought to Global Warming Remains Matter of Dispute, N.Y. Times, Feb. 17, 2014, at A11, available at http://www.nytimes.com/2014/02/17/science/some-scientists-disagree-with-presidents-linking-drought-to-warming.html.

[vi] Richard Howitt et al., Economic Analysis of the 2014 Drought for California Agriculture (Ctr. Watershed Sci’s, U. Cal., Davis, U. Cal. Agric. Issues Ctr., ERA Econ., Davis, Cal. 2014), available at http://www.circleofblue.org/waternews/wp-content/uploads/2014/07/Economic_Impact_of_the_2014_California_Water_Drought_0.pdf.

[vii] Ryan McNeill, Deborah J. Nelson, & Duff Wilson, As Seas Rise, A Slow-Motion Disaster Gnaws at U.S. Shores, Reuters, Sept. 4, 2014, http://news.yahoo.com/special-report-seas-rise-slow-motion-disaster-gnaws-190730455.html (last visited Oct. 31, 2014).

[viii] Michael J. Mishak, Rising Sea Levels Threaten South Florida, Associated Press, June 7, 2014, http://www.pbs.org/newshour/rundown/south-florida-especially-vulnerable-rising-sea-levels/ (last visited Oct. 31, 2014).

[ix] Ben Sherman, Study Finds Warming Atlantic Temperatures Could Increase Range of Invasive Species, RedOrbit, http://www.redorbit.com/news/science/1113235228/invasive-species-in-the-warming-atlantic-091614/ (last visited Oct. 31, 2014).

[x] Elizabeth Weise, Diseases on the Move Because of Climate Change, USA Today, Dec. 5, 2013, available at http://www.usatoday.com/story/news/nation/2013/12/04/climate-change-disease/2623863/.

[xi] Bill McKibben, Global Warming's Terrifying New Math, Rolling Stone, July 19, 2012, available at http://www.rollingstone.com/politics/news/global-warmings-terrifying-new-math-20120719; David Spratt, Dangerous Climate Change: Myths and Reality (Part 1), Climate Code Red, Aug. 22, 2014, http://www.climatecodered.org/2014/08/dangerous-climate-change-myths-and.html (last visited Oct. 31, 2014).

[xii] PricewaterhouseCoopers, Two Degrees of Separation: Ambition and Reality, Low Carbon Economy Index 2014, available at http://www.pwc.co.uk/assets/pdf/low-carbon-economy-index-2014.pdf.

[xiii] U.S. Envtl. Protection Agency, Sources of Greenhouse Gas Emissions, http://www.epa.gov/climatechange/ghgemissions/sources.html (last visited Oct. 31, 2014).

[xiv] U.S. Envtl. Protection Agency, Fact Sheet: Clean Power Plan, By the Numbers: Cutting Carbon Pollution from Power Plants (2014), available at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602fs-important-numbers-clean-power-plan.pdf.

[xv] Court Dismisses Power Company Challenges To EPA's Proposed Carbon Emissions Limit, Bloomberg BNA Environment Reporter, Dec. 14, 2012, http://www.bna.com/court-dismisses-power-n17179871420/ (last visited Oct. 31, 2014).

[xvi] See, e.g., Matthew Daly, House Passes Bill to Block Obama Climate Plan, Associated Press, Mar. 6, 2014, http://bigstory.ap.org/article/house-gop-moves-block-epa-rules-power-plants (last visited Oct. 31, 2014).

[xvii] See, e.g.

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