'National Security' Coal Bailout Collapses

by Daniel Farber | October 17, 2018

Cross-posted from LegalPlanet.

In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of modern governance.

The Trump plan, which originated with a coal industry magnate and major Trump donor, would have required an extraordinary stretch of the statutes in question. The plan was to use one or more of a trio of emergency provisions. The first is a section of the Federal Power Act that authorizes the Department of Energy to order generators to run during wars or other emergencies, including grid emergencies. Both DOE precedent and a D.C. Circuit case say this doesn't apply to fuel supply issues. The second statute, which traces back to the Korean War, allows the president to prioritize performance of defense contracts over civilian contracts and allocate materials, services, and facilities to promote the national defense. But it doesn't seem to provide authority to force companies to buy these items. It also contains loan and subsidy provisions, but they seem to be limited to $50 million in any one year. The final statute, ...

Trump's War on Progressive, Competitive Energy Markets

by Hannah Wiseman | June 13, 2018
It is widely recognized that President Trump has pushed an aggressive anti-regulatory agenda on the environmental front, but this agenda often hides a second, anti-free-market battle waged in the energy context. For decades, Congress and the Federal Energy Regulatory Commission (FERC) have worked to move the country toward competitive markets in the sale of wholesale energy – energy that generators sell to utilities, or which utilities sell to each other, and then to retail customers. Congress and FERC believed that ...

Coal and Nuclear Plant Bailout Would Be Unjustified Use of DOE's Emergency Authority

by Joel Eisen | March 30, 2018
It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants.  This January, the ...

What's Wrong with Juliana (and What's Right?)

Farber | Jan 22, 2019 | Climate Change

Regulatory Review in Anti-Regulatory Times: Congress

Farber | Jan 17, 2019 | Regulatory Policy

Using Emergency Powers to Fight Climate Change

Farber | Jan 14, 2019 | Climate Change

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