Court challenges to the Environmental Protection Agency’s Clean Power Plan — the nation’s first limits on greenhouse gas emissions from power plants — will be heard in the D.C. Circuit Court of Appeals next week. At stake are not just the EPA’s regulations to protect public health and reduce greenhouse gas emissions, but more broadly America’s strategy for responding to the threat of climate change.
Scientific evidence continues to mount about the seriousness of the risks posed by climate change. We are coming off the hottest July ever recorded. The prospect of further warming leaves us exposed to rising sea levels, increased intensity and frequency of hurricanes, and changed rainfall patterns resulting in more floods, droughts, wildfires, and lost farm productivity.
The challengers to the Clean Power Plan — a well-organized set of coal companies, coal-dependent electric utilities, and some states led by climate change skeptics — have argued that the Clean Power Plan tramples on state regulatory authority and would transform the EPA into a “central planning authority for the power sector.” Nothing could be further from the truth.
As former commissioner of Connecticut’s Department of Energy and Environmental Protection and a law professor at Yale, I understand that energy and environmental policies are deeply intertwined and that there is a fine balance between state and federal authority that must be maintained. But, the Clean Power Plan respects state sovereignty, offers governors broad flexibility over how to meet the federal greenhouse gas emissions standards, and encourages states to develop their own mix of cost-effective strategies to reduce emissions based on local priorities and needs — including programs to enhance energy efficiency, promote renewable electricity, and gradually shift toward less-carbon intensive power generation.
The Clean Power Plan would require the nation’s existing fossil fuel burning power plants to cut their carbon dioxide emissions by almost one-third from 2005 levels over the next 14 years — a goal that we are well on the way to meeting in many parts of the country. Of course, these regulations will affect America’s future electricity mix, just as past Clean Air Act standards for the power sector have done. But the Clean Power Plan provides states and utilities with a range of options and ample time to evolve toward a cleaner energy future in a measured and cost-effective way. Indeed, the central feature of the Clean Power Plan is that it gives each state the flexibility to design its own emissions reduction package in consultation with its power companies and other stakeholders.
The Clean Power Plan follows a venerable tradition of “cooperative federalism” under which states are given broad latitude to determine how they will implement national pollution standards. In fact, EPA’s Cross-State Air Pollution Rule, which required states to address smog and particulate pollution, established a similar regulatory system. Like the Clean Power Plan, those regulations offered states and utilities substantial flexibility to craft their own specific pollution control strategies. In 2014, the Supreme Court upheld the Cross-State Air Pollution Rule, calling it a “permissible, workable, and equitable interpretation” of the requirements of the Clean Air Act. This precedent should guide the D.C. Circuit Court’s thinking about the Clean Power Plan.
Many states are, moreover, already taking actions that will help to meet the Clean Power Plan target. Connecticut, for example, is one of nine states already using an emissions allowance trading program to reduce power plant emissions — while generating funds that support ratepayer investments in clean energy. In the first five years of the Regional Greenhouse Gas Initiative, Connecticut raised nearly $100 million, which has been reinvested in innovative programs, including energy efficiency incentives benefiting over 39,000 households and 4,000 businesses and a “Green Bank” that leverages private capital to finance expanded investment in a suite of efficiency programs, rooftop solar arrays, microgrids, and other clean energy infrastructure projects.
In sum, the Clean Power Plan is neither an unprecedented intrusion into state energy planning nor a radical departure from past pollution control measures. It offers a carefully crafted and legally appropriate pathway to a clean energy future. More will need to be done to “decarbonize” our economy in the coming decades. But the EPA regulations on power plant greenhouse gas emissions are a good first step.