The Trump administration’s new Affordable Clean Energy rule is a promising move toward refocusing the Environmental Protection Agency on sound science, transparency, and the rule of law, rather than its history of bureaucratic overreach and party politics.
In August 2015, when the Obama administration rolled out its Clean Power Plan, the New York Times editorial board described the move as “unquestionably the most important step the administration has taken in the fight against climate change.”
Amidst the backslapping celebration of shutting down “hundreds of coal plants,” the Obama administration failed to mention that this overreaching rule was built on shaky legal ground.
Just six months later the United States Supreme Court stopped the rule in its tracks. The justices were not only sympathetic to the claims from numerous states and environmental agencies that described how they would suffer “irreparable injury” without intervention, but were also convinced that the novel approach to the U.S. Environmental Protection Agency’s authority under the Clean Air Act was tenuous at best.
Despite world-renowned fanfare that reached its pinnacle at the signing of the Paris Climate Accord, the Clean Power Plan was never implemented. President Obama’s signature climate change rule was an epic failure by their very own measurements. It achieved a total number of zero — that’s right, zero-emission reductions.
While EPA does not address in its ACE rule the legitimate legal questions about EPA’s underlying authority to regulate stationary sources in this manner, the reality is that the Trump administration will be the first to ever issue a greenhouse gas emission standard for our nation’s fleet of coal-fired and natural gas-fired power plants that has a chance of actually being implemented. Referred to as the Affordable Clean Energy or ACE rule, the Trump EPA lays out a plan for states to make realistic assessments and upgrade their power plants with the cleanest technologies so they will operate in a more environmentally friendly way.
One would think that such a move would be grounds for celebration by anyone who truly cares about the environment or fighting climate change. The 2015 New York Times editorial board admitted as such. Unfortunately, this administration is unlikely to garner any praise from members of the so-called environmental community.
That’s because the Clean Power Plan was never about appropriately administering the rule of law to advance important missions like protecting human health or the environment. It was about establishing a template for control, so that future Democrat administrations could use the regulatory scales to force through regulation what they could not get through Congress.
Other industries understood this which is why it wasn’t just coal- or natural gas-affiliated entities that pushed against the CPP. It was a broad and diverse coalition of 27 states, environmental agencies, manufacturers, union workers, low-income and minority representatives, small businesses and a few honest environmentalists who were dismayed at how ineffective the Obama climate effort actually was.
Unfortunately for coal, they were target number one. Eight years of the Obama government working against them resulted in at least 83,000 lost coal mining jobs and 400 mines being shut down. It also decimated entire regions and states like West Virginia where once bustling and proud coal communities were relegated to a breeding ground for unemployment and opioid abuse. The coal industry continues to struggle against hangover effects of the last administration, but President Trump has gone above and beyond in delivering on his promise to work to save them.
The final ACE rule is an important first step in recalibrating the current and future regulatory role of the U.S. Environmental Protection Agency. It has made clear that the hysteria-laden political ideology used by the last administration to drastically expand the role of the agency is being replaced by a reinstitution of its true purpose and a respect for the rule of law that was built on the concept of cooperative, not coercive, federalism.
While ACE addresses one of the most egregious legal fallacies produced by the last administration, much work remains. EPA must now take head-on a threshold question the last administration largely ignored. Namely, is it legally acceptable to characterize U.S. emissions as a “significant” contributor to global concentrations that will be driven up by growing economies in the developing world? For context, if U.S. power plant carbon dioxide emissions were scaled down to zero by 2030, it would only reduce the global concentration by 0.7 percent in 2050.
This very issue will no doubt be the subject of a sophisticated, high-stakes legal debate in the future. Common sense would suggest that 0.7 percent of anything is better defined as insignificant than any tortured effort to suggest otherwise.