Clean power plan 2.0 better than original, but only Congress can solve ‘wicked problems’
The EPA’s decision this week to update the Obama-era Clean Power Plan (CPP) is a welcome and necessary move to curtail a measure that would have essentially nationalized the electricity sector of the U.S. economy. But it gets the country no closer to a comprehensive strategy to combat climate change.
Why? Because like all problems for which the solution requires tens of millions of people to change their mindsets and behavior, solutions beget unanticipated new problems, often infinitum. And, any attempt by the executive branch at regulation can be challenged in court by opposing forces with very deep pockets or simply changed by a future administration.
The root cause of the congressional impasse on climate policy actually predates the rise of the rigid left-right partisanship of the last 20 years. The fact is that the modern administrative state has seen better days; compared to when it mutated into its current form a half century ago, it can no longer properly balance the health and economic trade-offs that surround environmental regulation.
Perhaps as a result of the administrative state’s increasing age and ineffectiveness, environmental policies passed by Congress in the 1970s and enhanced by executive agencies in the 1980s are getting increased scrutiny from the U.S. Supreme Court. And the potential for overturning the deference now afforded to federal agencies may increase if D.C. Circuit Court Judge Brett Kavanagh ascends to the Supreme Court.
The new regulations mandate that EPA emission reduction regulations must apply only to equipment and activities “within the fence-line” of existing power plants. The new proposal will also give states wide latitude to write their own regulations for coal plants—something the previous administration never allowed. The new plan will also do little to further emissions reductions and instead simply plateau the recent fall in power plant emissions.
But industries and energy consumers shouldn’t plan their victory lap just yet. The 2007 Supreme Court ruling Massachusetts vs. EPA that found greenhouse gases are air pollutants under the Clean Air Act will remain in force as “settled law.” This will put the Trump-era regulations in legal jeopardy if the high court finds them insufficiently effective at combating climate change.
What’s more, all the legal and regulatory tools available for a future administration to devise an even more intrusive regulatory regime will still be in place after Trump leaves office.
Considering how volatile and animated the electorate has become over the past decade, the threat of more aggressive administrative action from an Elizabeth Warren or Bernie Sanders White House should at least give some of the more imaginative – and politically honest – Republicans pause. This rabbit-hole of failed climate regulation, however, could be ended with Congressional action.
With the failure of cap-and-trade legislation in Congress during the Obama years and the struggles of carbon markets in places like California and the European Union, it’s increasingly likely that a carbon tax is the best remaining policy option to finally give U.S. industry some certainty. It would also likely have bipartisan support.
Before agreeing to collaborate, critics of the Trump administration’s proposal must come to terms with the legal weaknesses of the original plan. Likewise, critics of the original Obama-era proposal must come to terms with the reality of climate change and the increased action that businesses and communities are already taking across the United States.
If such realizations were to come to pass (hope springs eternal), a revenue-neutral carbon tax – in conjunction with the ending of future greenhouse gas regulation and a roll-back in the scope of landmark environmental legislation like parts of the Clean Air Act – could possibly gain support amongst Capitol Hill Republicans.
Such actions could address climate change more meaningfully, at a lower cost to consumers and without expanding government. Let’s use the next few years wisely before a “wicked problem” becomes even worse.
Image credit: DarwelShots
