Clean Power Plan Stalled, Green Energy Still Viable

In a five-to-four vote, the U.S. Supreme Court derailed, at least temporarily, President Obama's Clean Power Plan. Regulatory uncertainty ensues.

In a five-to-four vote, the U.S. Supreme Court derailed, at least temporarily, President Obama’s Clean Power Plan. Regulatory uncertainty ensues.

by James A. Bacon

The U.S. Supreme Court has halted implementation of the Clean Power Plan until challenges to its constitutionality can be resolved, creating uncertainty at the state level, including here in Virginia, on how to proceed.

The high court gave no explanation for its stay, but foes of the plan, which would compel electric power companies to make major cuts to CO2 emissions by 2030, argued that it would “force massive … changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power,” which could not be reversed if it were later declared unconstitutional.

As a practical matter, the decision will delay implementation of the plan until the next administration. A federal appeals court is not expected to hear the case until June. If the case were appealed again, the Supreme Court likely could not render a decision until 2017, reports the Washington Post. While a Democratic president probably would press on with the plan, a Republican president likely would reverse it even if the Supreme Court ruled it to be constitutional.

The stay could create a dilemma for the McAuliffe administration, which supports the plan and has been working to implement it. Under the Clean Power Plan, Virginia’s Department of Environmental Quality is required to submit a state plan by June 2016, with the possibility of an extension until June 2017, or June 2018 if it adopts a multistate plan.

The response here in Virginia is mixed.

“Today’s unfortunate decision by the Supreme Court hits pause on the country’s strongest action to lower harmful carbon pollution, but it won’t stop the massive shift to cleaner, cheaper energy already underway in the Southeast and across the nation,” says Frank Rambo, senior Attorney and clean energy leader for the Southern Environmental Law Center. “The goals of the Clean Power Plan reflect this energy shift: we’re embracing cleaner energy options that would be happening with or without this plan. ”

“This comes as no real surprise,” says Dominion Virginia Power spokesman David Botkins. “It continues to be a legal and policy cloud of uncertainty for the country and the energy industry.” But Dominion will continue to move forward with the Clean Power Plan. “We will work constructively with the Commonwealth and other stakeholders on a compliance plan that has our customers as the first priority, ensures reliability, and maintains a diverse mix of electric generation.  We continue to prepare for implementation (of CPP) unless we are notified that Virginia is delaying or halting their development process.”

What does this mean for green energy in Virginia?

While a stay of the Clean Power Plan will slow the transition of Virginia’s electric grid to cleaner energy sources, it will not halt it. Dominion still is planning to shut down two aging, coal-fired units at its Yorktown Power Station, and its long-term investment plan calls for more gas-fired electric power, which emits less CO2 per unit of electricity than coal, and more solar. Indeed, Dominion announced plans two days ago to partner in a 20 megawatt solar facility in Chesapeake that will produce the energy equivalent needed to power 5,000 homes. (Substantial reliance on offshore wind energy still seems to be a distant prospect.)

The economics of wind and solar continue to improve, and many energy consumers — ranging from Amazon Web Services to the Norfolk Naval Station here in Virginia — are willing to pay a premium for renewable energy. Meanwhile, expansion of the electric transmission grid may make it realistic for Virginia power companies to import cheap wind-powered electricity from the Midwest.

Update: I have updated the Dominion quote to reflect company’s assertion that it will continue to move forward with the Clean Power Plan.

Update: A statement from Governor Terry McAuliffe: “Over the last several months my administration has been working with a diverse group of Virginia stakeholders that includes members of the environmental, business, and energy communities to develop a strong, viable path forward to comply with the Clean Power Plan. As this court case moves forward, we will stay on course and continue to develop the elements for a Virginia plan to reduce carbon emissions and stimulate our clean energy economy.”

A quote from John Shepelwich, spokesman for Appalachian Power Co.:  “The Supreme Court’s decision confirms that the legal justification for the Clean Power Plan should be examined by the courts before scarce state and private resources are used to develop state plans. The accelerated schedule for briefing and argument in the lower court assures that the case will be heard promptly.”

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34 responses to “Clean Power Plan Stalled, Green Energy Still Viable

  1. Technical correction is that September 2016 would have been the due date for the first action of a draft state plan, with 2-yr extension likely for most states.

    There was no need to rush, but in Virginia, with one-term Govs, the McAuliffe admin may have wanted to use the opportunity to shape future policy.

    However, it may be a blessing in disguise for Virginia and Gov McAuliffe. The CPP was blowing into a firestorm. In my view, the liberal side was basically asking for Gov McAuliffe to declare a ban on future fossil fuel power plants in Virginia, which is not my vision for Virginia, and probably not Gov. McAuliffe’s vision either. That extreme interpretation is also not what the CPP was calling for.

    Therefore it calls questions into how we can ask the states to take control of such an emotional issue. I agree with SCOTUS it is a massive organizational change in management of the utilities, without much time to re-organize our government structures to cope with the magnitude of the overall shift. Yet even EPA spun the plan essentially as a baby step that no reasonable person could possibly object to.

  2. As I said a couple of days ago in comments on your Domenech post: “The CPP may be wrong-headed, even unconstitutional, but it may have little effect when all is said and done, because it aligns with what is happening anyway. Greater generation efficiencies and cheap natural gas and advances in renewable resource generation, as well as other medical concerns with coal-burning, e.g., mercury emissions, are taking the electric industry already to where the CPP would have it go.”

    I hope this is right, and you are right, and in the end Dominion maintains the momentum needed to make us right. And TBill is right, it may prove to be a blessing in disguise politically. [Sorry, sounding like a line from the Mikado, here.]

    Nevertheless, brace yourself for Dominion’s next IRP and the coming Virginia debate over NA3.

    • I agree totally that Virginia seems to be moving in the right direction. However, I share EPA’s frustration that maybe 20 other states would choose to remain coal-fired-power based probably even if it costs more. Yes and I am bracing for the NA3 sales job (but they’ll need to take out the part of the speech about making a profit by selling cap and trade credits in CPP).

  3. The Supreme Court’s decision to issue a stay is a very uncommon action but, in this case, an essential decision to anyone who cares about the government following the law.

    One of the main reasons the Court did this was the arrogance of the Obama EPA. The last time the Supreme Court overruled an EPA action, the EPA head, Gina McCarthy, gleefully bragged to the media that since the Court did not issue a stay while the litigation was pending, the EPA had forced compliance with regulations later found to be unlawful. Simply put, the EPA bragged that they got away with breaking the law.

    Briefs written by the States seeking the stay recited the EPA’s bragging claims and made it obvious that if no stay was entered, any future ruling would have been useless, because the EPA would speed through its plans before any final ruling was reached.

    No matter what your position is on the CPP, if you have any honesty at all, you have to be cheered by the Supreme Court action.

    Remember, Obama will not be president forever. If a President Trump or Cruz commits illegal acts knowing that a ruling to stop them could take years, you will be happy to know that the Supreme Court has the power (and finally the will) to stop such acts until the Court has issued a decision as to the legality of the government’s actions.

    • John BR – well stated. The United States Constitution is based on the separation of power. It is designed to limit the ability of both the President and Congress to take action unless they can come up with a position acceptable to both. There’s nothing in the Constitution that says if compromise cannot be reached after two years, the President can enact legislation. And clearly Gina McCarthy shooting her middle finger at the Supreme Court didn’t her any good.

      Compromise happens. McAuliffe has compromised on gun control/concealed carry and on I-66 Inside the Beltway with the GOP in the General Assembly. Both sides gave up. And many think the Governor did substantially. But he can claim movement on several thorny issues.

      Meanwhile, there is no reason alternative energy investments cannot be made if they make economic sense.

      Interestingly, the Greater Washington TPB (hardly a group controlled by the right) has decided to recommend greenhouse gas reduction strategies that also provide other tangible benefits, such as reducing particulates and traffic congestion.

    • John, I think it is not difficult to conclude as you have done that Ms. McCarthy’s statements may have influenced the Court in considering the stay. I would disagree only to the extent that I doubt this was the main factor for the Court to take this unusual action. In my view, more important was the EPA’s “discovery” of heretofore unsuspected authority residing in Section 111(d) of the Clean Air Act, a very obscure provision that had only been used by the agency a handful of times in 40 years and never for anything as sweeping as the CPP. I expect the Court wanted to stop things until the question whether this provision really supports the comprehensive and all-pervasive activities the CPP would require could be more fully addressed.

      But, having an arrogant regulator to stifle certainly didn’t help the EPA’s side of the argument,

  4. BR’s recent posting on Domenech’s comments was a propos. And also a propos, LarryG said,
    “I look back on these things that today most of us take for granted and would not support repeal of -…. even though at the time – each one was vociferously fought by industry and many conservatives … and each time – the opponents claimed the EPA “had gone too far”. So this is going to drag on … twist in the wind – lurch into the next POTUS watch – and we’ll see what happens.”
    “In the meantime – wind and solar and demand-side energy efficiency technology is going to advance and going to affect the utilities business models… that rely primarily on selling more electricity for their profits – and it appears to me to be a Kodak type business dilemma… but none of this really matters to the opponents of the CPP – it’s become part of a highly charged partisan issue about Executive Orders and the powers and limits of power of the POTUS – relative to Congress.”

    Larry, I agree, opposing the CPP is part of a highly partisan political fight over executive power, but that’s not going to affect the fact that, regardless, we have to adjust to economic forces radically re-shaping the Grid . I have two concerns, now:
    First, delay of the CPP could breed a whipsaw effect that will hurt Virginia if the CPP is implemented at some later date. The very fact that Dominion’s new generation is going ahead anyway means that the baseline emissions for judging further emissions improvements in Virginia will be that much lower, that much harder, that much more expensive, to achieve — unless the current baseline is retained or the amount of improvement demanded is lowered.
    Second, delay of the CPP makes regional cooperation more uncertain. Regardless of the politics, the CPP compelled regional cooperation by all the State utility commissions in PJM and made it possible for PJM to think about what sort of transmission was needed to accommodate the new generation profile the CPP would demand across the mid-Atlantic/Midwest. Now that impetus is gone; but the need for cooperation is not. PJM doesn’t plan generation; it responds to the generation that’s planned and built by others. Yet it has to build the wire “roads” to carry that electricity to market and to consumers. Hopefully, the PJM utilities (with their Commissions’ approval) will do what they need to do to modernize their profiles anyway, with an eye toward emissions. Because the politics and the concerns driving the CPP aren’t going away either.

    Finally, I want to take issue with your reference to “the utilities business models … that rely primarily on selling more electricity for their profits.” Sales volume DOES matter to an electric utility but mainly in the short run. Every few months or years utility rates are re-set to limit the utility’s profit margin; the only way it can make more of a profit is by selling more electricity than the sales reflected in its most recent profit-margin adjustment by the Commission — until the next rate adjustment, that is. It’s true, the utility may talk up a history of steadily growing demand when it goes to the capital markets to raise funds for new construction; but, historically, too much growth can become a serious problem for a utility in those markets. Utilities can adjust to less growth (or even shrinkage) in electricity demand if they are allowed to charge appropriately for the backup/integrative capabilities of the Grid, and if they are compensated for achieving more efficient use of the facilities they have already built (a goal of the Commission as well as Dominion). I disagree that Dominion is “primarily” motivated to sell more electricity; it is “primarily” motivated to ensure more dependence upon (and expansion of and compensation for) its part of the Grid.

    • Acbar, I want to respond to a few of your points. First, with regard to whether delaying implementation of the CPP might make compliance more difficult. It is conceivable, but not inevitable, that this would be the case. The Court may ultimately find the current program to be legal in which case compliance would not be any different, in my view, because the initial date to hit a target is 2022 and the final target is 2030.

      The Court may judge this set of carbon regulations illegal, In that case, another EPA will issue another set of regulations; whether they are more or less difficult to comply with is unknowable at this time. But, in the view of many, while this question is being resolved in the courts, in the real world, more gas is replacing coal in the generation mix, solar and wind are being added and the rate of deposition of carbon dioxide into the atmosphere, at least in Virginia, is slowing. So, it may be easier because of these other activities that Larry and others have noted to meet any future regulation.

      Another point I want to clarify is that PJM does not, as you state, “build the wire ‘roads’ to carry that electricity….” PJM does not build anything in actuality. It plans and designs the grid that it manages to determine where new projects need to go, but it is up to utilities and other market participants to obtain permission to build those highways. In Virginia, the state regulator that grants or denies that permission is the SCC.

      Lastly, while your observation that every few years rates are reset to limit the utility’s profit margin is true most everywhere except in Virginia. Here, the General Assembly enacted a measure last year that precluded review of the electric utilities’ base rates for 5 years. We also have a unique regime that allows Apco and Vepco to recover, in separate rate proceedings, the costs for new generation construction, additions to their transmission plant, costs for environmental compliance, and other categories of costs. These are in addition to the base rates that are have not been subject to normal regulatory review in this century.

      • You are quite right on all counts; afraid I skipped over the nuances and more with my original comment.

        Yes, it is true PJM does not build transmission, or own and maintain it, but PJM is deeply involved in planning it (coordinating the views of multiple transmission owners and its own concerns), and PJM carries much of the water when it comes to ‘proof’ to regulators that reliability demands such-and-such a connection be built. Yes, it is true that the changeover in mode of generation is happening regardless, and that is the main point I was also trying to make — the ‘whipsaw’ is more a concern that when the litigation is over, and assuming the EPA rule goes ahead in some form but not the current form, Virginia doesn’t end up being penalized (relative to other pro-coal states) by its own progressiveness through resetting of the baseline at a higher level.

        As for the rate-setting, there is simply no way to defend the GA’s deal with Dominion except as a gamble on both sides, plus the belief that compromising J&R rates for the sake of rate stability has its own virtue. The underlying point is that growth in retail sales volume is not the only, or even the major, goal of a utility’s holding company’s finance management, and should not be seen as the sole driver of utility strategy. A more careful answer must concede, “It’s complicated.”

        • Understood. It is a valid concern that Virginia not somehow be penalized as an “early adopter.”

          With its parent company, Dominion Resources, relatively recent deals for the Cove Point LNG facility, the ACP project and now this gas company in Utah, they seem to be pivoting to a gas company that incidentally sells electricity. They are betting heavily on nat gas as a preferred compliance strategy not only for Virginia, but nationwide, it seems.

  5. @Acbar – how else can the utility make more money other than selling more electricity?

    re: executive orders –

    legislation can render such things moot – LIKE the legislation that prevented moving detainees from GITMO to US soil.

    Executive orders are NOT uncommon – to begin with – all POTUS issue a crap load of them but as this Congress gridlocked and was unable to pass legislation at all – either pro or con for a lot of issues – it ALSO was unable to preempt any prospective executive orders and so they went to the SCOTUS to challenge.

    I don’t chalk that up to “over-reach” as much as I chalk it up to a failure of the Congress to deal with substantiative issues like immigration and health care to name two.

    and it’s ludicrous to talk about the EPA in the way the opponents are. If anyone has been around for more than a few years after the EPA was created in 1970 – they KNOW the battle royales that occurred when the EPA banned DDT, required auto mileage standards and got the lead out of gasoline… to portray the current issue as something more or different than typical EPA practices in the past … and the accompanying industry and conservative opposition to those regs is pretending something different about history.

    I don’t think this is any more constructive towards any kind of alternatives from the opponents that the other issues they also fail to deal with and choose instead to gridlock then try to blame others for their total inability to find A – as an ANY ALTERNATIVE PATH FORWARD – at all.. because the GOP itself cannot even agree with itself – look at the chasm between Trump and Cruz and the 3rd group.

    when you got folks who deny science and deny the realities of manmade pollution – no surprise they can’t agree.

    • Larry, Congress does not have to agree with the President. It does not have to pass legislation or allow the Executive to act as if legislation has passed. The system has a bias towards inaction that was purposely designed by the Founders and continued by the following generations. One can make a very strong argument that the 2010 and 2014 election results show that the American public wants a check on BHO. Sometimes, doing nothing is the American way.

      Look at FDR, he clearly wanted to take action to assist the Allies in 1940 & 41. But he knew the neither the American public nor Congress wanted to become involved in another European War. Churchill was fit to be tied. But FDR recognized correctly that his constitutional power was limited. BHO thinks he’s above the law and above the Constitution. SCOTUS reminded him today that he isn’t.

      • re: bias towards inaction –

        is that what the States are doing with their court challenge?

        didn’t Congress also go to court over the CO2 issue?

        I think what you are claiming – is an excuse, especially when we know there is a problem with something – like we know with immigration and the “bias” to inaction is a failure to agree on a path forward – WHEN we KNOW that no action forward HAS CONSEQUENCES.

        there is no way to defend inaction when inaction itself results in harm also… anything to the contrary is spinning…

  6. TMT – you are correct. But not agreeing with the POTUS does not give you a “DO nothing but blame others” card.

    doing “nothing” is NOT the American way ESPECIALLY when there are OBVIOUS issues that need to be addressed.

    ” I don’t like what you propose so I refuse to do anything”.

    • “Doing “nothing” is NOT the American way” That’s an indictment of Congressional inaction on the many issues before the Congress today and I completely agree with you! But I also agree with TMT, if Congress in its wisdom — or in its stupidity, or whatever — refuses or cannot bring itself to act, we can’t have the President going out and doing by executive order what he isn’t authorized to do either by the Constitution or by Congress’ prior legislation. There wouldn’t be any serious challenge to the EPA today if it were clearly acting within the scope of its existing statutory authority, upheld by the courts as to CO2, to issue straightforward CPP rules. But JohnBR has it right, “the arrogance of the Obama EPA” has been stupefying (and totally counterproductive!).

      • “… if Congress in its wisdom — or in its stupidity, or whatever — refuses or cannot bring itself to act, we can’t have the President going out and doing by executive order what he isn’t authorized to do either by the Constitution or by Congress’ prior legislation. ”

        I cannot disagree that it’s an area that is disputed and the 3rd arm of govt gets tasked to decide.

        At the same time – I’d point out – again – it’s NOT something that legislation cannot explicitly prohibit – and a good example is the law passed that prevents the POTUS from moving detainees from Gitmo to US soil.

        If Congress had not passed that legislation – Obama CLEARLY would have done it AND Congress CLEARLY would have claimed it was overreach and would have sued.

        so my question is – if that had happened – on what legal BASIS would SCOTUS have had to made the call on?

        it appears to me that the POTUS, sans any controlling legislation, has some latitude and I wonder with CPP what the basis is for doing MORE than issuing a stay – BECAUSE the litigants are not claiming he violated a law – but, instead the Constitution – and if you look at what parts of the Constitution they claim he violated – and then consider what other actions have been taken on regulation since 1970 – …
        … IF the SCOTUS .. DOES RULE that Obama DID indeed violate the Constitution -as Mr. Domenech and his ilk and the litigants have asserted – it’s going to affect a CRAP LOAD (that’s a technical term) of “stuff” – not only in this POTUS administration but prior ones – all the way back to 1970 – not only EPA – but much other like the strings the Feds put on Highway and Medicaid money – by regulation/executive order.

        so if that’s going to be the BASIS of the SCOTUS ruling – WOW!

        and . .. if that’s NOT going to be the basis for their decision – what exactly will? Is the SCOTUS going to draw up a point-by-point list of what is and what is not permissible based on some NEW SCOTUS-generated “law”?

        what say Acbar and other lawyers here?

        where have I gone wrong on my analysis here…

        • I’m responding to, “IF the SCOTUS .. DOES RULE that Obama DID indeed violate the Constitution -as Mr. Domenech and his ilk and the litigants have asserted – it’s going to affect a CRAP LOAD (that’s a technical term) of “stuff” – not only in this POTUS administration but prior ones – all the way back to 1970 – not only EPA – but much other like the strings the Feds put on Highway and Medicaid money – by regulation/executive order.”

          No, I don’t think so. There really is a qualitative difference with the EPA’s conduct here. In most cases the federal agency involved has authority granted by the statute creating it, and delegating its powers to it, to write rules, impose grants with conditions, etc. etc. In this case the EPA truly has been arrogant as hell, winging it as they went along. What’s more, it laughed at the litigants who tried to stop it a year ago, as JohnBR so aptly pointed out at the head of this string. What kind of responsible agency (State or federal) issues a proposed rule, then issues a “final” rule much harsher than the one the public commented on (imposing additional requirements demanding billions in expenditures) without further opportunity to comment, and yet the rule is still not final in that the agency sets up “proposed” goals and an iterative process for compliance filings and reserves the right to grant case-by-case extensions and waivers for unstated (political) reasons? What the hell! There can’t do any sort of joint, regional planning among multiple utilities and multiple states when every utility faces an uncertain, moving target!

          Most utilities simply want someone in authority to say, “This is what you have to do and here’s the deadline” and they will go out and plan collaboratively how to do it and do it and bring the bill back to the ratepayers. It’s the uncertainty, the inability to plan and collaborate years ahead, the impossibility of raising capital with plenty of lead time, that drives utility management crazy and, they truly believe, raises the cost of compliance for everyone.

          One additional comment. Another federal agency with a bad track record for the way it handles formal rulemakings and informal “requirements” is the Department of Education. You should be quite familiar with how they play fast and loose with federal rules, and the consequences.

  7. My last comment is that the question the Court will ultimately need to resolve is not whether the world’s climate is changing, or why. The Supreme Court has already declared that the EPA has a duty to regulate CO2.

    The question is whether the particular set of regulations and the manner in which the regulations were issued comply with the law setting out the agency’s authority. Even if the court overturns this set of regulations, another will be coming at some point.

  8. It is interesting that several of us have criticized the EPA and EPA Admin Gina McCarthy regarding EPA’s attitude and approach on this matter. When reading national articles, I do not see as much of this criticism.

    I still wish somebody would explain to me how EPA calculated 959 lbs CO2/MWhr for Virginia in 2020 before CPP starts. This is the number in our EPA state-a-glance summary sheet. All the other numbers for Virginia I was correct in my revised data presented in Bacon’s Rebellion in August:

    http://www.baconsrebellion.com/2015/08/yes-virginia-the-epa-is-still-cracking-down-on-you.html

    If Virginia is going to continue working on the CPP, I kindly request a revised state-at-a-glance summary sheet.

  9. How does the EPA set ANY limit or threshold for any pollutant and why is that something that would go to the heart of whether or not EPA should be setting such limits to start with?

    on such limits – the EPA – ALWAYS lays down a PROPOSAL and invites and expects substantiative comments from those that would counter-propose something different.

    The idea that the EPA has to JUSTIFY it’s numbers satisfactorly to EVERY critic or for group vote – seems inherently irrational to me.

    • One of the issues for the CPP was so much change between draft and final regs, that the “Final” probably should have been considered Draft#2 (essentially that’s where we are now). It was shocking to me that EPA actually made the Final more severe than the draft for so many coal states. I know Va. got some needed relief in the Final rule, but I am still not convinced VA was treated fairly. Questionable calculation technique as far as I am concerned, with EPA taking liberty to adjust each state separately based on who knows what underlying logic. My theory is EPA was trying to shift some of the CO2 reduction burden to the lower CO2 states, otherwise their methods would have virtually shut down most coal. This is evidenced by the curved line in my original BR post graphic.

      • Cases interpreting the APA have generally held that an agency can adopt a rule only when it has specifically proposed the rule in a notice of proposed rulemaking or that the adopted rule is a natural outgrowth of what the agency proposed. If, after receiving comments, an agency wants to go in a different direction than what it proposed in its notice of proposed rulemaking, it must issue a new notice with the changed proposal and seek additional public comment. It’s not that hard for an agency to follow the APA.

        Does this restrict a president, cabinet department or independent agency? Yes, of course, it does. But that was the intent of the APA.

    • For most source based pollutants, EPA looks at what can be achieved by application of the “best available control technology” to the source of the emission.

      That is not how they calculated the proposed limits on CO2, however. They used the slightly different standard language in the previously obscure provision, Section 111(d), which calls for application of the “best system of emission reduction.”

      EPA decided that the best “system” for reducing CO2 would be this massive reorganization of the power industry through punishing limits on operating coal fired plants combined with incentives for installation of emission free sources, PLUS, and this is where they ran out of their authority in my view, compelling preferrred behavior of non-emitters and non-sources, i.e., residential and business consumers of electricity to implement energy efficiency and energy reduction measures as one of the “building blocks” of the original proposal. EPA wisely dropped this part of the proposed regulation in the final version of the rules.

      • Right EPA started with the idea of 30% CO2 reduction from 2005, with 22% population growth, that’s 45% per capita CO2 reduction. Since natural gas is around 1/2 CO2 of coal, 45% per capita reduction is in round numbers shutting down all coal and switching to nat gas. So EPA backed off slightly down to -40% CO2 for the high end. Which in all honesty I too favor a move in that nat gas direction. But the EPA probably needs to show us the right direction, instead of moving us there in one fell swoop.

  10. tell me where I’m wrong where they set the emission limits and left it to the states to adopt technologies and strategies that ARE available – as opposed to specifying how?

    when the EPA sets NDPES specs for contaminates – they do something very similar – they set the limit – they let the plant decide what strategy and technologies to use -as long as they meet the emission spec.

    The EPA took that same approach with prior power plant emissions for SOx , nitrates, mercury, etc.

    is the issue that “best available technology” is a responsibility of the EPA to specify or designate? I always thought that BAT was EPAs way of saying – “it’s technology that does exist and IS practical”.

    and industry – and the EPA have often agreed on what the limits of technology are – like they have done for water treatment nutrients…

    these are not typically the core of the disputes for the rules.. over the years – it seems to me that industry always challenges the authority of the EPA to regulate – a substance – period – from the get go.. then we go through this legal process that results in delay but in the end the courts uphold the authority to regulate – UNLESS CONGRESS specifically wants – and votes to take that authority away – in toto or on a per substance basis. For instance, industry has, over the years – again and again asserted that a total ban on DDT is wrong.

    come on guys – in the end – isn’t this about the authority of the EPA tor regulate masquerading as something else?

  11. You said, “I don’t chalk that up to “over-reach” as much as I chalk it up to a failure of the Congress to deal with substantive issues.”

    I think you and Rowinguy have put your fingers on the heart of the problem here. There are many many people who believe that if Congress fails to deal with important substantive issues, the Chief Executive by default should deal with them instead (by executive order) unless and until stopped! I must admit there are times I wish it were so.

    The problem is, we elect a Chief Executive from time to time who may be an extreme partisan — or a bully, or a demagogue. Who may be a Donald Trump, for example. Or a Bernie Sanders. I want the President, including the next one, to have to have clear authority BEFORE he acts — either because he’s doing one of those things set aside in the Constitution for the President and Executive Branch to do, or one of those things delegated to him by the Congress in clear-cut legislation. I am extremely concerned that a Trump, or a Sanders, may try to govern across-the-board by Executive Order “because the people want it so” unless and until Congress stops him.

    The EPA tussle, in my opinion, is over legitimate questions of authority. Some of those questions have already been resolved. Other questions, which largely flow from the extremely complicated, obtuse, and frankly sometimes contradictory way Congress originally set up and tasked the EPA over hundreds of pages of legislation, could be resolved in a minute if Congress would simply clarify and simplify the Clean Air Act and Clean Water Act — but it won’t. In fact much of the political compromise built into those Acts was to kick the can down the road by leaving things so deliberately murky that the courts would have to take years figuring out what the “intent of Congress” was. I think that way of handling legislation is shameful; why of course Congress ought to say clearly and plainly what it wants and be done with it. My political friends say I’m foolishly naive, legislation today should never be only a couple of readable, understandable pages but hundreds of obtuse, indecipherable paragraphs and subparagraphs of legalese long; the way the EPA’s compromised abilities have unfolded (in Congress, in the courts, in the Executive Branch) is exactly what “everyone” foresaw; and we should be happy that anything to benefit the environment has been accomplished at all.

    As bad as Congress has been in regard to the environgment, at least we can insist that, along the way, the basic Constitutional division of authority among the three Branches must be observed. Why? Because I hope that Congress will someday amend the Acts defining the EPA’s authority to eliminate all the ambiguity and establish clean lines of authority and otherwise do its job as a legislature, and insist that EPA carry out its rulemakings properly too. And because I hope that the Constitution will continue to be an effective brake on the Chief Executive and all the agencies that report to him/her — especially if he’s someone I do not trust, even dislike intensely.

  12. Acbar/others – I do not see a partisan, extreme agenda here.

    This is the same EPA that banned lead in gasoline and outlawed DDT and mandated nutrient reductions in wastewater plants and put strict limits in urban areas called non-attainment.

    They’ve been doing this since 1970 and since that time as far as I can remember NOT A SINGLE regulation they have proposed and implemented has subsequently been specifically repealed by legislation by any of the dozens of Congresses since 1970.

    to try to say that this particular POTUS is pursuing an individual extreme agenda is just to take up the propaganda and disinformation emanating from the right and industry – that if you want I can lay out similar efforts in prior years over things like lead in gasoline – and others.

    Congress ALWAYS has the authority to overrule the POTUS if they have enough votes to overrule his veto – and we see that going on right now in Va with McAuliffes excutive action on guns with the GA working to override the expected gov veto with 3/4 vote.

    this IS , in fact, the way that the founding fathers actually intended the process to work.

    the challenge to the SCOTUS is not about Barak Obama if you honestly look back over the tumultuous history of the EPA whom Americans have had a love/hate relationship with since it’s inception.

    The Flint water issue is an example where some people are blaming the EPA for not asserting itself in the issue – and some of those very same people argue that the EPA is too powerful and involves itself in States issues when it should stay out.

    it’s damned if you do and damned if you don’t.

    As soon as the EPA – WEAKENS a proposed rule – they get sued… as soon as they try to sustain a rule – they get sued.

    what’s different – in my view – is that a certain percentage of folks – who have always held that no govt agency should be able to tell the states how to regulate air and water as well as other rules that other govt agencies enforce through their ability to pull funding.

    these same folks would get rid of the Federal gas tax so that states do not have to follow FHWA rules. They’d get rid of Fed funding of education so that the Feds cannot require NCLB accountability. They’d gladly get rid of the Feds over MedicAid.

    so that’s what this is really about.

    Obama is not pursuing anything the EPA has not already done – the major complaint is what – “too much” … and in doing “too much” they have violated the Constitution itself and it’s Obama’s fault and both need to be reined in?

    only if you are a regular listener to FOX and reader of WSJ maybe.

    The very same folks are opposing the EPA on the Chesapeake Bay cleanup…. as well as regulating waters that flow into navigable waterways – as if it’s not pollution until it gets into the navigable waterway! We have rivers in Va with kepone, PDBs, dioxin, mercury, why?

    We have more than 30 superfund sites in Virginia alone…. a direct legacy of those who have consistently opposed the formation of the EPA to start with.

    show me an EPA opponent and I’ll show you someone who has opposed the EPA – the purpose and mission of the EPA – from the start – …. show me an EPA opponent that says – I’ve supported all they’ve done til now – but now they’ve gone “too far”.

    you’re looking at folks who NEVER supported the EPA and now are saying “we’ve gone too far” – in their minds – we went too far in 1970!

    I’ll put my faith in the EPA not these folks – who have basically never supported the mission of that agency at all…. they think the States should be doing it – and we all know how that worked.

    • Larry- We do not know how the SCOTUS may change the CPP. Suffice it to say, the current CPP regulatory structure necessitated immediate major decisions, by states and utilities, before knowing if the legal foundation was going to stand up. Take Virginia as a case in point, although we had until 2018 to make a plan, Gov. McAuliffe probably would have wanted to make more immediate decisions to keep it within his tenure. Similarly utility construction decisions and design plans need to start now if there is a tight 2030 deadline.

      Meanwhile Virginia is now more free to debate energy options. If Dems want to run for Gov on a plank of fossil fuel elimination, they can have at it. I prefer that approach to the Dems hi-jacking of EPA’s CPP as was happening here.

      • And far fewer legitimate decision makers and citizens will have other peoples’ ideology shoved down their throats, whether they like it or not.

      • @Tbill – I don’t think the Dems were hijacking CPP any more or less than dozens of prior EPA decisions that were also vociferously opposed by the right and industry.

        the “wait until the legal clouds go away” when you have your own fingers crossed hoping for stopping the rule – at the same time not putting up your own alternative – is not productive to anything other than continuing and legal and legislative gridlock… and hoping that you’ll get a POTUS and congressional majority to sustain the non-action just as we are seeing with other tough issues these days.

        it boils down to a refusal to compromise – a refusal to govern.. just stop and do nothing until you can get complete control of govt with the folks with the no-compromise mindsets.

        When I see a group of folks who say “we should be doing THIS instead”, I’ll reassess my view.

        • I am saying: EPA CPP was 32% reduction of CO2 nationally. Va. Dems and envrios were saying, in so many words, that is not good enough, they feel Va. needs to adopt more stringent rules. So they were pushing to disallow all but the most stringent options Virginia was given by EPA. I felt their position was counter-productive to helping Va. meet CPP targets. Now CPP is on hold, so that gives more freedom to Virginia to pursue alternate paths

      • @Tbill – I do not consider blocking without alternatives – to be a legitimate approach unless your position is that nothing needs to be done at all – and if that is your position -you actually say that… and that becomes your position of record.

  13. even as we speak about this issue –

    headline: ” House committee passes bill to privatize air traffic control”

    Now – I’m NOT right out of the box opposed to this – but I do have concerns…

    but an except from the article amuses me to no end:

    ” Both sides agree the delays and cost overruns have come partly because Congress has subjected the agency to shutdowns, furloughs and repeated short-term funding extensions. It’s difficult for the FAA to commit to expensive, long-term contracts for new equipment and services because it’s dependent on yearly budget infusions from lawmakers.
    A private corporation would be able to set fees for use of air traffic services, which would produce a steady revenue stream and enable it to issue bonds and raise capital.”

    ” Although dozens of countries have separate agencies handle their the air traffic services and safety oversight functions, only two—Canada and the United Kingdom—have turned over air traffic operations to a private corporation, according to a Government Accountability Office report. Both corporations had to be bailed out after the Sept. 11, 2001, terrorist attacks resulted in a slowdown in air travel, reducing revenue, the report said.
    It would be the largest transfer of U.S. government assets to the private sector in the nation’s history, according to Rep. Peter DeFazio of Oregon, the senior Democratic committee member.”

    Now, folks like Jim will applaud this no doubt as an shining example of what the private sector and free market should be going – not the govt but others like myself have concerns – a profit motive competing against an “overhead” funding need… has the private sector ever miscalculated in these areas?

    So – let’s turn the EPA CPP over to the electric utility industry and anti-govt “free-market” Conservatives … what could possibly go wrong….oh wait….

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