In February of 2009, during his second month in office, President Barack Obama stepped up to the lectern to deliver his first speech to a joint session of Congress. In it, he lobbied members of the House and Senate to come up with a mandatory cap on carbon emissions, a key tenant of his campaign stump. "I ask this Congress to send me legislation that places a market-based cap on carbon pollution and drives the production of more renewable energy in America. That's what we need," he said. Not surprisingly, that didn't happen.
Five years later, with Congress wallowing in its own motion-stopping muck, he took a different approach. He used existing federal laws to take action* without needing the consent of Congress. The resulting mandate, known as the Clean Power Plan, requires States to significantly cut their carbon emissions from fossil fuel-fired power plants within the next 14 years. It was a major victory for environmentalists and gave serious credence to the U.S.'s role in the Paris Climate Agreement.
Earlier this year, however, the Supreme Court halted its implementation until further "judicial review,"and the Environmental Protection Agency (EPA)—overseer of the plan—is now wrangling with lawsuits from 27 states over the plan's constitutionality. With the election—and the possibility of a Trump Supreme Court—looming, the Clean Power Plan, President Obama's keystone piece of environmental action and critical player in the Paris Climate Agreement, is suddenly in peril, especially since the presidential office is up for grabs.
What Is It?
To create the Clean Power Plan, Obama and the EPA stretched out the umbrella of the Clean Air Act—which already regulates emissions of pollutants like mercury—to cover carbon dioxide as well. The EPA, implementer of the Clean Air Act, then came up with a nationwide plan for how they'd go about doing so.
The resulting plan essentially goes like this: The United States must cut its carbon pollution from fossil fuel-fired power plants like coal and oil (the country's leading source of greenhouse gases) 32 percent by 2030. Each state coughs up different amounts of carbon, however, so the EPA gave each its own reduction target. How exactly the states cut carbon emissions to meet these targets is completely up to them.
"The final rule is the result of unprecedented outreach to states, tribes, utilities, stakeholders and the public, including more than 4.3 million comments EPA received on the proposed rule," EPA spokesperson Melissa Harrison told Motherboard.
To clean pollutants like mercury from their emissions, power plants have traditionally been able to invest in technological improvements like scrubbers, but such tech doesn't really exist yet for filtering out carbon. So states have to find other, more drastic ways of reducing emissions, like switching to cleaner fuels (natural gas), investing in renewable energies like wind and solar, or setting up cap and trade systems.
For the dirtiest power plants, this might mean closure and job loss. On the other hand, renewable energy fields have created tens of thousands of jobs—769,000 in the U.S. and 8.1 million globally. Last May, the number of solar energy jobs surpassed those of oil and natural gas in the United States for the first time. That's likely not going to change.
From the day of its inception, the Clean Power Plan has attracted the rancor of corporate fossil fuel interests, and mostly conservative politicians, who have accused it of being everything from a gross "executive overreach" to a "war on coal," bent upon shuttering up factories and eliminating jobs.
Many states—27, in fact—argue that the costs of implementation are simply too high and outweigh the possible benefits. And worse, that the divestment in coal and oil will cause mass unemployment, and lead to a catastrophic collapse of America's energy system. Some have even tried to use its impact on climate change against it, asserting that it will be negligible. This is not entirely untrue—the plan alone is not enough to combat climate change.
The administrative way in which the plan was created also received vitriolic condemnations, with State politicians decrying what they perceive to be a gross abuse of presidential power. The President and the EPA, they contend, are way beyond the fenceline of their authority to implement such a plan without Congressional approval.
The EPA has pointed out that the plan, despite critics' apocalyptic descriptors of it, is following marketplace trends. "Dirty" fossil fuels, especially coal, are in decline as "cleaner" alternatives like natural gas, and renewables like wind and solar start to take off. The market will certainly continue to move in this direction, so the EPA believes it is helping the U.S. energy sector keep up the pace.
The economic benefits, including an influx of tens of thousands of jobs into new sustainable energy fields like wind and solar, as well as the estimated savings on human health costs and climate damage, are tangible. The EPA estimates that money saved from fighting climate change symptoms like severe storms and droughts could be in the realm of $20 billion.
Switching to cleaner energy sources to cut carbon will undoubtedly lower other harmful pollutants that come packaged with it like nitrogen and sulfur. These hazardous gases create soot and smog and cause thousands of premature deaths and hospitalizations from asthma attacks every year. The medical costs this could save reach up to $34 billion. "For every dollar invested in the Clean Power Plan," said Harrison, "American families will see up to $4 in health benefits."
And the Clean Power Plan already has played a major role in global affairs. Its announcement gave a tremendous boost to the Paris Climate Agreement last December, the global pledge by nearly 200 countries to cut emissions and keep Earth's temperature increase to under 2 degrees celsius within the next century.
Currently, the Clean Power Plan is being contentiously fought over in the U.S. Court of Appeals in the D.C. Circuit. Twenty-seven states and corporate interests are grappling with the EPA and 18 other states who support the plan, over whether the EPA has the authority to institute it.
Constitutionality, job loss, high costs are all in the mix. Bizarrely, opponents are also wielding a strange, clerical error over the Clean Air Act in 1990. What happened then was the House of Representatives essentially said the EPA couldn't regulate new pollutants under one section of the law if it was already regulating pollutants under another section (confusing), but the Senate said that wasn't a problem—and that's where it was left.
The EPA remains undaunted. "We are confident that we will ultimately succeed in defending the rule against all the legal challenges and that we will be able to implement the Clean Power Plan," said Harrison. Especially, she argues, "when the merits are considered, because the rule rests on strong scientific and legal foundations."
Ultimately, what the Clean Power Plan and President Obama's climate legacy (if he is to have one) hinge upon is the election on November 8th. Regardless of the outcome in the Court of Appeals, the besieged plan will assuredly go to the Supreme Court in 2017-2018. With one seat vacant in the court, whoever wins the Presidential election will undoubtedly determine whether the plan succeeds or fails based on the judge they pick to fill the seat.
Donald Trump, who has claimed that climate change is a hoax perpetrated by the Chinese, has already vowed to rescind the plan if elected, and dismantle the EPA altogether. His pick for judge would tip the court conservative as well..
Hillary Clinton, not surprisingly, has pledged to uphold the plan, and would likely pick a more liberal judge, giving the edge to progressives. The United States' leading role in combating climate change, and Obama's environmental legacy, sit precariously on a razor's edge. Whichever way it falls will determine who wins on Tuesday.
Here's to voting.
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Correction: This article originally said President Obama used federal laws to create legislation, but was altered to say he took action for complete accuracy.