By Jon A. Mueller, Esq.
The United States and the world are experiencing the effects of climate change due largely to human combustion of fossil fuels. Globally, 2022 was the 6th warmest on record contributing to long standing drought and damaging wildfires in the west.1 Regionally, sunny day flooding is now the norm in Annapolis, Maryland and Norfolk, Virginia, snarling traffic, blocking access to homes, and closing businesses. Over the next 30 years, Baltimore and Norfolk are expected to experience a 1–3 foot rise in sea level and, if greenhouse gas (GHG) emissions are not reduced, an over 3-5 foot rise by the end of the century.2
Flooding related to increased sea level rise, storm events, and rainfall volume pose serious threats to our economy, national defense, and human health, especially in environmental justice communities.3 By 2050, flooding is expected to occur, on average, more than 10 times as often as it does today. Without additional risk reduction measures, U.S. coastal infrastructure, communities, and ecosystems will face increased impacts. Those measures will be costly.4
The scientific evidence is conclusive that GHG emissions, e.g., carbon dioxide, produced from the combustion of fossil fuels, have largely contributed to the problem. In fact, industry and Congress have known about the problem since the 1960s.5
As a signatory of the Paris Climate Agreement, the United States has committed to reducing total carbon emissions from 6.5 million metric tons per year to approximately 3.5 million metric tons by 2030.
To curb CO2 emissions from our then largest sources of GHGs,7 EPA issued rules addressing two “types” of fossil fuel fired EGUs: newly constructed, modified, and reconstructed facilities, 80 Fed. Reg. 64510 (Oct. 23, 2015), and existing facilities, 80 Fed. Reg. 64662 (October 23, 2015). The existing source rule, referred to as the Clean Power Plan (CPP), relied upon Clean Air Act § 111(d) to establish the Best System of Emissions Reduction for these EGUs. The rule set out three “building blocks” states could require from EGUs within their jurisdictions to reduce CO2: (1) improve the heat rate8 of existing coal-fired plants for more thermal efficiency; (2) increase electricity generation from natural gas plants (they emit less carbon) and reduce generation from coal-fired power plants; and (3) increase renewable electricity generation from sources such as wind and solar. 80 Fed. Reg. 64667.
The CPP was never implemented. The day it was promulgated the rule was challenged in D.C. Circuit Court by industry and 27 states charged with implementing the new rule. After argument but before a decision was rendered, the case was held in abeyance. The plaintiffs then petitioned the U.S. Supreme Court for a stay, which was granted by Chief Justice Roberts. West Virginia v. EPA, 577 U.S. 1126 (Feb. 9, 2016). In 2019, the CPP was withdrawn by the Trump administration, and the Affordable Clean Energy (ACE) rule was substituted in its place. 84 Fed. Reg. 32520 (July 8, 2019). It relied solely on heat rate improvements to achieve emissions reduction. EPA projected that ACE would reduce CO2 emissions by less than 1%. American Lung Ass’n v. EPA, 985 F.3d 914, 940 (D.C. Cir. 2021). Far less than necessary to help slow climate change.
The decisions to revoke the CPP and issue ACE were also challenged and found to be illegal by the DC Circuit. American Lung Ass’n, supra. In 2021, the Biden EPA announced it would not implement the CPP or ACE and would propose a new rule. EPA’s announcement failed to placate the plaintiffs in WVA v. EPA, leading them to revive the action before the Supreme Court which took up the matter despite EPA’s claims that it was now moot. West Virginia v. EPA, 142 S. Ct. 2587, 2594 (2022).
On review, the Supreme Court found that the CPP’s second and third options constituted “generation shifting” because in setting limits on a state’s overall emissions, EPA could effectively force states to generate from cleaner sources, prompting the retirement of the dirtiest plants (typically coal-fired). That view, the Court held, impermissibly expanded EPA’s power to regulate power plant emissions under section 111(d) of the Clean Air Act beyond the footprint of individual plants to the regional electric energy grid. Id. at 2616.
The Court held that “there are ‘extraordinary cases’ in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”9 Id. at 2608–09 (2022) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)). In such cases, under the major questions doctrine, the agency must “point to ‘clear congressional authorization’ for the power it claims.” Id. at 2609 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Here, EPA failed to prove Congress had authorized it to require generation shifting from EGUs to renewable sources. Thus, by reaching back to review a dormant rule and establishing a vague test of agency authority, the Supreme Court undercut the government’s efforts to reduce CO2 emissions and help stave off climate change. But all is not lost.
Despite the prognostications that courts would flock to apply the major questions doctrine in subsequent government action cases,10 since the WVA v. EPA decision, no court has held that the doctrine governed the outcome of the case. See, e.g., Clark v. Governor of N.J., 53 F.4th 769 (3d Cir. 2022); United States v. Empire Bulkers Ltd., 2022 U.S. Dist. LEXIS 151817 (E.D. LA, 2022); and Phillips v. United States Army Corps. of Eng’rs, 2022 U.S. Dist. LEXIS 153611 (D. Utah 2022). Others have suggested that EPA’s options for reducing EGU CO2 emissions are now severely limited. But EPA still has authority under the CAA to regulate individual EGUs and thereby reduce CO2 from those sources. For example, EPA can now assert that carbon capture and sequestration are achievable and affordable due to the Inflation Reduction Act (IRA) carbon credit program,11 thus, new, and existing EGUs must be required to utilize them.12
Given the severity of the problem we face, we do not have time to litigate over the right way to reduce our dependence on fossil fuels. Seven years have passed since the promulgation of the CPP, and we still have no regulation requiring the reduction of CO2 from EGUs.
The United States continues to fall behind in its efforts to meet its target set under the Paris Agreement of reducing GHG emissions 50–52% below 2005 levels by 2030.13 In order to meet the 2025 target of 26–28% below 2005 levels and get back on track for the 2030 Paris goal, the United States needs to significantly increase its efforts.
We are already seeing market forces drive down the use of fossil fuels. However, industry evolution based upon changing economic factors takes time and is highly dependent on a thriving economy. Sadly, we are running out of time to reduce carbon emissions and global economies regularly fluctuate.
Beyond Congress and EPA, two other entities have the ability—and the responsibility—to make needed progress. First, the states can require emissions reductions from major sources of CO2 within their jurisdictions by joining programs like the Regional Greenhouse Gas Initiative.14 But more states must quickly join, and changing state politics threaten the initiative. Second, oil and gas companies can voluntarily choose to reduce emissions from their respective facilities and drive global initiatives. In the 1980s, the world learned that the use of CFCs in refrigerators and air conditioners had led to a hole in the ozone layer increasing human exposure to UV radiation leading to increased rates of cancer. The United States opposed a ban on CFC use until DuPont, the world’s largest producer, developed alternative chemicals. From then on, U.S. businesses supported an international treaty to phase out CFCs.15 Today, the hole in the ozone layer continues to shrink.16 Here, the power generation industry could take the lead and voluntarily reduce a significant portion of the country’s carbon emissions without the need for lengthy rulemaking and litigation.
2 National Oceanic and Atmospheric Administration, National Ocean Service, 2022 Sea Level Rise Technical Report, https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-techreport.html.
4 The U.S. Department of Defense has recognized “the planet’s changing climate has a dramatic effect on our missions, plans and installations.” DOD, Navy Confront Climate Change
Challenges in Southern Virginia, U.S. Department of Defense (July 21, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2703096/dod-navy-confront-climate-changechallenges-in-southern-virginia/. Climate change will continue to have worsening implications for U.S. national security. Lloyd J. Austin III, Secretary of Defense, Foreword, Department of
Defense Climate Risk Analysis, October 2021, https://media.defense.gov/2021/Oct/21/2002877353/-1/-1/0/DOD-CLIMATE-RISK-ANALYSIS-FINAL.PDF.
5 See, Restoring the Quality of Our Environment, Report of the Environmental Pollution Panel, President’s Science Advisory Committee, November 1965. https://www.climatefiles.com/climatechange-evidence/presidents-report-atmospher-carbon-dioxide/.
7 In 2013, coal and gas fired Electric Generating Units (EGUs) emitted a combined 2,039 million metric tons of CO2, the largest stationary source sector. 80 Fed. Reg. 64523, Table 5. In 2021, the sector emitted 1,523 million metric tons of CO2, second only to the transportation sector. U.S. Energy Information Administration, Frequently Asked Questions, “What are U.S. energy-related carbon dioxide emissions by source and sector?” https://www.eia.gov/tools/faqs/faq.php?id=75&t=11. Currently, power generation accounts for 28% of US GHG emissions. Id.
8 Heat rate is the amount of energy used to generate a kilowatt hour of electricity. U.S. Energy Information Administration, FAQs. https://www.eia.gov/tools/faqs/faq.php?id=107&t=3#:~:text=The%20 heat%20rate%20is%20the,Btu)%20per%20net%20kWh%20generated.
9 When reviewing an agency’s interpretation of an ambiguous statute, courts have always had the ability to determine whether an agency is staying within the bounds of the authority delegated to it by Congress. See Arlington v. FCC, 569 U.S. 290, 297 (2013). However, the concept that this level of review is triggered whenever an agency develops a rule that is in the court’s view “extraordinary” is very broad.
10 See Key Takeaways from U.S. Supreme Court Decision in West Virginia v. EPA, The National Law Review, July 2, 2022, https:// www.natlawreview.com/article/key-takeaways-us-supreme-court-decision-west-virginia-v-epa. 11 https://www.jdsupra.com/legalnews/us-inflation-reduction-act-aims-to-give-9278203/. 12 See, comments of Richard Lazarus and Jody Freeman, https://eelp.law.harvard.edu/2022/07/cleanlaw-wvdecision1/ (July 26, 2022). 13 Rhodium Group, Preliminary US Greenhouse Gas Emissions Estimates for 2022, Figure 7 (Jan. 10, 2023), https://rhg.com/research/ us-greenhouse-gas-emissions-2022/. 14 https://www.rggi.org/. 15 https://www.rapidtransition.org/stories/back-from-the-brink-how-the-world-rapidly-sealed-a-deal-to-save-the-ozone-layer/. 16 https://www.nasa.gov/esnt/2022/ozone-hole-continues-shrinking-in-2022-nasa-and-noaa-scientists-say