This is a guest post by Patrick Parenteau, Professor of Law, Vermont Law School
The fossil fuel industry is pulling out all the stops in an effort to derail President Obama’s Clean Power Plan being developed by the Environmental Protection Agency under the Clean Air Act.
The proposed plan, which aims to cut carbon emissions by 30% below 2005 levels by 2030, is due to be published as a final rule this summer. Launching a preemptive strike, the coal industry filed suit earlier this year seeking an “extraordinary writ” to stop the rulemaking in its tracks. This would be an unprecedented act of judicial intervention.
Undeterred, Peabody Coal hired Harvard law professor Lawrence Tribe, renowned constitutional law scholar and one-time liberal icon, to pull a rabbit out of the hat. In front of an openly skeptical three-judge panel of the DC Circuit, Tribe delivered an over-the-top performance putting his personal prestige on the line in support of the coal industry’s right to continue polluting the atmosphere with dangerous levels of CO2. In public statements, Tribe went so far as to accuse his former star pupil — Barack Obama — of “burning the constitution” in his zeal to save the planet.
Hyperbole aside, the Circuit Court is likely to toss the industry case and let EPA finish its rulemaking, at which point the agency will face renewed legal challenges. Ultimately, EPA will have to convince a majority of the US Supreme Court that it has not exceeded its statutory authority.
But the odds are in EPA’s favor. The High Court has issued three decisions affirming that the Clean Air Act not only authorizes but mandates that EPA regulate greenhouse gases that pose a grave threat to the health, security and welfare of Americans and the rest of the world.
Meanwhile, in the court of public opinion, the industry is pouring money into a campaign of disinformation aimed at demonizing EPA’s “war on coal” and rallying opposition from far-right politicians and states worried about meeting EPA’s timetable.
Truth is, the 30% goal is quite modest. The nation has already reduced emissions by 12% from 2005 levels. Our dependence on coal to generate electricity has shrunk by nearly 20% over the past several years, largely in response to market forces that are bringing more natural gas, wind, solar and hydroelectric sources onto the grid.
Energy efficiency programs led by states such as Massachusetts, California and even tiny Vermont are flattening the demand curve and reducing electricity bills.
Far from the federal ogre caricature painted by industry lobbyists, EPA has in fact bent over backwards to craft a flexible proposal and reach out to stakeholders and the public looking for ways to improve the final product. It has received over 4 million comments on its proposed rule; it has twice extended the comment period and publicly acknowledged the issues that need further work; it has been meeting regularly with stakeholders, state representatives, members of Congress and sister agencies to discuss concerns and invite suggestions; and it has been completely open and transparent about the challenges as well as the scientific imperative of decarbonizing the energy system with all deliberate speed.
Studies show that, in addition to reducing carbon pollution that is killing the oceans and driving the climate over a cliff, the clean power plan will save thousands of lives by reducing conventional pollutants like soot and smog. Other studies show that it will create a quarter million new jobs and reduce electricity bills through improved energy efficiency.
None of this cuts much ice with those hooked on fossil fuels.
Take, for example, the current Majority Leader of the US Senate, Kentucky’s Mitch McConnell, who has been stumping the nation urging states to “just say no” to EPA’s plan.
With over $3.6 million in campaign contributions from the fossil fuel industry, a 100% voting record in favor of big oil companies between 2005-2007, and a 7% score from the League of Conservation Voters, it is no surprise that Senator McConnell is working diligently to block EPA through any legislative means possible.
But rallying states to defy the law marks a new low in hardball politics. Any state foolish enough to heed this call will face a much less palatable federal implementation plan, or FIP, that EPA will publish along with the final clean power rule. The FIP will impose strict emissions standards but without the flexibility built into the 111(d) rule. Recalcitrant states are taking a huge gamble by betting on the courts or Senator McConnell to bail them out.
Meanwhile the Koch brothers, through their political arm Americans For Prosperity (AFP), have launched a media campaign against EPA’s rule that has so far produced carbon copy op-ed pieces in 16 newspapers with headlines like “State lawmakers should fight the EPA” and “Arizona should fight useless coal regulations.”
Authors are disclosed only as “state officials of Americans for Prosperity,” with no mention of oil industry ties. None of the newspapers disclosed that AFP is run by the Kochs.
The Kochs also fund the Beacon Hill Institute (BHI), a self-styled “think tank” housed at Suffolk University in Boston. In a recent fundraising letter to the Searle Freedom Trust, a prominent conservative foundation, BHI pitched its proposal this way: “Success will take the form of media recognition, dissemination to stakeholders, and legislative activity that will pare back or repeal [the Regional Greenhouse Gas Initiative (or RGGI)].”
RGGI is the most successful carbon trading program in the nation. Through its quarterly auction of carbon allowances, it has raised over $1 billion, which has been invested in energy efficiency, clean and renewable energy, greenhouse gas abatement, and direct assistance to low-income consumers.
This investment is calculated to return almost $3 billion in lifetime energy bill savings to more than 3.7 million participating households and 17,800 businesses. Thanks to RGGI, the ten member states are poised to meet or exceed EPA’s emission targets.
Fossil-Funded Attacks on Renewable Energy
But wait, there’s more. Fossil fuel industries are also funding a campaign to repeal state renewable portfolio standards through two PACs: the State Policy Network (SPN) and the American Legislative Exchange Council (ALEC). As DeSmog revealed in 2013, ALEC created SPN, and it was originally housed at the neoliberal Heartland Institute.
Over 30 states have adopted RPS programs and net metering policies that are sparking massive investment and deployment of clean energy technologies across the country. For example, Iowa gets a quarter of its electricity from wind. Minnesota recently rejected a gas plant in favor of solar build-out. Hawaii just passed a law upping its RPS goal to 100% by 2045.
The success of these programs poses a real threat to the outmoded business model of the fossil fuel industry. Instead of advocating for a fair and free market for electricity, these industry front groups lobby to repeal, freeze, and eliminate pro-clean energy policies across the country.
So far they have not had much success. Though ALEC touts as a victory the repeal of the RPS mandate in Kansas, it turns out that the state had already exceeded its goal of 20% renewables by 2020 and the Republican-run legislature rejected ALEC’s proposal to impose an excise tax on wind and instead approved extension of the property tax exemption.
In the end, wind came out the big winner, and right under the nose of the Wichita-based Koch Industries.
The battle for America’s energy future and the future of our children and grandchildren in a world already undergoing fundamental changes due to climate disruption has just begun. Scientists say we must leave two-thirds of the known fossil fuel reserves in the ground to avoid truly catastrophic consequences.
The financial markets are beginning to question the risks of continued reliance on these dangerous fuels. The smart money is on the side of a clean energy future.
But right now, the dirty money forces are mounting a desperate, last-ditch effort to deny Americans the benefits of a safer environment and a stronger economy based on a more efficient and less carbon-intensive energy system. We must not let that happen.
Image Credit: Fabio Freitas e Silva / Shutterstock.com