In my Resources Mag piece today on the implications of SCOTUS for Biden-admin climate policy, I briefly suggested a stripped-down Clean Power Plan. Because it's not the main point of the piece I didn't go into detail, so let me do so here.

1/x https://www.resourcesmag.org/common-resources/legal-risk-hangs-over-bidens-climate-plans/

First this isn't a new or really very original idea. I've suggested it as an alternative as far back as the early Clean Power Plan days, and it's really just a combination of ideas already on the table.

2/x

Also, don't get your hopes up. This won't get us robust, comprehensive climate policy with the Clean Air Act. But the legal risk is lower and it does do something.

3/x

The Clean Power Plan was a high flexibility/medium stringency policy. The real target was coal emissions, but EPA assumed (& encouraged) states to get there by increasing gas dispatch and building renewables, at lower cost per ton of emissions cuts than a pure coal focus.

4/x

Industry lawyers then attacked this flexibility, on the grounds that EPA had no legal authority to count such "outside the fence" cuts or use them to "reorganize an industry"

5/x

These arguments were probably a driving force in the Supreme Court's stay of the CPP (though we don't know for sure), and were definitely a focus of the oral arguments at the DC Circuit.

6/x

When the Trump EPA junked the Clean Power Plan, its stated reason was the same as the industry lawyers: it lacked authority to go outside the fence. "Our hands are tied!"

7/x

The Trump EPA's ACE rule that replaced the CPP dialed down the flexibility, tossing the outside the fence assumptions. But it also dialed down the stringency, going so far as to refuse to set any targets for states at all. The result was a do-nothing rule.

8/x

My suggestion: combine these two approaches: issue a rule that focuses on inside-the-fence efficiency improvements only, but keep *at least* similar emissions goals as the CPP. (I say at least because its goals are likely to be met by market trends and other regs anyway).

9/x

In short, write a simple rule that, based on engineering analyses, demands a very high degree of emissions cuts from coal (substantially more than the 6% envisioned under the CPP). No trading, no changing the dispatch curve, no counting renewables.

10/x

If you want to get really ambitious, you can set the stringency based on CCS (though that invites a battle over whether it has been "adequately demonstrated").

11/x

Alternatively, I've long argued EPA should merge coal and gas power plants into a single "source category" for §111 purposes. Then the "best system of emissions reduction" is just "be gas". Coal plants need to fuel switch, install CCS, or close down.

12/x

The only reason to do this is to reduce legal risk. It's always been a bit ironic that industry has hammered the CPP for going beyond the fence. That move reduces costs, so industry should want it! But it was easy to attack the most innovative thing the CPP did.

13/x

My high stringency/low flexibility suggestion calls that bluff. Think flexibility under §111(d) is outside EPA's authority? Fine, take it out. The rule will still get challenged, but the (arguably) best legal argument against it goes away.

14/x

I don't mean to suggest that there's no legal risk left: that would be foolish given the current makeup of the Court. It could easily reject even a low-flexibility CPP 2.0 with a UARG-style excision of climate from §111, or even a nondelegation ruling.

15/x

But a low-flexibility CPP 2.0 has the twin virtues of targeting the lowest-hanging emissions fruit (coal) directly while testing the legal risk of §111(d) climate policy cleanly.

16/x

It also forces the Court's hand: rejecting a low-flexibility CPP 2.0 would be a clear rejection of the most viable climate policy tool available, would limit Massachusetts v. EPA to its facts, and would put the Court in difficult political territory (IMO).

17/x

It would also overrule dicta on §111(d) and climate from Justice Ginsburg's AEP v. Connecticut opinion, and in so doing re-open the door to federal climate nuisance suits.

18/x

Because of the still-present legal risk, limited scope, and possible high cost* of this suggested approach, I definitely do not think it should be the centerpiece of the Biden admin's (or even EPA's) climate policy agenda.

19/x

Vehicle emissions regs, drilling limits on federal lands, a push for legislation, and other policies should be on the table too, and are likely more important.

20/x

Anyway, I wanted to get this idea down in one place. Critiques welcome.

*I doubt the cost would actually be very high. All I'm really suggesting is that EPA kick down the last rotten planks in the door marked "coal".

21/x

Thanks to @TheQuirke among others for pushing me to write this down.