Patrick Parenteau: Putting EPA’s carbon rules in perspective

Editor’s note: This commentary is by Patrick Parenteau, a professor of law at Vermont Law School and senior counsel at the school’s Environmental and Natural Resources Law Clinic.

President Obama and Administrator Gina McCarthy certainly deserve a lot of credit for exercising their authorities under the Clean Air Act to begin cutting carbon emissions from existing power plants. The main target of the rule is the 600 coal-fired plants that represent more than a third of total U.S. carbon emissions. As advertised, the proposed rule would cut these emissions by 30 percent by 2030. However, the fine print reveals that the actual cut will be only half that because the EPA used 2005 as the baseline — since then, carbon emissions have been reduced by some 15-17 percent due to a combination of factors including the economic downturn, more efficient use of energy, the shale gas boom, and the dramatic growth in renewables, especially solar.

However, in terms of what is actually needed to stabilize the climate and protect the oceans, the rule by itself will have little effect. According to the latest report by the Intergovernmental Panel on Climate Change (IPCC), global carbon emissions must be zero or perhaps even negative by 2050 to hold global temperatures below the +2°C “safe” threshold. To have even a 60 percent chance of achieving this goal means leaving two-thirds of the known fossil fuel reserves in place or deploying very expensive and still unproven carbon capture and sequestration systems at commercial scale. Meanwhile, carbon dioxide is acidifying the oceans 10 times faster than any changes in more than 20 million years. Acidification is already destroying oyster beds on the West Coast and is threatening to dissolve coral reefs around the world.

This does not mean the rule is irrelevant. In fact, it marks the most ambitious action taken by any of the signatories to the United Nations climate treaty. It should give the U.S. greater standing in the critical 2015 meeting in Paris, where the parties to the climate change framework convention try to negotiate a new comprehensive treaty to replace the failed Kyoto Protocol. It enables the president to make good on his promise in Copenhagen that the U.S. would cut emissions by 17 percent by 2020. Hopefully this will bring China and India to the negotiating table. Cooperation among these three nations is the key to reaching a binding agreement.

As emphasized by Administrator McCarthy, the rule is first and foremost a public health protection measure that will save lives and reduce illness among millions of Americans, including more than 6.5 million children who suffer from asthma and debilitating allergies.

 

The rule has many other benefits that make it worthwhile regardless of its modest impact on climate disruption. As emphasized by Administrator McCarthy, the rule is first and foremost a public health protection measure that will save lives and reduce illness among millions of Americans, including more than 6.5 million children who suffer from asthma and debilitating allergies. According to the American Lung Association and many medical experts, the emissions targeted by this rule contain the most toxic particles and chemicals associated with the most severe human health effects. In the peer-reviewed economic analysis that accompanies the rule, the EPA estimates net benefits of between $48 billion and $84 billion per year and a net increase of tens of thousands of jobs. An analysis by the Natural Resources Defense Council estimates that 250,000 new jobs could be created in the clean energy sector.

The rule also provides a strong incentive for utilities to reduce energy demand through investments in more efficient heating, cooling and lighting systems, which is the cheapest, quickest and cleanest way to decarbonize the electricity sector while reducing the burden on consumers’ pocketbooks. By “de-coupling” electricity rates from sales, California has managed to hold per capita electricity use flat for more than 30 years while its population and economy continued to grow.

Given the tremendous disparities among the states in terms of energy mix, the EPA has bent over backwards to give states maximum flexibility in how they will meet their carbon-reduction targets. Coal-dependent states like Kentucky and West Virginia are given lower targets than states like Washington and Oregon that have clean hydropower. States will have until at least 2016 to submit their plans for EPA approval. If a state refuses to submit a plan, then the EPA will adopt one for it — an outcome that few, if any, states would welcome.

The EPA will be taking comments on the proposed rule for 120 days and has scheduled four town hall-type meetings across the country. Environmentalists will be pressing for more ambitious reductions. The coal industry and some states will be arguing that the EPA lacks the legal authority to impose requirements “beyond the fence line” and cannot mandate systemic changes to a state’s energy program. More than 600 state and local officials sent a letter supporting the EPA’s use of this authority. Even some heavy fossil-dependent industries such as American Electric Power (AEP), the nation’s largest utility, have indicated cautious support for the EPA’s approach.

Under the president’s climate action plan, a final rule is due out by June 2015. Petitions for review by the Court of Appeals for the District of Columbia are sure to follow, and it is likely that the Supreme Court will have the final word. Though the EPA’s authority is sure to be severely tested, its interpretation is eminently reasonable under the extraordinary circumstances facing the nation and the world. Carbon pollution is killing the oceans and driving the climate over a cliff. Time is short to do something about it. The EPA’s power plant rule is a good first step, but far more will be required to avoid potentially catastrophic consequences for our children and grandchildren.

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