WASHINGTON — Critics of the Obama administration’s new rules for power plant emissions have been quick to describe them as “government overreach” and “flagrantly unlawful.” What they don’t say is that congressional inaction and a mandate from the Supreme Court drove the regulatory process to this point.
The new rules limiting the emission of planet-warming greenhouse gases from power plants, which the Environmental Protection Agency finalized on Monday, were written under the Clean Air Act, a law originally adopted in 1970 to regulate sources of air pollution.
From Obama’s first days in office, his administration stressed that it did not want to regulate greenhouse gases under the Clean Air Act, describing it as a non-ideal way to address this type of pollution. But legal mechanisms were already in the works to force the Obama administration to do exactly that if Congress declined to issue new, greenhouse-gas-specific rules.
Some historical context is helpful for understanding why and exactly how the new rules came to be.
There are many significant dates when it comes to the history of regulating emissions. You could start in 1965, when President Lyndon B. Johnson told Congress that “a steady increase in carbon dioxide from the burning of fossil fuels” was altering the composition of the atmosphere. You could start in 1988, when former NASA scientist James Hansen warned the Senate Energy and Natural Resources Committee it was “time to stop waffling so much and say that the evidence is pretty strong that the greenhouse effect is here.” Or you could start in 1993, when President Bill Clinton tried, unsuccessfully, to put a tax on energy consumption in an effort to curb pollution.
But we’ll flash forward to the more recent history: the 2000 election. During the election, both Democratic candidate Al Gore and Republican candidate George W. Bush campaigned in favor of regulating carbon dioxide emissions. “We will require all power plants to meet clean-air standards in order to reduce emissions of carbon dioxide within a reasonable period of time,” Bush said in September 2000.
Bush went on to become president, and a few months after taking office, he reversed his position: he would not regulate emissions, citing rising energy prices and “the incomplete state of scientific knowledge of the causes of, and solutions to, global climate change.” Bush’s approach to climate change throughout his presidency consisted of waffling on the causes of climate change — even as scientific studies demonstrated with mounting certainty that the burning of fossil fuels was the primary culprit — and promoting voluntary, rather than mandatory, actions to cut emissions.
A pair of senators stepped in to try to fill the void, as John McCain (R-Ariz.) and Joe Lieberman (D-Conn.) introduced the bipartisan Climate Stewardship Act in January 2003. The bill aimed to reduce the emission of carbon and five other greenhouse gases to 1990 levels by 2016, using a cap-and-trade system.
‘’The United States is responsible for 25 percent of the worldwide greenhouse gas emissions,’’ McCain said at the time. ‘’It is time for the United States government to do its part to address this global problem, and a discussion of mandatory reductions is the form of leadership that is required.’’ The Senate voted on the bill in October 2003, but it failed by a vote of 43 to 55. Reps. Wayne Gilchrest (R-Md.) and John Olver (D-Mass.) also introduced unsuccessful companion legislation in the House.
McCain and Lieberman reintroduced their legislation in 2005, but it again failed to gain traction. And Lieberman — by then, an independent — tried again with Sen. John Warner (R-Va.) in 2007, introducing the Climate Security Act, a cap-and-trade bill they estimated would reduce emissions 70 percent by 2050. That bill, too, failed to muster enough votes to pass.
But as all this action — well, inaction — was happening in Congress and the White House, a lawsuit from Massachusetts and a group of other states seeking to force the Environmental Protection Agency to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act made its way to the Supreme Court. The court ruled in April 2007 that the Clean Air Act obligated the EPA to regulate any type of air pollution that “may reasonably be anticipated to endanger public health or welfare,” opening the door to the limits on greenhouse gases.
But there were some hurdles. First, the EPA had to determine that greenhouse gas emissions that cause climate change are an endangerment to human health. And the Bush EPA did reach that conclusion.
Yet the White House declined to acknowledge it, even going so far as to refuse to open an email containing the finding so the administration wouldn’t have to act on it. In July 2008, the White House extended the public comment period on the issue until the last days of the Bush presidency, effectively punting it to the next administration.
Shortly after Obama took office, the new EPA moved forward with completing the assessment. Obama’s first EPA chief, Lisa Jackson, issued the endangerment finding in April 2009, which she said would “trigger the beginnings of regulation of CO2 for this country.” New rules for emissions from automobiles soon followed.
But the Obama administration maintained that it preferred a new, carbon-specific law from Congress over regulating power plant emissions under the Clean Air Act. The 1970 law wasn’t crafted with climate change in mind. A new law from Congress would be more flexible and specific to greenhouse gases, the administration argued.
There was a brief moment in 2009 when it seemed like a new law might happen. The House passed its own climate-specific legislation in June 2009, the Waxman-Markey American Clean Energy and Security Act. By all accounts, the bill was more flexible than EPA regulations and included a number of incentives to make it easier for major polluters to comply.
The administration threw its weight behind that bill — though whether the Obama administration tried hard enough or made climate enough of a priority is something I’ll leave for activists and historians to debate.
But action stalled when it hit the Senate. A “tripartisan” attempt at climate legislation from Lieberman, Sen. Lindsey Graham (R-S.C.) and Sen. John Kerry (D-Mass.) fell apart in April 2010, amid bickering over legislative priorities. By July 2010, then-Senate Majority Leader Harry Reid (D-Nev.) snuffed out any remaining hope that a carbon cap would pass that year, concluding that they did not have the votes to make it happen.
“We always viewed the [rule-making under the Clean Air Act ] as ‘Plan B,’” said Heather Zichal, who served as a top environmental adviser to Obama until October 2013. “We were very forward-leaning, trying to work directly with Congress, trying to identify, in the very early years, Republicans in the Senate in particular we could work with.”
As Obama entered his second term with little prospect for a climate bill, the administration turned its efforts to regulations through the EPA. “He knew this was something that was very import to his legacy,” said Zichal. “Therefore, the push from him to his staff was to go figure out what is the best thing we can do.”
Obama officially kicked off the power plant regulations in a speech in June 2013 directing EPA to issue the rules. “We limit the amount of toxic chemicals like mercury and sulfur and arsenic in our air or our water, but power plants can still dump unlimited amounts of carbon pollution into the air for free. That’s not right, that’s not safe, and it needs to stop,” said Obama. “So today, for the sake of our children, and the health and safety of all Americans, I’m directing the Environmental Protection Agency to put an end to the limitless dumping of carbon pollution from our power plants, and complete new pollution standards for both new and existing power plants.”
Beyond that, the Supreme Court ruling and the EPA’s own endangerment finding legally compelled the agency to act. “Once they made the endangerment finding, they had to move forward under the Clean Air Act,” explained Vicki Arroyo, executive director of the Georgetown Climate Center. “They had this authority, and this administration has clearly embraced it, given that a more comprehensive and tailored approach was defeated. They pledged to move forward with this, and that’s what they did.”
Yet that won’t shield the administration from the inevitable lawsuits over the rules issued on Monday, which include standards for both new plants and plants already in operation that are responsible for approximately 40 percent of U.S. emissions.
But it does likely mean that suits questioning the Obama administration EPA’s very authority to issue the rules won’t get very far, despite the flurry of press releases and announcements issued Monday. However, suits over the how the 1,560-page rule for existing power plants is constructed, the compliance timeline and the specifics of state requirements stand more of a chance of affecting the rule’s trajectory.
Environmental advocates remain confident that the rules will go forward. “EPA is the expert agency Congress has tasked with reducing air pollution,” said Joanne Spalding, managing attorney at the Sierra Club, in a call with reporters. “The Supreme Court has already said that Congress charged EPA with the job of regulating carbon dioxide emissions from power plants, just as it regulates other air pollutants.”