Climate Change

D.C. Circuit Considers Obama and Trump Administration Climate Rules

A marathon oral argument on EPA's attempts at climate policy.

|The Volokh Conspiracy |

On Thursday, the U.S. Court of Appeals for the D.C. Circuit heard over eight hours of argument in a set of consolidated challenges to the Trump Administration's repeal of the Obama Administration's Clean Power Plan and proffer of an alternative, the Affordable Clean Energy (ACE) rule. The panel hearing the challenges consisted of Judges Patricia Millett, Nina Pillard and Justin Walker. (Welcome to the D.C. Circuit Judge Walker! Nothing like starting out in the deep end.)

I have yet to have a chance to listen to the audio of the argument, but based upon press reports and twitter threads, it seems like the argument did not go too well for the Trump Administration. It seems that even Judge Walker seemed skeptical of DOJ's attempt to defend the ACE rule. Preliminarily, it seems that the court is unlikely to sustain the Trump Administration's regulation, but I suspect it's also unlikely to reinstate the Clean Power Plan either.

This means there could be a clean slate for climate policy in 2021—and that would be a good thing. The ACE rule is a completely inconsequential from a climate standpoint, so good riddance. The Clean Power Plan, while more aggressive and more costly, was never a serious solution to the climate challenge either. The Clean Air Act was not written with greenhouse gases in mind, and is a poor mechanism for global climate control.

Climate change should not be tackled sector-by-sector, nor should the federal government seek to micromanage energy efficiency gains and emission reductions through centralized regulation. A more sensible strategy would involve universal pricing of carbon, such as through a revenue-neutral carbon tax (like the one adopted in British Columbia), supplemented by policies to accelerate the innovation, development and deployment of low-carbon technologies. Technology inducement prizes would help drive innovation, incentivized procurement could and reform of permitting and siting rules could help with development and deployment. Such an approach would not only out-perform the efforts to drive climate policy through the EPA, they would also be preferable to a Green New Deal. Alas, I am not optimistic that this is the approach the next administration will take.

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  1. Climate change should not be tackled sector-by-sector, nor should the federal government seek to micromanage energy efficiency gains and emission reductions through centralized regulation. A more sensible strategy would involve universal pricing of carbon, such as through a revenue-neutral carbon tax (like the one adopted in British Columbia), supplemented by policies to accelerate the innovation, development and deployment of low-carbon technologies.

    Very likely correct. Engineering (energy, bio-engineering, transportation, and other forms) and the proper pricing of externalities will be most effective. Unfortunately, accepting that climate change 1) is happening, and 2) is bad will be necessary. How long before the oil companies and the Republican party get there?

    1. Do they need to “get there”? Cars are far more efficient and fuels are cleaner burning than when the CAA was written. With some modifications diesel is nearly sulfur free as well. Coal power plants are down to less than 20% of all generation in the US and half of all coal mines have closed or will. Natural gas is clean burning, with less than half the CO2 produced. New natural gas combined cycle plants are nearly twice as efficient now as coal plants. All due to free enterprise and deregulation. Renewables make up about 10% of generation, and there’s still hydro and existing nuclear plants. In all we are doing far better than ever and it didn’t take much to encourage that. Just get government out of the way. If they insist on inserting themselves into the process again it will stagnate in favor of the crony corporatists – that means back to monopolies and state run institutions that curry favor with the government.

      1. Don’t bother. Some people are convinced there is a magic formula which can remove us from oil dependency but big oil is just hiding it all.

        Then they think that solar and wind power can solve everything. They think electrical generation is like a video game, not realizing that power storage is orders of magnitude too low to go to full renewables. They also oppose nuclear power.

    2. and the proper pricing of externalities will be most effective

      … and you are going to do this exactly how ? Given that you can’t even qualify effects much less quantify them, this is a non-starter.

    3. What about the externalities of slow technological progress, disease, starvation, want, and death caused through the centuries until freedom generated insane amounts of cheap energy?

      I’d rather global warming and a hundred more years of this than a cleaner environment and technology only 70 or 50 years ahead of where it is now. And so would you, if actual measurements of deaths is your yardstick.

  2. While carbon pricing would be superior than trying to throw CO2 into NSPS, it’s still not valid. As anyone in industry can tell you, there are hard limits on what can be reduced. 5% reduction is pretty easy. 10% is difficult. 15% might not be possible without completely destroying your facility and rebuilding. 25% might not be possible at all. Then, you have endless cheating and side-steps around the cap and trade. You design facilities and units to be exempt, use offsets which are laughably inefficient. Almost all facilities are at the “difficult to reduce at all” stage already. The next step is to shut down things here and move them to countries where things are cheaper.

    The only thing CO2 pricing does is make things more expensive and then push manufacturing overseas.

    1. As anyone in industry can tell you, there are hard limits on what can be reduced. 5% reduction is pretty easy. 10% is difficult.

      Well, they will tell you all that. Whether it’s true or not is another matter.

      1. If you need to mold steel or extrude plastic, there are hard lower limits on how much energy you can use. If you need to compress a gas, you have Carnot efficiency as a hard limit, and then friction, cooling, and everything else to worry about. You sometimes get breakthroughs, but the vast majority of the time, you are shaving tiny amounts by replacing your fluorescents with LEDs or replacing an old boiler with a new one with a 5-10% increase in efficiency at a six digit price tag.

        1. OK, but all a carbon tax does is drive up your costs, and those of your competitors. If it’s well-designed it just reflects the actual cost you are imposing on society through your use of fossil fuels, and it lets you pass that on to the ultimate beneficiaries – your customers.

          Will that be accurate? Probably not, but it will be better than letting manufacturers essentially help themselves to resources they are not entitled to.

          1. You are both over and underthinking this.

            You are overthinking because it is, in effect, just an additional expense, driving up the cost of energy, the effects are quite simple.

            You are underthinking because the entire point of this is to encourage reduction. Otherwise, we are just pushing paper around. If the cost is low, then we run into the same limitations I said earlier. If the cost is high, then it just becomes another tax code, where people cheat, finagle, and do all sorts of legal tricks to avoid it. If they can’t, they’ll just move offshore. So the carbon tax is really ineffective at its stated purpose. Businesses are already doing as much as they can to reduce actual emissions. This just enables and encourages the worst aspects without any active gain.

            1. it is, in effect, just an additional expense, driving up the cost of energy, the effects are quite simple.

              Well, yes, it drives up the cost of fossil-fuel energy.

              If the cost is high, then it just becomes another tax code, where people cheat, finagle, and do all sorts of legal tricks to avoid it.

              Presumably they will pay the tax when they buy the fuel, so it would be more like a sales tax.

              Businesses are already doing as much as they can to reduce actual emissions.

              I don’t think so. If using high-emission methods is cheaper than switching to others then why wouldn’t they keep on doing that? That’s the whole point of a carbon tax.

  3. The two most important initiatives to reduce carbon emissions by the EU and USA have been unmitigated public health disasters! So the EU promoted diesel passenger cars to reduce carbon emissions and that resulted in smog and poor air quality in European cities. The USA pushed ethanol which everyone here knows has been an unmitigated disaster on multiple levels. My advice—do nothing for a few years because renewables and EVs seem to be doing fine in America without the $10 trillion Green New Deal.

    1. Ethanol was mostly a giveaway to farmers.

      You know, those hardy self-reliant rural dwellers who vote Republican because they hate government handouts and would never accept one.

      1. It actually had liberal support, but now Trump has weaponized it against Democrats. The reality is Republicans have been just as good about renewables and EVs as Democrats thanks to Texas having so much wind potential.

        1. It did have liberal support.

          That doesn’t mean I have to like it.

          1. Though his timeline is wrong. It hasn’t had strong liberal support this century.

            1. Nancy Pelosi was Speaker in 2007 when Congress passed RFS2 you nitwit.

              1. So by liberal you mean Democrat.

                Because most people make a distinction between Pelosi the left.

      2. It came from environmentalists. Ethanol was supposed to be carbon-neutral. It isn’t really but sorta. It’s also a political football but what isn’t?

        1. Well, isn’t Brazil like almost carbon neutral due to ethanol?

          Won’t work here, but isn’t 100% dumb.

          1. Ethanol isn’t carbon neutral due to the energy costs of growing the crops and producing the ethanol but yes it’s more carbon-neutral than fossil fuels. Actually as schemes for reducing carbon go it’s not all that bad, just in practical terms limited. Also the question of diverting arable land to producing energy instead of food is a potential issue as population increases.

  4. “he Clean Power Plan, while more aggressive and more costly, was never a serious solution to the climate challenge either.”

    There is no such thing as serious solution to the “climate challenge”.

    Stand on the sea shore at the low tide line and verbally command the tide to not rise. It will be as effective as anything else and a lot cheaper.

    1. There are two real, serious solutions: large scale hydropower and large scale nuclear power. Everything else is a fraction of a rounding error, even accepting all the estimates.

      1. Everything else is a fraction of a rounding error, even accepting all the estimates.

        Not quite.

        According to preliminary data from the US Energy Information Administration, renewable energy accounted for about 11% of total primary energy consumption[3] and about 17% of the domestically produced electricity in the United States in 2018.

        In 2019 (look further down) renewables provided about 18% of US electricity generation, with hydro providing about 36% of that total.

        1. And that’s where it will top out. You can’t replace fossils fuels without having 75-80% nuclear. And the only way to get there is either direct government subsidy or indirect subsidy in the form of a carbon tax, the proceeds of which flow to building nuclear power plants. It would be a huge hit on the economy so I’m ambivalent about it but once it’s there you’re done. Problem solved as long as it’s worldwide.

      2. The climate changed constantly long before humans were in any position to have a significant impact.

        Not even large scale hydropower and large scale nuclear power will make a dent in the climate change threat, to the extent that there even is a threat.

  5. Since humans breath out co2, how long do you think it will be before there are population control demands under emergency decrees, say similar to China’s one child policy ?

    1. That’s the elephant in the room and was a big part of the Paris climate conference that did not get much press because any mention of population control could be perceived as racist since women in sub-Saharan Africa have an average of 5 kids over their lifetimes…

      1. It’s not humans breathing that’s the driver of co2, guys.

        1. Sure it is. If there were no humans breathing, all human generated CO2 would cease. The ultimate population control, cleanse the human parasites and the Earth will be perfect again, or something.

          But, as long as humans are breathing, having a greener, warmer planet is better than the alternative.

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