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Volokh Conspiracy

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

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


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.