The long, hazy and winding political path that brought the Obama admin to the Clean Power Plan

By Evan Lehmann, Christa Marshall | 08/03/2015 08:33 AM EDT

Climate change was riding an updraft in 2008. More Americans than ever before — or since — saw it as a troubling issue. And President-elect Obama had just pledged in his campaign to do something about it. So did his Republican opponent. Nearly seven years later, Obama is ready to partially fulfill that promise.

Climate change was riding an updraft in 2008. More Americans than ever before — or since — saw it as a troubling issue. And President-elect Obama had just pledged in his campaign to do something about it. So did his Republican opponent.

It went from a salesman’s pitch to a presidential commitment two weeks after the election. Obama vowed to rewrite the nation’s energy profile, eliminating all but 20 percent of existing emissions within 40 years. It was "a new chapter" for climate change, he said in a video six weeks before taking the oath.

"Now is the time to confront this challenge once and for all," Obama said then.


Nearly seven years later, Obama is ready to partially fulfill that promise. When his administration releases the final rules regulating greenhouse gas emissions at electric power plants today, it will mark the enactment of the nation’s most ambitious climate program in history. It’s supposed to cut the sector’s greenhouse gas emissions by 32 percent.

The start of a long journey: President-elect Obama on Nov. 18, 2008, as he announced his first climate change policy. He described it as a “federal cap-and-trade” program “with strong annual targets.” | Photo courtesy of

From a legal standpoint, the path began in 2007. The Supreme Court sided with Massachusetts and 11 other states who sued U.S. EPA for failing to regulate greenhouse gas emissions from vehicles. The agency established new carbon standards on cars; it also expanded the decision to include sources like power plants.

Since then, efforts to curtail emissions have passed through failed attempts to replace regulations with landmark climate legislation. Then, there was a two-year phase in which many federal officials avoided talking about rising temperatures. Then, in 2013, there was a sudden rebirth of the issue when Obama announced his intention to finish EPA climate regulations in 2015.

Along the way, Democrats and environmental organizations have gone through a forest of question marks. Is a legislative price on carbon, like a tax or a cap-and-trade market, still optimal? If so, should EPA regulations be traded away to gain the support of Republicans for a program that, in theory, might reduce more emissions? Or is that politically impossible, and is the nation now bound to a regulatory path for, say, the next 15 years?

"I think we’re further away from carbon pricing than we have been in the last 25 years," said Paul Bledsoe, a climate adviser during the Clinton administration. As for trading regulations away in an effort to enact a carbon tax, he said, "That’s never going to happen."

But many Democratic lawmakers say that regulation alone isn’t enough. Presidential hopeful Sen. Bernie Sanders (I-Vt.) points to a carbon tax as the best outcome, and Democratic front-runner Hillary Clinton supports legislation to increase the use of renewable energy.

In that way, maybe the regulations could be a bargaining chip.

"Once Republicans … realize it’s here to stay, maybe they’ll also talk about other approaches to dealing with this," said Rep. Chris Van Hollen (D-Md.), who’s proposed a bill to price carbon.

Rhetoric about suicide and murder

When Obama assumed office in 2009, Democrats in Congress began scrambling to take advantage of his momentum on climate change.

The House zipped through a series of hearings early that year, touching on the key elements of a national climate plan: the role of efficiency, the "future of coal," how offsets would work, adaptation and renewable energy. Altogether, at least nine hearings on climate were held in the Energy and Commerce Committee within the first three months of the president’s term.

Then, in April, the hike became a sprint. Four hearings in four days. Cabinet secretaries and agency administrators testified with industry executives and environmental leaders about a new cap-and-trade bill, the "American Clean Energy and Security Act" (for short, it was called the Waxman-Markey bill). A key argument by Democrats was that it would supersede EPA’s future regulations made possible by the Supreme Court. Preventing the existence of those rules was supposed to be a carrot for Republicans.

Sixty-seven witnesses appeared all told. The event coincided with Earth Day, and then raced past it. The anticipation of what it might do was sky high. Rep. Edward Markey (D-Mass.), who’s now a senator, ended the first day of speeches with this prophecy: Tomorrow "we begin to write history."

Within minutes, the bill was under attack. A week earlier, EPA had taken one of its first steps toward regulating carbon by announcing its proposed endangerment finding: Greenhouse gases harm people’s health, it said. But some Republicans refused to be intimidated. Embarking on a climate bill was like committing suicide to prevent murder by regulation, one lawmaker said.

"We are again faced with a choice," said Rep. Marsha Blackburn (R-Tenn.) during the initial hearing on Waxman-Markey. "We can acquiesce to bad regulation that will have certain and disastrous impacts on our economy, or we can legislate an even more harmful system. It is as though when faced with a gun to our head, Congress is going to take it and shoot ourselves in the chest."

That was just the beginning. The hearings focused on a discussion draft of the bill. It was unusually long at 648 pages. It would soon be twice that.

A turn toward regulating carbon

The prospects of legislation might have been growing. But so were quieter movements toward regulation. Months earlier, a federal court told the government that it should be considering the benefits of lower emissions when developing fuel economy standards for cars. Until then, the George W. Bush administration considered that the release of carbon dioxide from cars had no economic value. In other words, the social cost of carbon was $0.

The 9th U.S. Circuit Court of Appeals ended that.

"The value of carbon emissions reduction is certainly not zero," Judge Betty Fletcher said in the 2008 opinion in Center for Biological Diversity v. the National Highway Traffic Safety Administration.

Within months, newly arriving officials in the Obama administration would see the decision as a justification for establishing a social cost of carbon. For the first time, it would be used consisently in rulemaking across the government. Some saw it as a prerequisite for future carbon rules. Others say it gave the complicated process of estimating a dollar figure related to carbon damage a stamp of credibility.

San Juan Generation Station
San Juan Generating Station in New Mexico, one of many coal-fired plants likely to be affected by the Obama administration’s Clean Power Plan rule. It serves 1.8 million customers. | Photo courtesy of Wikipedia.

"The court case is a big turning point," said Billy Pizer, a former Obama administration official who worked on the estimate in 2009.

Meanwhile, the House was hurtling toward a vote on cap and trade. The bill included language that would have prevented this week’s release of EPA’s Clean Power Plan. But that didn’t seem to persuade Republicans.

The vote was called at 7:17 p.m. on June 26, 2009. Eight Republicans sided with 211 Democrats; it passed by just three votes at a time when Democrats outnumbered the GOP by more than 75 members. Among those voting "no" were 44 Democrats, mostly from conservative districts and energy-rich regions.

The outcome was celebrated as history-making by Democrats and environmental organizations. But its narrow margin of victory was also encouraging to Republicans.

"That was pretty much dead in its tracks when we saw how close that was," Rep. Fred Upton (R-Mich.), chairman of the Energy and Commerce Committee, said last week. "And frankly it was a turning point in the prospects of the House flipping back to the Republican side."

In the Senate, a path strewn with doubts

The Senate’s struggle began in October 2009 when Sens. John Kerry (D-Mass.) and Lindsey Graham (R-S.C.) published an op-ed in The New York Times challenging their colleagues to pass climate legislation. Their argument was based on national security, job creation and environmental protection.

But it also contained a threat: EPA regulation.

Anyone in the Senate who tries to kill the bill will one day "come running to Congress in a panic" when the regulations are enacted, to secure the kinds of "incentives and investments we can pass today," they wrote. In other words, the regulations were an expensive nightmare; the bill, meanwhile, could raise billions in revenue.

Two months later, the duo had turned into a trio, with the addition of Sen. Joe Lieberman (I-Conn.). They sent Obama a letter containing a "Framework for Climate Action and Energy Independence" in the days before he attended the United Nations’ climate negotiations in Copenhagen, Denmark. They said "support is building."

It would be short-lived. By the time they introduced the "American Power Act" in May 2010, Graham had abandoned the effort after failing to get a single Republican to join him. Within weeks, the plan was dead.

One official with the utility industry, which supported the effort, recalls a pivotal moment. Rahm Emanuel, Obama’s chief of staff, told the official in a telephone call that the White House was shifting its attention to the Senate’s legislative debate around the Affordable Care Act, or Obamacare.

"We were disappointed," the official said. "It was the Senate that couldn’t get it done. No one credits that it was Rahm Emanuel who picked up the phone, screaming at everybody, saying, ‘We’re moving to health care; we’re not doing climate.’"

Other obstacles now emerged on the path. Among them were moderate Democrats.

Former Sen. Byron Dorgan (D-N.D.) was a proponent of moving separate energy legislation that passed the Energy and Natural Resources Committee in 2009. It would have established a federal renewable electricity standard and improved transmission siting.

"We would have had policies in place since 2010 that would have been very helpful in addressing climate change. In the end, we got nothing," he said in an interview.

Nowadays, some of his former Senate colleagues say it was a "mistake" not to move an energy bill that could have reduced emissions. But he laments the failure of a carbon price for a key reason: the cash.

Congressional action would have been preferable to EPA rules because it could have funded carbon capture and sequestration, he said.

"That research money has not now been available, and as a result, the coal industry … it’s very hard to see how they are going to have a very bright future," Dorgan said.

Radio silence interrupted by criticism

The midterm elections in the fall of 2010 marked an end to efforts, temporarily, at establishing climate policies. Republicans took control of the House by winning 63 Democratic seats. In the Senate, Democrats lost their imposing majority of 59 seats, returning to Washington, D.C., with 53 members.

Winter 2011 began a two-year period of near-silence on climate change.

As Obama moved into campaign mode later that year, the Keystone XL pipeline became a persistent White House thorn. The president sometimes came under fire from his environmental base for not addressing climate change forcefully.

Former Vice President Al Gore, for instance, sharply criticized Obama in a June 2011 Rolling Stone editorial for not pushing climate legislation harder in the Senate and defending against congressional budget cuts.

"President Obama has never presented to the American people the magnitude of the climate crisis. He has simply not made the case for action," Gore said, echoing a common green sentiment at the time.

In the 2011 State of the Union, Obama didn’t mention climate change at all and cited it in a passing sentence in his 2012 address, tied with a push for a clean-energy standard. It would not become the main focus of any of his speeches until 2013, according to White House transcripts. "Energy security" became a more common phrase, as did "clean energy," but more for its job-creating and oil-reducing potential than lowering emissions.

Which was not to say that the issue never came up with Obama then — it was just more of a prairie dog popping out of hiding in front of receptive audiences, buried amid other topics.

"As new threats spread across borders and oceans, we must dismantle terrorist networks and stop the spread of nuclear weapons, confront climate change, and combat famine and disease," Obama told the British Parliament in May 2011.

With rules in place, will legislation follow?

That all changed in June 2013. Obama resurrected the issue in a speech at Georgetown University announcing his Climate Action Plan. Its cornerstone was the same EPA regulations that he and congressional Democrats had warned Republicans against allowing to be enacted, favoring legislation instead.

"It’s not like this snuck up on people," said Nat Keohane, who worked as a special assistant to the president and is now a vice president with the Environmental Defense Fund.

But the top-down nature of Obama’s announcement also makes the Clean Power Plan somewhat of an anomaly of EPA history.

"The administration announced to the world 30 percent from 2005 levels by 2030. And then instructed EPA to come up with a rule that met that goal. That is not the way these things are typically developed," said Thomas Lorenzen, a former Justice Department environmental attorney now at the firm Crowell & Moring LLP.

It’s one of the many ways this rule differs from all others, he noted, in addition to the long debate before Massachusetts v. EPA about whether carbon dioxide could be regulated as a pollutant at all. Then there is the innovative use of Section 111(d) of the Clean Air Act, which traditionally involved lowering emissions on a facility via an easy technology fix, not trying to address the entire fuel mix of a whole state.

"The background of this rule is really, ‘How far is EPA willing to depart from what it has traditionally done … in an effort to tackle what is a very big problem?’" he asked.

To others, EPA’s rules are an important tool to help achieve the president’s goal of reducing emissions by up to 28 percent in 2025. But many believe it’s not enough. Legislation that puts a price on carbon will also be needed to avoid longer-term effects of climbing temperatures, Keohane said.

"We need both," he said.

Unlike many other observers, Keohane believes that climate legislation could be possible within five years because of electoral pressures from younger voters and a shifting willingness among Republicans to act on climate change.