A veteran Justice Department environmental attorney now in private practice representing opponents of U.S. EPA's Clean Power Plan believes that no matter which way courts rule, there will be a "clamor" from industry for Congress to pass more limited legislation to address greenhouse gases, such as a carbon tax or a cap-and-trade program.
Tom Lorenzen, a partner in Crowell & Moring's Washington, D.C., office, spent 10 years with DOJ's Environment and Natural Resources Division, returning to the private sector in 2013.
While at DOJ, Lorenzen led the defense of multiple EPA rules, as well as Massachusetts v. EPA, in which the Supreme Court affirmed EPA's authority to regulate greenhouse gases under the Clean Air Act.
But now he is leading the challenge by the National Rural Electric Cooperative Association and more than 20 individual cooperatives to the EPA emissions rule.
"The way that these rules develop the force of law and the respect of the regulated community in the states is by being tested in court," he said. "And they can't be tested in court without both sides making their best case. This is a critical part of the process."
The basis for Lorenzen's prediction of pressure on Congress is the "patchwork" of state regimes to control carbon emission from power plants.
"A level playing field is a better playing field for most businesses that are in this industry. That kind of level-playing-field analysis may begin to have some effect here, as well — certainly with the larger multistate utilities," he said.
As more and more nations move to cut their carbon emissions, "there is going to be incredible pressure" for the United States to have a serious system to cut carbon emissions, he said. "We're not going to want to be the only holdout on this issue.
"Many still dispute the science, but look around and look at what's happening. If you want to do something about that, you have to attack emissions.
"Then the question becomes what is the most cost-effective way of dealing with that and what is the most efficient way for dealing with that. The Clean Air Act is neither of those things. It wasn't designed for this. EPA has struggled mightily to come up with mechanisms under the law to deal with it because there has been congressional paralysis for 26 years," Lorenzen said.
Ironically, it is the widespread dissatisfaction in a majority of states about the Clean Power Plan's fundamental effect on a state's generation mix that could reverse that paralysis.
"If it is upheld and clients find it is hard to live with or impossible to live with, I think that may produce that clamor for legislation, something that makes more sense from a business's perspective, and that is a tool specifically designed for addressing the unique problem of greenhouse gases," he said.
"And if it's overturned, I think you'll see a clamor for legislation because this is a problem that is going to have to be addressed at some point in a sensible manner."
This week on the Clean Power Plan
EPA and its allies will defend the rule this week in briefs to the U.S. Court of Appeals for the District of Columbia Circuit. Lawyers for the agency are expected to respond to arguments put forth by challengers last month in opening briefs that delved into "core legal issues" of agency authority and federalism, along with alleged procedural deficiencies in the rulemaking process (EnergyWire, Feb. 22).
The agency is expected to double down on its argument that the Clean Air Act supports EPA's broad approach to cutting greenhouse gas emissions from the power sector and that the rule provides ample flexibility for states to craft compliance plans or adopt a federal plan.
EPA is scheduled to file its brief today. States, environmental groups and renewable energy companies supporting the rule will file tomorrow, and friends of the court — including the Institute for Policy Integrity and former EPA administrators William Ruckelshaus and William Reilly — will weigh in on Friday.
On Thursday, Minnesota's Pollution Control Agency holds a meeting to review compliance and cost modeling and hear from the Midcontinent Independent System Operator and Union of Concerned Scientists.
In case you missed it
- Senate Majority Leader Mitch McConnell (R-Ky.) is advocating a "wait-and-see" approach for states considering preparing for the Clean Power Plan (E&ENews PM, March 21).
- But even though the rule is on hold, should states still worry about meeting deadlines in 2022 and 2030? (ClimateWire, March 24)
- Peabody Energy Corp.'s fate may be tied to the Clean Power Plan (EnergyWire, March 24).
- Iowa could see electric bills fall under the rule, according to a study by M.J. Bradley & Associates (ClimateWire, March 23).
- The judges weighing the fate of the rule will consider the views of members of Congress looking to thwart the regulation (Greenwire, March 23).
Reporter Ellen M. Gilmer contributed.