Clean Power Plan

NRDC's Doniger pushes back on legal arguments against rule

With a shift in strategy on natural gas in its final Clean Power Plan, is the Obama administration retracting on its support for the fuel? During today's OnPoint, David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, discusses changes made in the final rule and the impact they could have on the rule's legal defensibility. He also previews NRDC's plans for defending the rule in the courts and in Congress.

Transcript

Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is David Doniger, director of the climate and clean air program at the Natural Resources Defense Council. David, thanks for coming on the show.

David Doniger: Sure, thank you.

Monica Trauzzi: So David, when EPA's draft Clean Power Plan was released, there were many who drew parallels between NRDC's pitch on what the rule should look like and what the agency actually included in their draft. The final rule is quite different from both of those documents. Were you surprised with how aggressive the agency was with the changes that it made?

David Doniger: Well, this is an historic step by the agency. First time we have carbon limits on power plants, the largest source. They do phase in over time. They do go eventually to a stronger level, and under the proposal it's welcome. The many aspects of the proposal are very clear improvements of the -- sorry, of the final are very clear improvements over the proposal. The targets have become much more consistent and fair, like power plants are treated alike, like states are treated alike, and much less variation, a lot of sound improvements over the proposal.

Monica Trauzzi: Where do you think the agency perhaps bent too much to stakeholder concerns?

David Doniger: Well, it's clear that those who wanted more time got a very generous time schedule, but it's doable, and it will make a big difference starting in '20s, and it will make a big difference in the long term, too.

Monica Trauzzi: Is the Obama administration retracting from its strong support on natural gas? I mean, how would you qualify sort of the state of play on natural gas, because I think many people were surprised with the direction they took in this rule?

David Doniger: Well, one of the concerns we had was that the compliance pathway under the proposal involved sort of a temporary bulge in natural gas use, and not enough pickup of the potential for renewable energy and energy efficiency. So with respect to renewables, they have updated all the cost information and reflected reality and the real potential for renewables, and they play a much bigger role. Energy efficiency is not in the target-setting block, but it still is a prominent part of the compliance pathways, which actually is what the power companies wanted. They wanted energy efficiency out of the target setting, but still a compliance technique. So the upshot is you have less reliance on coal, and not an increase on reliance on gas, and much more renewable power and energy efficiency. It's the right direction.

Monica Trauzzi: But we have such an abundance of natural gas in this country. I mean, how much of this was about fracking and methane and other concerns relating to natural gas?

David Doniger: I just would say that the cleanest possible pathways are those which rely on renewable and efficiency, and it's possible to achieve these goals without an increase in natural gas, but even by 2030, of course both natural gas and even coal are still playing an important role in the electricity mix.

Monica Trauzzi: So everyone waits now for the rule to be published to the Federal Register. That will mark the start of legal action. What is NRDC gearing up for? How aggressively do you think this is going to be hit?

David Doniger: Well, it's interesting to note that the litigants seem ready to wait for the package to reach the Federal Register, which is the right approach. Maybe this is the end of all these premature litigation games. NRDC and other environmental groups will be ready to intervene in these cases when they're filed on the government side to defend the rule. If some group of them seeks a stay, we'll be there to oppose a stay, and we'll be there to defend the rule in the long run.

Monica Trauzzi: Industry attorney and former EPA general counsel Roger Martella said on this show that EPA did address some legal issues in the final rule, but at the same time it is even further unhinged from the statutory text. The fundamental approach under Section 111(d), which is pre-empted by Section 112, and the beyond-the-fence-line approach, which goes beyond a specific source, and for the first time in the 45-year history, the Clean Air Act sets standards for a source beyond what's achievable from that source. Those are fundamental inherent flaws that, with the legal approach, that cannot be reconciled. How will that argument be countered in court?

David Doniger: I think that what's unhinged is some of the reaction to the plan. The plan is totally hinged to the Clean Air Act. We've had 30 or 40 years of using these same sorts of technique throughout the Clean Air Act on power plant regulations. The acid rain program, for example, the limits that Congress set were based on the availability of emission trading credits from one plant to another; the cross-state rule, same thing, even the Bush administration mercury proposals, the same concept. So this is nothing new that the limits would be set taking into account both what factory plants can do on their own, and what they can do through emission trading mechanisms to get access to emission reductions that can be made more cheaply outside of the plant; nothing new there.

Monica Trauzzi: So you're not concerned about this argument showing up before the courts?

David Doniger: I'm sure it'll show up, but I'm not concerned about it.

Monica Trauzzi: How many states do you think will choose to comply sooner than the 2022 deadline?

David Doniger: Well, a number of states already have their own programs, and are beefing up their programs, and will probably run earlier and way ahead of the limits that EPA has set for them. The incentive program that the administration has added in will encourage states to complete their plans early, and not wait until the last minute in 2018, because the projects that qualify for the incentives are those which get started after the states admit a complete plan. So that's a positive incentive for states to go ahead, but the main incentive for states to write their own plans is that states know best what the circumstances are in their states, and the opportunities and constraints. That's why most power companies want states to write the plans, not leave it to the federal government. The federal plan is totally practical. It's a good plan, but state plans can be even better.

Monica Trauzzi: Let's talk about Congress for a moment. Senate EPW has already taken a step against the rule. We're expecting several different avenues to derail the rule to emerge once Congress returns in September. How damaging could those efforts be, whether they have the votes to pass or not to what the public perception of the rule is, and also how confident the international community feels?

David Doniger: I think the public is solidly behind taking action on climate change, and this Clean Power Plan in particular. There are opponents, primarily congressional Republicans, who are playing to a base slice. Maybe we'll see some of that in the debate, and it doesn't play well with the broad public. They don't have the votes to get these measures through. The president has made very clear that he would veto things that do get through, and they don't have the votes to override.

So I think we're in a turning point in public opinion where even the Republican opponents are realizing you can't just deny climate change anymore, and deny the need for action anymore. You have to have a plan, and they have no plan. You can't be against the president's plan, the Clean Power Plan, and have no plan.

Monica Trauzzi: This is a big, significant rule. How much of it is about having something in hand when the U.S. negotiating team shows up to Paris?

David Doniger: Well, the question hanging over climate negotiations for a couple of decades, is the United States a serious player? Can we be counted on? The Obama administration's domestic actions, Clean Power Plan, the vehicle standards, a bunch of other things has gone a tremendous distance of convincing other countries that we are a partner, that we are ready to lead, ready to partner with other countries in this effort. It's why the Chinese were willing to agree by that early last November, and other countries since then: Brazil, Mexico and so on. It's shaping up to be a very successful meeting in Paris.

Most foreign leaders have the same assessment of Congress that I've just portrayed that they can't pass the things that would derail things. The court, they're all trying to get their arms around the judicial risk. I think the risk is low and manageable, and EPA usually wins, and they will win again in this case. So it's quite remarkable the Republicans spent the last couple of decades saying we should take action at home, because other countries were unreliable. Now they argue that other countries shouldn't act because the United States is unreliable. I think actually most other countries are willing to take the bet that we are serious and can follow through.

Monica Trauzzi: All right, we'll end it there on that note. Thank you for coming on the show.

David Doniger: Thank you very much.

David Doniger: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]

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