If newly declared presumptive Democratic Party nominee Hillary Clinton wins the presidency, the United States can look forward to a new, more stringent version of the Clean Power Plan, David Bookbinder, a partner at Element VI Consulting and former Sierra Club chief climate counsel, said Thursday at a briefing hosted by the United States Energy Association.
“I think [Clean Power Plan] 2.0 comes as soon as there’s a new administration, a new Democratic administration,” Bookbinder said. “I think it’s literally as soon as the Supreme Court blesses the Clean Power Plan, literally within six months of that there’s a new proposed rule for 2.0.”
The Clean Power Plan, carbon emissions standards for existing coal-fired power plants, requires states to develop action plans to reach federally set emissions reduction targets. Implementation is on hold following a Supreme Court-issued stay of the rule, which Is the focus of a massive legal challenge involving 27 states and more than 150 interest groups, utilities, companies, and trade organizations. The case is scheduled to be heard by the U.S. Court of Appeals for the D.C. Circuit in September and will almost certainly move to the Supreme Court, where Bookbinder believes the rule will be upheld.
The first iteration of the Clean Power Plan, Bookbinder said, is not as stringent as it could be, and certainly not tough enough to deliver on the nation’s commitment under the international Paris climate change agreement to decrease its greenhouse gas emissions by 26-28 percent by 2025. In fact, he added, the current portfolio of national climate actions, both enacted and proposed, will fall far short of the Paris Agreement commitment, leaving it up to the next administration to fill the gap.
That is if the next administration is Democratic. “If there’s a Republican in the White House, based on [Republican nominee Donald] Trump’s statements so far, there aren’t going to be any further measures,” Bookbinder said.
The current Clean Power Plan is being challenged on its legality, Bookbinder said, and not its feasibility. The next iteration will push those bounds, requiring greater emissions cuts. “When you’re EPA and have a rule, you’re going to get attacked for two things: one, it’s illegal, and two, we can’t do it. EPA decided on this one, we’ll let them attack us on legality. We are not going to have the fight on the Clean Power Plan that they can’t do it,” he explained.
For 2.0, the administration would increase the emissions cuts required in the regulation, which will no doubt result in attacks of the second nature, he said: “2.0, that’s where you get some serious reductions.”
Even with the implementation of a more stringent version of the Clean Power Plan, the U.S.’s chances of hitting the Paris Agreement target by 2025 are slim, Bookbinder said. “The utilities will scream, and that will take another decade to get there,” he said, suggesting there would again be litigation.
The Clean Air Act offers a Clinton administration another path to the deep emissions cuts needed to meet the Paris Agreement commitments. Section 115 of the Clean Air Act provides that if emissions from the U.S. are harming another nation, EPA has the authority to set emissions budgets for each state – covering the entire state, not just one emissions source type like the Clean Power Plan – and require states to develop plans to reach those goals.
However, Section 115 is riddled with legal issues, including a requirement for reciprocity from the nations deemed harmed by U.S. actions. The decision in a President Jimmy Carter-era court case dealing with Section 115 strongly implies “that the emissions cuts have to be mandatory, that the U.S. cuts are mandatory if we have them in the law and for reciprocity the other countries emissions cuts would have to be mandatory,” Bookbinder said.
Still, Bookbinder believes, if the situation grows dire enough, the Supreme Court might be willing to look past the legal issues. “A 115 program would come about in a second Clinton administration, if we see one. If it gets to the Supreme Court by 2026, 2027, 10, 11, 12 years from now. If 12 years from now, we’re faced with another 12 years of rising worldwide temperatures, further problems caused by global warming, and a Congress that has not done anything, the Supreme Court may well legislate,” Bookbinder stated.
