Last week the Supreme Court announced that it would hear an appeal to the DC Circuit Court’s rejection of the Trump Administration’s constitutional argument that the US Environmental Protection Agency cannot regulate power-plant emissions by considering the availability of emissions-reducing technologies “outside the fenceline” of the power plant itself.
On one level, this technical distinction can make a big difference to the scope of EPA regulations on carbon emissions. If the EPA has expansive authority to regulate emissions at a coal plant, it could require the utility that owns the coal plant to run the coal plant less often and run other lower-carbon power plants more often or, even, to close the coal plant and replace it with, say, a geothermal power plant. But if the EPA is constrained to mandating interventions inside the coal plant’s fenceline, then it can only mandate greater power plant efficiency and use of best-available control technologies within the facility itself, dramatically limiting the options to reduce emissions.
On another level, though, this might prove to be a distinction without much of a practical difference. Federal regulations of greenhouse gases, no matter how expansive or constrained, will not play a leading role in decarbonization, for three reasons.
The first reason is political. Governments will always be reluctant to impose significant costs, either regulatory or market-based, on major economic sectors. In this instance, a Biden Administration that is suffering from underwater approval ratings and already likely to lose seats in the Congressional midterms is unlikely to roll out consequential federal regulations on a central American industry like the electric power sector. That will become even more the case if the Bipartisan Infrastructure Framework (BIF) and Build Back Better (BBB) Act pass. The Biden Administration is already touting these carrot-heavy major infrastructure investments as the keystone in emissions reduction goals, not as an opening gambit in a broader sticks-heavy regulatory agenda.
The second reason is constitutional. Even before this latest appeal to the Supreme Court, the authority to regulate greenhouse gases has always stood on shaky structural ground, as we learned during the second Obama Administration. Obama’s Clean Power Plan (CPP) was designed explicitly to weigh “outside-the-fenceline” options for reducing emissions and thus enabling broader regulatory restraints on power-sector emissions. But even before the Trump Administration vacated the CPP, the framework had been picked apart for years by various courts, over the fenceline consideration, the EPA’s statutory authority under Section 111 of the Clean Air Act, and other matters. Most analysts predicted the emissions reductions under the Clean Power Plan would not much exceed business-as-usual.
The third reason is definitional and, frankly, paradigmatic. The Supreme Court ruled in Massachusetts vs. EPA in 2007 that the federal government has the authority to regulate greenhouse gas emissions under the Clean Air Act. But the exercise of this authority remains the subject of debate since, under the original definitions in the Clean Air Act, carbon dioxide and other greenhouse gases like methane are not pollutants. They are not toxic to human, animal, or plant life at any normal concentrations. Regulating them, arguably, requires identifying a different kind of harm altogether from what the Clean Air Act was designed to mitigate, a sticking point that caused trouble for the CPP long before Trump vacated the rule.
And this is the distinction we should pay the most attention to. Because while greenhouse gases do result from human activities and pose serious environmental, economic, and public health threats, their provenance and impact are fundamentally different from other atmospheric and terrestrial pollution. Now of course there are pollutant byproducts associated with the combustion of fossil fuels, including sulfur oxides, heavy metals, particulates, and carbon monoxide. But regulations already exist for these hazards. Greenhouse gases are simultaneously less immediately dangerous and far more pervasive to the industrial economy. They require fundamentally different responses than the regulatory state can provide.
This is why climate change is best understood as an industrial and technological challenge and not as a “pollution problem.” As Breakthrough argued in one of our founding documents:
"Many policymakers view the problem of global warming as a pollution problem, similar to acid rain, smog, or the ozone hole. But whereas addressing the ozone hole required a simple and inexpensive chemical substitute, global warming demands a totally different way of producing energy. We were able to fight smog without replacing oil. We dealt with acid rain without dismantling our power plants. And we will continue to phase out ozone-depleting chemicals without affecting any of our energy sources.
To deal with global warming, we will need an entirely new energy infrastructure. Creating a new energy infrastructure is more comparable to the creation of the railroads, the interstate highway system, personal computers, the Internet, and the space program than it is to installing catalytic converters and scrubbers, or phasing out ozone-depleting chemicals. The latter involved mere technical fixes, not wholesale technological revolutions."
None of this means that the EPA or other agencies cannot or should not find a way to regulate greenhouse gas emissions. But as we’ve seen, there are political and institutional obstacles to doing so in ways that will make a large difference. And, most importantly, we should recognize that whatever amount of regulation we can make work will be incidental, not central, to the ongoing energy transitions and decarbonization that will necessarily make up our response to climate change.