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Clean Power Plan: Has EPA Overstepped?

The idea of "Cooperative Federalism" began with the New Deal in the 1930's, when it came to include a division of responsibilities among the states and the federal government agencies of electric power and distribution. By the passage of the Clean Air Act of 1970, the EPA set the minimum standards for the states to best implement their individual utility plans to meet air pollution goals with approval of the EPA. This dynamic partnership, with the State Utility Commissioners, state utilities, Federal Energy Regulatory Commission, Nuclear Regulatory Commission, Department of Energy, state and regional transmission lines has lasted for almost 80 years, with very positive impacts.

More importantly, this state and federal electrical grid partnership developed the necessary long term planning expertise, engineering sophistication, vast financing mechanisms and political mandate to develop the most robust electrical grid in the world. It also had "the machinery for change," as Leonard Cohen put it.

Then, suddenly the EPA announced its "Clean Power Plan" in 2013. Several constitutional scholars saw this plan, using 111(d) of the Clean Air Act, as a significant federal agency over-reach that some have called "regulatory capture." Experts such as William Yeatman of the Competitive Enterprise Institute believe that the EPA should avoid this aggressive intervention and continue a policy of "Cooperative Federalism" by using the "normal tools of government" including the electoral process and political mandates.

The facts seem to support the historical approach of this well-rounded cooperation. In a recent news release, the EPA said that it has recorded state efforts that consistently met or exceeded the federal requirements for energy efficiency, fuel use, renewable energy, and other high-performance sustainable building metrics. In 2013, for example, EPA oversaw the 24 percent energy intensity reduction from its FY 2003 baseline, a reduction from the FY 2013 energy intensity by 25.6 percent from FY 2003. In FY 2013, EPA also measured a reduced fleet petroleum use by 38.9 percent compared to the FY 2005 baseline, exceeding the goal of 16 percent." In addition, the EPA reports that greenhouse gases in the US have been reduced by 10 percent 2005-2012. In the states, the 50 separate Public Utility Commissions (and their National Association of Regulatory Utility Commissioners) have been exercising their authority and responsibility for working with state governments, power plant operators, business community, state environmental groups, consumer groups and transmission companies to provide electricity to power the largest economy in the world.

Currently, 47 states have demand-side energy efficiency projects, all with measurable results, 38 states have Renewable Portfolio Standards (RPS), 10 states have voluntary market-based Green House Gas (GHG) emission trading programs and numerous large private companies and publicly traded utility companies have been pursuing voluntary emission reduction strategies.

In a recent presentation at conference of the American Meteorological Society in Phoenix, EPA Administrator Gina McCarthy said that "Science is under attack like it has never been before," which seems like hyperbole, at the least or a highly political rationalization, at the most. In a recent editorial in Science Magazine, the executive publisher Alan I. Leshner, said: "If the general public is to share more opinions with members of the scientific community, scientists themselves cannot ignore concerns that people may have about the research process or findings. There needs to be a conversation, not a lecture."

Adding to the overall scientific confusion are recent stories about "global warming" by many news outlets like the BBC, Forbes, the New York Times, The Economist and CBS, they have reported that there has been no measurable increase in temperature over the last 15 years, also known as "global warming pause." On the other hand, other media sources like the World Meteorological Organization, The Guardian and Climate Central are reporting that the 10 warmest years have been since 1998. Surely, these disparities represent a major disagreement between respected sources of weather science information.

For the record, the United Nations International Panel on Climate Change's (IPCC) latest study shows a temperature increase of 0.09 degrees Fahrenheit since 1998. Unsurprisingly, a recent Ohio State University 2015 study suggests that "both liberals, conservatives have science bias," when they are presented with facts that challenge some of their political beliefs.

Finally, there are several EPA's Climate Change assertions which can be vigorously debated. For example, in the EPA News Release of October 31, 2014, it talks about the impacts of climate change across the country, "ranging from more severe droughts and wildfires to record heat waves and damaging storms." One could easily argue that none of the events need necessarily have been caused by global warming. In fact, there is no detailed scientific evidence to ascribe "climate change" to any of these natural events.

All of this leads me back to my original point: Why has the EPA given up on cooperative federalism and replaced it with the Clean Power Plan?" This complex plan simply does not take into consideration many of the costs related to its comprehensive plan, like new transmission infrastructure, new power plant construction and the stranded costs created by shuttering many coal-burning power plants and current transmission lines.

The EPA looks woefully unprepared for the planning, oversight and execution necessary for its own Clean Power Plan. Without an immediate global warming crisis, the rationale and political will for such precipitous action as proposed in the Clean Power Plan seems more political than practical, especially given the fact that the EPA has almost none of the technical, financial and engineering expertise developed over 80 years by the group of US electric grid stakeholders.

Most surely, the current state of Cooperative Federalism has proven to be capable of providing inexpensive and abundant energy, which is environmentally progressive and economically sound. Ultimately, the EPA should be part of the total solution, not a part of the problem and the creator of state and federal uncertainty many years into the future.


Currently, Stephen Heins is an energy and regulatory consultant for Tocqueville Assets, LLC of New York City.

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