The EPA's Affordable Clean Energy (ACE) Rule: Putting Money on ACE Is a Bad Bet -- Part II

by Joseph Tomain | October 10, 2018

This post is the second of a pair on the Trump administration's so-called "Affordable Clean Energy" (ACE) rule. You can read the first post here on CPRBlog. 

Industry Trends

In short, energy projections demonstrate a clear trend for clean energy and away from fossil fuels. These trends, directly and negatively, affect traditional electric utilities. About the time that rooftop solar financing was being consolidated by third parties such as SolarCity and Sunrun, utilities began to worry about a "death spiral." In such a scenario, customers would install solar rooftop panels, generate some or all of their electricity, and then either reduce their utility bills or, in some instances, sell their excess electricity back to the utility. To the extent that customers left the grid, the utility would have to recoup their fixed costs from a smaller customer base, thus increasing electricity prices and forcing more customers off the grid – hence the downward spiral.[1] At the time of these initial concerns, only about 2 percent of electricity was being generated by solar and distributed energy resources and, therefore, these new sources of energy barely put a dent in traditional generation.[2] 

Today, however, utilities face a range of new developments in the electricity sector that threaten the traditional ways that utilities do business and are forcing smart utilities to rethink their business models.[3] Declining technology costs for solar and wind have already ...

The EPA's Affordable Clean Energy (ACE) Rule: Putting Money on ACE Is a Bad Bet -- Part I

by Joseph Tomain | October 10, 2018
This post is the first of a pair on the Trump administration's so-called "Affordable Clean Energy" (ACE) rule. You can read the second post here on CPRBlog.  On August 21, the Environmental Protection Agency (EPA) proposed the Affordable Clean Energy (ACE) rule as a substitute for the Obama administration's Clean Power Plan (CPP). The CPP had been stayed from going into effect by the U.S. Supreme Court, and the purpose of the substitute rule is to establish greenhouse gas emissions ...

Progressive Regulatory Reform

by Daniel Farber | October 08, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Until recently, you could be a very well-informed American – a lawyer, even – without ever having heard of the Chevron doctrine. That has changed enough that last month, The New Yorker had a "Talk of the Town" essay discussing Kavanaugh's views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which ...

The Hill Op-Ed: Blind Focus on 'Energy Dominance' May Cripple Endangered Species Act

by Alejandro Camacho | October 05, 2018
This op-ed originally ran in The Hill. The bald eagle, sea otter, timber wolf — these iconic animals and more have been saved by the Endangered Species Act (ESA). But the Trump administration doesn't seem to care about our country's natural heritage. It's using questionable arguments about the popular law in an effort to gut protections and convert our public lands into private assets. The administration's destructive intent is apparent in the proposed revisions to the ESA by the U.S. Fish and Wildlife Service ...

The Trump Administration's Acknowledgement of Climate Change Is Cynical -- and Potentially Sinister

by Melissa Powers | October 03, 2018
As Juliet Eilperin, Brady Dennis, and Chris Mooney of The Washington Post reported on September 27, the Trump administration seems to finally be acknowledging that climate change is real. But the motivation for recognizing that reality is cynical, at best, so rather than proposing doing something – anything – about climate change, the administration concludes we shouldn't bother trying.  Buried in a 500-page justification for a rule that would prevent California (and, by extension, other states) from regulating emissions of ...

Environmental Justice Is Worth Fighting For

by Sidney Shapiro | October 02, 2018
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission. The reactions to our article, Inequality, Social Resilience, and the Green Economy, have a clear message: We, environmentalists, have our work cut out for us. We wrote our article to start an overdue conversation about environmental policy and social and economic well-being, and we thank our commentators for joining us in starting this conservation. In response, we would note that, although protecting the ...

Executive Order 12866 Is Basically Dead, and the Trump Administration Basically Killed It

by James Goodwin | October 01, 2018
Sunday marked the 25th anniversary of the issuance of Executive Order 12866, but it was hardly a happy occasion. For all intents and purposes, though, the order, which governs the process by which federal agencies develop regulations under the supervision of the White House Office of Information and Regulatory Affairs (OIRA), is dead. Despite all the glowing praise over the years and all the exaltations of its supposed durability, its health had been in decline for several years. It was ...

Argument Preview: Justices to Consider Critical-Habitat Designation for Endangered Frog

by Lisa Heinzerling | September 28, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog. A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the ...

Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

by John Echeverria | September 28, 2018
On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred. The Knick ...

The Case for Co-Benefits

by Daniel Farber | September 27, 2018
Cross-posted from LegalPlanet. The Trump administration is moving toward the view, long popular in industry, that when it regulates a pollutant, EPA can consider only the health impacts of that particular pollutant – even when the regulation will also reduce other harmful pollutants. This idea is especially important in climate change regulation because cutting carbon emissions almost always results in reductions of other pollutants like particulates that are dangerous to health. This may seem like a minor technical issue. But by ...

Expanding Environmental Justice to Achieve a Just Transition

by Alice Kaswan | September 26, 2018
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission. A recent study tells us that Hurricane Maria, which struck Puerto Rico in September 2017, may have caused as many as 4,600 deaths, far exceeding the initial official death toll of 64. In contrast, contemporaneous hurricanes in Texas and Florida appear to have caused far fewer deaths: 88 in Texas and 75 in Florida. The differing outcomes bring home the importance of Sidney ...

From Surviving to Thriving -- Seeking Climate Justice in the Common Law

by Karen Sokol | September 26, 2018
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. The 450 Inupiat residents of Kivalina, a small village on the frozen tundra of Alaska at the edge of the Arctic Ocean, are among the first communities in the world to lose their ability to survive because of climate change. With temperature increases that double the global average, Alaska is one of the canaries in the coal mine ...

New Report: A Fair Economy Requires Access to the Courts

by James Goodwin | September 26, 2018
The confirmation hearing for Brett Kavanaugh offered Americans a contemporary reminder of what the Framers of the Constitution had in mind when it comes to protecting many of our fundamental rights and liberties. When it came to individual access to civil courts, a right guaranteed in the Seventh Amendment, they couldn't have been clearer. No less than James Madison put the value of that guarantee in stark terms: "Trial by jury [in civil cases]," he said, "is as essential to ...

Mesothelioma Awareness Day 2018

by Katie Tracy | September 25, 2018
September 26 is Mesothelioma Awareness Day. The day is intended to share information about mesothelioma, an incurable cancer that forms on the linings of vital organs, typically the lungs, following asbestos exposure. While the prognosis for individuals diagnosed with the illness is grim, preventing it is very much possible.  Scientific studies of asbestos conclude there is no safe level of exposure. Accordingly, the clear solution to preventing mesothelioma is to ensure people are never exposed to asbestos in any amount. ...

The Jobs and Regulation Issue Revisited

by Daniel Farber | September 25, 2018
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission. Despite noisy political claims to the contrary, the weight of the evidence suggests that regulation has a small impact on the total number of jobs. Still, regulation is bound to have some effect on who has jobs, what kinds of jobs they have, and where those jobs can be found. How much should we care about that? In a new ...

From Surviving to Thriving -- Coastal Storms, Private Property, and the Takings Issue

by John Echeverria | September 25, 2018
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. While no single ...

Regulating the Green Economy

by Sidney Shapiro | September 24, 2018
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission. A green economy will generate thousands of new jobs — many more than will be lost to regulations on carbon pollution. But a green economy may also increase wealth inequality in some parts of the United States because people who lose jobs to carbon controls are not the same as those who will get them when the green economy blooms. ...

From Surviving to Thriving -- Disaster in Disaster: The Emergency Planning and Community Right-to-Know Act Must Be Enforced

by Rebecca Bratspies | September 24, 2018
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. This chapter is excerpted from a law review article that is forthcoming in U. Arkansas Law Review, titled "Taking a Page from FDA’s Prescription Medicine Information Rules: Reimagining Environmental Information for Climate Change." What Happened? In August 2017, Hurricanes Harvey and Irma hit the southern United States in rapid succession. These massive hurricanes wrought widespread devastation — destroying ...
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