Cross-posted from LegalPlanet.
In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of modern governance.
The Trump plan, which originated with a coal industry magnate and major Trump donor, would have required an extraordinary stretch of the statutes in question. The plan was to use one or more of a trio of emergency provisions. The first is a section of the Federal Power Act that authorizes the Department of Energy to order generators to run during wars or other emergencies, including grid emergencies. Both DOE precedent and a D.C. Circuit case say this doesn't apply to fuel supply issues. The second statute, which traces back to the Korean War, allows the president to prioritize performance of defense contracts over civilian contracts and allocate materials, services, and facilities to promote the national defense. But it doesn't seem to provide authority to force companies to buy these items. It also contains loan and subsidy provisions, but they seem to be limited to $50 million in any one year. The final statute, another section of the Federal Power Act, authorizes DOE to issue emergency measures in response to a grid security emergency. These measures last only 15 days at a time.
The biggest single issue with any of these provisions is that they require some kind of emergency or threat to national security. The purported emergencies are that coal might be needed as a power source during a polar vortex and that a cyber attack might interrupt the supply of natural gas. But the factual basis for these claims was thin.
Why did the effort to hijack national security to save coal grind to a halt? According to Politico, Rick Perry kept pushing the plan, but it was unable to overcome some crucial stumbling blocks. The White House national security and economic teams were opposed, probably because the national security justification was bogus and the plan was an assault on free markets. The flimsy national security argument also surfaced in another way: Perry was unable to convincingly identify specific coal plants whose operation was crucial to grid resilience. But the most basic reason the effort failed was that someone would have to pay to keep those plants operating, probably electricity consumers. There was zero political appetite for that.
As the Politico story warned, you can never be sure of anything in Trumpworld. Trump might suddenly remember – or Fox and Friends might remind him – that he supported this plan and demand that it be implemented. But for now, at least, the plan seems to be dead.
The bigger lesson is about the extreme difficulty of making radical changes in a governance system as complex as ours. It's so complex for a reason: there are many actors, with varying goals and interests, and the problems it addresses are themselves deeply complicated. Presidents like to cultivate the illusion that they can solve problems with a wave of the pen. The reality is quite different.
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Daniel Farber | October 17, 2018
Cross-posted from LegalPlanet. In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to […]
Joel A. Mintz | October 16, 2018
To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things. The case involves the […]
Lisa Heinzerling | October 11, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, […]
Rena Steinzor | October 11, 2018
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission. Now that they have a fifth vote, conservative justices will march to the front lines in the intensifying war on regulation. What will their strategy be? Two tactics are likely, one long-standing and […]
Joseph Tomain | October 10, 2018
Cross-posted from Legal Planet. If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line like requiring more use of renewable energy of a coal or natural gas generator. I've blogged previously about why this argument might not even apply because reducing your operating hours is something you can accomplish without getting close to the fence, let alone crossing it.
Daniel Farber | October 8, 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 […]
Joseph Tomain | October 8, 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.
Alejandro Camacho | October 5, 2018
This op-ed originally ran in The Hill. It was co-authored with Melissa Kelly, the staff director and attorney at the Center for Land, Environment, and Natural Resources (CLEANR). 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 […]
Melissa Powers | October 3, 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 […]