Back in April 2010, President Barack Obama threw out the first pitch at a Washington Nationals game. Afterward, a sportscaster asked him to name his favorite baseball player. Obama ó a self-proclaimed Chicago White Sox fan ó stammered. He couldnít come up with the name of a single White Sox player, and then he admitted he liked ďa lotĒ of Chicago Cubs players too. It was quite a public faux pas.
I had forgotten about the presidentís baseball blunder until his recent climate proposal jogged my memory of the event. And I think I now know who his favorite player must be (even if he wonít admit it). That player was arguably the greatest slugger ever to wear a White Sox uniform, and he fits the presidentís style perfectly. Itís Frank Thomas, also known as the Big Hurt. Why? Because Thomas loved to swing for the fences, and thatís exactly what the president has done with his new climate proposal.
Itís too bad for him that Congress hasnít given the green light to swing away.
On Jan. 8, the presidentís EPA formally proposed the first of two climate change rules aimed at curbing greenhouse gas emissions from this nationís power plants. This first rule focuses on reducing emissions from new, yet-to-be-built coal-fired power plants. The second rule, which comes later this year, will try to reduce emissions from this countryís hundreds of currently operating coal plants.
The presidentís recent proposal for new plants is fairly straightforward. It would require all future coal plants built in this country to install a novel, new technology called carbon capture and sequestration. CCS would, if installed, hugely reduce the plantís emissions. But thereís a problem.
A general consensus has emerged among legal scholars that requiring CCS is legally risky because the technology is so new and costly. (The Clean Air Act only allows the EPA to pick technologies that are ďadequately demonstratedĒ and not too expensive.) Just last week, the state of Nebraska filed a lawsuit challenging the legality of the EPAís CCS requirement, and more suits will follow.
The EPA isnít slated to release its second rule regulating existing power plants until later this year ó but the two rules are legally linked. Under the act, the EPA cannot regulate existing plants unless new plants are also regulated. In other words, if the EPAís CCS rule is overturned in court, itís curtains for the existing plant rule.
Now hereís the rub. If you care about reducing greenhouse gas emissions in this country (as I do), itís the EPAís second climate rule that matters. Existing coal plants make up about a third of this countryís total greenhouse gas emissions, and there is wide agreement (even from the EPA) that no one is going to build any new coal plants in this country for at least the next decade because of market conditions (mainly low natural gas prices). Put simply, the presidentís unnecessary overzealousness with the CCS requirement could jeopardize the rule that really matters from an emissions standpoint.
As a lawyer who works with the Clean Air Act on a daily basis, I believe the EPA should take a more sensible and lawful path forward with these climate rules. That path would reduce existing coal plant emissions by about 5 percent in the next five years and would almost definitely sail through the courts. Itís not a home run, but itís a guaranteed base hit.
Hereís how it would work.
The EPA should finalize its first climate rule as quickly as possible, and it should not require CCS for new coal plants, since none are being built anyway. All future coal plants should be required to use the least-polluting power plant design (which would be much more legally defensible).
The EPA should then quickly adopt standards for existing coal plants. These standards should require plant owners to implement various well-known efficiency projects that make the plants less polluting per unit of energy produced. The EPA has required such efficiency projects before, the projects can be implemented fairly quickly, and they are not costly. Within five years, this path could lead to about a 5 percent reduction in power plant emissions, and more importantly, the rules would almost certainly withstand judicial scrutiny.
While our congressional leaders keep bickering over what to do about climate change, the president is doing his best Frank Thomas impersonation. Heís swinging for the fences. But you know what else the Big Hurt was known for?
Brian H. Potts is a partner at Foley & Lardner LLP and has published articles on the Clean Air Act in law journals published by Yale, Harvard, Berkeley and New York University.