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A desire to please the Court may have rendered the EPA’s new power plant rule a little too ineffectual.
If nothing else, give the Environmental Protection Agency credit for this: They seem to understand the assignment.
Last year, the Supreme Court struck down the Clean Power Plan, President Barack Obama’s ambitious attempt to restrict carbon pollution from power plants. That proposal never carried the force of law, and it had been held in suspended animation by the Court — and later the Trump administration — since 2016. But after President Joe Biden took office, Chief Justice John Roberts and the Court’s conservative majority revived it seemingly entirely for the sake of deeming it illegal.
The proposal went far beyond what was allowed by Congress, Roberts ruled. Normally, an EPA standard would require that power plants or factories install some kind of equipment on their smoke stacks to meet a pollution cap. “By contrast, and by design,” the Obama proposal could only be satisfied by burning less coal, the chief justice wrote. It required “generation shifting,” forcing states to get more of their power from renewable, nuclear, or natural-gas plants.
That overreached the EPA’s authority under the Clean Air Act, Roberts declared. If the EPA wanted to regulate greenhouse gases, then it needed to treat them like a normal air pollutant — and it needed to act like a normal technocratic agency. Above all, it had to keep its regulations to those that could be accomplished “inside the fenceline” of each power plant.
So last week, when the Biden administration finally unveiled its own draft attempt at regulating carbon pollution from power plants, it knew it was playing on the Court’s, well, court. And it behaved accordingly. The best thing you can say about the EPA’s new power-plant proposal — which will be one of the Biden era’s most important climate regulations — is that it was meticulously, painstakingly tailored to the Court’s demands. If Chief Justice Roberts asked for a normal rule, then the EPA has delivered one so awkwardly, self-consciously normal that it seems a little like a narc. The worst thing about the new rule is that this desire to please the Court may have rendered the rule a little too ineffectual.
If America wants to fight climate change, it must clean up its power plants. Generating abundant, cheap, zero-carbon electricity is the key to the country’s decarbonization strategy.
“If you clean up the power sector, it enables you to clean up other sectors of the economy too, through electrification,” Leah Stokes, an environmental-science professor at the University of California, Santa Barbara, told me. “Electric cars, heat pumps, induction stoves — all these machines can be fueled with clean power.”
Biden’s climate law, the Inflation Reduction Act, will slash emissions from the sector over the next decade, according to federal and independent modeling efforts. But it won’t get the sector all the way there. That’s where the new proposal is supposed to step in.
As per the Supreme Court’s request, the proposal details how every kind of power plant — even those that burn coal or natural gas — can meet their climate requirements for decades to come. It mandates a buildout of carbon capture and storage infrastructure, or CCS, for most coal and some natural-gas plants that plan to stay open long-term.
“The EPA rule makes sure everyone is on the same level-playing field. If the Inflation Reduction Act is enough to incentivize CCS in some places, the EPA is gonna make sure everyone is gonna do it,” Nick Bryner, a law professor at Louisiana State University, told me. “I think it’s designed very, very well to work in tandem with the IRA tax credits.”
If the IRA is the regulatory-friendly angel on its shoulder, then the Supreme Court’s decision last year — called West Virginia v. EPA — is the devil. The EPA’s desire to stay on the Court’s good side is even visible in the proposal’s name. Previous administrations have tried to give their power-plant rules a memorable name — Obama had the Clean Power Plan, of course, and the Trump administration christened its effort the “Affordable Clean Energy Rule,” or ACE. The Biden administration, by comparison, named the new proposal:
New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule
That’s the NSPSGHGNMRFFFEGU; EGGGEEFFFGU; RACE Rule for short.
I would say that the agency couldn’t have given it a more technocratic name if it tried, except that it obviously tried very hard. “Traditional approach, traditional name,” the EPA’s press office chirped when the Politico reporter Alex Guillén first noted the name. Just what the Supreme Court asked for!, they all but added. The agency is so desperate to look obedient and demure that even its social-media team has been briefed on current federal doctrine.
At the same time, the rule does “a tremendous amount to make the rule as flexible as possible given the constraints they’re working with in West Virginia v. EPA,” Bryner said. Under the proposal, some natural-gas plants can choose between installing carbon-capture equipment or burning low-carbon hydrogen.
But the rules may have erred on the side of too much flexibility, says Charles Harper, a policy analyst at Evergreen, a climate advocacy group and think tank. Evergreen and other environmental groups are worried that the rules might be too generous to fossil fuel companies. They’re focusing their criticism on two elements of the draft: its handling of natural-gas plants and coal retirements.
First, the EPA rule as proposed would not apply to an overwhelming majority of the country’s natural-gas plants.
A large share of carbon emissions from natural-gas plants come from so-called “baseload” plants that generate many hundreds of megawatts of electricity at all hours of the day. The rule focuses on these facilities, and it requires them either to install CCS equipment or to burn hydrogen fuel.
But the rule is not nearly so strict about small or medium-sized natural-gas plants. Natural-gas plants that generate less than 300 megawatts of electricity — or that run less than half the time — are essentially exempt from the rule. This excludes 77% of the country’s natural-gas plants from the new EPA proposal, requiring them to make no changes through 2040.
It is unclear what share of carbon emissions these natural-gas plants represent. The EPA did not provide an estimate of their carbon emissions before the deadline for this story.
As a whole, natural-gas power plants emit 43% of the U.S. electricity sector’s carbon pollution, despite producing nearly twice as much power as coal.
Environmental groups say the proposal’s coal problem is simpler to fix. In the draft, the EPA puts coal-fired power plants in different categories depending on when they’re slated to retire. Plants that have no retirement date — or that will remain open after 2040 — must install equipment to capture 90% of their emissions by the year 2030. Plants shutting down after 2035 must make a cheaper set of changes. And plants due to close by 2032 don’t have to make any changes at all, so long as they don’t increase their emissions over the next decade.
Those deadlines are too long from now, and the EPA should bring them forward in time when it issues a final version of the rule, Harper said. “2040 is pretty far out and would entail a lot of unabated emissions hitting the climate and human health,” he told me.
The EPA still has time to edit this proposal; it will hear public comment over the next few months and probably issue a final version of the rule next year. With the procedural issues resolved, the Supreme Court’s ability to object to that rule is limited to whether carbon capture is feasible and affordable enough to be used under the Clean Air Act.
If there is a bright spot for climate advocates in the new rule, it’s that the Biden administration — and last year’s Democratic majority in Congress — seem to have anticipated that move.
As the House was voting on the IRA last year, Representative Frank Pallone, the chair of the House Energy and Commerce Committee, put a statement in the congressional record saying that the EPA should take the IRA’s generous tax credits into account when proposing power-plant rules. The subsidies should be considered when the agency is deciding whether CCS is feasible and affordable, he said. The EPA cites Pallone’s statement in its new draft.
But ultimately it is Chief Justice John Roberts who will get to decide. Almost a decade ago, a set of conservative states sued the EPA to block it from requiring CCS. That issue has since been held in its own state of suspended animation. It may soon breathe again.
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When then-President-Elect Donald Trump nominated then-Oklahoma Attorney General Scott Pruitt to lead the Environmental Protection Agency in 2016, everyone right, left, and center knew exactly what that meant: The top law enforcement officer from one of the nation’s most conservative states and largest oil and gas producers would take aim at environmental rules implemented by the previous administration — rules he had often sued to overturn — and pave the way to increased fossil fuel production.
Trump’s pick this time around, former Long Island Congressman and New York Republican gubernatorial candidate Lee Zeldin, is more distinguished by his personal closeness to and support for the President-Reelect than he is by anything to do with the environment.
“It is an honor to join President Trump’s Cabinet as EPA Administrator. We will restore US energy dominance, revitalize our auto industry to bring back American jobs, and make the US the global leader of AI,” Zeldin wrote on X soon after the New York Post broke the story. He added for good measure: “We will do so while protecting access to clean air and water.”
So, who is Lee Zeldin? In his four terms in Congress as the representative from New York’s easternmost congressional district on Long Island, Zeldin did not cut any particular profile on climate, environment, or energy issues, and was best known for his hawkish foreign policy position. His surprisingly close run against Kathy Hochul for New York’s governor’s mansion in 2022 was largely defined by crime, public safety, and the effect of Covid-19 restrictions on the state’s economic recovery.
To the extent Zeldin has defined himself on the environment beyond standard-issue Republican opposition to restrictions on fossil fuels and car purchasing, it’s been in the context of issues specific to his coastal Long Island constituency. During his 2018 congressional campaign, he pointed to his membership in the “shellfish and national estuary caucuses,” as well as federal programs for estuaries and his opposition to expanded offshore drilling exploration at an event hosted by the League of Conservation Voters.
Throughout his gubernatorial run, Zeldin assailed New York’s ban on fracking, which had been implemented by Hochul’s predecessor, Andrew Cuomo. He also criticized New York’s planned phase-out of sales of internal combustion engine vehicles by 2035, as well as the proposal to institute congestion pricing in Lower Manhattan (an effort that died but may be brought back to life as part of Hochul’s scheme to protect Democratic congressional candidates on Long Island).
Cosmetics heir Ronald Lauder spent millions supporting Zeldin’s gubernatorial run, which The New York Timessuggested was motivated in part by the billionaire’s opposition to a cable from an offshore wind project that was planned to land in Wainscott, in the Hamptons, where Lauder has a home. The project, South Fork Wind, has been delivering power to New York since March of this year. Trump’s opposition to wind and offshore wind energy specifically has been a hallmark of his climate and energy policies.
“Congratulations! By saving the whales, you and @realDonaldTrump will establish a legacy for which Americans will feel grateful, decades and centuries into the future,” Michael Shellenberger, the anti-offshore-wind activist, wrote on X.
Of all the eerie paradoxes of climate change, one of the most unsettling has got to be Christmas shopping in wildfire smoke.
This weekend, ice skaters seeking early holiday cheer in New York’s Bryant Park did so not to the usual scent of honey-roasted nuts but to the reek of brush fires burning in New Jersey, Brooklyn, and the Bronx. When workers hoisted the Rockefeller Center Christmas tree into place on Saturday, they did so in a strange golden wash of sunlight defused through smoke. In Queens, I received an air quality warning while deleting early Black Friday emails from my phone.
The driest October in New York history turned the region into a tinderbox that has produced a whopping 600 fires in the past month. After one erupted in Prospect Park on Friday, the city banned outdoor grilling and told nearby residents to keep their windows closed. An 18-year-old New York State Parks employee died over the weekend while clearing dry underbrush to help fight the 3,000-acre Jennings Creek Fire in the Hudson Valley. And when rain finally did arrive Sunday evening, it marked the first measurable precipitation in the tri-state area since late September — but the 0.18 inches wasn’t enough to alleviate the 6- to 7-inch deficit that has built up over the past two months, city officials have asked New Yorkers “not to flush unnecessarily.”
New Yorkers will be piqued to learn their experience isn’t singular. The U.S. Drought Monitor’s most recent report found that as of the first week of November, every state except Alaska was experiencing “moderate drought” conditions or worse — the greatest number since the Monitor’s record-keeping began.
Brian Fuchs, a climatologist at the National Drought Mitigation Center, which runs the Monitor, told me it’s understandable to wonder where all the rain has suddenly gone. “Three months ago, we only had a little over 21% of the country in drought, and in three months, that’s jumped to just under 52%,” he said.
Much of the country has been warmer than usual since the start of fall, with some areas 10 to 15 degrees Fahrenheit above average “consistently,” Fuchs went on. “I’m in Nebraska, so typically in the fall, I’m thinking, ‘Oh, it’s going to be cool in the morning, I’ll grab a jacket, and maybe some nice sun in the afternoon will warm it up, and then it’s cool in the evenings.’ And a lot of the country has not had that. They’ve really had an extended summer.” Those increased temperatures have also meant increased moisture loss, which is what triggers a formal drought designation.
But while 2024 is on track to be the hottest year on record, the United States is not, in fact, in one giant drought. Rather, “there are different factors” driving several droughts happening simultaneously, Fuchs explained. “It’s not all tied to the same mechanism.”
In the Northeast, for example, the drought is linked to eastward-tracking storms dissipating before they reach the region, as well as activity in the tropics during late September and October, which robbed the atmosphere of moisture and contributed to “a stronger upper high-pressure area dominant over the Ohio Valley, Midwest, Great Lakes,” Paul Pastelok, a senior meteorologist at AccuWeather, wrote to me in an email on Friday. That high-pressure area has acted “like a block to prevent any significant precipitation for weeks in these areas.” It’s also why drought experts expect “potential improvement” in the coming weeks.
There are severe drought conditions across the Southeast, too, which may be a surprise if flooding from Hurricane Helene is still top of mind. But much of that water quickly ran off into streams, rivers, and the ocean, and “since then, there has not been a lot of rain in this area, and the top soil has dried out,” Pastelok said. Other areas experiencing drought include the Southwest, where a mild summer monsoon season has extended emergency declarations, and the central and northern Plains, which have been dry since early September and where drought conditions are expected to last through at least the early winter. Reservoirs in California, meanwhile, are in “great shape” after last winter’s snows; still, due to “months without rain in many areas, the topsoil has dried out, resulting in an abnormal dryness level — a lower category of drought,” Pastelok said.
Brett Anderson, another senior meteorologist at AccuWeather, pointed out that drought is a natural part of the climate cycle, and reassured me, “This is not unprecedented.” He added that there is “no real trend in U.S. drought severity over the past 25 years.”
That doesn’t mean these droughts don’t bear signs of climate change. Fuchs noted that “rapid swings from very wet conditions to very dry conditions, right on top of each other,” is a pattern associated with global warming, and one that can be seen both in the post-Helene dry spell in the Southwest and the deluge last week that broke up a drought in Oklahoma and Missouri, which are having some of their wettest Novembers on record. Anderson also noted that the unusual warmth in many parts of the U.S. has led to “much higher evaporation rates compared to normal,” which also feeds the development of droughts.
As for New York City — again under a red flag warning, this time through Tuesday — there is no rain in the forecast through at least next weekend. If you were looking for a beautiful bluebird day to go ice skating (and can ignore that it’s almost 70 degrees out), then now’s your chance.
Since August, climate policy optimists have pointed to a letter sent by 18 Republican members of the House of Representatives to Speaker Mike Johnson imploring him to preserve the energy tax credits in the Inflation Reduction Act.
As of January, however, some of them will no longer be Johnson’s problem.
Two signatories from newly redrawn House districts in New York, Marcus Molinaro and Anthony D’Esposito, are out of a job already, beaten by Democrats Josh Riley and Laura Gillen, respectively, each of whom received an endorsement from the New York League of Conservation Voters. Also definitively leaving the House is Utah Republican John Curtis, founder of the Conservative Climate Caucus, who is headed across the hall to the Senate.
Of the remaining 15 Republicans, four are in races that still have not been called, and three look to be in moderate-to-severe jeopardy. The current chair of the Conservative Climate Caucus, for instance, Iowa’s Mariannette Miller-Meeks, is leading challenger Christina Bohannan by just 0.2% — i.e. 799 votes — with all precincts reporting. The state has no automatic recount law, but candidates can request one at little to no expense when the margin is within 1%; a spokesperson from the Iowa Secretary of State’s office told a local TV network that if a request comes in, it’ll likely be after the results are certified early this week. As Heatmap’s Jeva Lange wrote in our climate election tracker, “Bohannan has attacked Miller-Meeks for slow-walking action on addressing climate change through her soft hand with the oil and gas industry,” and as of the final weeks of the race was out-raising Miller-Meeks by a 2-to-1 ratio, E&E News reported.
Another seat Democrats saw an opportunity to flip was Arizona’s 6th Congressional District, where letter signatory Juan Ciscomani has, as of this moment, squeaked out ahead of Democrat Kirsten Engel by 0.6% after appearing to trail for much of last week, though that could change again as more votes are counted. The news is worse for Oregon’s Lori Chavez-DeRemer, however, who with 87% of precincts reporting is behind Democrat Janelle Bynum in the vote by close to 3%.
If all these races were to be certified as they currently stand, that would leave 14 of the original group of 18 representatives still in Congress. If all the House races with results still outstanding fall into line per their current leanings, then Johnson will have just an 11-vote majority. That means this group of lawmakers can still derail the House’s agenda if they so choose, though just barely.
As for the three House seats Republicans have flipped so far, two are in Pennsylvania and one is in Michigan, both states Biden won in 2020. The victors in the two Pennsylvania races, campaigned against the “radical climate agenda” and the “climate crazies,” respectively. Yet the new representative from Michigan’s 7th district, Tom Barrett, has earned a score of 32% from the Michigan League of Conservation Voters during his time in the state Senate, making him a potential Conservative Climate Caucus recruit. The group’s current chair, Miller-Meeks, has a LCV score of just 12%.
So where does that leave us? About where we started, with the politics of repeal teetering on a wind turbine blade-edge. It’s one thing to campaign against the IRA, but the actual business of gutting is another thing entirely. On election night, my colleague Robinson Meyer cited a Washington Post analysis showing that Trump 2020 districts have received three times as much funding from Biden’s signature climate law as those that went the other way. Though that won’t necessarily convince every voter to welcome solar developments in their backyard, when the margins of victory are this slim, every tenth of a percent of the vote counts.