Electrifying: Energy Transition, Environmental Law, and Election Years

Posted on by wildinaminute

Geopolitics Challenges the Transition to Renewables and My Environmental Science Students are Constructing their Understanding of Environmental Law and Teaching it to Each Other

Since 2016 I have taught environmental law during election years as an upper level undergraduate course to (mostly) Environmental Science majors and the choice to teach it only during election years never disappoints. From Presidents Obama to Trump to Biden to these midterms, the course is always a remarkable journey through the evolution and codification of our societal values and a hard look at the (geo)political energy and economic relationships that drive things forward. Environmental law is a massive body of law, so the course design starts with economics, energy and ethics and covers a major environmental law each week. My goal for the course is “getting them into the second interview.”

My teaching philosophy is very constructivst, and after the first few weeks, students choose a topic and lead the class on their topic through what I call “the TA Experience.” I provide jumping in points and resources for their topic, they create a learning experience and share with me, I provide feedback, and then they lead the course with me filling in gaps. Environmental Law can be dense and technical and with a once a week, three hour evening meeting, having them lead everything creates community as they support each other having to teach to make sure they are likewise supported. I cannot say strongly enough how continually impressed I am with what they do to make the experience meaningful as they connect with the content by connecting with each other.

After the lesson I share a recap, and this one is from last night’s class (we meet 1x/week for 3 hours) regarding the Clean Air Act… For folks who would like to learn more about the basic frameworks of the Clean Air Act, the foundations for GHG regulations, and a dose of how the IRA relates (generally) to some of the things happening in Texas as well as around the world, enjoy this primer!

Overview of the Clean Air Act

The primary role of the EPA is to protect human health…and the environment. 

To achieve this mission, EPA implements a variety of Clean Air Act programs that focus on

  • reducing outdoor, or ambient, concentrations of air pollutants.
  • reducing emissions of toxic air pollutants that may cause serious health effects; and
  • phasing out production and use of chemical pollutants.

Pollutants regulated by the EPA come from a few main sources:

  • stationary sources like power plants; and,
  • mobile sources like cars, trucks, and planes.

The EPA regulates these sources differently.  At power plants, the regulation usually pertains to the level of technology required. The technology varies depending on whether the proposal relates to modifying an existing plant or building something completely new.  For vehicles, new passenger vehicles are 98-99% cleaner for most tailpipe pollutants compared to the 1960s.

Two of the most commonly discussed topics related to the Clean Air Act are:

  • “NAAQS” (pronounced “knocks”);
    • The EPA establishes national ambient air quality standards (NAAQS) for the six Criteria Pollutants currently identified.
      • The EPA can add additional pollutants to the Criteria Pollutants list if they choose to do so.
    • The EPA works with States on air quality monitoring by having states create a State Implementation Plan, or “SIP.”  
      • It’s a little bit of a dance:
        • EPA sets the standard;
        • State tells the EPA, “this is how we plan to meet the standard, you cool with it?”
        • EPA reviews it and lets the state know if they are cool with it… if not, the EPA may issue a federal regulation plan.
  • Criteria Pollutants; and,
    • Six pollutants listed in the Clean Air Act.
  • Attainment Areas (vs. Non-Attainment Areas).
    • Using the National Air Quality Attainment Standards as the baseline, the EPA identifies areas either “attainment” or “non-attainment” areas, meaning that you are within the Standards, or you are not.
    • Air quality monitoring and regulation can vary from one place to another.

The Clean Air Act Has Worked!

This chart shows economic growth has occurred while emissions of air pollutants have decreased.

We have more people, more cars, and more “stuff” we are consuming, but the Clean Air Act has been successful in lowering overall pollution in the United States.  Check out this graph from the EPA (notice that Energy and human dynamics are what we measure/compare CAA success — the tension of humans and environmental law).

More to Do!  IRA and Geopolitics 

The recent passage of the Investment Reduction Act includes a strong financial investment by the United States government taxpayers to transition to renewable energy.  For the immediate future, fossil fuels will continue to be a major source for cars and electricity generation, primarily because we have infrastructure which helps with costs, and fossil fuels are a reliable, dense form of energy.  That said, we are in an exciting time and the transition to renewables is happening quickly.

Where will the law go?  Watch the candidates…

From an international, national, state and even local perspective, keep an eye on what happens at the pump and listen to the approaches to energy, the environment and the economy by those on the campaign trail. Also read stuff like this article from (a perhaps considered left-leaning source like) NPR about OPEC+’s (Saudi Arabia and Russia) announcement yesterday to cut oil production by 2Million barrels, a significant amount when worldwide use is 100M!; or this (perhaps considered a right-learning source) FoxBusiness about the Biden Administration’s efforts to engage Venezuela as a source for O&G during the transition.

I encourage you to keep curious and consider everything critically.

What About Those Two Cases?

Let’s make it 3

The cases we focused on this week are really important for Clean Air Act analysis and for a bigger look at Climate Change in a few weeks.  

Massachusetts v. EPA (I am grateful for spell check.  I have never in my life spelled Massachusetts correctly without it!):  

  • The Supreme Court ruled carbon dioxide and greenhouse gases were air pollutants under the Clean Air Act if they endangered public health and welfare and thus, could be regulated by the Environmental Protection Agency (EPA).
    • I am highlighting the phrase “under the Clean Air Act” because it is significant.  Everyone knows you shouldn’t inhale air directly from a tailpipe, but the question was whether it was a pollutant under the Clean Air Act. 
  • Two years after the S.Ct. decision, the EPA issued two findings on December 7, 2009 (note:  in 2009, President Bush out, President Obama in!):
  • Endangerment Finding: The Administrator found that certain greenhouse gases in the atmosphere threatened the public health and welfare of current and future generations.
  • Cause or Contribute Finding: The Administrator found that the combined emissions of these greenhouse gases from motor vehicle engines contributes to the greenhouse gas pollution that threatens public health and welfare.

Significance of Mass v. EPA?

The case is significant because it sets the stage for climate change regulation by stating that the EPA is in charge of greenhouse gases. In other words, if it is an air pollutant that impacts human health — they can’t look away.  The scale/scope of EPA’s authority was challenged in West Virginia v. EPA.

Chevron Deference

I’m going to throw in a quick reference to Chevron Deference as a significant case in the “rise of the fourth branch of government” before moving on to West Virginia v. EPA.  Recall that in our system of government:

  1. All authority for government action comes from the Constitution.
  2. Article 1, Section 1 of the U.S. Constitution says “all legislative powers shall be vested in the Congress.”
    1. The “Non-Delegation Doctrine” says that Congress cannot delegate that duty to others.
  3. Over time, Congress needed some help.
  4. Congress decided to create “agencies” to get some help.
  5. When an agency is created, Congress includes an “enabling act” (sometimes called “organic act”) that gives authority to the agency to do a thing.
  6. An agency’s power to promulgate regulations is limited to the authority delegated by Congress (see, Congress. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)).

I share all of that Non-Delegation Doctrine stuff to get to Chevron Deference, which is where the courts “defer” to the expertise of an agency in rendering an interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer, stating basically that “well, you guys are the experts!”

Facts of Chevron (it’s a Clean Air Act case!):  The Environmental Protection Agency (note: agency action!) issued a regulation defining the statutory term stationary source for the purpose of implementing the 1977 amendments to the Clean Air Act. Under the regulation, the agency allowed states to treat all pollution-emitting devices within the same industrial grouping as though they were encased within a single bubble or stationary source (note: In other words, the EPA was interpreting the Clean Air Act and defining how they would regulate that statute — their rule became law and they were the decider). The National Resources Defense Council sued the EPA. The Supreme Court held that the EPA’s regulation was a permissible definition of the statutory term stationary source.

West Virginia v. EPA

Summary:  The Supreme Court ruled 6 to 3 that the Environmental Protection Agency (EPA) does not have authority under the Clean Air Act (CAA) to shift electricity generation away from coal toward renewable energy sources as part of a regulatory approach to climate change. The Supremes said that because the EPA’s regulatory plan constituted a “major question” of great “magnitude and consequence,” Congress needed to clearly and expressly authorize such a plan. That sort of statement doesn’t exist in the CAA.

Question:  Do you see some differences between Chevron and West Virginia?  In Chevron, the EPA was looking at existing structures, but in West Virginia, the EPA was essentially instructing power producers to build completely new forms of generation (i.e. – “stop using coal and start using wind”).  That change creates a major shift in our economy and our national security (not to mention energy costs and reliability).

Future Impact:  The West Virginia decision constrains the EPA’s power to regulate carbon emissions and extends beyond the EPA to all federal agencies.

Importantly:  West Virginia did not include a Chevron-style review of the EPA’s interpretation of the underlying statute (I thought it would!). The majority opinion seems to indicate that the Supreme Court is likely to afford less deference in the future to the decision of federal agencies. That shift is happening as we see agencies building stronger records, such as in the recent move by the Bureau of Ocean Management to add more opportunities for public input in their offshore wind development program.

Building the Framework

​A Constructed Understanding of Environmental Law

Hopefully you are starting to build the puzzle of how it all works.  Our history books are typically not much more than stories of resources, people who have access to those resources, and times people fought over access to those resources.  Fundamentally, humans seek clean air and water, abundant harvests, and livable conditions as the foundations for safety and society.  Energy drives our ability to access those foundations and leverage what we hope to be a brighter future for ourselves and our families.  Sometimes it works out, and sometimes, folks get a little greedy.

The analysis of needs and resources establishes our societal values:

  • What do I have a right to?
  • How much of it should I get to have “free” because I have a right to it?
  • What should I pay for?
  • Should a government or a market set the price for what how much I have to pay?
  • How do we penalize people who don’t follow the rules?

Those values are codified in law.

Environmental law is an attempt to balance the tension in the humans, energy, resources, and ethics and manage resources.  Laws usually favor or center humans in some form or fashion.

In this course we have covered:

  • Fundamentals
    • Fundamentals of Economics
    • Fundamentals of Geopolitical Energy Relationships
    • Fundamentals of the US Framework for Environmental Law
  • Framework and Implementation of Resource Specific Law
    • Clean Air Act
    • Next:  Water
    • Future:  Living things
    • Future:  Public lands
    • Future:  “Climate”
    • Future: More…

Making sense yet?

High-5,

Professor Hance