Legal fight over Trump coal plant rule shows just how divided red states and blue states are

Source: By Josh Siegel, Washington Examiner • Posted: Thursday, August 15, 2019

The legal battle over the Trump administration’s emissions rules for coal plants reveals the stark divide between states on climate change policy.

Attorney General Letitia James of New York led a coalition of 22 mostly Democratic states and seven local governments suing the Trump administration Tuesday in the D.C. Circuit Court of Appeals for gutting President Barack Obama’s signature plan for reducing coal plant emissions to combat climate change.

Most of the states on the lawsuit are already transitioning to cleaner energy sources, and some have laws, known as renewable portfolio standards (RPS), mandating that the state use a certain amount of zero-carbon electricity over a period of time

These include California, Washington, Colorado, Maine, and New Mexico, all of which, along with New York, have passed bills over the past year aimed at getting 100% of their state’s electricity from carbon-free sources like wind, solar or nuclear power by midcentury.

Plaintiffs on the lawsuit also include most of the members (all but New Hampshire) in the Regional Greenhouse Gas Initiative, a cap-and-trade program covering the power sector in 10 East Coast states.

“The lineup in this lawsuit almost perfectly reflects the partisan division in the United States,” Columbia University environmental law professor Michael Gerrard told me. “Red states want less regulation of greenhouse gases; blue states want more.”

The two sides have switched roles: The blue-state coalition stands in contrast to the 26 states that sued in 2015 to block the Obama administration’s Clean Power Plan that the Trump administration is replacing. West Virginia, Oklahoma, Texas, and other red states led that charge. The Supreme Court stayed the Clean Power Plan before it could be implemented.

West Virginia’s Republican Attorney General Patrick Morrisey sought to exploit the divide Tuesday, issuing a statement vowing to fight the “big government power grab” lawsuit against the Trump administration power plant rules.

“Attorneys general are very partisan and political creatures,” Barry Rabe, a professor of public policy at the University of Michigan, told me. “So the coalitions are largely partisan and largely based on production and non-production states.”

More signs of division: The few states that switched positions on the two lawsuits further illustrate the division.

Governors or attorneys general representing four states that sued to block the Clean Power Plan — New Jersey, Wisconsin, Michigan and Colorado — now oppose the ACE rule after those offices flipped from Republican to Democrat.

Five of seven states whose governors’ offices changed from Republican to Democratic have joined the lawsuit against Trump: Illinois, Michigan, New Mexico, Maine, and Wisconsin.

Three of the states suing Trump have Republican governors — Maryland, Massachusetts, and Vermont — but Democratic attorneys general.

The consequences for policy: The Trump administration rule, unlike the Clean Power Plan, does not set a specific target for the power sector to reduce carbon emissions, giving states the authority to write their own plans for reducing pollution at individual plants by pursuing efficiency upgrades.

Joe Goffman, an environmental law professor at Harvard University and former EPA official who helped write the Clean Power Plan, told me the Trump administration replacement rule further discourages red states from pursuing climate change policies.

“The ACE rule is all but inviting states to go their own way if the don’t like ACE’s narrowly prescribed requirements while subtly undermining states that are seeking to pursue more ambitious power plant CO2 reduction strategies,” Goffman said.

EPA Administrator Andrew Wheeler, however, has stressed that the ACE rule would not prohibit states from fulfilling clean electricity goals.

Christi Tezak, the managing director of ClearView Energy, a consulting group, noted that many blue states have toughened their climate change policies in spite of the Trump administration’s deregulatory agenda.

“Those already pursuing lower-carbon strategies have not abandoned them; indeed many have strengthened them in what we at ClearView have characterized as the ‘rollback rebound,’” Tezak told me.

Only Congress can close divisions: The only way to resolve the differences between the states, according to several energy experts, would be for Congress to pass a federal policy to combat climate change, such as a carbon tax or clean electricity mandate.

Some of the nation’s largest utilities, along with grid operators, have called for lawmakers to settle the differences between states. One problem with having multiple state climate policies is it risks the potential of so-called “carbon leakage,” when there is an increase in emissions in one state as a result of emissions reductions by a second neighboring state with a strict climate policy.

“It’s hard for me to see how this lawsuit will change anything,” Noah Kaufman, a research scholar at Columbia University’s Center on Global Energy Policy, told me. “I’m afraid there is no way around the need for new federal climate legislation.”