Nicholas Institute’s Profeta discusses advantages of regulating carbon through Clean Air Act

Source: Monica Trauzzi, E&E • Posted: Thursday, November 7, 2013

What are the key questions that need to be addressed by both U.S. EPA and states as the agency crafts its proposal for existing power plants? During today’s OnPoint, Tim Profeta, founding director of the Nicholas Institute for Environmental Policy Solutions at Duke University, discusses unanswered questions about Section 111(d) of the Clean Air Act, which triggers the regulation of carbon from existing sources. He also weighs in on whether the White House is doing enough to politically sell these regulations.Click here to watch today’s OnPoint.Monica Trauzzi: Hello, and welcome to OnPoint. I’m Monica Trauzzi. Joining me today is Tim Profeta, founding director at the Nicholas Institute for Environmental Policy Solutions at Duke University. Tim, thanks for coming on the show.

Tim Profeta: It’s a pleasure.

Monica Trauzzi: Tim, the argument that we’ve always heard, certainly here in Washington, is that legislation is always the best route for addressing CO2 emissions. Is that being proven following the rollout of EPA’s power plant standards, or is the regulatory process still a viable one?

Tim Profeta: It’s a viable one. I don’t think you’ll find many of us, myself included, that it’s a preferable one to legislative route, but that route is foreclosed right now because of the political reality. So there are some good things about the Clean Air Act and what we can do in the Clean Air Act. They can actually help build either a path back to regulation or to further regulation.

Monica Trauzzi: What are those advantages?

Tim Profeta: One this is it’s really a region-state leadership, and so by having a program that the EPA gives a guidance down to the state that the state execute the programs, the governors can really design programs that are unique to their needs and understanding of their economy situation. It also will stimulate what Justice Brandeis has feverishly called the “laboratories of democracies.” States who really experiment on how could you best control greenhouse gases. We may find there are new and different create way to achieve greenhouse reductions that we haven’t thought of in the federal process.

Monica Trauzzi: How much do you think EPA is really stretching the boundaries on the Clean Air Act by going as aggressively as they are?

Tim Profeta: I think the EPA is doing what they are required to do in the Clean Air Act. The section in question, Section 111(d), has become more and more of a famous term. Section 111(d) has been very rarely used, but the authority is there; that when you are not regulating a pollutant like CO2, somewhere else in the act, you have to regulate it from existing sources under 111(d). So there’s, it’s somewhat frightening, there’s very little precedence, there’s very little path walked already, but there’s some creativity you can have, because there’s not much of a path that’s been walked already.

Monica Trauzzi: So just to give a little background, once the new source rule is finalized, the agency will move forward with the existing source rule, which is where 111(d) kicks in. What have you identified as the key unanswered questions relating to that section of the Clean Air Act?

Tim Profeta: There’s several questions that are very important for the EPA to answer. The first one is how much guidance does the EPA give down to the states? Does the EPA give the states a pretty much broad ambit to do what they want to under the act, or do they give them some very specific guidelines. And then the second question is really how much flexibility to give the states to achieve greenhouse gas reductions from their power plants. Do they have to have it at the smokestacks, or do they allow the states to use energy efficiency, demand sudden management renewals; these sorts of programs to have greenhouse gases result in their states.

Monica Trauzzi: The Nicholas Institute is engaged with the various stakeholders that are involved in this process. How many of those stakeholders are quite concerned, particularly on the states’ side, about how much flexibility they’re going to have?

Tim Profeta: I think this is probably the dominant issue for particularly the state leaders is that they really want as much flexibility has they can have to really craft plans that work for their particular state, and from where they start from. The states that have already put programs on the ground, they want to make sure there’s flexibility to bring in, say, the California program or the Northeastern program into the EPA regulations. States that have heavy manufacturing and heavy coal base want to the ability to design programs to help them transition their systems to make them meet a greenhouse gas reduction.

Monica Trauzzi: So why wouldn’t EPA just do that if it makes the system function better overall? Why not give the states as much flexibility?

Tim Profeta: I think the EPA will try very hard to give the states flexibility. The EPA does need to give the states enough guidance so they know what’s in the bounds of the acts and what’s outside the bounds of the act. They need to draw the box the states can operate in, but then I think they’re going to want to give the states as much flexibility to lead in the directions they want to lead.

Monica Trauzzi: Do you think these regulations are the future of climate policy in the United States, or will we at some point see a shift?

Tim Profeta: That’s a great question. I think there’s really two futures, and it’s really too early to tell. We could have an evolving policy under the Clean Air Act sector by sector, or we could see ourselves moved back to a more global, and what I mean by global is the global economic system like we try to do through the legislation six, 10 years from now. The interesting thing about these regulations of the Clean Air Act is by putting on the ground and having the states put programs on the ground, we may find there’s new and different ideas we can do on the national level that we didn’t know, think of before, and could kind of rebuild our willingness to act on the greenhouse gas issue.

Monica Trauzzi: So on the new source rule, which we’ve already seen purposed, EPA is anticipating legislation. They’ve gone as far as to sort of lay out the legal rationale in their draft, but as I’m talking to folks in town and on the inside, it sounds like there are some concerns within the agency about just how strongly this will hold up in court. Do you think that EPA is adequately prepared to fight this in court?

Tim Profeta: Yes, I think EPA is putting, from what I’ve been able to perceive in my conversations, and my engagements with the agency, and with stakeholders who are surrounding the agency, the agency is putting as much work as they can into understanding its legal authority, what the bounds of it, and what they can do under it as they possibly can. When you’re looking at a provision that in 40 years has rarely or ever been litigated on point, you’re looking at some uncertainty. You’re looking at some legal risk in what EPA does, but they’re becoming as prepared as they can to take the step.

Monica Trauzzi: Is the White House doing a good job at selling these regulations from a political standpoint?

Tim Profeta: That’s another good question. These regulations I think from a political standpoint have been subsumed by a number of other larger political stories. So there really hasn’t been that much of a political conversation in a mainstream press about it. We’ve been talking about Syria, and we’ve been talking about shutdowns. I think the White House is beginning to have a conversation with the nation about these rules, but I think when you move toward existing source rules, which are not just what we’re going to do in the future, but what are we going to do with our current energy system. That’s going to be a conversation they need to have at a much higher level of the American people.

Monica Trauzzi: All right, we’ll end it right there. Thank you so much for coming on the show.

Tim Profeta: OK, my pleasure.

Monica Trauzzi: And thanks for watching. We’ll see you back here tomorrow.