When people burned coal in their basements for heat, the effects were apparent. Coal dust covered walls. Soot spewed out of chimneys and coated nearby buildings and rooftops. Haze filled city streets.
The advent of electric transmission lines and natural gas pipelines around the turn of the last century provided separation between most citizens and this pollution. Coal was still burned, of course, but utilities centralized power plants and built them away from where people lived.
That’s why now, when you plug in an IPhone or appliance, you don’t see the coal being burned. But it’s still burning.
In fact, the average American household today consumes three to four hundred pounds of coal every month—or about two to three tons of coal per year—just to keep the lights and appliances running.
Many people don’t realize it, but back in 1970 a Republican president, Richard Nixon, signed into law what is still the most significant environmental law regulating coal-fired power plants—the Clean Air Act. During this dawn of the environmental movement, the common thought was that the answer to pollution was dilution. The dirtier a power plant’s fuel, the higher it should build its smokestack. High stacks dispersed the burnt fuel’s soot and chemicals into the atmosphere, and kept them away from nearby residents.
That’s why when Nixon signed the law in 1970, it only forced coal-fired power plants to either switch to somewhat less polluting, western types of coal or build taller stacks (or both). And in order to minimize compliance costs, the Clean Air Act contained a critical limitation: the emission control requirements only applied to newly built power plants. Existing coal-fired power plants were grandfathered out of having to comply unless they were significantly modified.
Because the law also allowed the EPA to make the requirements more stringent over time, by 1978, the EPA was requiring all newly built coal-fired power plants to install add-on pollution controls—called “scrubbers”—that cost hundreds of millions of dollars per plant. The financial incentive to try to keep older, existing coal-fired power plants that didn’t need these scrubbers operating skyrocketed.
Some, like the authors of the new book, Struggling for Air: Power Plants and the “War on Coal“, believe the inclusion of the grandfathering provision in the 1970 Clean Air Act was a huge mistake. In Struggling for Air, NYU law professor (and former Dean) Richard L. Revesz and his colleague Jack Lienke document the history of clean air regulation in this country and argue that, no matter what the conservatives in Congress and the media say, President Obama is not conducting a “war on coal.” Instead, they argue, he is merely continuing a long quest by past Democratic and Republican presidents to close this grandfathering loophole that never should have been included in the Clean Air Act in the first place.
Mr. Revesz and Mr. Lienke’s writing in the book is clear and concise, but unfortunately their conclusions are misguided and skewed.
Since taking office, President Obama has finalized three major air pollution rules aimed at curbing emissions from existing coal-fired power plants. The first, the Cross-State Air Pollution Rule, tries to keep the plants’ nitrogen oxide and particulate pollution from crossing state lines. The second, the Mercury and Air Toxics Standard, slashes their mercury and other, more toxic air pollutants. And the third, the president’s signature climate rule, known as the Clean Power Plan, requires a 32 percent reduction in electric sector greenhouse gas emissions by 2030.
Professor Revesez and Mr. Lienke argue that President Obama is not waging a war on coal with these rules because prior administrations (including the George W. Bush administration) initiated them, and the rules wouldn’t even be necessary had Congress not grandfathered existing power plants out of compliance back in 1970.
But the first problem with Revesz and Lienke’s conclusions in the book is that they completely ignore a critical component: cost. President Obama’s first two rules—the Cross-State Rule and mercury rule—are much more expensive than his predecessors’ versions. And had Congress required all of the hundreds of existing coal-fired power plants to immediately install scrubbers back in the 1970s, the cost of electricity would have gone through the roof. It would have cost tens if not hundreds of billions of dollars in a very short period of time and likely tanked the U.S. economy.
As for Mr. Obama’s third—and most expensive—rule, the Clean Power Plan, it is completely his brainchild and has nothing to do with the grandfathering decision that Congress made back in 1970.
In its 46-year existence, the Clean Air Act has never been used to significantly reduce greenhouse gas emissions from power plants—not new plants or existing ones—until President Obama decided to promulgate his Clean Power Plan last year. In other words, Congress did not grandfather existing power plants out of climate compliance back in 1970; they didn’t regulate greenhouse gas emissions at all. Now the president’s climate rules, if upheld by the courts, will essentially ban the building of new coal-fired power plants in this country and cause all of the existing coal-fired power plants to shut down or operate a lot less to lower their carbon dioxide emissions.
Adding insult to injury, President Obama’s first two rules have forced dozens of these existing coal-fired power plants to install scrubbers over the last few years to reduce sulfur dioxide and mercury emissions, at a total cost to the economy of easily more than $10 billion. Yet now the president’s Clean Power Plan will require all of these same plants with shiny new scrubbers to shut down or hugely scale back on how much they operate, thereby unnecessarily stranding these enormous investments.
So is Obama waging a war on coal?
Yes, but so did many of his Democratic and Republican predecessors. The difference is that President Obama’s war on coal has been much more aggressive . . . and expensive.
Brian H. Potts is a partner at the international law firm Foley & Lardner LLP. He has published articles on the Clean Air Act in law journals published by Yale, Harvard, NYU, and Berkeley.
