On Leaving Coal Emissions to the States: Implications for American Federalism

With the transportation (i.e., fuel) and power (i.e., coal) sectors accounting for a majority of the carbon emissions in the U.S., according to the EPA, the Trump administration’s moves to freeze his predecessor’s fuel efficiency standards and relax pollution rules for power plants needing renovation put at risk the declining trend of emissions in 2018. The implications for climate change (e.g., hotter summers) were stark, according to Janet McCabe, who had been Obama’s EPA air chief.[1] The Trump administration’s proposal to allow the states, including West Virginia, to set their own rules for regulating coal was, according to the New York Times, “the administration’s strongest and broadest effort yet to address what the president has long described as a regulatory ‘war on coal’.”[2] An implication is that carbon emissions from coal in the U.S. would likely increase as a result, even though large states like California and New York could be expected to tighten the rules. The interesting point about turning the regulations to the states revolves around federalism. Constitutionally speaking, should the states regulate the carbon emissions from coal?

The Commerce Clause of the U.S. Constitution enumerates the powers of the federal government. Regulating interstate commerce is one such power. Does a power plant emitting carbon emissions in West Virginia, for instance, constitute interstate commerce—even if the carbon eventually crosses state lines? I submit that buying of the coal from outside the state does constitute interstate commerce, whereas the use of said coal within the state does not. Regulations on the burning of the coal, including whether pollution-abatement equipment shall be required, would according to this view be the state’s prerogative. To claim that the burning of the coal is interstate because carbon emissions float over other states is problematic.

To claim that anything that affects another state is thereby interstate leaves open the possibility that virtually anything—even a farmer growing wheat for his own consumption—can be counted as interstate. Furthermore, that no commerce is actually involved may be overlooked or dismissed—or assumed because of an effect, even indirect, on commerce. Coal emissions from West Virginia could float over Canada—would this justify Canada in regulating West Virginia? Even the foreign policy angle seemingly justifying U.S. regulation at the federal level seems weak to me.

Least it be argued that the states should not be semi-sovereign, the U.S. Constitution, as per Madison’s Notes, relies in part on the state governments’ power being sufficient to act as a check on encroachments or even tyranny at the federal level. Expansively “interpreting” interstate and commerce is just one nail in the coffin of American federalism—a system already stymied from being seriously out of balance.

If my analysis here is correct, then the point of judgement for the American electorate—the popular sovereign over both the U.S. Government and the state governments—involves the tradeoff between invigorating federalism and risking more emissions, and thus warming of the planet. Such a judgment, I submit, is one that an electorate can make, yet we should not forget that Jefferson and Adams agreed that a virtuous and educated electorate is necessary for a republic—or republic of republics—to be sustained.

---

[1] Lisa Friedman, “Trump’s Plan for Coal Emissions: Let Coal States Regulate Them,” The New York Times, August 18, 2018.

[2] Ibid.

Coal Industry Challenges Lower Carbon-Emission Targets: Human Nature on Full Display

With heat-waves underway and glaciers melting, climate-change was undeniable in the summer of 2015. Human nature itself was on full display. It was almost as if the human race could not summon itself into action even as the hardships of a warming world were a foregone conclusion.

"We're the first generation to feel the effects of climate change and the last generation that can do something about it," said Obama on August 3rd when he announced a new set of regulations for U.S. power plants that call for a 32 percent reduction in greenhouse gas emissions, from 2005 levels, by 2030. The EPA also issued final rules for new power plants that call for phasing out new coal-fired units unless there is technology in place that can capture and store carbon emissions. Obama said the rules would reduce carbon dioxide pollution by 870 million tons, the equivalent of what is produced by 108 million homes or 166 million cars.[1] He acknowledged a battle lurked ahead, as industry groups were already gearing up to fight the rules in court.

                            Penguins face receding ice and rising waters. (Natacha Pisarenko of AP)

On the same day, the World Glacier Monitoring Service released a study providing new evidence that the world’s glaciers had melted to the lowest levels since the late nineteenth century, and the ice-melt in 2015 would likely be twice the rate in the 1990s and three times the rate the decade before that. "Globally, we lose about three times the ice volume stored in the entirety of the European Alps every year," Michael Zemp, director of the WGMS and lead author of the study said.[2]  On July 20^th, “James Hansen, the former NASA climateologist who brought climate change to the public’s attention in the summer of 1998, [had] issued a bombshell: He and a team of climate scientists had identified a newly important feedback mechanism off the coast of Antarctica that suggests mean sea levels could rise 10 times faster than previously predicted: 10 feet by 2065.”[3] Coastal Florida, including its vast commercial and residential real-estate, hang in the balance. Meanwhile, Californians, in the fourth year of the worst drought there in a millennium, witnessed a 50-acre brush fire swell seventyfold in just a few hours, with many other fires raging too.[4]

In spite of the clear indications that the Earth’s atmosphere was warming at an uncharacteristically high rate, the National Mining Association of coal-mining companies requested a stay in court on the EPA’s new rules while the courts have the opportunity to determine the lawfulness of the agency’s attempt to commandeer the nation’s electric grid."[5] Doubtless the focus on the EPA's power-grab did not include the fact that that July was the hottest globally since record-keeping began in 1880. The first seven months of the year were the hottest January-to-July span on record. In fact, from ice-cores scientists determined that the planet was its warmest in at least 4,000 years.[6]

Because coal-fueled power plants made up about 40 percent of the carbon emissions in the U.S. at the time, the companies were playing with fire in that their legal opposition to the rules could make an appreciable difference in how much climate change results from emissions. Put another way, a point of law could conceivably decide whether the lives of future generations of people are just uncomfortable or impossible.

"[T]he Rule . . .  aims at nothing less than the comprehensive 'transformation' of the American electric power grid," wrote Hal Quinn, the NMA's president and chief executive officer, in a letter to Environmental Protection Agency head Gina McCarthy. "Congress, however, did not give EPA the power to restructure how the nation produces and consumes electricity."[7] Even if reducing carbon emissions by a third from power plants constitutes a restructuring of the power grid, Obama’s point about his generation then in power being the first to perceive the impacts from global warming and the last to realistically keep the world’s ecosystem from getting away from us dwarfs the matter of a regulatory agency overreaching.

Of course, the matter may be as simple as that of a narrow private interest being indifferent to the general welfare. Implementing the rule, Quinn wrote, "will irreparably injure the coal mining industry, coal mining workers, and coal mining communities" and "has no purpose other than to reduce the use of coal for electric generation as a means of reducing power sector [carbon dioxide] emissions."[8] The harm to the coal-mining industry in terms of lost revenue was Quinn’s real concern. That the human race could stand in the balance in just a few generations makes the sordid nature of the industry’s self-interest transparent. In fact, the increased demand for electricity for air-conditioning could mean that the mining industry had a financial stake in global warming even though in just a few generations demand for electricity decreases due to more climate-related deaths. 

James Jansen and his colleagues warned that if carbon emissions were not cut soon, the social disruption and dire economic consequences of the sea-level rise along could be devastating. “It is not difficult to imagine,” the scientists wrote, “that conflicts arising from forced migrations and economic collapse might make the planet ungovernable, threatening the fabric of civilization.”[9] That such a prospect was rendered realistic given the clear signs of global warming already extant makes the narrow focus of the coal executives even more astonishing. To be sure, business and societal norms and perspectives can be expected to differ, and even clash, for business is but one component of society. For a part to seek to maximize its own gain at the expense of the continued viability of the whole in the foreseeable future renders the strategy highly unethical, not to mention problematic from the standpoint of society. The latter arguably has an ethical right—obligation even—to constrain the maximizing tendency of the hypertrophic part.

Beyond business and society, human nature itself, particularly in its preoccupation with instant gratification even at the risk of self-preservation in the long term, can explain why such a genetically-successful species could also be that species that alters its ecosystems to the extent that the species itself goes extinct. The force of reason pales in comparison with selfishness. On August 3, 2015, the generation that could grasp the actuality of climate change was both doing something about it and putting up obstacles. Human nature was on full display. The question is whether such nature is compatible with its own survival.

---

[1] Kate Sheppard, “Obama On Climate Rules: ‘This Is Our Moment To Get This Right’,” The Huffington Post, August 3, 2015.

[2] Nick Visser, “World’s Glaciers Melting At Fastest Rate Since Record-Keeping Began,” The Worden Report, August 3, 2015.

[3] Eric Holthaus, “The Point of No Return: Climate Change Nightmares Are Already Here,” Rolling Stones, August 5, 2015.

[4] Ibid.

[5] Kate Sheppard, “Coal Interests Prepare To Challenge Obama’s Power Plant Rules,” The Worde Report, August 3, 2015.
[6] Nick Visser, "It's Official, July Was Earth's Hottest Month on Record," The Huffington Post, August 20, 2015.

[7] Sheppard, "Coal Interests."

[8] Ibid.

[9] Holthaus, “The Point of No Return.”

What We Know about Coal and Natural Gas: The EPA’s Coal Emissions Targets

Coal is the bad guy. At least it is the antagonist in the U.S. Environmental Protection Agency’s 645-page carbon-emissions plan unveiled in early June, 2014. In spite of the fact that the 30% reduction in CO2 emissions from the level in 2005 being set for 2030, critics showed their oligarchic focus on today by pointing to what the current likely costs would be. Electric bills increasing $4 or so a month in West Virginia. Lost jobs—as if the criteria of capital were also those of labor. In short, short-term inconveniences without a hint of the other side of the ledger. I submit that this is precisely the element in human nature that can be likened to the proverbial “seed of its own destruction” in terms of the future of our species. As menacing as such “reductionism to today” is, the assumption such as underlies the EPA’s proposal that coal is the definitive obstacle—and, furthermore—that we are not missing any other huge but invisible danger—is just as problematic from the standpoint of the species’s survival.

I have in mind the EPA’s projections by fuel type going out to 2030 from 2012. From 37% of the electricity generated in 2012, the comparable projected figure is 32% for 2013.[1] While at least the direction is downward in relation to the other fuel types, climatologists would doubtless say more of a drop is necessary to stave off more than a 2 degree C global increase.  As damning as this “ok but not good enough” scenario is pertaining to coal, the more damning feature of the report is that it may be very wrong about something it takes to be an improvement.

For example, the natural gas category is projected to go from 30% in 2012 to 35% in 2030[2]. That’s good, right, because it’s the clean gas. Not so fast. Independent empirical studies of leaks in Utah, L.A., and Washington, D.C. have shown much higher levels of methane escaping into the atmosphere than the 1% touted by the producers and adopted (without independent confirmation) by the EPA. In the observations, the actual percentages of leakage were double-digits. The problem is that the break-even point with coal in impacting global warming is 3 percent. Methane, which natural gas gives off before being burnt, turns out to have ten times the impact as coal.

My point is that even though by now we are used to the contingents that put today’s convenience above the risk to the future of the species, we don’t know what we don’t know, and this can be even more dangerous. In other words, what we assume to be a good thing may in actual fact be doing a lot of damage under our very eyes. We may not have a clue as to how what we are doing today is impacting the planet’s atmosphere. This may be one reason why scientists have repeatedly had to accelerate their projections of when the ice sheets would melt at the poles.

Human nature may be much more problematic from the standpoint of the species’s own survival than we know. Not only have 1.8 million years of natural selection engrained in us a focus on today (e.g., fight or flight) at the expense of tomorrow; we may be very wrong about stuff we assume we got right and yet be totally unaware of it. It is as though our species were a person with long hair who never bothers to use a mirror to make sure that the hair in back is brushed. The laugh is on that person, and yet she (or he) has no idea. The industrialists who are instinctively wetted to the status quo out of a desire for financial gain may just be the tip of the iceberg; we had better look underneath before it has totally melted.

---

[1] Wendy Koch, “EPA Carbon-Cutting Plan Could See Power Shift,” USA Today, June 3, 2014.

[2] Ibid.