The Supreme Court recently halted implementation of the Environmental Protection Agency’s Clean Power Plan, the flagship climate change program for reducing greenhouse gas emissions from power plants.
Texas is a plaintiff in the case, so this is a big win for state officials, but it is a victory that will come at the expense of the health and welfare of every Texan.
The decision took legal experts by surprise. In fact, earlier in the day one of us stood in front of several hundred people at a renewable energy conference and predicted that the court would deny the stay. To see why, you need to understand the benefits of the EPA’s climate change regulations and the narrow lens through which the court judged them.
We recently took a closer look at the projected impacts of the Clean Power Plan. We found that the benefits exceeded the costs by a wide margin, not only nationally but within each electricity market across the country.
That includes Texas, which will benefit not only from avoided deaths and illnesses, but from increased sales of natural gas as gas replaces coal as the principal fuel for electricity generation.
Why, then, did the court take the unprecedented step of staying the EPA plan so early in the case? Simply put, the standard the court applied had little to do with whether the plan is good policy.
The ruling is cryptic, but the court must have concluded (a) that there was a high likelihood that the legal challenges would succeed, and (b) that the plaintiffs would be seriously harmed if the plan proceeded.
On the first criterion, the plaintiffs are claiming that the plan is unconstitutional, it violates principles of administrative law, and it exceeds the agency’s statutory authority. Many legal experts think that the agency has a strong basis for rebutting these claims, but the EPA must prevail on every claim. The complexity and high economic stakes of the Clean Power Plan also may be working against the agency.
On the second criterion, our analysis evaluated the effects of the plan on electricity markets regionally rather than state by state. However, many factors suggest that the benefits will be positive even for coal states such as West Virginia, the lead plaintiff in the case.
Most importantly, cheap natural gas has drastically reduced the market for coal, so systemic economic change is unavoidable, and any additional losses from the plan will be offset by its substantial health benefits.
But the same cannot be said for the industry plaintiffs, and they may have convinced the court that they will be irreparably harmed by the steps that states are taking to prepare for implementing the plan.
Indeed, the rules that Texas politicians call a “war on coal” are aimed at reducing coal combustion. And for good reason. Coal combustion kills thousands of Americans prematurely each year. And with anti-climate science folklore aside, most scientific and economic experts agree that the direct health benefits of reducing greenhouse emissions exceed the costs.
This is particularly true now that we have inexpensive substitutes for coal-fired power. The average American coal-fired power plant is more than 50 years old, natural gas prices are expected to remain low for decades, and the price of renewable electricity is plummeting.
It is easy to see why the EPA considers programs such as the Clean Power Plan a priority. Despite this, the Supreme Court may well believe that the EPA has stepped outside the bounds of legal authority Congress granted it with the Clean Power Plan. If so, such a judgment will not only overturn a key federal climate change program, it will undermine progress on protecting the health for all Texans.
David Spence is a professor of business, government and society in the McCombs School of Business and professor of energy law in the School of Law at The University of Texas at Austin. David Adelman is the Harry Reasoner Regents Chair in Law in the School of Law at The University of Texas at Austin.
A version of this op-ed appeared in the Fort Worth Star Telegram, Waco Tribune Herald, Austin American Statesman, McAllen Monitor, Amarillo Globe News, Corpus Christi Caller Times and the San Angelo Standard Times.
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