by Judith Curry
We polled 130 environmental attorneys and law professors from around the country about the legality of the Environmental Protection Agency’s proposed Clean Power Plan. The results might surprise you. – Brian Potts and Abigail Barnes
The EPA’s Clean Power Plan has substantial political and economic ramifications; for a recent discussion, see The impact of a rogue EPA by Steve Forbes. The legality of the EPA’s Clean Power Plan was discussed previously at CE:
See also this recent paper by Jason Scott Johnson:
So, is there any consensus among lawyers about the legality of the Clean Power Plan? This issue is addressed in an interesting new paper:
Is the EPA’s Clean Power Plan Legal? Lawyers and Law Professors Disagree
Brian Potts and Abigail Barnes
Abstract. The Environmental Protection Agency’s Clean Power Plan is the centerpiece of President Barack Obama’s climate agenda. Since its release last year, numerous law professors and attorneys have published articles debating the Plan’s legality. We polled 130 environmental law professors and attorneys from around the country to obtain their views on the subject. Our essay reports the results.
Full manuscript is available [here]
Given how closely divided our respondents were on the Clean Power Plan’s legality, one cannot conclusively determine a majority position from our results. Nonetheless, we think it’s fair to say that a significant portion of the environmental law community believes that the Clean Power Plan is on shaky legal ground. And, as such, legal challenges to the Plan are far from frivolous (as some in the press have implied).
In fact, although we are supportive of climate regulation (and many of the ideas in the Clean Power Plan), both of us have published articles questioning whether the Plan is legal. As we see it, the job of a lawyer is to read and interpret the law, and personal beliefs shouldn’t impact his or her legal analysis. So although we might support climate regulation, that does not necessarily mean we will conclude that the Clean Power Plan is legal. We think that under this provision of the Clean Air Act, the EPA’s authority to issue the rule is tenuous.
EPA says the best system of emission reduction to reduce CO2 from existing power plants is for states to implement the following “building blocks” on a state-wide basis:
- Improve the efficiency of all coal-fired power plants in the state by six percent;
- Ramp up the operation of all existing natural gas combined cycle units in the state to a 70 percent capacity factor, and assume increased generation from these natural gas units offsets existing generation at coal-fired power plants in the state;
- Increase the percentage of renewables used in the state to between 2% and 25%, depending on the state, and assume that nuclear plants under construction will be built and that 5.8% percent of all existing nuclear capacity does not retire; and
- Increase the use of energy efficiency programs to reduce electricity consumption by 9% to 12% by 2030, depending on the state.
The Conclusions provide an interpretation of their results:
Based on our results, we identified several noteworthy outcomes. First, approximately 80% of environmental law professors polled believe the Clean Power Plan is legal, compared to only 27% of the private environmental attorneys who responded. One reason for this could be that 74% of private attorneys in this poll represent clients on matters directly involving the Clean Power Plan, which may have imputed a bias into their responses. Alternatively, only 13% of professors represent clients. Of course, the poll was anonymous, so it could also be that these private attorneys have simply spent more time examining the potential legal issues with the Clean Power Plan than the law professors. Law professors are also known to be a liberal-leaning group, so it’s also possible that politics played into their opinions. Regardless of the reason, however, we think the glaring discrepancy in opinions is striking.
Another interesting finding is that most respondents do not believe that building block 1 is illegal, or that the Plan is unconstitutional. Considering that these two arguments are widely viewed as the weakest challenges to the Plan’s legality, this did not come as much of a surprise. But it certainly does not bode well for Professor Tribe’s constitutional arguments: the long-time liberal-lion is certainly in the minority with his belief that the Clean Power Plan is unconstitutional.
Instead, most respondents cited building blocks 3 and 4 as the reason the Plan is illegal. Somewhat less, but still a majority of those responding, also believe the Plan is not legal because of building block 2 and the language in section 111(d). As discussed above, building blocks 2, 3, and 4 deal with EPA’s interpretation of the word “system,” and the extent to which the EPA can regulate emissions outside the fence-line—or beyond the power plants themselves. Building blocks 3 (increased renewables) and 4 (energy efficiency) are clearly outside the fence-line actions; however, whether or not building block 2 is an outside the fence-line action is more debatable, as it involves running existing natural gas plants more to offset generation from coal plants. The fact that more respondents believe building blocks 3 and 4 are illegal than believe building block 2 is illegal therefore makes sense. Interestingly, the few professors that said the Plan is illegal cited either section 111(d) or building blocks 3 and 4 for the basis of its illegality.
Finally, 34% of respondents who believe the Plan is illegal do not think states should submit implementation plans to EPA. This percentage was higher than we anticipated, since this approach would likely increase electricity rates for those states that opt-out20 and could invariably end up backfiring (which is ironic, since the reason many are suggesting that states opt-out from a policy standpoint is because they believe the Plan will increase electricity rates and hurt their state’s economy).
Of course, in the end, it is only the opinions of nine people that will likely matter, none of whom participated in our poll: the nine justices siting on the U.S. Supreme Court. And while it is impossible to know how the Supreme Court might rule, a majority of the currently siting justices were law professors prior to being appointed. Based on our poll results, that could end up being good news for President Obama’s Clean Power Plan.
It will certainly be interesting to see how the legality of the CPP plays out.
I find a number of things interesting about this study. The lawyers are evenly split as to whether or not the CPP is legal – interesting in itself. What I find most interesting is the split between academic lawyers versus nonacademic lawyers, with a substantial majority of academics finding it legal and a substantial majority of nonacademic lawyers finding it illegal.
This is one of the few instances I’ve seen where learned individuals have been surveyed to include both academics and private sector individuals. The importance of more diverse perspectives was highlighted in a recent post Importance of intellectual and political diversity in science, motivated by Joe Duarte’s research.
Where does the intellectual and political diversity come from in the climate debate? Certainly not from academia (other than emeritus professors or professors nearing retirement). What little diversity there is comes from think tanks like CATO, privately funded groups like Berkeley Earth, and independent researchers such as Steve McIntyre and Nic Lewis. This is a tiny tiny group of people. Non academic diversity on the ‘warm’ side is more organized, e.g. organizations such as Climate Central that seem pretty well funded. Of course industry funding (especially if it is tainted with fossil fuels) is regarded as a source of bias, whereas funding from green organizations somehow isn’t. Personally I think we should figure out ways to support more diverse perspectives on climate science and policy.