Episode 12

Show Notes


Eric Cohen, former Asst. Regional Counsel at EPA Region 5

Jane Montgomery, Schiff Hardin

Episode Summary by the Minute:

Minute 1:00: Altitude’s first live podcast! Elyse Voyen introduces Eric Cohen, former Asst. Regional Counsel at EPA, where he served for 35 years.

Minute 2:00: Elyse introduces Jane Montgomery, environmental lawyer from Schiff Hardin, who specializes in air, water, and regulatory issues in the environmental space.

Minute 2:30: Elyse introduces Erin, host of Altitude.

Minute 4:00: Jane gives us an introduction to greenhouse gasses, but first a disclaimer that she is speaking on her own behalf, not on behalf of her clients. Eric gave the same disclaimer: speaking for himself, not EPA.  Carbon dioxide is fundamentally different than other pollutants regulated by the clean Air Act because it is non-toxic and doesn’t have a direct negative health effect. It’s also a global issue. Carbon dioxide produced here have the same effect as carbon dioxide produced in China.

Minute 6:00: Clean Power Plan was first attempt to regulate carbon dioxide under the Clean Air Act.  This is so hard because anytime you combust coal, you will get CO2. There is no way to “clean” the byproduct—it’s a chemical reaction. The only real solution is to stop combusting coal or to somehow capture the CO2.  Jane doesn’t think the CPP was a bad approach, it just wasn’t authorized by the Clean Air act. 

Minute 8:00: Jane gives a breakdown of the different sections of the Clean Air Act and which sections regulate what pollutants.  111(d) is technically where the carbon dioxide regulation comes from. In 2014, facing a failure of Congress to act on climate change, the Obama administration proposed the Clean Power Plan.

Minute 12:00: Instead of regulating each plant as a “source”, EPA regulated “the source” as the entire source of energy generation, and proposed that each state would have a carbon dioxide target, essentially an average of the different fuel mixes, but reducing the CO2 enough that it would force coal plants to run less and use more natural gas, wind, or solar.

Minute 14:00: Part of the problem was that the CPP tried to regulate a non-emitting source (wind and solar) by saying you need to run them more.  But Jane thinks there are many fatal flaws, not just that one. Justice Scalia stayed the Clean Power Plan just before he died, and the stay has been in place for 2 years. The Trump administration has now put forth the Affordable Clean Energy (ACE) Rule.

Minute 15:00:  Eric explains what he thinks Trump’s EPA was trying to accomplish with the ACE Rule.  He thinks it is garbage and that the administration pushed it forward to try and meet its campaign promises to help coal.

Minute 18:00: Eric thinks there will be very little impact from ACE rule on carbon emission reductions—modest at best. It will not be enough to meet the US goals for the Paris Accord to hold temperatures to 1.5 degrees or 2 degrees.  Jane thinks it does do a lot at each plant to move plants toward efficiency.

Minute 22:00. Eric explains why state-driven regulation of clean air is not always as effective because the state processes become much more politicized.  Further, there is no federal enforcement mechanism if a state implements standards that are too lenient for coal plants.

Minute 24:30: We discuss whether or not a state has to actually regulate or if they could, theoretically, under the rule, do nothing to put the ACE Plan into effect.  At a minimum, states have to put some basic structure in place, it just doesn’t have to be too robust on limiting carbon emissions.

Minute 25:30: Coal plants aren’t being built anymore in the US, and in very few countries. The cost of natural gas and wind and solar is driving down demand for coal-fired power.

Minute 26:50: Grandfathering—the new rule includes an additional component on New Source Review (NSR) reform.  The New Source Review provision is really complex and indicates that if you modify a plant, you should get a Title V permit even if the plant didn’t have to have one before because it was “grandfathered” in because it was already built when the Title V rules went into place. Jane explains how NSR works in practice. NSR encourages you to throw away a power plant rather than make an improvement to the equipment.

Minute 30:00: Erin gives an example of the type of modifications power plants make that result in NSR lawsuits because of a difference in opinion in the rule between EPA and electric utilities.

Minute 32:00: The new rule proposes screening the projects on a maximum annual hourly increase and a maximum annual rate.

Minute 33:00: Will we ever decide that grandfathering plants is no longer appropriate? Not likely; what will happen is that if we regulate them, they will shut down because it will be too expensive to operate.  Most utilities have shifted away from coal plants for this reason.

Minute 34:30: Because of the cost of regulation, utilities could shift production to the cheapest plant possible, which is also the dirtiest, and run it for five years until the agency figures out they are violating standards.

Minute 37:40: Jane explains the real difference between the two tests.

Minute 39:35: ACE Rule is currently a proposal, not an official rule, but it is expected to be challenged potentially by both sides, environmental groups that think it doesn’t do enough, and utilities, that don’t like what it requires.

Minute 40:00: How will this affect the renewables market? It’s not expected to help accelerate renewables, but it may not really affect it either.  Coal is on the way out.

Minute 41:00: Is it likely that we will see a carbon tax proposed by Congress? EPA does not have authority to set up a cap and trade or carbon tax system alone.  Eric thinks the political will is probably against this.

Minute 42:00:  Industry loves certainty, and utilities might actually prefer that carbon be regulated so they know what the market is going to look like. Utilities (and corporations) like renewables because it locks in their price of energy for the next 30 years because their fuel price is fixed.

Minute 45:00: Eric’s advice on what to do if you’re interested in working in government or for the EPA. Take administrative courses so you understand bureaucracy, evidence so you understand how to build a case, and need to know how the engineering and science works. Try to get experience doing internships.

Minute 46:30: Jane’s crazy idea for positive environmental change: green infrastructure.  We need to think more strategically about our built environment: more trees, more green stormwater storage, turbines inside sewer pipe which would generate energy from pumping water, kinetic energy in floorboards, etc. We need more capital to get there, and we need the law to make it possible to get there.  People who want to practice environmental law should think more about new initiatives, and use law and policy to create market mechanisms to drive positive change, like green stormwater infrastructure.

Minute 50:00: Both ACE and CPP don’t mesh well with the Clean Air Act.  A more market-centered approach like the sulfur dioxide initiatives in the 90s could work, but is regulating carbon dioxide through the Clean Air Act the right path at all? Eric says yes, Jane says no.  The EPA thought they could nudge the Congress to act, but Congress didn’t do anything, and so EPA was left to try and regulate through CPP and now ACE. Eric’s opinion is that we shouldn’t be leaving it up to private companies to regulate our clean air—it’s something we all have a right to.

Minute 52:30: We now are relying largely on fracking, but we’ll pay the costs for that later with earthquakes, air quality, and oil spills. 

Minute 53:30: Massachusetts v. EPA said carbon dioxide can be classified as a pollutant under Clean Air Act. Jane thinks we should look at state solutions instead (REGGIE -~13 Northeast states with a carbon market) and California’s cap and trade program, renewable power standards, energy efficiency programs.

Minute 56:00: Clean air is a public good, and that is the basis for the lawsuit filed by the high school students—essentially saying that the US Government has a duty to protect clean air under the public trust doctrine.


Erin Delawalla