It is popular to say that the Biden Administration represents a third term for Barack Obama, but on climate and energy policy Biden is far more radical than Obama. Nothing makes this fact more evident than Biden’s new proposed regulations of greenhouse gas emissions from electric power plants.
Let’s do a brief review. President Obama also proposed in his so-called Clean Power Plan in 2015 to regulate power plant emissions through an obscure section of the Clean Air Act of 1970 (Section 111d), but the plan was blocked by the Supreme Court, and ultimately ruled unconstitutional in last year’s landmark West Virginia vs. EPA ruling that announced the new “major questions” doctrine that threatens the power of the administrative state across the board.
But set aside the law for a moment, and focus on the policy. Obama’s Clean Power Plan sought to impose new performance standards on power plants that would have forced most coal-fired plants to switch to natural gas, or mitigate their emissions by supporting energy conservation measures by their customers. Environmentalists didn’t like this “outside the fence line” option because it wasn’t tough enough on fossil fuels, and it proved to be one of the legal vulnerabilities of the plan.
Sure, this ought to work...
The proposed Biden plan, which many observers are calling “Clean Power Plan 2” (the Biden team hasn’t offered up name for their new plan yet), will eliminate almost all coal-fired power with much tougher emissions standards that not even natural gas plants can realistically meet, and eliminates the mitigation-through-conservation option. This change ironically might enable the Biden plan pass muster with the Supreme Court, though there are several reasons to think a new legal challenge may work.
The Biden climate crew has been very candid that their purpose with these rules is to eliminate coal and natural gas from America’s electricity mix by the middle of the next decade. In other words, while the Obama Clean Power Plan sought essentially to nationalize the electric utility industry with costly though modest emissions standards, the Biden plan seeks to pulverize the electric utility industry with openly prohibitive emission standards. They are not even trying to disguise their intention to kill coal and gas power.
Even if wind and solar power installations could be reliably scaled up in a decade to replace the existing fleet (a highly doubtful proposition, even with magical batteries), for such a system to have a chance of supplying our electricity needs will require thousands of miles of new transmission lines. The Biden plan also leaves the door open a tiny crack for carbon sequestration, by which a coal or gas plant could theoretically still remain in business if it can capture, at huge expense, its CO2 emissions and stuff them underground somewhere. But carbon sequestration, despite billions of dollars for research and demonstration projects over the last 20 years, still isn’t feasible, and would require thousands of miles of new pipelines to transport CO2, and large new deep injection underground storage sites.
Fooled 'em again!
One thing neither the “Inflation Reduction Act” nor the Biden clean power plan includes is permitting reform. Progressives in the Democratic Party remain resolute against any reform to our cumbersome permitting process on either the state or federal level, without which none of their dreamy green energy plans can succeed in a decade—or even three decades. (The Wall Street Journal last week reported on a “fast-tracked” wind power installation that took . . . 17 years to complete.)
Already the North American Electric Reliability Corporation is warning that there may be electricity shortages and blackouts this summer, as intermittent wind and solar power have not effectively replaced baseload coal and gas-fired plants that have been prematurely closed. If implemented, the Biden plan will make California’s electricity restructuring debacle of 20 years ago, which saw pervasive rolling blackouts and soaring utility rates, look like a picnic.
There is still a chance that a legal challenge to the Biden plan will succeed. The current Supreme Court appears willing to reconsider past decisions (especially the 2007 Massachusetts vs. EPA case that allowed the EPA to regulate carbon dioxide without specific instruction from Congress) that empowered the EPA to run wild with greenhouse gas regulation. But this kind of legal challenge takes time. It took seven years for the Supreme Court to toss out the Obama Clean Power Plan.
But the Biden Administration has not let legal niceties get in their way about anything, from Covid to student debt relief to the debt ceiling debate going on right now, and more. At the root of a proposal of dubious legal merit is the cynical calculation that the uncertainty of its legal status, combined with the relentless ESG (environmental, safety and governance) pressure on finance capital, will cause electric utilities to take steps to comply with the Biden plan, and lock themselves into "green energy" systems that will deliver brownouts.
This happened once before, with the E.P.A.’s stringent mercury rules back during the George W. Bush years. The Supreme Court ultimately voided the EPA mercury rules, but it was too late as the utility industry had already complied with them. At the time Obama’s EPA director Gina McCarthy boasted of how they had outsmarted the Supreme Court, and McCarthy is back as a senior Biden’s climate policy adviser. Looks like they are trying to run this bad faith playbook again.