by: Lauren Keeler
What is best for the economy of the Commonwealth of Kentucky may not necessarily be what is best for the environment and the residents of the Bluegrass. That is if President Donald Trump and his administration have their way with the Environmental Protection Agency’s (EPA) proposed “Affordable Clean Energy” plan, the goal of which is to allow each individual state the power to set targets for greenhouse gas emissions themselves and eliminate federal restrictions.[i] The Affordable Clean Energy proposal would even go as far as to restrict the power that states have to make their coal-fired power plants cleaner.[ii] The result of this hands-off approach from the government is controversial, with some states supporting the additional autonomy it would provide while others are pushing back against the higher levels of pollutants, specifically from coal plants, that would undoubtedly be released due to deteriorating restrictions.[iii]
Many in Kentucky, including United States Representative Andy Barr and Governor Steve Beshear, have shown their support for the proposal, which they believe will help a coal industry that struggled significantly under the former administration.[iv] The EPA has estimated a 4.5 percent to 8.5 percent increase in U.S. coal production should Trump’s policy get the green-light.[v] This is seen by many in Kentucky as a sign of hope, as coal jobs have fallen drastically from 14,619 in 2011 to a mere 3,909 in 2018 in Eastern Kentucky alone.[vi] Though this supposed end to the “War on Coal” may have many in the Commonwealth bounding with hope for the return of their livelihoods, Trump’s plan comes with an arguably hefty price tag. The EPA’s own study estimates a potential 1,400 additional premature deaths and as many as 96,000 new cases of asthma as a result of this policy shift.[vii]
Under the current law, however, this plan faces significant legal roadblocks. First among these issues is the legality of the proposal, which many states are planning to sue over should the plan see the light of day.[viii] In 2007, the United States Supreme Court came down against the EPA, holding the agency must responsibly regulate greenhouse gas emissions.[ix] Acknowledging that it faces an uphill battle on this issue, the EPA is arguing for a cost-benefit analysis to prove it is justified in its plan to relax emission regulation standards.[x] The Affordable Clean Energy plan could see years of litigation in the future, with officials from approximately seventeen states, including the District of Columbia, and multiple cities and counties vowing to take legal action in an effort to ensure the protection of the environment and their constituents.[xi]
If the plan ever comes to fruition, that is another legal issue entirely as the courts are still dealing with pending cases dating back to the attempted enactment of the Obama-era EPA’s Clean Power Plan (CPP).[xii] In 2016, the Supreme Court responded to the requests of 24 states seeking to block the Obama administration's proposed Clean Power Plan.[xiii] To reduce greenhouse gas emissions and prevent premature deaths and other looming health issues such as asthma, this plan would have established specific emission targets for forty-seven individual states, allowing them to arrive at this target any way they saw fit.[xiv] Arguing the EPA lacked the authority to enact its proposal, the Supreme Court issued a stay on the CPP, which means the EPA cannot take action enforcing or enacting while the pending litigation is unresolved.[xv] The cases at issue are currently before the U.S. District Court of Appeals for the District of Columbia.[xvi] The court voted on June 26, 2018, to hold the case in abeyance for 60 days, the deadline of which is quickly approaching.[xvii] The fate of the CPP and Trump’s proposal are at the mercy of the litigation going on in the District of Columbia, and there is no telling for long or how little it will be delayed after the 60 day abeyance expires.
The looming negative environmental impact this plan imposes and the abundance of legal hurdles awaiting should it be enacted leave little to be desired. While leaders in the Commonwealth of Kentucky are pushing for more freedom to regulate the coal industry, and in turn provide more jobs for their constituents, negative environmental consequences aside, the reality of job creation is still bleak.[xviii] Only 200 coal plants have been retired in the past eight years, and while the government wants to open more, only four new coal plants are currently in the works.[xix] Additionally, regulation of emissions is far down on the list of things holding the coal industry back.[xx] Among the challenges stifling the coal industry are competition from cheap natural gas and renewable clean energy, such as wind power.[xxi] The Commonwealth of Kentucky would do well by its residents to focus on their improved health absent unregulated coal emissions, and stay on the right side of an inevitable and looming legal battle.
[i] Umair Irfan, EPA Analysis of its Own New Climate Proposal: Thousands of People Will Die, Vox (Aug. 21, 2018, 2:20 PM), https://www.vox.com/2018/8/21/17763916/epa-clean-power-plan-affordable-clean-energy.
[iii] Christopher Flavelle & Jennifer A. Dlouhy, Trump’s EPA Says More Americans Will Die Under Its Power-Plant Rollback, Bloomberg (Aug. 21, 2018, 2:25 PM), https://www.bloomberg.com/news/articles/2018-08-21/epa-says-more-americans-will-die-under-its-power-plant-rollback.
[iv] See Bill Estep, EPA Chief and Andy Barr Tout Trump’s Coal Plan in Kentucky, Lexington Herald Leader (Aug. 24, 2018, 5:48 PM), https://www.kentucky.com/news/politics-government/article217255055.html. See also Intelligent Energy Choices for Kentucky’s Future Gov. Steve Beshear’s Energy Plan, Energy and Environment Cabinet Department for Energy Development and Independence (2016), http://energy.ky.gov/Pages/EnergyPlan.aspx.
[vi] Bill Estep, Coal Jobs Have Dropped in Eastern Kentucky. Income Has Followed, New Report Shows, Lexington Herald Leader (Aug. 19, 2018, 8:08 AM), https://www.kentucky.com/news/state/article216946520.html.
[vii] Flavelle & Dlouhy, supra note iii. See also Irfan, supra note i.
[viii] Climate Fight Can’t Be Slowed, Even by the EPA, Bloomberg (Aug. 21, 2018, 3:49 PM), https://www.bloomberg.com/view/articles/2018-08-21/trump-epa-s-affordable-clean-energy-rule-is-neither.
[ix] Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 504 (2007).
[x] Irfan, supra note i.
[xi] States Greet Trump’s New Coal Rules with Lawsuit Threats, The Associated Press (Aug. 22, 2018, 6:00 AM), https://www.cbsnews.com/news/states-greet-trumps-new-coal-rules-with-lawsuit-threats/?utm_source=EHN&utm_campaign=031d092c15-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_8573f35474-031d092c15-99396161.
[xii] Irfan, supra note i.
[xv] Jonathan H. Adler, Supreme Court Puts the Brakes on the EPA’s Clean Power Plan, The Washington Post (Feb. 9, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-brakes-on-the-epas-clean-power-plan/?utm_term=.c3d09d9762a8.
[xvi] Niina Heikkinen, Court Becoming Impatient with EPA Over Clean Power Plan, Scientific American (June 27, 2018), https://www.scientificamerican.com/article/court-becoming-impatient-with-epa-over-clean-power-plan/.
[xviii] Irfan, supra note i.
[xx] Estep, supra note vi.