CPRBlog
New Source Standards for Power Plants: The Status Quo and Sensible Government
David Driesen
David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.
Professor Driesen has taught and written in the areas of environmental law, international environmental law, and constitutional law for many years.
While in academia, Professor Driesen has devoted significant time to defending the constitutionality of environmental law. He represented the United States Public Interest Research Group Education Fund in the American Trucking case before the Supreme Court, public health groups in defending California's Clean Fuel Fleet Programs against a preemption challenge, and constitutional law professors in defending the Endangered Species Act's constitutionality. He also represented several United States Senators, including Hilary Clinton, in a challenge to EPA's new source review rules in the United States Court of Appeals for the District of Columbia Circuit. He has acted as a consultant for American Rivers and other environmental groups on Clean Water Act issues stemming from the Supreme Court's federalism decisions. And he has testified before Congress on lessons from the implementation of the 1990 Clean Air Act Amendments.
Professor Driesen worked as a project attorney and then senior project attorney in the air and energy program for the Natural Resources Defense Council. He also served on EPA National Pollution Control Techniques Advisory Committee. Prior to that time, he was an Assistant Attorney General in the Special Litigation Division of the Washington State Attorney General's Office and a law clerk to Justice Robert Utter of the Washington State Supreme Court.
Professor Driesen has published widely in the areas of environmental law and policy. He edited and contributed two chapters in Economic Thought and U.S. Climate Change Policy, MIT Press 2009, and edited and contributed one chapter in Beyond Environmental Law: Policy Proposals for a Better Environmental Future, edited with fellow CPR Member Scholar Alyson Flournoy. His book, The Economic Dynamics of Environmental Law (MIT Press 2003), reframes the debate over regulatory reform to take change over time into account. The book argues that static efficiency-based approaches fail to adequately address the tendency of rising population and consumption to increase environmental destruction over time. The book critiques cost-benefit analysis, emissions trading, and free trade-based restrictions on international environmental protection and recommends reforms rooted in an economic dynamic analysis. Professor Driesen received the Lynton Keith Caldwell Award for the book. His most recent book, The Economic Dynamics of Law (Cambridge University Press 2012) further develops the economic dynamic theory and applies it to climate disruption and to subjects outside the environmental realm. He, along with Robert Adler and Kirsten Engel, has also written the textbook, Environmental Law: A Conceptual and Pragmatic Approach (Aspen 3rd ed. 2016).
Professor Driesen has published articles on emissions trading in Environmental Law, Harvard Environmental Law Review, and leading environmental journals, on cost-benefit analysis in Ecology Law Quarterly, Colorado Law Review and Environmental Law, and on free trade and the environment in the Virginia Journal of International Law. His articles on constitutional law have appeared in the Cornell Law Review and elsewhere. His writing critiquing the dichotomy between "command and control" regulation and economic incentives has been especially widely cited and has helped spawn a more sophisticated third generation literature on economic incentives.
Professor Driesen is known primarily as a critic of efficiency-based law and economics and as a proponent of an alternative approach based on institutional economics and emphasizing stimulation of innovation. He plays trumpet with the Excelsior Cornet Band and the Syracuse University Brass Ensemble. Before going to law school he taught and performed in symphony orchestras in the United States, Brazil, Mexico, and Austria, learning German, Portuguese, and Spanish in the process.
Twitter: @dmdriesen
Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants.
The new source standards promulgated today will tend to lock in the current status quo. They will likely impose no net cost on the economy, because natural gas has become cheaper than coal. Instead of generating electricity with the dirtiest fuel source, we will continue to rely more heavily on a somewhat cleaner fuel source. Given the effects of climate disruption one could argue that these standards do not go far enough. Climate disruption has likely caused heat waves, sea level rise, intensified hurricanes, wildfires, and droughts already. And scientists predict intensification of these effects if greenhouse gas emissions continue without surcease. It is not clear that EPA is being as demanding as it could be, since these standards do allow utilities to build new coal-fired power plants even when using gas would produce less greenhouse gases. Nor do they aggressively maximize the emission reductions available from natural gas. Yet, these new standards will lock in technological advances substantially reducing emissions, at least when utilities build new plants.
Any technological advance does create some losers along with the winners. But when computers made typewriters obsolete, nobody suggested that we stop companies from building personal computers because a robust computer industry would hurt the typewriting industry. Similarly, when Apple started making I-Phones, nobody sought to stop this on grounds that it would hurt sales of MP3 music players and landline phones. And in the last few years, when electric power producers started substituting natural gas for coal, nobody suggested that the impacts on coal producers should stop us from allowing electric utilities from making this change. The technological improvements that have made America a leading economic power always come with some downside. Yet, our tendency to move forward has made us a great country.
Strangely, those in Congress who moan about environmental regulations "killing jobs" remained utterly silent when the electric utility industry started actually reducing coal mining jobs by switching to natural gas, not just for new plants, but for existing ones as well. Now that the EPA has, quite appropriately, stepped up to say that environment imperatives require this trend to continue at least for new plants (unless we can realize the promise of clean coal), we can expect these supposed champions of the working man to suddenly start denouncing EPA for destroying jobs. They will not mention the jobs created by drilling for natural gas and bringing it to market nor in developing and applying carbon capture and storage to new coal-fired power plants. They will not mention the serious harm global climate disruption will visit upon us if we do not start down the path of phasing out fossil fuels. And they will not mention that the trend toward gas displacing coal is already far advanced without any push from EPA. They will focus only on the losses and attribute those solely to EPA in a bid to try and revive an old, dirty, and dying technological approach that is already, thankfully, on its way out.
EPA deserves praise for taking this step forward in the face of opposition to sensible government so virulent that it objects to standards that do little more than lock in a recently altered status quo. In a world where climate disruption threatens our very existence, we will need government to function well in order to stand a chance of avoiding horrific losses. This rule constitutes a good step in that direction.
Read More by David Driesen
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The Quagmire of Clean Water Act Jurisdiction
Democracy, Rulemaking, and Outpourings of Comments
CPR, Partners Call for Climate Justice Reforms to the Chemical Industry
Memphis Commercial Appeal Op-Ed: Supreme Court Turns to Science to Resolve Groundwater Dispute Between Mississippi and Tennessee
Aboveground Chemical Storage Tanks Threaten Our Communities. It's Time for EPA and States to Act.