More than two dozen states have sued over the Obama administration’s signature climate rule, the Clean Power Plan, which seeks to cut back the nation’s greenhouse gas emissions in coming years by shifting away from carbon-intense power sources, like coal, in favor of cleaner forms of electricity generation.
But the arguments unfolding in the federal courts are, in some ways, disconnected from the realities playing out on the ground.
For instance, many of the states that oppose the Clean Power Plan — particularly mid-western ones like Texas and Kansas — are leaders in the wind energy industry, which would be favored under the plan (as would natural gas and solar).
New data released by the U.S. Energy Information Administration also highlighted another potential contradiction: Virtually every state suing to block the Clean Power Plan has itself shifted toward burning less coal to generate the electricity its residents need since the year 2007 — in some cases by very large amounts.
In other words, one key transition that the plan will help bring about — less coal burning — is already happening in these states anyway, even though the plan itself is in legal limbo and has not yet come into effect.
Here is a map showing states suing over the Clean Power Plan and the amount by which they have decreased coal burning for electricity from 2007 to 2015, according to the EIA. One state suing over the Clean Power Plan, Nebraska, actually saw coal use increase over the period, by 18 percent, so it is not highlighted in the map below. Neither are states that either support the plan or are neutral in the litigation:
So what can we make of these data, showing a clear decline in coal use among states that are opposing a plan to hasten a shift to cleaner U.S. electricity — especially in key regions, such as the Southeast?
“It’s a magnification of a trend that’s been going on for several years. Quite simply, coal is dying,” Nathan Richardson, a professor at the University of South Carolina School of Law who focuses on environmental and energy law, said of the data detailing the drop in coal usage by state. “It might take 30 years or 40 years, but [coal’s time] as a big driver of electricity in this country is over.”
But he said that evolution is unlikely to affect the legal opposition to the Clean Power Plan on the part of some states, for several reasons. Among them is the principle behind opposing the regulation.
“Utilities and the states might not mind so much if market forces cause them to change, but they don’t want the EPA to tell them to do it,” Richardson said. “Some states don’t want to be pushed – or pushed as fast.”
In addition, he said, some states also want to retain the ability to increase coal-powered electricity generation if the historically low price of natural gas increases.
“[It’s] about the freedom to go back to coal if the economics change,” Richardson said. “They are fighting to keep the option to grow their coal use in the future.”
Scott Segal, a partner at Bracewell LLP, a firm that represents some energy industry clients who also are challenging the Clean Power Plan, added that anticipation of regulation itself is a factor driving down coal usage.
“This data is not particularly surprising,” Segal said, reacting to the EIA figures. “The decline in coal use reflects both the anticipation of regulatory standards and the sustained low commodity prices of natural gas. However, the Clean Power Plan is still a significant game changer.”
“The present energy market is just that: a market,” he continued. “It reacts flexibly and pragmatically to market forces. By contrast, the Clean Power Plan is designed to make market forces with respect to energy choice permanent and immutable.”
Thus, he said it isn’t fair to suggest that states opposing the Clean Power Plan have less reason to oppose merely because they now burn less coal. There’s also a matter of principle involved. These states, in aggregate, are also being asked to do much more to change their energy mixes to reduce carbon dioxide emissions than are states who support the plan, noted Jeff Holmstead, also an attorney at Bracewell LLP and a former assistant administrator of the EPA’s Office of Air and Radiation during the George W. Bush administration.
Still, if opposed states burn less coal, then the Clean Power Plan should certainly be easier for them to comply with, assuming it survives the current legal challenge.
Either way, the data reinforce a common theme since the final Clean Power Plan was unveiled back in August of 2015, and then after it was stayed by the Supreme Court. Namely, this: Even without the plan in place, the U.S. is transitioning its energy system in precisely the direction that the plan would itself require.
It’s not yet the law — but it’s already a sign of the times.