Today, EPA Administrator Scott Pruitt is expected to issue a proposal to repeal the Clean Power Plan, Obama’s program to reduce greenhouse gas emissions from US power plants. This will kick off a legal and regulatory process that will grind on for many years, likely longer than Trump’s first term.
Political observers will be experiencing a bit of deja vu. Pruitt’s announcement comes just weeks after the dumpster-fire conclusion (at least for the time being) of Republican efforts to repeal another of Obama’s signature accomplishments, the Affordable Care Act (ACA).
Health care legislation and carbon regulations represent the two most significant domestic policy victories of the Obama administration. Consequently, they are two of the top targets of the revanchist Republican regime.
Obamacare repeal is an older fight with a higher profile, somewhat better understood among political geeks. But the effort to repeal climate regulations, it turns out, is reprising many of its signal features.
And like the Obamacare repeal fight, it is likely to end in futile, flailing frustration for Republicans.
Let’s dig into the parallels.
1) A core expectation has been established
In health care: everyone will be covered.
The most important thing Obamacare did was not any of its technical details, but something more fundamental: It established the principle, and the expectation, that everyone should have health care coverage.
That’s a truism in every other developed democracy, of course, but in the US it has always been hotly contested. The ACA put that debate to rest. Even Republicans have been pushed into at least rhetorical agreement with the principle that everyone deserves access to coverage they can afford, no matter their preexisting conditions or income.
The ACA was limited in all kinds of ways (it fell well short of “universal”), but the expectation it established now completely shapes the public debate over health care policy.
In climate: carbon will be regulated.
The ACA established a normative obligation — a shared expectation among voters. The CPP rests on something stronger.
While there is public support for fighting climate change (about 61 percent of Americans, in one recent poll) and specifically for regulating carbon emissions (even a majority of Trump voters, in one poll), the CPP does not rest on voter expectations, but on a legal expectation.
In 2007, the Supreme Court ruled, in Massachusetts v. EPA, that carbon dioxide qualifies as an air pollutant under the Clean Air Act. If the EPA determines that carbon is a danger to public health, the court said, it must regulate carbon to reduce that danger.
In 2009, the EPA issued its Endangerment Finding, demonstrating (based on intensive research and documentation) that greenhouse gases are in fact a danger to public health.
The Supreme Court ruling plus the Endangerment Finding mean that the EPA is legally obligated to regulate carbon in such a way as to meliorate the danger it poses to public health.
The only way EPA can escape that core legal obligation is to overturn the Endangerment Finding. Some conservative denialist groups, recognizing that fact, are pressuring Pruitt to attempt just that. Doing so, however, would likely prove impossible. It would have to pass legal review, and the simple fact is that the science overwhelmingly supports the EPA’s case.
Until denialists put together a much stronger scientific case (anything can happen), the debate over carbon policy is entirely shaped by the legal expectation that the EPA will meaningfully regulate carbon.
2) The GOP cannot deliver on that expectation
In health care: universal coverage requires revenue, to which the GOP is averse.
As honest policy wonks will tell you, the ACA was about the most market-friendly, insurer-friendly possible way to move toward universal coverage. It left America’s terrible system of employer-based insurance largely in place and preserved the centrality of private insurers.
But anyone pursuing universal coverage faces a simple dilemma. If you tell insurers they have to cover everyone, the danger is that people will wait until they’re sick or hurt to get coverage; the lack of healthy people in the system will drive up costs unsustainably.
So you have to get everyone, including healthy people, in the system. That’s what ACA’s mandates are for — they push everyone to get coverage. (They don’t push hard enough; penalties should be higher. But the politics are tricky.)
But lots of people can’t afford coverage. If you’re going to push everyone into the system, you have to find a way to pay for people who can’t pay for themselves. The way every other country, and the ACA, does that is by taking money from the wealthier and healthier.
Thus the three-legged stool of the ACA: 1) rules that insurers must cover everyone, 2) rules that everyone must get coverage, and 3) subsidies to help those who can’t afford coverage. Remove any leg and the stool collapses.
To put all of that more succinctly: To get universal coverage, no matter the route, you need lots of revenue.
The GOP is institutionally opposed to raising revenue, particularly from the wealthy. Indeed, their singular policy goal, unwavering over decades, is to reduce taxes on the wealthy. That is incommensurate with universal health coverage.
There is, quite simply, no way to square that circle. That’s why no magic-pony alternative was ever found and why the two bills the GOP did put forward would have radically reduced coverage and slashed spending on the low-income.
In climate: reducing carbon requires closing coal plants, to which the GOP is averse.
Pruitt is likely to go after the CPP on technical legal grounds. The CPP tells states to reduce the average carbon emissions of their power-plant fleets and largely leaves it up to states how to do so. Many of the actions states could take to comply would occur “outside the fenceline” of power plants themselves (for instance, utilities could implement energy-efficiency upgrades in homes and businesses, or build more renewable energy). Pruitt will argue that requiring outside-the-fenceline changes exceeds EPA’s legal authority, that EPA can only require changes to individual power plants themselves — say, boiler upgrades, or the like.
I’ll write a separate post on that legal argument (here’s some background), but suffice to say, Pruitt’s real objection has nothing to do with legal technicalities. If he were truly interested in settling the fenceline question, he would have let the DC Circuit Court rule on it, which they were just about to before he asked them to refrain. This is just delay. He doesn’t want coal plants closing.
But legal delays will only work for so long. The fact is, the EPA is legally obligated not just to reduce carbon from “stationary sources” like power plants, but to meliorate the danger it poses — that is, to reduce it significantly, in a way that meaningfully reduces risks. Doing that means going after coal.
Natural gas recently passed coal in total carbon emissions, mainly because natural gas has been dominating electricity sector growth.
But coal remains about twice as carbon-intensive as natural gas per unit of energy produced. If you’re looking to reduce carbon emissions from power plants, cost-effectively, coal is the place to look. There’s no way around it.
But the Trump administration’s fealty to the coal industry is one of its few unerring principles (if “principle” is the word). Conservative loyalty to coal honestly doesn’t make much sense. The industry isn’t that large, even in “coal states.” For more than a century, it has been a poster child for crony capitalism and corporate welfare, which Republicans frequently pretend to dislike. Nonetheless, the bond appears adamantine.
So politically speaking, Pruitt simply can’t do what the law requires him to do. Again, there is simply no way to square the circle.
3) The GOP offered years of lies and impossible promises, which have come due
In health care: Obamacare is a disaster; the GOP alternative will have none of its flaws.
From the minute the ACA passed, the right has been calling it an unmitigated disaster and predicting its demise. As one apocalyptic prediction after another failed to pan out, the tenor and direction of the criticism ... stayed exactly the same. It has never changed. Trump is saying the same things to this day: Obamacare is falling apart, it’s a disaster.
It’s not true now and it’s never been true. The ACA has done what it set out to do: radically reduce the number of uninsured and slow the growth in health care costs. On both scores, it has done better than expected, not worse.
Alongside the right’s unfulfilled prophecies of doom is a long history of promises that the mythical Republican alternative will accomplish the same things Obamacare does, but in better, more freedom-y ways. All subtlety in such matters was thrown to the wind by Donald Trump, who said outright that the GOP health care plan would have “insurance for everybody,” no cuts to Medicaid, and cheaper premiums.
This kind of strategy worked fine when Republicans were in the opposition and all they had to do was block everything and issue bad punditry. But once they took power, people expected to see the mythical alternative. Unsurprisingly, that’s been a disaster.
In climate: the CPP will crush the economy; the GOP alternative will lower emissions better.
It’s difficult to pinpoint when Republicans and industry groups began catastrophizing about carbon regulations. They have been catastrophizing about air-quality regulations as long as the EPA has existed, at the exact same fever pitch. That their predictions have proven unerringly wrong — air-quality regs have some of the best benefit-to-cost ratios of any government policies in modern history — has not shaken their convictions.
Conservatives started blaming the CPP for things before it was ever implemented. (It never was implemented, by the way — the Supreme Court put a stay on it last year, and now Pruitt is going to scrap it.) Right-wing think tanks dutifully produced studies showing that it would cost US consumers $200 billion extra by 2030.
Meanwhile, it looks like the US is going to hit the CPP target — 32 percent reductions from 2005 levels by 2030 — with no regulation at all. Here’s where we are now:
While @EPAScottPruitt close to ending Clean Power Plan, data shows U.S. power sector close to hitting target -- decade+ early. @cohan_ds pic.twitter.com/5lYim3EYlk— Mark Drajem (@drajem) October 4, 2017
And here, based on a new analysis from the Rhodium Group, is what lies ahead in the absence of the CPP:
So, hitting a target we probably would have hit anyway ... would cost US consumers $200 billion? No.
A recent report from the Institute for Policy Integrity shows that the rapidly falling cost of renewable energy technologies (wind and solar, but not only wind and solar), coupled with the stubbornly low price of natural gas, mean that CPP compliance is likely to be cheaper than anyone projected.
Regardless, predictions of doom are conservatives’ stock in trade. It looks like Pruitt is going to manhandle the rules of cost-benefit analysis to make the CPP look bad.
Remember, though, the EPA is obligated by the Supreme Court case to take carbon seriously, or at least to present a plausible facsimile.
So Trump administration officials have fitfully been highlighting reductions in US emissions. Rick Perry boasted about them to an energy conference (even while bashing the Obama policies that produced them). Scott Pruitt noted, in his speech on the occasion of Trump’s withdrawal from the Paris climate agreement, that “between the years 2000 and 2014, the United States reduced its carbon emissions by more than 18 percent and this was accomplished largely by American innovation and technology from the private sector rather than government mandate.” He said, “We lead with action, not words.”
This is, among other things (like, say, false), a promise that the Trumpian strategy of deregulatory unleashing of private energy development will continue these emission reductions.
And finally, the leaked EPA document says that the agency is considering “developing a rule similarly intended to reduce CO2 emissions from existing fossil fuel electric utility generating units.”
But empowering fossil fuels is not going to reduce emissions, and the “inside the fenceline” provisions the EPA is likely to recommend in its new carbon rule won’t reduce emissions much either. Courts are likely to look skeptically on the EPA issuing a weak, toothless provision that will not reduce an air pollutant it has identified as a threat to public health.
We return to the central dilemma facing conservatives here: They are determined to protect coal, but there’s no way to reduce emissions from the electricity sector without closing coal plants (or switching them to a different fuel).
No alternative rule can reduce carbon significantly while saving coal. The circle cannot be squared. So its lies and promises, lies and promises.
4) With no solution, there is only delay, delay, delay, and eventual defeat
In health care: time ran out, no magic solution emerged, and multiple bills failed.
As long as Obama was in office, Republicans could keep bashing Obamacare without having to provide any specific alternative. So they delayed and delayed and delayed putting one to paper. Once they came to power and need an actual bill — a bill that would do the magical things they promised — they flailed wildly.
They made a mockery of the legislative process, holding no hearings and disregarding CBO scores, and put forward two monstrous bills that honored precisely none of their grand promises. (That one of those bills only failed because of John McCain’s dyspepsia is a measure of GOP dysfunction.)
Again: Some of this is incompetence, but mostly it’s just an impossible task. There is no health care bill that satisfies both the expectations of the American people and the demands of Republican donors and activists. It’s a conceptual null set.
As long as the GOP is in power, the ACA is not safe. (Now Republicans are actively trying to sabotage it, to make all their false predictions come true and precipitate a crisis.) There is always some chance McConnell could cobble together 50 votes on the next monstrosity.
But the jig is up. There are no longer any illusions about whether Republicans have a serious health care plan, one that satisfies the basic expectation set by the ACA. They do not.
In climate: rulemaking can be gummed up, but eventually it will reach the courts.
Pruitt is expected to issue a rulemaking proposal to repeal the CPP, based on its alleged illegality. Alongside it, there will be a solicitation of comments and ideas regarding a possible new rule to replace the CPP that the EPA may or may not develop — it hasn’t decided.
All these moves will have to pass legal muster. The EPA will have to justify to a court why the legal issues in the CPP — which, again, were in the midst of being decided by the DC Circuit before Pruitt told the court to drop it — are so severe as to require immediate repeal, with no replacement ready to go. It will have to convince a court that it seriously considered alternatives.
And it will have to convince a court that it is serious about reducing carbon emissions. Whatever legal maneuvers it tries, ultimately, the EPA must demonstrate that it is making a good-faith effort to carry out the legal obligation established by the Endangerment Finding.
That’s going to be tough to do with Trump out bragging about putting coal miners back to work. It’s going to be tough to do in light of the administration’s stated determination to keep coal plants open and its naked collusion with industry. These are the kinds of things the environmental groups and state attorneys general who will sue Pruitt will be rehearsing in court.
In other words, there’s a very good chance that courts say the same thing about the EPA’s new carbon rule that the American people said about the GOP’s health care bill: This is some bad-faith bullshit.
There will be legal twists and turns, but in my view, the best-case scenario for Pruitt — and the most likely outcome — is a legal morass that runs out the clock on the Trump administration.
Someday a sane administration will take the Supreme Court ruling seriously and pick up where Obama left off. All Republicans will have accomplished is a few more years of delay (and, ahem, regulatory uncertainty) the US can ill afford.
What we can learn from these parallels
There is a parallel story to tell about these two key areas of public policy: a core expectation that current Republican dogma is incapable of satisfying, months and years of lies and double-talk, and eventually, a collision with reality.
The ACA is something close to the most conservative possible way to give everyone access to health care coverage. If you want everyone covered, and you want to leave the system of employer-based private insurance in place ... you pretty much end up with something like ACA.
The CPP is not the most conservative possible way to reduce carbon emissions. That’s probably a price on carbon, which the GOP rejected in 2009 to 2010. But it’s just about the most conservative way to regulate carbon — it offers states maximum flexibility. (Ironically, this very flexibility is the target of Pruitt’s legal objections.)
Obama’s approach to health care, like his approach to carbon emissions, is what moderate, business-friendly policy looks like. That the GOP regards them both as socialist economic death bombs is an indication that the GOP no longer has a moderate, business-friendly wing. Economically, all its principles have long since hardened into reflexive gestures — hostile to regulation, hostile to taxes, hostile to social spending — driven by extremist donors and a radicalized base.
The parallels elucidated in this post could likely be extended to other areas of policy as well. The GOP, in its current incarnation, simply does not have the capacity to address America’s most pressing challenges. The weight of polarization and tribalization have eroded its intellectual foundations and left it with no governing philosophy beyond upward income redistribution and social grievance.
I’m not foolish enough to predict for certain that ACA repeal won’t rise up again like a zombie, or that courts will effectively force Pruitt to take the law seriously. Things have been pretty unpredictable lately. It will take years before the CPP winds its way through the legal process, and Trump may start a war with North Korea next week. Or he may stack the courts with pliant judges, or ignore the courts entirely. Who knows.
But the GOP’s utter bankruptcy on both health care and climate has been exposed for the ages. There are no magic alternatives — only delay and, eventually, fiasco.