The Obama Administration’s landmark Clean Power Plan, along with other recent EPA efforts like the Cross-State Air Pollution Rule and the Mercury and Air Toxics Standards, is part of a long tradition of efforts to compensate for a tragic flaw in the Clean Air Act, according to leading regulatory expert Richard Revesz. That flaw is the “grandfathering” clause, which spares existing power plants from complying with the Act. Revesz wrote about “grandfathering” in his recent book Struggling for Air: Power Plants and the “War on Coal,” co-authored with colleague Jack Lienke, and spoke about it at an EPIC seminar on April 21.
Revesz, the director of the Institute for Policy Integrity and Lawrence King professor at New York University’s School of Law, explained that when the Clean Air Act passed in 1970 power plants had a standard operating life of about 30 years and most of the worst polluting plants were already approaching that age. The creators of the Clean Air Act assumed that these polluting plants would soon shut down, so they spared them from needing to meet the new requirements under the Act. But this gave these plants an economic incentive to stay opened since they did not need to meet the more stringent requirements that the new plants needed to meet. As such, most of these old, inefficient plants continued operating long past their lifecycles. Even now—45 years later—many of these “grandfathered” plants remain some of the worst polluting plants in the country.
Each one of the air rules that came into being after 1970 “continues a pattern that was started 25 years ago, as we begin to try to undo the very bad consequences of this tragic flaw in the design of the Clean Air Act,” he argued. In fact, Revesz believes that regulations like the Clean Power Plan—aimed at cutting emissions from existing power plants by a third by 2030—may have never been needed if the “grandfathering” clause hadn’t existed and plants closed at the end of their roughly 30-year lifecycle. That’s because dirty inefficient plants would have slowly been replaced by cleaner more efficient ones, and emissions would have naturally dropped.
So, how should the old plants have been treated? Revesz believes existing plants should still have been treated different from new ones, but not completely exempted. Instead, more stringent regulations should have been phased in over time. He cited the Clean Water Act, passed just two years after the Clean Air Act, as an example of this approach.
Despite the tragic flaw and serious consequences from it, Revesz said that policymakers have not learned from their mistakes and “always seem to be on the verge of repeating them.” One exception, however, seems to be the administration’s efforts to regulate methane emissions. President Obama declared during a recent visit from Canadian Prime Minister Justin Trudeau that “The U.S. Environmental Protection Agency (EPA) will begin developing regulations for methane emissions from existing oil and gas sources immediately and will move as expeditiously as possible to complete this process.”
Revesz said, “This one is a bullet we just dodged.”
The Clean Power Plan, along with other recent EPA efforts like the Cross-State Air Pollution Rule and the Mercury and Air Toxics Standards, is part of a long tradition of efforts to compensate for a tragic flaw in the Clean Air Act: “grandfathering,” which spares existing power plants from complying with the Act. In their book, “Struggling for Air: Power Plants and the ‘War on Coal’, Richard L. Revesz and his co-author Jack Lienke explore the politics behind the “grandfathering” clause and how it has impacted efforts today to reduce pollution. Join us as we host Revesz for a discussion on his book, the inherent challenges of Clean Air Act regulations, and the future of policies like the Clean Power Plan.
Bethel Haile: email@example.com