The new front in the clean air wars: fossil-fuel influence over state attorneys general - and how it might be checked.
Author | Savit, Eli |
Position | Book review |
STRUGGLING FOR AIR: POWER PLANTS AND THE "WAR ON COAL". By Richard L. Revesz and Jack Lienke. New York: Oxford University Press. 2016. Pp. viii, 163. $29.95.
FEDERALISM ON TRIAL: STATE ATTORNEYS GENERAL AND NATIONAL POLICYMAKING IN CONTEMPORARY AMERICA. By Paul Nolette. Lawrence: University Press of Kansas. 2015. Pp. ix, 219. $39.95.
INTRODUCTION
Could the clean air wars, even in the era of Trump, finally be winding down? Or has the battlefield merely shifted? Two new books--Richard Revesz and Jack Lienke's Struggling for Air: Power Plants and the "War on Coal",' (1) and Paul Nolette's Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America (2)--suggest different answers.
At its core, Struggling for Air is about a "tragic flaw" that has hampered the Clean Air Act's effectiveness (Revesz & Lienke, p. 3). It is also a story of how, for decades, the fossil-fuel industry exploited that flaw. The surprise: for all of that, Struggling for Air takes a relatively optimistic view of the future of environmental regulation.
First, though, the flaw in question. When the Clean Air Act was enacted, it imposed stringent air-pollution standards on new industrial facilities but largely exempted existing facilities from regulation (Revesz & Lienke, p. 3). That exemption proved environmentally catastrophic, particularly as applied to coal-fired power plants. In 1970, the year the Act was passed, coal-fired plants--probably the most significant industrial source of airborne pollution on the planet--were typically retired after about thirty years in service and replaced by newer, cleaner units. But because the Act exempted from regulation any facility that existed when the law was enacted, utility companies suddenly had a strong economic incentive to keep old coal plants running for as long as possible. And so they did--keeping dirty coal plants online for decades past their planned obsolescence dates (Revesz & Lienke, pp. 29-33).
The fossil-fuel industry, Revesz and Lienke explain, worked to prevent regulators from closing this loophole, using its formidable war chest and phalanx of lobbyists to evade regulations that could have forced older coal plants to shut down. (3) Indeed, it is hard to come away from Struggling for Air without being struck by the fossil-fuel industry's outsized influence over its environmental regulators.
So why is Struggling for Air an optimistic book? As Revesz and Lienke see it, theirs is ultimately a tale of the Clean Air Act's "redemption" (Revesz & Lienke, p. 3). Today--even in the aftermath of Donald Trump's election--many of the dirty, old power plants that the Act's "tragic flaw" kept in operation finally look set to shut down (Revesz & Lienke, p. 157). And Revesz and Lienke give much of the credit to Washington regulators. In their telling, policymakers since the 1980s have recognized the "tragic flaw" in the Clean Air Act and have worked to fix it by "slow[ly]" imposing new regulations on fossil-fuel emissions, overcoming dogged industry opposition in the process (Revesz & Lienke, p. 162).
But there is another side to the story. Though Revesz and Lienke understate this point, many of the new regulations restricting coal-fired power plant emissions were imposed only after litigation. The Clean Air Act's "redeemers," in other words, were not just the legislators and regulators who acted in the face of industry opposition, but also the litigants who pressured--and sometimes forced--legislators and regulators to act. And those litigants, in the main, were democratically elected state attorneys general (AGs) who sued to curtail environmental harms within their states' borders (Nolette, pp. 163-67).
The growing role that state AGs play in shaping national policy is the subject of Nolette's Federalism on Trial. With increasing frequency, Nolette argues, state AGs are banding together with other AGs and sympathetic parties and using litigation to force (or block) federal government action (Nolette, pp. 30-37). That, Nolette contends, is why the Environmental Protection Agency (EPA) was ultimately forced to take meaningful action against coal-fired power plants (Nolette, pp. 142-44). And that is not the only example. In case after recent case, AGs have involved themselves in litigation with national consequences.
But there is a dark side to the raised profiles of state AGs. As they gain national influence, many AGs are jettisoning their duties to defend the specific interests of their state and are instead coordinating with national interest groups to press ideological litigation. (4) Unfortunately, Nolette does not discuss the mechanism by which interest groups gain access to the states' top lawyers. But one mechanism is predictable, and all-too-familiar: campaign contributions and expenditures.
As this Review will show, special-interest groups have, of late, become increasingly involved in AGs' electoral campaigns. In recent election cycles, record amounts of money have flowed from special-interest groups to AG races across the country. (5) The return on investment for those groups is high. Not only have interest groups gained virtually unprecedented access to AGs, they often help direct supposedly "independent" litigation activities of elected AGs--sometimes even ghostwriting legal documents for state lawyers. (6)
And the biggest special-interest player in the AG game? None other than the fossil-fuel industry. After finding itself on the losing end of AG-directed environmental litigation, the fossil-fuel industry seems determined not to let history repeat itself. In recent years, the industry has poured millions of dollars into AG races throughout the country. (7) Sympathetic AGs, in turn, have increasingly allied with fossil-fuel interests in their quest to loosen and avoid environmental regulations. (8)
The clean air wars thus appear far from over. And the new front lines are state AG campaigns across the country.
This Review has three Parts. Part I focuses on Struggling for Air and argues that Revesz and Lienke's story of "redemption" understates the significant role litigation played in forcing policymakers to regulate coal-fired power plants. Part II focuses on Federalism on Trial. That title highlights how AG-directed litigation helped drive the Clean Air Act's "redemption"--and how a new coalition of AGs is now using litigation to push back against regulation. Finally, Part III discusses a potential cause of those recent anti-regulatory AG suits: the increased influence of special-interest groups, particularly the fossil-fuel industry, that purchase influence with AGs through campaign contributions and expenditures.
Part III also briefly posits a theory under which interest groups' undue influence over state AGs might ultimately be checked, even in the post--Citizens United world. Though the Supreme Court has rejected attempts to enact campaign-finance laws aimed at preventing "influence over or access to elected officials," (9) AGs are not typical politicians. Unlike most elected officials, AGs are charged not with creating laws, but with neutrally enforcing them. In that sense, AGs have more in common with elected judges than with elected legislators. And the Supreme Court recently held that the First Amendment permits stricter campaign-finance restrictions in judicial elections than in elections for political office, reasoning that judges are expected to be impervious to "influence." (10) That same logic might be applied to elections for AG--allowing legislation that could check the influence of monied special interests over state AGs and, perhaps, ultimately further the "redemption" of the Clean Air Act.
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STRUGGLING FOR AIR
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The Clean Air Act's "Tragic Flaw"
On December 31, 1970, President Richard Nixon signed into law the Clean Air Act--an ambitious, far-reaching suite of environmental regulations. During his signing remarks, President Nixon expressed hope that the law would be remembered as a "historic piece of legislation that put us far down the road toward ... a goal of clean air, clean water, and open spaces for the future generations of America." (11)
And so it has. But as Revesz and Lienke explain in Struggling for Air, the Act also contained a "tragic flaw" that would "severely ... undermine the goals of [the] groundbreaking law" (Revesz & Lienke, p. 54). Though the Act required EPA to set stringent emissions standards for six dangerous pollutants, including "sulfur dioxide, nitrogen oxides, and particulate matter" (Revesz & Lienke, pp. 29-30), it empowered EPA to set those standards only for "new" stationary sources of pollution. (12) Sources that were not "new" (that is, those that already existed in 1970) were grandfathered in, and thus were not subject to direct EPA regulation for those pollutants (Revesz & Lienke, p. 3).
Struggling for Air crisply canvasses how, when applied to coal-fired power plants, the Clean Air Act's exemption for existing sources significantly undermined the law's lofty goals. Two factors proved critical. The first is that, "due to wear and tear on various components," the efficiency of coal-fired power plants decreases with age (Revesz & Lienke, pp. 134-35). That, coupled with improving technology, means that operators of coal plants eventually have an economic incentive to replace their aging plants with new units that can "wring more electricity out of a given amount of fuel" (Revesz & Lienke, p. 31; footnote omitted). Invariably, those new, more efficient units are also cleaner--not least because they are more efficient, and the best way to reduce air pollution from coal is to burn less of it (Revesz & Lienke, pp. 134-35).
The second factor is that EPA regulation of new coal-fired power plants imposed significant costs on operators. Shortly after the Clean Air Act's enactment, EPA issued a sulfur-dioxide regulation requiring all newly constructed coal plants to "install multimillion dollar...
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