Obama has the power to delay new rules that will shut down 8% of all U.S. power generation.
Since everyone has a suggestion or three about what President Obama can do to get the economy cooking again, here’s one of ours: Immediately suspend the Environmental Protection Agency’s bid to reorganize the U.S. electricity industry, and impose a moratorium on EPA rules at least until hiring and investment rebound for an extended period.
The EPA is currently pushing an unprecedented rewrite of air-pollution rules in an attempt to shut down a large portion of the coal-fired power fleet. Though these regulations are among the most expensive in the agency’s history, none were demanded by the late Pelosi Congress. They’re all the result of purely bureaucratic discretion under the Clean Air Act, last revised in 1990.
As it happens, those 1990 amendments contain an overlooked proviso that would let Mr. Obama overrule EPA Administrator Lisa Jackson’s agenda. With an executive order, he could exempt all power plants “from compliance with any standard or limitation” for two years, or even longer using rolling two-year periods. All he has to declare is “that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so.”
Both criteria are easily met. Most important, the EPA’s regulatory cascade is a clear and present danger to the reliability and stability of the U.S. power system and grid. The spree affects plants that provide 40% of U.S. baseload capacity in the U.S., and almost half of U.S. net generation. The Federal Energy Regulatory Commission, or FERC, which is charged with ensuring the integrity of the power supply, reported this month in a letter to the Senate that 81 gigawatts of generating capacity is “very likely” or “likely” to be subtracted by 2018 amid coal plant retirements and downgrades.
That’s about 8% of all U.S. generating capacity. Merely losing 56 gigawatts—a midrange scenario in line with FERC and industry estimates—is the equivalent of wiping out all power generation for Florida and Mississippi.
In practice, this will mean blackouts and rolling brownouts, as well as spiking rates for consumers. If a foreign power or terrorists wiped out 8% of U.S. capacity, such as through a cyber attack, it would rightly be considered an act of war. The EPA is in effect undermining the national security concept of “critical infrastructure”—assets essential to the functioning of society and the economy that Mr. Obama has an obligation to protect.
He would also be well within the law to declare that the EPA’s rules are technologically infeasible. Later this year, for example, the EPA will release regulations requiring utilities to further limit mercury and other hazardous pollutants. Full compliance will be required by 2015, merely 36 months after the final rule is public, and plants that can’t be upgraded in time will be required to shut down.
Yet this is nearly impossible to achieve. Duke Energy commented to the EPA that its average lead time for retrofitting scrubbers was 52 months, including the design, purchase and installation of equipment and the vagaries of the environmental permitting process. For Southern Co., another big utility, it was 54 months, over 16 scrubber systems. Filter systems usually take anywhere from 34 to 48 months end to end.
The environmental regulatory system is so rigid that once a rule is in motion it is almost impossible to stop or roll back in a way that can withstand scrutiny in the courts. Mr. Obama allowed Ms. Jackson to begin the process, but we rehearse these details to show that he has the legal authority to minimize her damage. An executive order would not make these rules more rational or change them in any way. All it would do is delay them, giving businesses more time to prepare and to amortize the costs over a longer time.
The larger issue is whether the Administration’s green campaign is more important than economic growth. The EPA’s own lowball cost estimate for the mercury rule is $11 billion annually, though the capital expenditures to meet the increasingly strict burden will be far higher. That investment could be put to more productive uses than mothballing coal assets and replacing them with more expensive sources like natural gas. With nearly a tenth of America out of work, $11 billion year after year adds up.
We don’t expect Mr. Obama to take our advice and tell his regulators to cool it, but no one should believe the excuse that his hands are tied. Whatever he decides will speak volumes about his real economic priorities.