Hope for Redemption

The Walter C. Beckjord Generating Station sits on the banks of the Ohio River, less than twenty miles southeast of Cincinnati, in Clermont County, Ohio. Beckjord offers a near-perfect case study of the costs of grandfathering. Construction of the plant was announced in November 1948, and its first 100-megawatt coal unit was operational by June 1952. Five additional units came online between 1953 and 1969. Because the units were constructed prior to 1971, all were exempt from the EPA’s New Source Performance Standards. For most of the 1970s, they also managed to avoid complying with any emission limitation under Ohio’s implementation plan for meeting the sulfur dioxide NAAQS, even though Ohio’s original plan, approved by the EPA in 1972, would have subjected Beckjord to a state emission standard—1.6 pounds of SO2 per million Btus of heat input—that was only 33 percent less stringent than the federal new-source standard of 1.2 lbs/MMBtu. In 1973, Ohio utilities convinced the U.S. Court of Appeals for the Sixth Circuit to invalidate the Ohio plan on procedural grounds. The court ordered the EPA to hold an additional hearing at which regulated plants could voice their objections, but before the agency could oblige, the governor of Ohio withdrew the plan from consideration. A year later, Ohio submitted a far less stringent proposal that would have allowed Beckjord to continue emitting at its uncontrolled level: 4.8 lbs/MMBtu. But that plan, too, was struck down on procedural grounds, this time by a state environmental review board. In 1976, after Ohio failed to offer any replacement for its second proposal, the EPA stepped in with a federal plan that would limit Beckjord’s emissions to 2.02 lbs/MMBtu. (This, according to the latest EPA computer modeling, was the level necessary for Ohio to attain the sulfur dioxide NAAQS.) After yet more litigation by Ohio utilities—including Beckjord’s owner, Cincinnati Gas & Electric—the bulk of the federal plan was upheld in 1978. (In rejecting the utilities’ challenge, the Sixth Circuit noted that Ohio was the only state in the country that still lacked an enforceable SO2 implementation plan.)

Coal: A Primer

This book chronicles almost five decades of efforts by the United States government to reduce the air pollution associated with burning coal, along with the often misleading political rhetoric surrounding those efforts. Given the central role that coal and its environmental consequences will play in our story, it’s helpful at the outset to understand some basic facts about the fuel. Short Answer: A combustible rock. Longer Answer: Coal is a fossil fuel—“fossil” because it’s primarily composed of the preserved remains of ancient plants and “fuel” because it can be burned to create energy. Most of the coal we use today was formed hundreds of millions of years ago when large swaths of the earth were covered in swampy forests. As plant life in these swamps died, it sank to the bottom of the water, where it was eventually buried under additional layers of sediment and slowly decomposed into a soggy, carbon-rich, soil-like substance known as peat. As still more time passed, this peat was further transformed by heat and pressure, a process known as carbonization, into the sedimentary rock we call coal. Short Answer: We mine it, mostly in Wyoming and Appalachia. Longer Answer: There are two basic methods of mining coal: underground mining and surface mining. Surface mining is typically used for shallow coal beds—those buried less than 200 feet deep. Miners access the fuel by simply removing (often with explosives) the trees and soil and rocks that sit atop it. Underground mining, by contrast, is used to extract coal that sits between 300 and 1,000 feet deep. The surface is left relatively undisturbed, and miners dig tunnels through which to enter the mine and retrieve the coal. Historically, underground mining was the more common of these two methods, but today, the majority of U.S. coal is produced at surface mines, which require far fewer workers to produce the same amount of coal. In addition to being cheaper to operate, surface mines are safer: both fatal and serious nonfatal injuries occur about three times more often in underground mines.

Bad Neighbors

In Chapter 3, we examined how and why Congress decided to shield existing sources from the bulk of the EPA’s performance standards for stationary sources. In Chapter 4, we showed how the duration of this grandfathering was extended by continued controversy over what qualified as a “modification” under the Act. What we haven’t yet explored in depth is why grandfathering proved so detrimental to public health. After all, even if existing sources weren’t subject to federal performance standards, they were hardly exempt from all regulatory control. The Clean Air Act’s most prominent element was a nationally uniform system of ambient air quality standards, the NAAQS, which were to be set at a level adequate to protect the public health. Thus, lawmakers expected that any dangers posed by emissions from a state’s existing sources would be addressed as part of the state’s plan for achieving the NAAQS. Why didn’t this happen? First, many states simply failed to meet the statutory deadline for complying with ambient standards. Indeed, significant swaths of the country are still out of compliance for certain pollutants. (To be fair, the NAAQS have become more stringent over time because the Clean Air Act instructs the EPA to periodically reassess whether the standards are adequately protecting public health in light of current science.) Second, the NAAQS system didn’t adequately account for the interstate nature of air pollution, whereby emissions originating in one state can cause the bulk of their harm in another. As a result, some states managed to achieve the ambient standards while leaving their most-polluting sources completely unregulated—not because the sources didn’t endanger public health but because their harms were felt in another jurisdiction. Had these sources been subject to direct federal regulation of their emissions of NAAQS pollutants like sulfur dioxide and nitrogen oxides, intransigent states would have had considerably less opportunity to skimp on pollution control at their neighbors’ expense. As we have emphasized in previous chapters, the Clean Air Act’s air quality goals were aggressive, as was its timeline for achieving them.

A Warming World

In the preceding chapters, we’ve focused largely on what is often called “traditional pollution”: soot and smog and their precursors, sulfur dioxide and nitrogen oxides. But power plants are also the nation’s largest source of a very different sort of pollutant: carbon dioxide. Unlike traditional pollution, atmospheric CO2 does not pose a threat to public health through inhalation. As every schoolchild learns, humans exhale CO2 during normal respiration, and plants absorb it as part of the photosynthesis that fuels their growth. Carbon dioxide does, however, act as a “greenhouse gas.” Like the glass of a greenhouse, molecules of CO2 let sunlight pass through to warm the earth but then trap some of the heat that radiates back from the planet’s surface. Up to a point, this heat-trapping effect is beneficial; without it, the earth would be too cold to support life. But when humans burn fossil fuels, carbon that has been sequestered underground for millions of years is rapidly released in the form of CO2, and the natural carbon cycle is altered. As the concentration of CO2 in the atmosphere increases, the greenhouse effect becomes stronger, and the earth’s surface temperature rises. Over time, warming driven by ever-increasing industrial emissions of CO2 is expected to have serious, possibly devastating consequences for all corners of human society. (There are other greenhouse gases, like methane, but CO2 is by far the most common, accounting for more than 75 percent of global greenhouse gas emissions and almost 85 percent of U.S. emissions.) And yet, when President Obama took office in 2009, almost forty years after the U.S. Congress passed a piece of legislation designed to eliminate all air pollution that posed a threat to public health and welfare, emissions of carbon dioxide were still entirely unregulated at the federal level. As the President observed in his first Earth Day address on April 22, 2009: “[W] e place limits on pollutants like sulfur dioxide and nitrogen dioxide and other harmful emissions. But we haven’t placed any limits on carbon dioxide and other greenhouse gases. It’s what’s called the carbon loophole.”

Misadventures in Modification

Imagine a large wooden ship, in service for generations. As its planks decay, they are swapped out for new—but otherwise identical—timbers. Over time, every piece of the ship is replaced in this manner so that eventually not one of its original planks remains. Is it still the same ship? If not, when did it lose its identity? When the first plank was replaced? The last? At some point in between? This ancient brainteaser, commonly known as the Ship of Theseus (after the mythical, Minotaur-slaying king of Athens), illustrates the classic philosophical problem of “Identity Through Time.” How much can an object change before it simply becomes something else? Philosophers have been debating that question for thousands of years. And so, since 1970, have the federal regulators charged with implementing the Clean Air Act. As we explained in Chapter 3, the Clean Air Act authorized the EPA administrator to create performance standards only for “new” stationary sources of pollution. But there was a twist: the statute defined a “new source” as “any stationary source, the construction or modification of which is commenced after the publication of [an applicable New Source Performance Standard].” In other words, the Act included a mechanism—“modification”—by which a source’s identity might change from “existing” to “new.” In theory, treating modified sources as “new” could have served as a de facto limit on the duration of grandfathering, preventing old plants from permanently avoiding compliance with federal performance standards. After all, no plant could keep running forever without requiring at least some upgrades. But what sort of upgrades should qualify as a “modification” within the meaning of the Clean Air Act? For Congress and the EPA, answering this question proved every bit as difficult as determining whether it was the third, thirteenth, or thirtieth replacement plank that transformed the Ship of Theseus into a different vessel. As a result, many of the nation’s power plants have managed to enjoy seemingly indefinite immunity from New Source Performance Standards, even after undertaking comprehensive renovations. Why did Congress decide to treat modified sources differently than other existing sources?

Congress Misses the Mark

For polluters, America in 1970 was still something of a Wild West. A number of federal, state, and municipal laws aimed at improving air quality were already on the books, but few were enforced, and pollution from the nation’s ever-growing stock of motor vehicles, power plants, and factories remained uncontrolled in much of the country. A passage from the Ralph Nader Study Group’s Vanishing Air, published in May 1970, vividly illustrates the extent to which dirty air was a fact of life for city dwellers of the period: . . . The New Yorker almost always senses a slight discomfort in breathing, especially in midtown; he knows that his cleaning bills are higher than they would be in the country; he periodically runs his handkerchief across his face and notes the fine black soot that has fallen on him; and he often feels the air pressing against him with almost as much weight as the bodies in the crowds he weaves through daily. . . . New York’s problems with air quality were hardly unique. In an October 1969 letter to the Senate Subcommittee on Air and Water Pollution, a resident of St. Louis expressed similar sentiments about the sheer pervasiveness of pollution in her community: . . . What really made me take the time to write this letter was the realization that I had begun to take the haze and various odors for granted. Close the doors and windows and they’ll be less noticeable[. I]t is very disturbing to think I’ve become used to the burning-rubber smell in the evening and the slightly sour smell in the morning. What does air smell like? . . . And air pollution’s costs went far beyond sour smells and dirty handkerchiefs, as a series of deadly “inversions” both here and abroad had made dramatically clear beginning in the late 1940s. Typically, the air at higher altitudes is cooler than that below. This is because the surface of the earth absorbs sunlight and radiates heat, warming the air closest to the ground. That warm surface air then cools as it rises higher into the atmosphere.

War Stories

To Representative Marsha Blackburn, Republican of Tennessee, the threat was clear: “Mr. Speaker, there is a war being waged on energy and on coal in this country. But it’s not coming from another country, it is coming from our own government.” Her colleague, Mike Pompeo of Kansas, agreed: “President Obama’s War on Coal means fewer jobs and higher energy costs for Americans.” Those who believed otherwise, Virginia Representative David McKinley warned, were “in dangerous denial.” It was September 20, 2012, two months before a presidential election that would pit incumbent Barack Obama against former Massachusetts governor Mitt Romney, and the United States House of Representatives was preparing to vote on the bluntly titled Stop the War on Coal Act. Democrats on the Energy and Commerce Committee called the proposed legislation, which would strip the EPA of its power to regulate coal-mining operations and coal-fired power plants under a host of federal laws, “the single worst anti-environment bill to be considered in the House this Congress.” But the bill’s sponsors argued that significantly curtailing the EPA’s authority over the coal industry was the only way to prevent the President’s war from claiming “even more victims.” The Stop the War on Coal Act passed the House on September 21, 2012, in a 233–175 vote, with the support of nineteen Democrats. No one thought it had any chance of moving in the Democrat-controlled Senate. Instead, the House’s vote, which would be its last act before election day, was “only meant to be an instrument to bludgeon Obama and other Democrats,” as one commentator put it—a reminder to the coal-country electorate of the existential threat posed by the current President and his party. It hadn’t always been this way. On the contrary, four years earlier, Barack Obama had enjoyed a brief, involuntary tenure as the coal industry’s “spokesperson-in-chief.” About a month after Obama emerged victorious from the 2008 election, the American Coalition for Clean Coal Electricity (ACCCE), a “partnership of the industries involved in producing electricity from coal,” released an advertisement made up entirely of video excerpts from a speech he had given at a September 2008 campaign rally in Lebanon, Virginia.