Clean Air Act

Opinion polls show that Americans are growing tired of eco-nannyism. This isn’t a new trend, but on February 7 it went prime-time, during the biggest TV event of the year: Superbowl XLIV.

This year has marked a sea change in energy policy, from environmental compliance to transmission pricing. Fortnightly interviews top lawyers to better understand how regulatory developments are affecting the power and gas industries.

Lawyers get a bad rap in this country, and in some cases it’s well earned. However, during the month of October I enjoyed the distinct privilege of interviewing nearly a dozen of the industry’s most insightful, informed and hard-working people—all of them law-firm lawyers serving energy companies, regulatory agencies and customer groups.

This summer marked the 40th anniversary of a pivotal event in the environmental movement. On June 22, 1969, the oily surface of the Cuyahoga River caught fire, drawing national attention to the plight of America’s lakes and rivers. However, clean water standards didn’t begin with the Cuyahoga River fire, the EPA or the Clean Water Act. A series of common-law nuisance lawsuits, combined with a patchwork of state laws and (weak) federal statutes, preceded the comprehensive legislation that emerged from the smoke of the Cuyahoga. Today we’re seeing a similar progression in greenhouse gas regulation, with civil suits, state initiatives and marginal federal actions apparently marching toward a national climate policy.

For the past several months, analysts and pundits have been using the term “the new normal” to describe post-recession economic conditions. The phrase describes a variety of changes, from stock-market returns to personal savings rates, but it boils down to this: After the recession, the economy will go through a soft recovery, and it won’t return to pre-recession levels of financial and market activity in the mid-term future.

As federal policy makers push for GHG regulation and transparent markets, the California experience shows what works and what doesn’t work.

As energy issues take center stage in the policy debate, state attorneys general increasingly are using their political influence and legal authority to affect a wide range of areas—from greenhouse-gas emissions to siting and development of infrastructure projects. Working constructively with state AGs can help utilities avoid becoming targets of investigation and litigation.

American utility consumers face a compelling generational challenge: satisfy the need for a reliable power supply, at a reasonable price, while also reducing greenhouse-gas emissions and building a sustainable energy industry. How the government structures green-energy mandates will determine how long existing power plants remain viable.

So far, states have taken the lead in carbon-control strategies. These state actions, however, could lead to constitutional conflicts—as recent court battles demonstrate. Only the U.S. Congress can regulate interstate trade, so states must step carefully in controlling carbon leakage.

Various approaches to distributing emissions allowances spark a heated debate over costs and fairness, but the allocation methodology doesn’t determine whether a regulatory scheme will reduce emissions. Auctioning allowances and distributing them for free both offer advantages and challenges for a successful cap-and-trade system.