← Shift Key with Robinson Meyer
Shift Key with Robinson Meyer
Trump’s Move to Kill the Clean Air Act’s Climate Authority, Forever
01:09:25
Rob and Jesse talk through the proposed overturning of the EPA’s “endangerment finding” on greenhouse gases with Harvard Law School’s Jody Freeman.
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- [00:00]
Robinson Meyer
You are listening to Shift Key, a weekly podcast from heatmap News. On this week's show, the Environmental Protection Agency is trying to claim that carbon dioxide is not a dangerous pollutant under the Clean Air Act. How does their argument work? Where could it fail? Where does it go wrong? And what does all of this mean for the future of climate regulation in the United States? We're joined by Harvard Professor Jodi Freeman and it's all coming up on Shift Key after this. Want to accelerate your career in clean energy? Then explore online certificate programs from our sponsor, the Yale center for Business and the United States Environment. Whether you're designing policy, unlocking finance or developing impactful projects, Yale's online clean energy programs equip you with tangible skills and powerful networks, and you can continue working while learning in just five hours a week. Propel your career forward and make a difference. Listeners of Shift Key and Shift Key Summer School can now get an exclusive offer. Use the referral code HEATMAP25 and get your application in by the priority deadline to get $500 off tuition to one of Yale's online certificate program programs in clean energy. It's time to transform your career, your community and the clean energy landscape. Head to cbey yale.edu to learn more. Join Clean Energy Leaders at RE+25 from September 8th to the 11th in Las Vegas as North America's largest event for the modern energy industry, RE plus brings together innovators across solar energy storage, EVs, hydrogen, wind and more. It's where industry leaders tackle today's challenges to shape tomorrow's energy solutions. Solutions RE plus is the epicenter of clean energy leadership uniting the industry to meet rising global energy demand. And listeners can save 20% with code HEATMAP20@replus.com hi, I'm Robinson Meyer, the founding executive editor of Heatmap News.
- [02:02]
Jesse Jenkins
And I'm Jesse Jenkins, a professor of Energy Systems Engineering at Princeton University.
- [02:06]
Jodi Freeman
And I'm Jodi Freeman, a professor of Law at Harvard Law School.
- [02:10]
Robinson Meyer
And this is a special crossover episode of the Clean Law Podcast from the Environmental and Energy Law Program at Harvard Law School and Shift Key Heat Maps weekly podcast on decarbonization and the shift away from fossil fuels. This is a meeting of the minds to try to wrap our heads around and understand the Trump administration's major announcement that they are going to try to rescind and revoke the EPA's the Environmental Protection Agency's long standing finding that carbon dioxide is a dangerous pollutant and therefore should be regulated as such under The Clean Air Act. We have here with us the Shift key team, Me, Jesse, folks who think about climate from the decarbonization side, and Jodi Freeman, as Clean Law listeners will know, an architect of a lot of our Clean Air act regulation around greenhouse gases and carbon dioxide. Jodi, it's so great. It is. What a perfect guest to have for this conversation. Let's start here. So last week, the EPA and a number of Trump officials, the Secretary of Energy, some Indiana state officials, some congressmen, fittingly at an Indiana car dealership, announced that they had begun the process of rescinding a document called the Endangerment Finding. I wonder before we start, I mean, there's lots of context I could give here, but can you just introduce people to what is the endangerment finding and why is it important?
- [03:36]
Jodi Freeman
Sure. Let me just say, though, it's great to be doing this together, this is a lot of fun and it'll be really interesting. Let me start by providing a little context. So the Environmental Protection Agency regulates greenhouse gases in the US Economy just like other pollution. It does it using a foundational law from 1970 called the Clean Air act. And it has the authority to do it because the supreme court back in 2007 held that Greenhouse gases are pollutants. And if they endanger health or welfare, that's the phrase in the Clean Air act, then the EPA has to set standards for it. And in 2009, in the Barack Obama administration, the EPA did make this endangerment finding. It's a scientific determination that basically says, yes, greenhouse gas pollution causes harms. Greenhouse gases accumulating in the atmosphere causes a variety of harms. And we know that from all the studies, from the time, the comprehensive scientific assessments from the National Climate Assessment and from the National Academies of Science and from the ipcc, we see the scientific consensus that greenhouse gases pose serious risks and cause harms, and so we must regulate them. And that finding is the pillar. That finding is the foundation for all of EPA's rules for all the major emissions from our economy in every sector, power plants, cars and trucks, methane from the oil and gas facilities, so everything rests on it, or a finding that is analogous to it for each sector. If you pull that out, if you pull the cornerstone out and you say, well, we're rescinding it, you're essentially pulling out the legal basis for all these rules. And all those rules would have to be rescinded, too. They would fall, too. And so what this boils down to is that EPA has announced that it's going to rescind the scientific and legal predicate for all federal rules trying to limit greenhouse gas pollution. That is our major tool. The Clean Air act is our major tool for controlling greenhouse gases, for trying to address climate change. And so it's really saying we're not going to do that anymore. It's drastic, it's striking. And the legal theory underpinning this proposal is to be polite about it. I might use a word like inventive to be less polite. I might say something like strained. And if I were in certain advocacy corners, I might say cuckoo for Cocoa Puffs.
- [06:21]
Jesse Jenkins
And Jodi, we should probably add for our listeners that you worked in the Obama administration as a counselor on climate and energy law during the period when the first endangerment finding was crafted. Maybe you could just briefly walk us through the logic behind the original endangerment finding and then we can talk about what they're doing to try to undermine that logic in the current order.
- [06:41]
Jodi Freeman
Yes, I was there in the White House when the Obama administration made the endangerment finding and then made the subsequent first ever greenhouse gas rules for cars and trucks which flowed from it and so on. The context I would give you is this. When President Obama took office, there was already a strong scientific consensus about this. And we had various reports, not just international, but domestic, saying so. And what had not happened, though, was that the EPA hadn't made the official finding under the Clean Air Act. And that's because the George W. Bush administration prior had refused, even after Supreme Court's decision, basically saying to them, you were wrong in refusing to make a decision about endangerment because they had refused to make a decision one way or the other. The George W. Bush administration said, yeah, we're not going to do it, going to run out the clock.
- [07:27]
Jesse Jenkins
They just ran out the clock.
- [07:28]
Jodi Freeman
We're going to run out the clock. So if you recall, Obama had campaigned on doing something about climate change. Incidentally, just as a reminder to go back in time, so had John McCain. Just to note at that point it.
- [07:40]
Jesse Jenkins
Was a bipartisan consensus that one should think something about this.
- [07:43]
Jodi Freeman
But anyway, so this was. And for those of us who came in to work on climate and energy, I came into the White House in the new Office of Energy and Climate Change. And for those of us who worked on this issue, the very first step would need to be delivering on that decision. And that is what EPA did after going back and looking at the huge record that had been built on the science. And then we also were preparing to set the first standard that it would trigger. And this particular endangerment finding was linked to car and truck emissions. So if you make it, you automatically have to set those standards. And so we were working on doing that as a first step. And I actually negotiated that first set of standards with the auto companies at the time, and they ended up supporting it and even defending it in court. So it was quite different era, quite different time.
- [08:36]
Robinson Meyer
And my understanding is since then, the US has regulated, or the EPA has regulated greenhouse gas emissions from cars and trucks several times. There have been continually updated regulations restricting and guiding greenhouse gas emissions from cars and trucks.
- [08:52]
Jesse Jenkins
If my memory serves me, the first Trump administration did attempt to basically roll back and replace the Obama administration's clean power plan, which was the application of the Clean Air act, to regulate greenhouse gas emissions from the power sector. But they did not say, we're not going to regulate greenhouse gas emissions from the power sector. They just replaced it with a proposed rule that was just very, very toothless, very weak. Right. But they did not go after this core concept, the sort of idea that greenhouse gases are a threat. They just simply said, the regulation we're going to apply in the power sector is basically coal plants should be reasonably efficient. And that was about it at the time.
- [09:26]
Jodi Freeman
They rolled back every rule from the Obama era, not just the clean power plan that was meant to address pollution from that sector, but also these car and truck standards. They rolled them all back. And so the strategy was quite familiar because virtually every Republican administration, you would expect would roll back regulatory standards, weaken them, using some combination of economic and technology arguments. Very familiar thing to do. We see a pendulum swing in Republican administrations. We see another pendulum swing the other way in Democrat. So we're used to that. What they did not do, as you said, Jesse, was they didn't say, we're going to go look at the scientific foundation again. And the reason is everybody understood it was too solid, and that would be way too legally risky to try to defend in court. The idea that you'd go in there and say, hey, climate science, we're not so sure, would get you laughed out of court. Now, it looks really different now because the Trump 2.0 approach seems to be, we're going for broke, we're swinging for the fences. I suspect that they think that they have a sympathetic Supreme Court and want to create every possible argument that they might get five justices to go for. But when we get into the proposal, we can talk a little bit about their kind of main argument and their backup argument and how the. How their argument unfolds but they're certainly going well beyond what they did the first time around.
- [10:53]
Jesse Jenkins
Yeah, let's talk about that argument. Maybe you can do your best to sort of steel man it for us, like walk us through the logic they're trying to put together for why greenhouse gases from American industry or cars and trucks or power plants should not be considered a danger to American public health.
- [11:09]
Jodi Freeman
Right. So let me just say one thing to set the scene, which is that even before they announced this proposal, they had already announced that they were going to eliminate the rules for power plants completely. Again, not a rollback, not a weakening completely. And what was the theory? The theory is we need to set a threshold for significant contribution to climate change. And the law says the sources have to contribute significantly. And our assessment is they don't. And there's no point in us regulating them because it won't matter given how small a percentage they are. So we're not going to do it at all. So that proposal already out there, and essentially what's going on here is, is a version, is a cousin of that for the transportation sector for cars and trucks, but it has some more bells and whistles and it does something even more profound because that power sector rule, they never talked about rescinding the endangerment finding, and now they are.
- [12:12]
Jesse Jenkins
So they weren't attacking the idea that greenhouse gases are a threat to public health. They were simply saying that the power sector in the United States, which produces about one and a half billion tons of greenhouse gas emissions and would rank sixth in the world if it were its own country in terms of overall greenhouse gas emitters, behind only China, the U.S. india, the EU and Russia. Yeah, but putting that aside, that was not a significant enough contribution to global climate change and that it should be considered worth regulating here. They're simply saying no matter how much you pollute in terms of greenhouse gases, it shouldn't matter because greenhouse gases are not really a threat to public health.
- [12:48]
Jodi Freeman
Well, they're doing both. What they're doing is main argument and backup argument. So the reason I say it this way is, first of all, that was great context to suggest that the power sector emissions in our country, first of all, it's our second largest sector. The biggest is transportation. Right.
- [13:02]
Jesse Jenkins
Yeah. It's nearly a quarter of our emissions over a 50. Right.
- [13:04]
Jodi Freeman
But it's big. Like there's just no way to look at the power sector and go, yeah, it doesn't matter much. But in this proposal announced last week, what they say basically is that they have to set these Standards in a couple of steps. And the statute says that the Administrator shall prescribe standards bear with me here for any air pollutant from any class of new cars and trucks that in the Administrator's judgment causes or contributes to air pollution reasonably anticipated to endanger health or welfare. What did I just say? You have to have an air pollutant that comes from the sources, cars and trucks. It has to contribute to air pollution that is dangerous for people's health and well being. The air pollutant presumably is CO2, greenhouse gases from cars and trucks contributing to air pollution, which is presumably greenhouse gases in the atmosphere that is dangerous or reasonably anticipated to be dangerous. So it's even more cautious for human health and well being. And so in the past, in 2009, when EPA made the endangerment Fund, they said, well, greenhouse gases are dangerous for human health and wellbeing. We can point to all the things more intense weather events and erratic weather events, more intense, hurricanes, sea level rise, flooding, heat waves, pathogens, you name it, that directly impact health and well being and also incur huge economic losses. And so greenhouse gases have these hugely adverse effects and pose these very dangerous risks. And cars and trucks produce an air pollutant because the Supreme Court said greenhouse gases are air pollutants and they contribute to this problem because look at the biggest shares of our economy that contribute to the problem. So that is the math of how EPA went about this. Okay? Now, the proposal says, number one, not an air pollutant. Wrong. These greenhouse gases from US sources, they're global pollution. They're global, they're not local, and we only have the authority to regulate local pollution. Number two, they don't contribute because here's the threshold argument again. They're teeny tiny. We can slice and dice it down to the class of car and show you how this is just too tiny a share to matter. And third, there's a causation problem here because our emissions, these emissions from these sources, they don't matter to the adverse impacts down the road from climate change. That's like way too attenuated and way too remote and you can't link it back to us. So for all these reasons, we fail this test in the law and we have to conclude that we don't contribute to the endangerment. Now, by the way, none of that questioned the science, okay? That's the first argument. It's about reading the law in a way that makes the US Share seem tiny and any effort to regulate it futile and also declares this not to be pollution under the law, which all flies in the face of the Massachusetts vs EPA decision from 2007. The backup argument, which by the way, they did not need this is an indulgence. I have a view about this, that it's really a political gesture to the ideologically anti climate people because they don't need it to make the first argument. But their backup argument is the science is no longer reliable. The studies were overly pessimistic. Updated empirical work and peer reviewed studies and everything we know now tells us that on net global warming is beneficial, that the bigger threat is getting colder and so on. And so, you know, it's a critique of the science and it's based on, largely on. It's based largely on a new DOE report, Department of Energy report that was commissioned by Chris Wright, Secretary of Energy and written by five people who are, well, credentialed scientists who have some mainstream publications but who are very well known for their outlier views and who also.
- [17:28]
Robinson Meyer
I'm going to borrow an argument that I know is we're going to hear more of in the next few days, but I think just glancing at the report they've put out that's questioning climate science, they're poking little holes, they're saying, oh, the models have run hot. If you read. It's a very carefully. Speaking of legalism, it's a very carefully, legalistically creative report because it has all these small findings that seem to suggest the larger finding is wrong, but don't actually say the larger.
- [17:51]
Jesse Jenkins
They don't actually are.
- [17:52]
Robinson Meyer
And the interesting thing is the Trump administration officials have already gotten caught in this. So Secretary Wright tweeted today, the ceaseless repeating from the media, politicians and activists claiming that climate change is making weather more dangerous and severe is just nonsense. That is not true. That's wrong. That's climate denialism. And it's actually quite significant because it's the first time I think we've seen Wright move from this like, well, climate change isn't so bad. It's been overstated to outright saying something factually untrue about climate change. It's actually really significant change for him.
- [18:22]
Jodi Freeman
But there are two things here that really matter. Right? He's revealing something. Okay. Which you're getting at. But there's also this report, as you say, that the five scientists have authored which say things that have, many of which have been just debunked over time. There's this allegation about satellite data being inaccurate and so on. It goes through and through various things that other scientists have already debunked about their prior work. But there's also the EPA's proposal itself, which is relying on this. And EPA's proposal itself adopts much of this. So you have to realize what's going here. It's EPA's proposal and they're basically taking the Chris Wright Commission report as if it's the foundation for what it should do, instead of looking at the bulk of climate assessments. Right, Climate science or the con, like.
- [19:11]
Jesse Jenkins
The congressionally mandated National Climate Assessment, which Trump disbanded.
- [19:15]
Robinson Meyer
Right.
- [19:16]
Jodi Freeman
Which involves like well over a dozen Federal agencies, including NASA, DoD and so on, which is the normal way the United States federal government speaks about the risks of climate change. It takes 15 or so agencies and it commissions reports from five, hundreds of scientists in an open process as peer reviewed. But no, instead we're going to rely quite heavily on five people we hand picked for this. So this is what's so, so unusual. Let's use that word.
- [19:42]
Robinson Meyer
Totally. And I think, but I think in this, in that sense, he's trying to summarize this line from the executive summary of the report that says most extreme weather events in the US do not show long term trends. Okay, well, that just means you can't point at a line and say the number of blizzards have gone up or the number of thunderstorms have gone up or something. Claims of increased frequency or intensity of hurricanes, tornadoes, floods and droughts are not supported by US Historical data. And I think Wright is taking those lines. I mean, I'm interpolating a little here, but he's taking those lines and then saying, oh, weather hasn't gotten worse. But in fact, the enumeration of hurricanes, tornadoes, floods and droughts is quite intentional because we know heat waves have gotten much worse. We know extreme rain have gotten much worse.
- [20:29]
Jodi Freeman
The overall conclusion they're trying to make is a lot of things vary all the time, naturally. And these drastic, these dramatic events really haven't gotten worse over time. You shouldn't believe that. And some of this peaked in the 1930s, in fact. But here's the thing. I'm not a climate scientist. Nobody should take my word for it. You should just look at the scientific response to this, which I'm absolutely certain has already begun and is coming. It's already being published. The things you're saying, Rob, this is going to be completely destroyed. What I want to point out is the, this is a backup argument that says we also doubt the science. And you, the courts. It's aimed at the courts. Ultimately, if this proposal goes final, in this form, remember, it still is going to have to be subject to comment and they can change some things. But if it were to go final in this form, they would really be saying to the courts, you should defer to us on our scientific assessment. We should have a lot of discretion here because the courts don't know the science. And so there's a play here to say we should have maximum space to exercise our discretion.
- [21:31]
Jesse Jenkins
Doesn't that directly contradict the Chevron rulings that the court has recently made? Which is basically, no, they don't have to do that anymore. And the courts can step in and, you know, overturn agency expertise.
- [21:42]
Jodi Freeman
Here's the nerdy part of that. That case that was overturned, that everybody talks about, the Chevron case was overturned in a case called Loper Bright. What the court said there is when it comes to interpreting the meaning of the law, the meaning of the statute, the meaning of the term, say, air pollutant, okay, that's for us, the courts. We're not deferring to you on that. We judges know how to do that. However, when it comes to fact based decisions like scientific determinations, the agency is not subject to that Chevron or Loper Bright standard. The agency is subject to what we call arbitrary capricious review. So under the legal standards that courts use, actually agencies get the most deference still for their factual determinations. Here's the problem, the test for arbitrary or capriciousness. I don't believe this proposal, in its assessment of the science, can get past it. The court in the past has said something's arbitrary capricious. There are unsupported assertions, there are gaps in the logic. It goes against the weight of the evidence. Like here, these are the indicia. These are the indicia of arbitrary capriciousness. So that's like from Supreme Court precedent. So I honestly don't understand how they can get past arbitrary capricious review. But they're certainly making a play for it. That's why I think the science part of this might just be performative.
- [23:01]
Jesse Jenkins
Yeah, right.
- [23:02]
Robinson Meyer
Well, and I just want to make a related question, which is you can actually say some of the sentences in the DOE report are right and still believe. You can believe tornadoes don't show any influence from climate change and still believe heat waves do. And still believe extreme rainfall events do. In fact, you could believe heat waves. The cost of heat waves getting worse could justify the entire regulatory edifice.
- [23:24]
Jodi Freeman
See, what I love about you, Rob, right now is you're kind of incensed about Little points might individually sort of be right, maybe each one separately, but none of it adds up to even a chink in the right. And that. And what'll have to happen is the scientific community writ large en masse, is going to have to come back and say, even if one or two or three of these sentences could possibly plausibly be actually accurate, and it does nothing to change the overwhelm. Right. But what I think is happening is we're all getting poked and distracted and tweaked into outrage over science, when in fact, the first argument they're making is the one where they could actually attract some judges and justices to say, oh, wait, maybe you have a little more discretion here to set a threshold level. Maybe it matters that you're saying nothing we do here in the US Will make a difference in the end to global. And maybe that is a reason you don't want to regulate. Hmm. Maybe we'll accept that reason. And that's what we need, I think, to be more concerned about.
- [24:26]
Jesse Jenkins
So you're saying, don't get distracted by the fight over the climate science. The scientific evidence is clear. It's this legal argument that this isn't an air pollutant because it's not a local air pollutant. It mixes globally with all the other CO2, and we can't. You know, each class of cars is a tiny contributor to that, and so we shouldn't worry about it.
- [24:45]
Jodi Freeman
And much of this is a replay or a rehash of arguments that the George W. Bush administration lost in Massachusetts versus epa. So a lot of this is like, let's take another run at the Supreme Court. Let's try to find a hook for them to hang their hat on where they can say, we're not overturning Mass versus epa. But we didn't really address this in Mass versus epa.
- [25:05]
Robinson Meyer
It matches this broader trump pattern that we've seen with independent agencies and other kinds of behavior where they just act like they got a landmark Supreme Court ruling, proceed as if they have a landmark Supreme Court ruling on their side, basically to go poke the court into giving them the landmark ruling they actually want.
- [25:21]
Jodi Freeman
Right. I mean, in this case, I think they're well aware that the five justices from the majority of that landmark Mass versus EPA case have died or retired. And three of the four dissenters are left. And they've been joined by what I think the administration would conclude are friendlier forces, friendlier votes. And they're basically saying, can you please revisit this? And we think this makes no Sense, and they think they'll get a friendly audience. And given that the Supreme Court, since Mass versus EPA has pretty systematically cut back on the potential reach of that case, the limited EPA's authority. Like you said, Jesse, earlier, the court rejected the Clean Power Plan and said, no, that goes beyond what you can do under the Clean Air Act. You can't draft a rule for the power sector that basically requires shifting from one source of electricity, one source of energy, to another generation, shifting from, say, natural gas to, you know, wind and solar. That goes too far. Your rule design goes too far. So the trajectory has been MASS versus EPA is the high watermark. And the court has been limiting EPA's authority to use the Clean Air Act. So I think the administration might be saying, well, maybe they'll go this far too. Right. And let us rescind this endangerment funding. I wanted to make one more point about what they're doing in the proposal. It's a little nerdy, but that's important. They're also saying, hey, when we make this scientific determination, we think it's relevant to fold in lots of other policy considerations. It's not purely scientific because when we decide whether the science is there to support that greenhouse gases are dangerous, when we make that assessment, we already can foresee what would happen if we made that conclusion. We can foresee, we'd have to regulate. And since we can foresee it, we should just fold in all the costs and we should fold in all the reasons we don't want to do it. So now they talk exclusively of all the terrible regulatory burdens and costs of regulating the lost consumer choice when you can't choose the vehicle you want, which of course is a very debatable. It's not true that that's what these standards would limit you to. Driving a little smart car. That's just not true. And we can fold in the fact that people's public health would be worse if we set these standards. Why would it be worse? Worse because it's expensive to buy these cleaner cars so people will keep driving their old dirty cars. And they have the temerity to cite their own big, beautiful bill, making electric vehicles more expensive.
- [27:43]
Robinson Meyer
Okay.
- [27:44]
Jesse Jenkins
They cited our analysis at the repeat project of how many less EVs are going to be sold to justify this.
- [27:49]
Jodi Freeman
Point as part of the reason why it's going to be expensive so people will keep driving dirty cars. So actually, these standards, if we set clean car standards, they'll be bad for you. I mean, it's amazing the boldness so.
- [27:59]
Jesse Jenkins
All I'm saying logic. I'm still, my head is still like my gears are still turning trying to follow that logic. I don't.
- [28:04]
Jodi Freeman
What they're doing is folding all of these non scientific considerations into what the Supreme Court clearly had said was a scientific determination. And even if you believe it's appropriate to consider costs of regulation, you should be doing this. The statute says you do it when you set the standards, not when you make the scientific determination, of course, because.
- [28:23]
Jesse Jenkins
There'S a huge range of options to set the regulation, as we've already seen.
- [28:26]
Jodi Freeman
In my and the Clean Air act says when you go to set the standards for certain classes of cars and trucks, you should consider cost and availability of technology and so on. And then the final point I'd make is they don't even do their cost analysis on the level. They only talk about burdens and costs. They don't even talk about the benefits of cutting this pollution.
- [28:48]
Jesse Jenkins
That would come both economically there aren't any right.
- [28:52]
Jodi Freeman
The whole thing is skewed, bootstrapped, manufactured and contrived to make it look like it's futile to regulate because it won't make a difference. It's costly to regulate because the costs drastically outweigh the benefits. And it's actually bad for you to regulate because your public health will get worse. And for all those reasons, we shouldn't even be making the scientific determination. It is. Extraordinary is the word that comes to mind. Extraordinary.
- [29:25]
Robinson Meyer
Do you want to build critical skills that are transforming the clean energy sector? Then discover the Yale Clean and Equitable Energy Development Online Certificate Program from our sponsor, the Yale center for Business and the Environment. This fully online 5 month program is designed for working professionals who want to build projects that serve both people and the planet. You'll dive into energy fundamentals, project finance and key phases of development and operations while learning how to center cloud community engagement. In just five hours a week, you'll learn from leading experts, develop practical skills and gain actionable insights. You'll engage in video lectures, live sessions and a real world group project. And Yale will ensure that you have the expertise to advance clean energy solutions that benefit communities and drive economic resilience. Listeners of shiftke and shiftkey Summer School right now can get an exclusive offer on these programs. Use the referral code HEATMAP25 and get your application in by the priority deadline. To get $500 off tuition to one of Yale's online certificate programs in clean energy. So transform your career, your community and the clean energy landscape, head to Cbey Yale Edu to learn more, I want to just kind of spell out something I think we've suggested so far, but I think is worth fully spelling out for listeners, which is that since mass EPA happens in 2007, Supreme Court says you can regulate greenhouse gases, carbon dioxide, if you find them to be dangerous. 2009 Obama says yes, they're dangerous. 2009, 2010 Obama administration, under your leadership, I should say, with your help, establishes a kind of landmark, first of a kind agreement with the auto companies that they will be regulated, they will be bound by greenhouse gas standards. The standards go into effect and that means something important which is at that point then you can use the greenhouse gas standards on mobile sources, which a term of art the EPA uses for cars and trucks. At the time, there still needed to be regulations for what was at the time the number one source of US Greenhouse gas emissions on a sectoral basis, which was the power sector. And since 2010, we have never gotten active enacted power sector regulations. On the book Obama tried to do Clean Power Plan. We talked about that. Trump tried to roll them back.
- [31:57]
Jodi Freeman
Well, also the court blocked them. The court blocked them is a very historic stay, which is not the normal way things go. Agencies that adopt rules are typically given the benefit of the doubt. The rules go into effect and then they go through legal challenge. And if they get struck down, they get struck down. But the government is entitled to have them operational until they're legally challenged. And in this instance, they went to the Supreme Court and Supreme Court issued a states that never went into effect. Now, EPA will claim, and I think there's some truth to it, that the process of setting those standards and doing all the work that had to be done and consulting with the utilities and talking to the regional grid managers and all the things that got done helped to spur the industry to start accelerating its move to wind and solar, which was coming down in cost. As you know, Jesse, if you can speak to this better than me, coming down in cost, becoming more competitive, outcompeting coal and market transition was happening anyway because of abundant natural gas that was cheap and wind and solar costs. But all that was happening. But I think what EPA would say is the clean Power Plan process going through to set those standards, finalizing them, et cetera, helped to spur that market along so that even though it never got officially implemented, it did some good and the power sector emissions were coming down in any event. But you're right, Rob, the rule got blocked. And then ultimately after Trump came in and rolled it back, they wanted the Supreme Court to rule on the legality of it. They wanted that ruling and they got it. And the court said, no, this goes beyond what you can do under the Clean Air Act. Right.
- [33:28]
Jesse Jenkins
They got that ruling even though the Trump administration had already rescinded the clean power plan.
- [33:32]
Jodi Freeman
Well, even though Biden came in and immediately it was made public that they had no intention of reviving the clean power plan from the Obama era. They knew the votes had changed on the Supreme Court. They weren't going to try it. And nevertheless, the court took the case and issued the decision putting the nail in the coffin of the clean power plant. So it didn't put a nail in the coffin of regulating power plants. You just can't use that method of the design of the rule that really, in the court's view, called for generation shifting.
- [34:00]
Jesse Jenkins
What's pertinent is that Supreme Court decision notably did not speak to the endangerment finding. My understanding is there has been no Supreme Court law decided since Mass VEPA on the question of endangerment. There have been more of these technical questions of the actual regulatory mechanisms that have been proposed.
- [34:18]
Jodi Freeman
Even more so. The way I'd put it is this. The Supreme Court has never questioned the endangerment finding in several cases involving EPA setting greenhouse gas standards. And there was a case called UARG Utility Air Regulatory Group, and the court, you know, narrowed EPA's authority about how to regulate, but did not say there's any problem with the endangerment finding or any problem with your authority to use the Clean Air act for greenhouse gases. And likewise in the Clean power plan, they never said that. And in another case called aep, which came out soon after, Mass versus epa, which had to do with whether if you set these standards, if EPA sets these standards, does that preclude common law suits, tort lawsuits, from proceeding to sue the power companies? In that case, the court never questions the endangered plan. So they've had many opportunities to throw a little line out there to suggest that, hey, maybe you want to come bring this up to us? And they have never done it.
- [35:13]
Robinson Meyer
I was just going to make the kind of narrow point that they're able to go after the power plant regulation because for 15 years between multiple presidential administrations, this question of how to regulate power plan greenhouse gas emissions from the power sector has been up in the air and various administrations have made their play and the Supreme Court has weighed in quite forcefully, but it's never questioned the endangered finding. But there's been basically a 15 year long running battle over how to do this. But what they want to do now is go a step further and go after greenhouse gases from tailpipes. And the way that they've decided to do that is to go after the endangerment finding. Like it's a real. Like that is the more secure area of law. And that is why they're really now going after the endangered.
- [35:55]
Jodi Freeman
So a couple things. So first of all, Mass vs EPA was a case about car and truck standards. It was about this section and the court said greenhouse gases are pollutants in this context. So, like the idea that they're not coming back and going, oh, no, we can only regulate local pollution. I just don't understand how they're not asking to overturn massercpa central holding. Second, if you pull out the endangerment finding, it's the rug under which all the other standards are set. So think about oil and gas methane standards, right? For the now there's a little hiccup there. It's more complicated over there because the Congress in the Biden years used the Congressional Review act to disapprove a weakening of the methane rule. So it might be that Congress has blocked an unraveling of the methane rule. Depending on how you read the Congressional Review act, which your listeners, by now, they're just going to get a drink because they just can't believe we're into this stuff. But what the main point is, if you pull the endangerment finding out, you're really going for broken. You're really saying, we're done with this Clean Air Act. We're not using it and we're not setting greenhouse gas standards. And that brings us to, well, should we be fighting this fight again and again and again over how to use the Clean Air act to regulate emissions when it's clear that between the Supreme Court and Republican administrations trying to weaken it, we're getting less and less juice for the squeeze out of the Clean Air Act. And I mean, I lament this. It's a very powerful and important statute. But it was never the first plan like when Obama won and we all came in there. What was the Obama administration trying to do? It was trying to get a cap and trade bill, a national cap and trade bill through the Congress. And if you recall, it had a cap on the biggest sector's emissions. It had an offsetting kind of strategy so we could get the agricultural community involved to sell offsets into this cap and trade scheme. It had energy efficiency provisions. It had a lot of investments in subsidies and tax credits for alternative cleaner energy. It was a Big, I hate to say it, it was a big beautiful cap and trade bill and it didn't get out of the Senate. And so even at the time, DPA Administrator Lisa Jackson, the President himself, all of us who worked on this, said, look, the Clean Air act is a second best strategy, better to have new legislation, but if the Congress isn't going to act, this is pollution and we have to use the executive tools that we have. And that's what we focused on at the time. But now it's a different moment and it might be appropriate to ask ourselves what else should we be looking to address this problem?
- [38:33]
Jesse Jenkins
I want to come to that discussion in a minute, but I do think it's worth maybe we take a minute to talk through that core logic that they laid out. So we talked about the science. Like this five person report from the Department of Energy clearly does not undermine the broad scientific consensus, including in the congressionally mandated national climate assessments, that greenhouse gas emissions contribute to dangerous impacts on human health. They're making the argument, as you said, that the threshold, there should be some de minimis threshold above which you have to fall for sectors greenhouse gas emissions to be large enough to contribute to that problem. And they're making a second argument that this isn't a local air pollutant because it's a broadly mixed greenhouse gas. So that first argument that there's some threshold effect feels like reductio ad absurdum. You know, if the U.S. power sector, that is 5% of greenhouse gas emissions globally and bigger than all but five countries, is too small to trigger that de minimis threshold, or that the U.S. transportation sector, which is similar in scale, is too small, I mean, you can just extend that argument as far as you want to get to the point where nothing is to be regulated.
- [39:39]
Jodi Freeman
The whole strategy is to create a smaller numerator, as small a numerator as possible over the global denominator, right? And so what they're claiming is we have the discretion to decide how to create that numerator. We don't have to look at it.
- [39:52]
Jesse Jenkins
It's not the whole transportation sector, it's just new vehicles. And it's just this particular slice of new vehicles.
- [39:57]
Jodi Freeman
And if you look at the car in my backyard, that's really small. I mean, I'm exaggerating, but it's sort of like that. It's like.
- [40:01]
Jesse Jenkins
And you can do the same thing for power plants, right? You can just go down and down and then now you're at the level of an individual power plant and oh, that's you know, it's only a million tons a year. This is sort of the extent you're.
- [40:10]
Jodi Freeman
Right that this is the strategy. But think about if every country took this approach, nobody would ever do anything to control their machine.
- [40:15]
Jesse Jenkins
Exactly. Which is. Yeah, obviously.
- [40:17]
Robinson Meyer
But this is exactly the way the argument works. The way the argument works is to reconceptualize literally the problem of climate change which is emitted by millions of machines all across the Earth in very small Carbon dioxide emitted by machines all across the Earth. Like everyone bears a small resemblance for obviously the US China bear a very large.
- [40:36]
Jodi Freeman
But it's the collective action problem of all time.
- [40:39]
Robinson Meyer
Exactly. It's just, it's just restating a collective action problem in a legal way so that then it becomes inadmissible as a.
- [40:46]
Jesse Jenkins
Can't you. But just, I mean, can't you make the same argument about any green, any air pollutant, like, you know, the small amount of nitrous oxides that come out of my tailpipe are only a tiny contributor and you know, yada yada.
- [40:57]
Jodi Freeman
Yes, I mean that's true, but. Except that they're making a causation argument too. And here they're saying local air pollution, we really can show that it causes respiratory disease and morbidity.
- [41:06]
Jesse Jenkins
You can make the de minimis argument. Right, like my vehicle's tiny contribution to that is undetectable in any epidemiological setting or whatever.
- [41:14]
Jodi Freeman
Then you get into the categories in the Clean Air act for like new classes of motor vehicles, what counts as a class and new source categories. What counts as a category. And what I think the agency is going to wind up saying is some version of we have discretion to decide how to slice and dice and you should defer to our slice and dicing. But the bottom line is our goal is to shrink the numerator, question the causation, call it global and say it's all futile. And if you believe us on that, we don't regulate greenhouse gases. There's a deep, there's a deep animating philosophy to this proposal that I think is more generally pervasive in the administration and certainly embodied in Chris Wright, who frankly kind of overshadowed Lee Zeldin in this process. I mean, the EPA administrator is being big footed by the Energy secretary whose deep philosophy and Rob, you alluded to this earlier seems to be, look it, climate change is not so bad and fossil fuels are great and good for you. And so this climate change stuff is all wrong. And I'm not going to say I'm questioning the Science though, I just did. But I'm not going to say I'm questioning the science, but I am going to say the thinking on this is all out of whack. And so we really should just pursue our petro state superpowerness, which is in our economic and strategic interest. And also good for you. They keep saying it's good for you.
- [42:35]
Robinson Meyer
Right, right.
- [42:36]
Jesse Jenkins
Because the argument being that like consuming fossil fuels powers economic development which is broadly good for human health because a richer society is a healthier society, et cetera.
- [42:44]
Jodi Freeman
The real problem is energy poverty. That's what we should be doing. We should do more fossil fuel production to address the real problem instead of saying, well sure, energy poverty might be a real serious problem in the global south in particular, but there's a lot of ways to solve energy poverty that don't require us to double down on fossil fuels.
- [43:01]
Robinson Meyer
Not even that. If you took energy poverty seriously as an idea, if you said there's no country in the world ever that's developed without fossil fuels. And so therefore as Americans, our central duty to the world should be to provide fossil fuels as cheaply as possible to the world, then you should want to reduce US consumption of fossil fuels as much as possible. This is what Norway does, Right? And Norway does it for a slightly different reason. They say we have these oil reserves. We want to sell as much oil to the world as possible, improve our balance of trade. Therefore we're going to electrify our full domestic vehicle fleet. We're going to switch to EVs domestically as fast as we can so we can sell as much oil to the world as possible. That we could do the same thing in the US with liquefied natural gas or oil.
- [43:39]
Jesse Jenkins
And we could say that we're going to do that while reducing the air pollution associated with production of oil and gas in the United States to make it the cleanest, you know, whatever.
- [43:47]
Jodi Freeman
But what you're saying, you guys, what you're saying is you have to have some self understanding as having contributed to the problem. Like there's obviously absolutely no consciousness around. We're the world's largest historical emitter. Because in fact what they argue is we're a really small share. Increasingly we don't matter at all. You know, what really matters is China and Brazil and the developing world and so there's this amnesia who by the.
- [44:09]
Jesse Jenkins
Way are all trying to reduce their greenhouse gas.
- [44:11]
Robinson Meyer
I actually disagree. I disagree slightly. I think you can get there just on supply and demand alone. You don't need to think climate. If you think the US should be providing fossil fuels as cheaply to the developing world as possible, then we should be consuming as few as we can so that then we can sell all of our fossil fuel resources to them.
- [44:28]
Jesse Jenkins
Especially when we have affordable alternatives that Americans can use instead.
- [44:32]
Robinson Meyer
Like, we need to move on. We need to move on. Let's kind of talk through two scenarios. The first is that they put out a final version of the rescinding of the endangerment finding, and that's where things are left. The second thing is that they, let's say between now and then, they put out a final version of the endangerment finding and the Supreme Court rules in their favor what would happen next.
- [44:54]
Jodi Freeman
So I wish I could give you the cleanest, most straightforward answer. But of course it depends first of all on what is the final form of this proposal. Do they embrace both of their arguments still the backup argument? Is the science still in there, the stuff they're putting in there? Or do they refine their primary argument in a way that makes it even more reasonable seeming and plausible seeming? And then what happens in the courts? Do they wind up in the Supreme Court? And does the Supreme Court find their maximalist argument acceptable? Does the Supreme Court say, we agree you have no authority to regulate global pollutants, which is sort of akin to overturning MAS versus epa. And if the court goes that far, no administration can fix this because that's the forever determination of what the Clean Air act allows. But if the court does something lesser and says, well, you're right about this threshold idea, maybe, and yeah, it's okay to consider some of the costs even in the scientific assessment, then maybe it's a permission for an administration to slice and dice this way. But a new administration could calculate differently, restore the endangerment finding and regulate. That's a possibility. But then you're in the world of the constraints under which you're operating using the Clean Air act, knowing the Supreme Court is hovering over you and has already restricted the ambition of what you can do. And so we're back to the discussion on should we be sticking with this instrument as the main instrument. And I guess I would just say to that we need legislation, we need a price on carbon. That's another thing. These people who say there's no point in doing anything domestically. What happened to putting a price on carbon? What happened to market failure? Like, what happened to I know we can't talk about carbon taxes, but I can't resist like, what happened to a carbon tax?
- [46:39]
Jesse Jenkins
No neoliberalism is over. We don't do anything.
- [46:43]
Jodi Freeman
Every time I say anything, it's, oh, you're so naive, you know. But what happened to carbon tax? What happened to some kind of maybe a sector by sector approach, like maybe Congress could do it.
- [46:51]
Jesse Jenkins
Yeah, let's take it a step higher, right? Cleaner act regulation, sectoral performance standards are a tool, right? They're one policy mechanism that can be used to drive technological adoption, to drive down greenhouse gas emissions or to change a sector. But there are lots of other tools in the toolkit, right? You can charge penalties on things you don't like, like greenhouse gas emissions. You can provide subsidies for things you do, like wind and solar power or electric vehicle adoption. You can drive R and D policies through the Department of Energy or elsewhere. And so we have a number of different policy mechanisms at our disposal. And I think what's interesting about the Clean Air act is that it is generally applied at a sectoral basis. Right? You can have different mechanisms designed for different sectors. And I think that's good because one of the reasons I've always been critical of carbon pricing is that the single uniform carbon price you might get across, a linked multisector emissions cap or emissions tax is never going to be the ideal instrument for all of those sectors simultaneously. And we should ideally be making progress in all of those sectors simultaneously, rather than the sort of conventional idea that we start with the low hanging fruit and then work our way up. Because if you recognize that technology is dynamic and changes over time in response to policy, and that the political economy changes over time with response to changes in who has power and money and infrastructure changes over time in ways that lock in path dependency, then you don't want to wait to do the high marginal abatement cost stuff later. You want to move forward simultaneously in every sector at once. And this is sort of one of the big philosophical or policy design divergences between carbon pricing advocates and traditional economists who view the primary market failure being this sort of uniform damage caused by greenhouse gases, and folks like me who are trying to design a policy suite to change, like the industry and the politics and the technology suite that we have available.
- [48:41]
Jodi Freeman
But can I just interject there and say this is why the Clean Air Act. I mean, I'm not a Clean Air act fetishist or anything, but I just want to say that it's a magic statute because Congress built in the idea of technology forcing and adapting to technology.
- [48:55]
Jesse Jenkins
That's what I was going to say is I actually like the. I like the Clean Air act for this reason because you don't have to try to apply uniform standards. So what works for oil and gas methane emissions might be totally different than what works for HFC or what works for the auto industry, for example.
- [49:09]
Jodi Freeman
And even built into each of those sectors, you have differentiation, because every time you go to set a standard for a class of motor vehicles, you have to consider what technology is available and what the cost. And so over time you come back and revisit that and you go, oh, new technologies. For example, electric vehicle batteries are better. And so we can set the miles per gram standard more stringently because we actually have technologies that can do better. And likewise, we say there's better methane detection and repair technologies, we have sensors, we have drones, we have all kinds of stuff. And we can expect the companies to use those things and help to drive those things. And we'll come revisit this later. It is a magic ongoing learning mechanism, the Clean Air Act. So having it in the mix to set regulatory standards, I think is extremely beneficial. But if the Supreme Court is narrowing the kinds of things that EPA can do, you have to think hard about is there a better way or is there more supplementary strategies like you said, Jesse, the problem is the supplementary strategies just got rescinded by the Congress. So what Biden did was pair two things, Right? Biden said, yep, we're going to use the Clean Air act for sectoral approaches and we're going to have this big set of investments, subsidies, tax credits to kind of flood the zone with alternatives and build up and make it easier.
- [50:24]
Jesse Jenkins
To comply with those standards. Yeah.
- [50:26]
Jodi Freeman
And nowhere, however, is there a constraint on the supply of oil and gas. Nowhere is there a cost imposed on the oil and gas industry or. Right. So there's no carbon pricing, so we're missing a huge lever. But we're going to do all these other things. And now systematically, they're dismantling all the other things.
- [50:48]
Jesse Jenkins
Each of the other things.
- [50:49]
Robinson Meyer
Well, and I mean, I think, I think the other thing that we've seen, and this is one other aspect of Burgum's thinking as well that I think is quite interesting, is that they conceive of the energy system as explicitly zero sum. And the regulatory burdens they've placed on renewables in just the past month suggest that they understand the energy. Contrary to what they say about economic growth, energy abundance, whatever they say, they conceive it as a zero sum system and they want fossil to own as much of that system as possible. And they're willing to impose high costs on Consumers in order to win the largest market share for fossil that they can. I think there's no other conclusion from how they fact it other than that. I want to ask a few like nitty gritty questions that listeners may have. Number one, is the inflation Reduction act included a definition of carbon dioxide. This was a carper amendment from Senator Tom Crawford that defined carbon dioxide as an air pollutant. And at the time it got a little press play for being like, oh, this is a big deal. This now grants the EPA the ability to regulate this. Or like shores up the EPA's ability to regulate this. Does this matter at all? It's okay if it doesn't.
- [51:54]
Jodi Freeman
I mean, I think that was the theory. You know, proponents of having this included said Congress has explicitly declared now you don't have to find it from the generic definition of air pollutant in the Clean Air act the way that Supreme Court did. Now we've got it explicit. I mean, I suppose it can't hurt. I'm not sure that argument is successful. In the end, it's saying Congress has spoken to this by quote, unquote amending the Clean Air Act. I'm not sure for budget purposes that the court would accept that that transforms the meaning of air pollutant as defined in the Clean Air Act. I think there's a debate over that.
- [52:31]
Jesse Jenkins
And so you mean, just to be clear, so meaning that they define it in the context of a budgetary provision. And so it might only hold in that context and not in the broader regulatory context.
- [52:40]
Jodi Freeman
But an amendment to the underlying statute normally happens in regular legislation. Right. And through the normal course of the committee process, legislate, not through a budget resolution process. So I'm just a little concerned. I haven't thought about it long enough to really work out all the arguments, but I'm a little concern that stating that greenhouse gases are pollutants in the budget bill is enough to count as Congress amending the substantive provision of the Clean Air act that defines air pollutant as it has been interpreted by the Supreme Court. So I'm not sure it's a kind of slam dunk kind of argument there. And I think that there's a lot of concern about whether that would persuade the Supreme Court.
- [53:26]
Robinson Meyer
We kind of alluded to this earlier, but for a long time the discussion around rescinding the endangerment finding, trashing the EPA's ability to regulate carbon dioxide has been that this would open carbon dioxide up to litigation and other forms. You could get traditional nuisance lawsuits. I think there's common law considerations against oil companies. This was an argument that we heard for a period of time. Is that no longer the case?
- [53:51]
Jodi Freeman
So this gets real complicated real fast. So let me be as simple as I can. If the Supreme Court were to say that EPA basically overturn Mass versus EPA and say EPA no longer has been delegated from Congress the discretion to regulate greenhouse gases, it doesn't have ownership of that anymore, then yes, that would open up the possibility of federal common law suits coming through the federal courts claiming tort harms against costs from climate related harms against the oil and gas industry, the power sector, the biggest emitters, and so on. Now they still would have challenges in those lawsuits like proving causation and the rest, and they have answers to those causation problems. But that would all end up going back through the federal courts. And I think the industries don't want to see that. They don't want to fight on all those fronts. But if the court says no EPA has the authority to regulate greenhouse gases, we're not changing the definition of pollutant. We agree greenhouse gases are pollutants. They still are. Or maybe they accept Jesse and Rob the argument that Congress amended it in the budget bill to make clear their pollution. Fine, we accept that. But we're still saying EPA can do it the way it wants. It can slice and dice it to say that you only contribute over a certain threshold. If they defer on that, basically think of it this way. EPA owns it, but they're going to decide not to do much about it. And it still precludes all the common law suits because the court will say you still own it and it precludes all the other stuff in the federal courts. That would be the magic win for them. Right. The magic win is no tort lawsuits in the federal courts. We get to do what we want, which is nothing or very little. Right. And we're going to argue the states are preempted and can't do things either. Like they're going for the trifecta. We haven't mentioned that. But they're also trying to block state climate policies they don't like. And so they really want nobody to do anything about climate change.
- [55:43]
Jesse Jenkins
That's pretty clear. Yeah.
- [55:44]
Robinson Meyer
Right, right. But that's interesting. I hadn't realized that they were going to potentially box themselves into this magic window.
- [55:51]
Jodi Freeman
Well, I'm not sure they can. I'm just giving you one hypothetical situation.
- [55:55]
Jesse Jenkins
The last question for you, Judy, then is in light of our prior discussion about the different instruments One might need for different sectors. And your expertise over the Cleaner act and its applications to greenhouse gases, where do you see it being most effective? Like, if we were to keep it in our toolkit, which application, which sector do you think we should be most focused on? Retaining some role for the CLEANER Act.
- [56:16]
Jodi Freeman
That's like saying which child is your favorite? I mean, I really. It's not going to happen. Here's what I think. I think the Clean Air Act's approach to setting standards for cars and trucks is really sensible. They've been doing it a really long time. Setting pollution standards for greenhouse gas, functionally, it's really no different than setting grams per mile for any other pollutant that comes out of the car. And the motor vehicle standards that Biden set, no matter how you look at those standards, there's a role, a significant role for internal combustion engines in the fleet mix. So it's just not true to say that those standards would have, quote, mandated electric vehicles. It's a gradual shift to cleaner technology, which is exactly what has always been done under those provisions. Exactly what has been done over time to clean up cars and make internal combustion engines more efficient. And so I don't think that's so radical. And I think it's very much of a piece of with which what the agency's already done. And so I think using the Clean Air act for the transport sector makes a lot of sense and would be a very useful tool. We have, as you said, Jesse, earlier, the technologies are in the market, right? Battery, electric vehicles, hybrids, they're in the market. If you don't acknowledge, that's just silly not to acknowledge that they're there and not to say we can produce cleaner transportation as a result. And they have to take costs into account, of course. So the timing of it, how fast you go is different Question.
- [57:39]
Jesse Jenkins
Yeah, that's subject to debate or whatever.
- [57:40]
Jodi Freeman
But yeah, directionally has to be right. The other thing is, I would say, you know, the oil and gas sector, the majors, the big oil and gas companies, they all have gone out there to say, we're prepared to control our methane. We know we have to clean up our methane. They really can't go out to the world and say natural gas is a bridge fuel. It's a really important bridge fuel, but we're going to just keep wasting it all over the place and polluting it in these plumes. And they know better and they pledged to control it. And it turns out that rule, the methane rule, which allows for advanced technologies to detect these leaks and then allows for them to repair those leaks within a certain period of time. It's a really well designed rule that the industry have plenty to do with and generally I would say supports maybe not the small operators who don't want to do anything.
- [58:24]
Jesse Jenkins
Yeah, I was going to say the big guys. The big ones do. Because this is a good example of why sectoral standards can be useful too is what it does, is it sets a floor on the whole sector so that the majors who are pursuing these sorts of mitigation measures don't need to worry about some smaller wildcat firm coming in and undercutting them on price because they don't care about their longevity and they don't care about.
- [58:45]
Jodi Freeman
They need help with the operators. You know that PE owns the little guys and they're just trying to get every last dollar out of them. And so, okay, so those are those two sectors now, power sector. Look, already the agency is now constrained. It can't do sort of something that it's really smart. The Clean Power plan really was smart, but they can't do that. But I still think it's really important. If you talk to the power companies, they know that market forces are driving them to a cleaner grid anyway. They know that as for all the reasons we talked about, wind and solar is more competitive. Storage is going to come. There are these market forces driving forward. And you could say you don't need to regulate the power sector under the Clean Air Act. I'm not sure that's right. You want stable federal standards to be helping drive the market where it's going. You want to have a floor beneath you. It helps you to have federal standards. Then you can go to the states. If you're a utility, you go to the states to say we have to do this because the federal standards. So can you help us with cost recovery? Can you make sure when we make these investments we can get the money back charging ratepayers and so on. So I would say using the Clean Air act still makes a lot of sense. I think stable regulations help business. What they hate is chaos and instability. And right now they're getting maximum chaos and instability. When you say we want to pull the scientific finding, you hear absolutely a resounding silence from most of these sectors, from these industries. Do you hear the companies coming forward? Oh, this is the best thing ever. Please do this. There's no evidence that I've seen that companies went to, to the administration and said, like the auto industry as a whole and the power sector as a whole went and said, yeah, do this. And that's telling. Now they're not criticizing too much because of course, everybody's cowering in fear because of the vengeful administration that we're dealing with that's prepared to punish people who step out of line. So they're quiet. But I don't think industry wants this.
- [60:42]
Robinson Meyer
By and large, that seems like a.
- [60:45]
Jesse Jenkins
Good place to leave things.
- [60:45]
Robinson Meyer
Let's leave it there. Thank you so much for joining us. This has been great. Join clean energy leaders at re +25. Happening from September 8th to the 11th in Las Vegas As North America's largest and most comprehensive event for the modern energy industry, RE plus brings together innovators and decision makers across the full clean energy spectrum, including solar energy storage, EV infrastructure, hydrogen, wind, microgrids and more. RE plus is where the industry's brightest minds gather to tackle today's most urgent challenges and shape the solutions of tomorrow. So come to the epicenter of clean energy leadership and drive collaboration and innovation to meet the world's rising energy demand. As a shift key Listener, you'll save 20% on a full conference pass by using the code HEATMAP20. Register now at revolution re-plus.com that's re-plus.com and now it's time for Upshift Downshift, our weekly look at climate and decarbonization news, where each of us brings one item of news to share with the class. And if it's making us feel more upbeat about the energy transition, it's of course an upshift. If it's making us feel more downbeat, it is a downshift. Jesse, what do you have for us?
- [62:05]
Jesse Jenkins
I have, I think, an upshift for you here, which is a video that Duncan Campbell of the DER Task Force shared on X recently from Bray Loveless, who is a DIY solar guy who's posted some interesting videos on his sort of DIY solar experience. And I haven't been able to get out of my head since then. As I was like riding my kids to school on my E bike this morning, I was thinking about like, wow, why don't we do more of this? So here's the concept. A lot of people have home generators, right? Increasingly, some of those are battery backups and those generators have an automatic switch, basically that when the grid goes down, it switches you to your generator system and fires it up, right? So Ray's concept here is to get around all the headache and hassle of trying to work through your utility company to get interconnection agreements to Install a solar and battery system to get all the permits you have to do to do that. He simply has installed a behind the meter system of solar and batteries. He did it all himself. And so it's extremely cheap. The entire system costs less than $6,000, including a pretty large battery, 10.2 kilowatt hours and 6 kilowatts of peak AC solar system output with an inverter. And he's basically wired it the opposite way. So that generator switch clicks it back over to the grid when your battery is depleted, as opposed to switching from the grid to your battery when you're, when the grid goes down. And so it's guaranteed to never back feed into the system. Right. It's operating in this disconnected mode whenever you have enough solar stored in your battery to run your house off of. And if you get to a point where your battery depletes itself, you know, it switches so that it's disconnecting itself and switches your house back onto the grid. Now I'm going to put aside for a minute the challenges of integrating lots of resources like this into the system. I mean to be fair, it looks just like from the grid's perspective, it would look just like somebody with their own grid connected solar system with a Tesla powerwall that's you know, in net metering 2.0. So they're not getting as much for their exports as they do for their self consumption. And they've set up their battery system to maximize self consumption. It's basically the same effect on the grid as that. But it means you can guarantee that your system here doesn't back feed into the grid. It's only operating on your side of the grid, your household's electrical network. And what's fascinating about this is, well, he should have did all this himself. You know, DIY it, put it all together, you know, it only cost a few thousand dollars. I feel like it means we can't be that far from someone. And you know listeners, if you're working on this, please shoot us a note on email or on social media. We might not be that far from somebody working on kind of a fully appliance sized, if that's a word version of this, right, Something that I can go buy like I buy a refrigerator or an induction range and just plug it in and it does that same thing. Now obviously I gotta get the solar panels on my roof or something or on my garage or out on a post in the field, but with as little effort as either plugging directly into a 220 volt outlet or probably something more like the experience of connecting a new EV charger or a new AC replacement for a home central air system. I might need to get an electrician to come out and pay them 350, 500 to do the final connection to my switchbox. But this feels like something that could be quite easy to do that would help get us a much more easy to install, consumer driven, competitively marketed product that gets us around the current sort of challenges of high costs of installing distributed energy resources in the US Today. That doesn't require us solving the problems of very slow interconnections and utilities being reticent to want to connect your devices to the grid in a timely manner. So anyway, it's been, you know, kicking around in my head. It's like what it would take to actually turn this home hacked together DIY system into something that was like a safe, reliable consumer product. Would that bump the price from $6,000 to $8,000 or to $10,000? Can't be too much more than that. And even that is a fraction of what it would cost today if you were to go to Tesla Energy or Sunrun or whoever and try to get a 6 kilowatt solar system with 10.2 kilowatt hours of batteries. That's going to be tens of thousands of dollars on the market today. So anyway, I feel like that's an upshift. There's going to be.
- [66:07]
Robinson Meyer
I think that's very cool. I think that's very cool.
- [66:09]
Jesse Jenkins
Hopefully somebody's working on a cool solution here, so I can just go and buy this thing from Home Depot and plug it into my wall. How about you?
- [66:16]
Robinson Meyer
So I have something that I guess in context, if you zoom out, it's a downshift, but if you look closely, it's an upshift. There's a lot of that going around, which is that at least today we're recording on Monday, August 4 and today, Senator Chuck Grassley of Iowa, with, I would say the Senate's best Twitter account, placed a hold on three Department of Treasury nominees. The person who's slated to be General counsel, the person who's slated to be Assistant Secretary of the treasury, and the person who's slated to be Under Secretary of the Treasury. I've heard that Senator John Curtis of Utah has done the same thing, placed a hold on the same nominees that keeps them from moving through the Senate until those holds are lifted, unless Senate Republicans were to break the filibuster. And I just want to read Senator Grassley's rationale for doing this because it actually says it all. During consideration, he writes, of the one big beautiful bill Act, I worked with my colleagues to provide wind and solar an appropriate glide path for the orderly phase out of the wind and solar tax credits. Ultimately, Congress enshrined In statute a 12 month transition period based on when the projects, quote, begin construction. What it means for a project to begin construction has been well established by treasury guidance for more than a decade. Moreover, Congress specifically references current treasury guidance to set that term's meaning in law. This is a case where both the law and congressional intent are clear. The Department of the treasury is expected to issue rules and regulations implementing the agreed upon phaseout of the wind and Solar credits by August 18, 2025. Until I can be certain that such rules and regulations adhere to the law and congressional intent, I intend to continue to object to the consideration of these treasury nominees. And so, as we've talked about previously on Shift Key, the Trump administration, since the, you know, one big poker tudinous bill act passed, has said that it is going to it has suggested it might toy with this kind of commence construction or begin construction gateway. Even though it's been well defined in both regulation and the law for a long, long time, they've suggested they might play with it a little. So actually a lot of project that think they have going to qualify for these tax credits actually might not. This has irked a number of senators who voted for what they thought was a binding compromise to phase out those tax credits. And now two of them, at least two of them, Senator Curtis and Senator Grassley, have placed a hold on treasury nominees. Is it a solution? No, but it, you know, look, it's people fighting back for these policies. We'll of course continue to follow it and talk about it here on ShiftKey. ShiftKey is a production of Heatmap News. If you enjoyed this episode, please leave us a review on your favorite podcast. Appreciate you can always email us at ShiftKeyHeatMap News or hey, you can email me. I'm Rob RobHeatMap News. You can follow me on X@RobinsonMaier or on BlueSky or LinkedIn by my name. You can follow my co host Jesse at Jesse jenkins or on bluesky@ I believe, essiejenkins.com is that right? Jessydjenkins.com Jessydjenkins.com our editors are Gillian Goodman and Nico Lauricella. Hey, you can follow jillian too @blueskyoodjillian bsky. Multimedia editing and audio engineering is by Jacob Lambert and by Nick Woodbury. Our music is by Adam Kramelau. I have no idea which social networks he's on, but we are very grateful he wrote our theme song. Thank you so much for listening and see you next week.