Emergency Powers: A Two-Edged Sword

Trump is considering using emergency powers to save coal plants. Turnabout would be fair play.

The Trump Administration is considering using emergency powers to keep coal-fired power plants in operation even though they’re not economically viable. That would require an extraordinary stretch of the statutes in question. And if the statutes are interpreted that broadly, a future president could easily use them for the opposing purpose — forcing utilities to buy more renewable energy and energy storage. That sort of presidential authority could substitute for the use of the Clean Air Act to justify the Clean Power Plan, and much more.

First, a bit of an explanation of the emergency provisions in question:

  1. Section 202(c) of the Federal Power Act authorizes the Department of Energy to order generators to run  during wars or other emergencies, including grid emergencies.  Both DOE precedent and a D.C. Circuit case say this doesn’t apply to fuel supply issues.
  2. The Defense Production Act, which traces back to the Korean War, allows the President to prioritize  performance of defense contracts over civilian contracts and allocate materials, services and facilities to promote the national defense. But it doesn’t seem to provide authority to force companies to buy these items.  It also contains loan and subsidy provisions, but they seem to be limited to $50 million in any one year.
  3. Section 215A of the Federal Power Act authorizes DOE to issue emergency measures in response to a grid security emergency. These measures last only fifteen days at a time.

The biggest issue with any of these provisions is that they require some kind of emergency or threat to national security.  The purported emergencies are that coal might be needed as a power source during a polar vortex and that a cyberattack might interrupt the supply of natural gas.  But it’s pretty easy to see how solar or wind might be needed during other weather events — for example, droughts or heat waves that cut off usable cooling water for thermal power plants, or as a source of decentralized power due to grid problems, or for that matter, during the hypothetical cyberattack on the natural gas system.  And don’t forget that in the Defense Department Authorization Act, Congress has termed climate change itself a threat to national security.

If the standard for an “emergency” is set low enough for the coal industry to qualify, the renewable energy industry will have an equally good — if not better — claim to special government assistance.  Surely, at some point, the Trump Administration will figure out that this is not a direction they want to go.

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Reader Comments

7 Replies to “Emergency Powers: A Two-Edged Sword”

  1. A future president could “tear down that wall,” or rejoin the Paris Agreement, or enforce methane regulations, or drain The Donald’s Swamp. Trump doesn’t care. He doesn’t see a two-edged sword — just a hammer that he wields to smash impediments to his greed and corruption.

  2. Dan said;
    “……..The Trump Administration is considering using emergency powers to keep coal-fired power plants in operation even though they’re not economically viable…….”

    Dear Dan,
    In the absence of both the Clean Power Plan and Paris Agreement, coal-fired power plants are now much more economically viable because they serve large urban population centers with reliable and efficient large capacity base-load electrical generation. Coal is a good investment opportunity. We should be thankful for the many social benefits that coal provides. Wake up and be happy.

    1. BRBQ said;
      “……..coal-fired power plants are now much more economically viable……..”

      Dear BRBQ,
      In the absence of emergency powers, there should be no need for the taxpayers to line the pockets of coal company owners and line their own lungs with carbon pollution. If you think that coal is a good investment opportunity, then I have a bridge to sell you for a very good price. We should be thankful for the many social benefits that not using coal provides. Wake up and be honest.

      1. Dear AZ,
        Carbon dioxide is not an air pollutant and it does not “line lungs with carbon pollution.” Atmospheric levels of carbon dioxide do not cause human health effects and that is why the EPA has never issued air quality standards for carbon dioxide. The EPA has promulgated air quality standards for real air pollutants such as NOx, SOx, VOCs, Particulates, etc., but not CO2 which was never a pollutant to begin with.

        1. Dear BRBQ,

          Carbon emission from coal power plants is exceedingly dangerous to human health. Commonly known as “soot” (not CO2), this is the ashy grey substance in coal smoke, and is linked with chronic bronchitis, aggravated asthma, cardiovascular effects like heart attacks, and premature death. US coal power plants emitted 197,286 tons of coal smoke (measured as 10 micrometers or less in diameter) in 2014.

          Air pollution from coal plants also includes:

          Mercury: Coal plants are responsible for 42 percent of US mercury emissions, a toxic heavy metal that can damage the nervous, digestive, and immune systems, and is a serious threat to the child development. Just 1/70th of a teaspoon of mercury deposited on a 25-acre lake can make the fish unsafe to eat. According to the Environmental Protection Agency’s (EPA) National Emissions Inventory, US coal power plants emitted 45,676 pounds of mercury in 2014.

          Sulfur dioxide (SO2): Produced when the sulfur in coal reacts with oxygen, SO2 combines with other molecules in the atmosphere to form small, acidic particulates that can penetrate human lungs. It’s linked with asthma, bronchitis, smog, and acid rain, which damages crops and other ecosystems, and acidifies lakes and streams. US coal power plants emitted more than 3.1 million tons of SO2 in 2014.

          Nitrogen oxides (NOx): Nitrous oxides are visible as smog and irritate lung tissue, exacerbate asthma, and make people more susceptible to chronic respiratory diseases like pneumonia and influenza. In 2014, US coal power plants emitted more than 1.5 million tons.

          Other harmful pollutants include:

          41.2 tons of lead, 9,332 pounds of cadmium, and other toxic heavy metals.
          576,185 tons of carbon monoxide, which causes headaches and places additional stress on people with heart disease.
          22,124 tons of volatile organic compounds (VOC), which form ozone.
          77,108 pounds of arsenic. For scale, arsenic causes cancer in one out of 100 people who drink water containing 50 parts per billion.

          All of these “real air pollutants” from coal power plants line lungs with carbon pollution.

          1. Dear AZ
            Criteria air pollutants such as particulate matter (soot), NOx, SO2, lead, toxic metals, VOC and ozone are already regulated under the Clean Air Act and emissions of these air pollutants are controlled by health based air quality standards. Not so for CO2 because it is a fake air pollutant that does not cause human health effects, nor premature deaths, nor asthma, nor chronic respiratory diseases.

            Coal plants have been strictly regulated by the EPA for over 50 years and our national air quality is better today because of of America’s advanced and well-established air pollution regulations and technologies. All coal plants in America have air pollution controls such as scrubbers, electrostatic precipitators, bag filters, etc, which clean and remove air pollutants from coal plant emissions.

            There are a few misguided individuals (mostly from California) who try to convince the public that coal plants audaciously emit copious quantities of unrestricted toxic pollutants which then kills thousands of innocent people every year in America – that is a big lie.

          2. I lived within sight and sound of a coal fired plant near Baltimore for fifteen years ending in 2010.

            I had to wash our car weekly to get the ash dust off. Everybody in that neighborhood had respiratory health issues, including me and my which went away when we moved 20 miles south. Our dog lived there for the last five years we were there and later died of a cancer associated with arsenic exposure.

            None of this is proof, but it says something.

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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