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:
- 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.
- 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.
- 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.
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…READ more