The most potent weapon in the Trump administration’s arsenal for defeating efforts to combat climate change and slowing the adoption of solar, wind and other low-carbon energy sources is one rarely spoken of: federal preemption of state-based incentives and policies like Renewable Portfolio Standards (RPS).

Preemption, in lay terms, is the game of rock, paper scissors. In the abstract, it makes for interesting, if not always civil, discourse.

The harsh reality, however, is it may be the only efficacious way for Trumptefarians to make good on their promises of rolling back environmental regulation and restoring the coal and nuclear industries to more halcyon days.

Telltale signs of a possible preemptive strike on state clean energy and climate protection policies are hiding in plain sight. Can Pruitt’s promise to continue California’s auto emissions waiver be trusted? A more strident requirement in the Sunshine State and its 14 allied partners could well mean a defacto national standard higher than what the Administration and the auto industry would prefer.

Then there is Secretary of Energy Perry’s grid reliability study. Might the recommendation be to keep uneconomic coal and nuclear fired generating units on-line as matters of NATIONAL interest? Will the Final released version include the conclusion in the leaked Draft document  that the grid is more stable today than ever before?

In the following paragraphs, I address what I see as the growing possibility the Trump administration will move against state clean energy programs invoking Constitutional claims of national security and interstate commerce. This is the first time I address this issue; it will not the last.

Preemption, from a legal perspective, is a tricky business and deserves an extended examination. Rather than waiting to release the several articles dealing with this matter in my forthcoming book, Earth v Trump, I thought it important enough to post today’s article to encourage consideration by the clean energy and sustainable climate communities. For purposes of this discussion, the reader need only keep in mind one principle:

Should the Trump administration choose to launch a preemptive strike against state and local clean energy incentives like RPS, it would have a legal leg to stand on.

WHY NOW? WHY IN THIS PLACE?

The preemption scenario is not as far-fetched as many might imagine. Dismissed at peril, it should not be thought of as a temporary Trumpian interruption of the space/time continuum that will leave the building when Elvis does.

Neither is it just another name for the raging debate between deniers and defenders of global warming theory. Preemption is the deniers’ best hope for defeating the movement of society to a sustainable lower-carbon future.

A future that challenges the status quo and threatens conservative institutions of a certain age and disposition, e.g. traditional regulated utilities, coal mining companies and labor unions. Once normalized as a proposed policy by the Trump administration, it will not go gentle into that good night.

Where is the victory in dismantling federal clean energy and climate change programs only to have them re-emerge and grow at the state and local level? Since The Donald decided to pull the U.S. out of the Paris climate agreement, governors and mayors have vowed to make good on President Obama’s promised carbon reductions and even to make-up for lost dollar contributions to the Green Climate Fund.

Foreign leaders are  now attending the National Governors Association summer meeting. Why? They are looking to negotiate bi- and possibly multi-lateral climate agreements with states.

Governor Jerry Brown recently spent five days in China on a diplomatic mission. Just before leaving to meet with Germany’s highest ranking environmental policymakers he gave a speech:

I came here to China not because I think we’re doing everything we can, but because I felt that China is a very important ally in the fight to combat climate change and that we have to do everything in our power. 

This is not a time for inertia. It’s a time for radical change in how we power the modern economy.

California alone is the world’s sixth largest economy. States pose a significant trading opportunity for other climate-conscious countries. The graphic below shows how various states compare to global economies.

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​Individually states may not be able to replace the loss of an actively engaged U.S. combating global climate change. In confederation, they certainly can make a very large contribution.

Again, the question must be asked: where is the victory? Will President Trump and the senior advisors—Bannon, Pruitt, Zinke, Sessions, Miller, Gorka, et. al.—who prevailed upon The Big D to exit Paris permit the perceived disloyalty? Or, will they deploy the nuclear option of preemption?

The emergence of preemption–at this time and in this place–is owed to several factors:

  • The depth of disdain Trump and company have for environmental regulation and their dismissiveness of clean energy technologies as economic engines.
  • The coincidental interaction of certain political and economic factors that together are presenting a unique opportunity for the concept to be debated openly and seriously, with some actual possibility of passage.
  • The appearance of seemingly disjunctive regional markets and security fears.
  • The chaos of the current political environment.

These factors owe their existence to the decades-long absence of a national energy policy and growing divisions in U.S. society. How long the opportunity to establish federal supremacy will remain open is unclear. That it will not remain open for long is not.

Timing—as proven by the 2016 presidential election—is often everything in politics. Those wishing to stymie the growth of renewables and stall environmental regulation understand this and will try to move on it—just as they have on healthcare and immigration reform. Doors open, doors close.

There is a perverse irony in all of this: those who would cast themselves as anti-establishment reformers are fighting to protect many of the most established and entrenched institutions and practices. If this were a movie it might be called Ahead to the Past.

The U.S. Constitution is specific about some of the powers reserved to the federal government, while silent on others. The defining line between state and federal authorities remains blurry, despite the 2oo or so years pre-emption has been debated in the courts and Congress.

The split between federal and state governments is one of the most enduringly contentious constitutional principles. It strikes at the heart of the federal/state/local[i] relationship and the souls of the Republican and Democratic parties.

Division of the authorities to regulate the electric power industry is in the main determined by the Constitution’s interstate commerce clause, the Federal Power Act of 1935 and various pieces of amending legislation, e.g. PURPA and EPACT, enacted along the way to reflect changes in technology, industrial circumstances and practices, and federal policies.

With certain exceptions, e.g. wholesale pricing and the free-flow of electrons across jurisdictional borders, federal and state governments have overlapping authorities. The mingling of powers often manifests itself in disputes regarding the extent to which the federal government can impose its priorities on state legislatures and regulatory bodies that oversee pricing and other practices in the selling of electricity to end users—households, commercial and industrial customers. 

The limited involvement of the federal government in power markets over past decades has allowed states to exercise significant authority over the mix of resources used to generate electricity and the retail price at which it is sold. Through a variety of measures, e.g. Renewable Portfolio Standards, net metering, feed-in tariffs, etc., states have encouraged and supported the introduction of clean energy alternatives like solar and wind.

That many of these policies and programs have worked in conjunction with federal tax credits and were enabled by PURPA’s open access provisions simply means the energy field has been shared by both state and federal governments. It does not guarantee a future of compatible collaboration.

In matters of energy, the enactment of individual state-based policies and programs has produced differences between state markets. According to the National Conference of State Legislatures (NCSL):

Net metering policies can assist states in meeting their renewable portfolio standards (RPS) or targets since a number of states have specific requirements for distributed generation. While a majority of states and territories have authorized net metering, they have taken differing approaches to policies with variations in capacity limits, eligible technology, net metering credit retention and renewable energy credit (REC) ownership.

Not only do the terms of various state net metering laws differ, so too do the technologies deemed eligible to participate in the programs. Again, according to NCSL:

 …all states with net metering include solar energy in their policies, they may also include: wind and micro-turbines, combined heat and power or cogeneration, biomass, biogas, landfill gas, municipal solid waste, anaerobic digesters, geothermal electric, fuel cells, small hydroelectric, tidal energy, wave energy, ocean thermal and renewable fuel cells.

While there are few conflicts between federal and state programs from either a technological or policy perspective and proven important to the emergence of market competitive alternative energy sources like solar and wind, not all stakeholders view these programs favorably.

Increasing market penetration of distributed solar and mandatory efficiency measures, for example, are triggering open hostility on the part of some utilities and state government leaders to net metering and other clean energy and energy efficiency incentives.

Power company concerns arise from multiple circumstances, including:

  • Stranded assets;
  • Declining retail sales;
  • Grid stability; and,
  • Higher per consumer maintenance costs.

Utility opposition to forced acceptance of solar, wind, efficiency and other low-carbon power alternatives is only part of the story. Rejecting the seriousness of global warming and resisting environmental regulation are others.

Each pocket of resistance is populated by various political powerhouses, i.e. the U.S. Chamber of Commerce, the National Association of Manufacturers, multiple fossil-fuel interests, well-healed conservative think tanks, steel producers and other industrial conglomerates, labor unions, states, a significant number of the members of Congress and others.

Consider all opposed to the Clean Power Plan (CPP). Now, consider many of them opposed to states doing what they tried to stop the federal government from doing. Add to these numbers core Trump supporters, who may have never given much thought to the CPP but remain committed to The Big D’s personal brand of populism.

There are any number of events that could trigger Trump’s playing the preemption card.  The Trump administration, for example, could suddenly deny California’s current auto emissions waiver.

The most immediate of potential triggering events is release of the Perry study should it contain findings and recommendations like:

The favoritism shown solar, wind and other so-called clean energy technologies by the Obama administration ignores the body of scientific evidence dispelling the myth of global warming and:

  • Interferes with the free-flow of goods and services across state lines;
  • Kills tens of thousands of quality jobs in the coal, oil, gas and nuclear industries;
  • Prevents America’s Being Great Again by locking down the resources needed to power the electric grid and the economy;
  • Compromises the security of the nation’s electric grid’s and its ability to provide the 24/7 power needed by hospitals, schools, the military and inner-city residents whose lives depend on the lights being on;
  • Threatens the health and welfare of all Americans, opening the nation to terrorist attacks—cyber and physical; and,
  • Limits the ability of the military, police, fire and emergency personnel to respond to disasters and all manners of threats foreign and domestic.

Therefore, it is the recommendation of the Secretary of Energy that:

The President of the United States, in consort with leaders of Congress and others, propose federal legislation re-establishing the safety and security of the nation’s power grid, restoring the health of inter-state commerce and relieving the private sector of incurring unnecessary job-killing compliance costs that keeping America from being great again.

The chances of the preemptors winning or losing is somewhat incidental to the issue. To truly appreciate the damage that could be done by a well-staged effort to establish federal supremacy in clean energy matters consider the context within which the efforts would be made.

Time is of the essence in the matter of combating climate change. Without better information, it is impossible to know just exactly how much time there is before crossing the environmental divide between salvageable and irretrievable.

The evidence is sufficient now to inform that at the current rate of activity and action carbon concentrations will exceed safety limits already thought too conservative. What happens then, if a preemptive strike on state and city initiatives to combat climate change is thrust upon the scene?

Envision the task of having to control the descent of a monster truck tire down a slope that starts gently downward and then gets much steeper some yards from the top. If you were you, where would you stand the greatest chance of gaining the upper hand on the tire?

Right—closer to the top before it gained momentum. The same is true for controlling GHG emissions. The earlier the better.

Global warming is not a measured incremental process. A 2-degree Celsius increase in temperatures is not going to occur .025 degrees each year over the next 80 or so. Warming is a cumulative.

GHGs already in the atmosphere will be there for years. Adding more—in terms of that monster tire your still struggling with—adds weight and momentum to the downward movement.

Years in court will stall efforts to slow emissions because neither political nor economic markets much care for uncertainty. Will efforts in the interim, i.e. the time between the strike and its being struck down by the courts, continue? Surely.

If, however, we are already behind the curve…?  Well, I’ll let the reader think about that for a while.  In the meantime, I’m going to move on to my next article.

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[i] The principle of preemption also applies to the relationship between a state and local jurisidictions, e.g. counties, cities and towns.

Photo credit: EPA/SEAN GALLUP/POOL