I have a new piece in the Milken Institute Review that looks at EPA's current and near-future carbon emissions rules. It starts at the beginning of the story and is aimed at a more-or-less general audience, so if you haven't been following the issue it's a good place to start. Among other things I point out how the biggest critics and biggest advocates of the Clean Air Act in my view both have it wrong:
Significant climate policy is, in fact, being made today at the federal level, using existing law. But the legal and political limits on executive discretion act as a check on rash, disruptive changes. Moreover, Clean Air Act regulation need not be (indeed, never has been) as rigid as its critics claim. But the bang for a buck possible from regulation under the Clean Air Act is very much in doubt. That’s why decisions made this year and next – above all, about how much flexibility emitters will have in responding to new mandates and how the country’s armada of coal power plants is treated – will be the most significant ones that any president has ever made on climate.
....how flexibility matters a great deal:
The Clean Air Act therefore should make it possible to achieve the country’s short- to-medium-term climate-policy goals, even in the absence of new legislation. There will certainly be obstacles: important parts of the act are untested legally and litigation over new rules is certain. But an overabundance of caution on the part of the EPA would lead to inflexible, unambitious programs that achieved little. And while lawsuits will be costly, they are unlikely to delay implementation, since courts rarely stay regulations during litigation.
...and why I'm cautiously optimistic:
Even if it is designed poorly or undermined by litigation, climate regulation under the Clean Air Act cannot be the costly disaster predicted by its critics. Using the Clean Air Act for climate policy will not destroy the American economy, and if, over time, it destroys the American coal industry, it will not have acted alone. Cheap natural gas and environmental regulation that has nothing to do with climate (and that carries large health benefits) have already dealt coal a serious, and possibly mortal, blow.
On the contrary, there’s every reason to believe that well-designed and, above all, flexible Clean Air Act climate regulation can deliver a lot of emissions cuts for relatively little money and economic disruption. The president’s ambitious emissions goals and his call for flexibility, along with the important role for the states, warrant optimism about smart policy design. There is no other approach to climate policy available today or, given political realities, in the near future, with similar potential.