Federal regulations will continue to be a key tool as the United States transitions to using cleaner energy, according to keynote speakers at the 2024 Environmental and Energy Law Conference, “Our Clean Energy Future.”
“Addressing climate change is one of the most important global issues of our time. And a critical piece of fighting climate change is decarbonizing our energy use across the economy,” said Nina Mendelson, the Joseph L. Sax Collegiate Professor of Law, in welcoming conference attendees.
“That means we move away from fossil fuels by finding new ways to power our cars and trucks, provide electricity in our homes, or new ways to design large buildings. That’s why I’m so delighted that we’re together to consider how best to accomplish an effective, prompt, clean energy transition that is also equitable.”
Mendelson—along with Alexandra Klass, the James G. Degnan Professor of Law, and Professor Oday Salim, adjunct clinical assistant professor of law—co-directs the Environmental and Energy Law Program, which was one of the sponsors of the conference.
Other sponsors were the Law School’s Environmental Law and Sustainability Clinic, the Michigan Journal of Environmental and Administrative Law, the Black Law Students Association, the Environmental Law Society, and the Native American Law Students Association.
Here are four takeaways from keynote speakers Ann Carlson and Allison Clements:
1. Rulemaking for the environment is incredibly difficult—but it can be done.
Carlson, the Shirley Shapiro Professor at UCLA Law School, formerly worked as chief counsel and acting administrator for the National Highway Traffic Safety Administration (NHTSA). Among other duties, the NHTSA is responsible for setting Corporate Average Fuel Economy (CAFE) standards for passenger automobiles, which is critical to reduce the amount of fossil fuels burned by motor vehicles.
“The transportation sector is the biggest source of greenhouse gases in the United States. Not only that, it’s also proved to be (among) the most stubborn in terms of driving emissions down,” Carlson said.
Carlson recalled starting work at NHTSA with a mandate from the Biden administration to reconsider existing CAFE standards in the context of fighting climate change. But NHTSA’s work was complicated by other pressing concerns, particularly a spike in traffic fatalities, intense involvement from the White House, and the need to work with two different agencies operating under different statutes—the Environmental Protection Agency and NHTSA (within the Department of Transportation).
“Rulemaking is really hard,” Carlson said. “CAFE rulemaking is especially hard. There are endless little obstacles that basically throw sand in the gears of harmonization.
“With all of that in mind, we nevertheless issued standards for (model years) 2024 to 2026. There was a very intensive process where we met almost weekly with EPA, the White House counsel, and the White House Climate Policy Office. And we not only did it, we did it on time…We (tightened) auto standards year over year by 8 percent, 8 percent, and 10 percent. Those three years were the largest (improvements) in the history of the CAFE statute.”
2. The courts pose a potential threat to progress.
While the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo is widely seen as limiting federal agencies’ authority to regulate, Carlson said that a bigger threat to the EPA’s work is the emergence of the major questions doctrine.
“Since Massachusetts v. EPA, there have been two cases from the United States Supreme Court involving EPA’s power to regulate greenhouse gases,” Carlson said.
“In both cases, the court has restricted EPA’s power on major-questions grounds. The court is saying that if an agency is going to adopt a rule that works a major transformation in a particular economic sector or is a big expansion of that agency’s power, it should have very direct authority from Congress to do so.”
Since Congress has not specifically addressed vehicle electrification or greenhouse gases, that argument could limit EPA’s authority to regulate. “We’re seeing a lot of skepticism exercised by this court toward environmental regulation,” she said.
However, although the EPA may be more vulnerable to such arguments, the statute covering the NHTSA is more likely to withstand such challenges, Carlson said: “The inflexibility of the NHTSA statute, which I found to be very difficult, and one of its weaknesses, might turn out to be a legal strength as we move forward and see what the courts have to say about the validity of these regulations.”
3. The critical first step is improving existing energy infrastructure.
Allison Clements—a former commissioner of the Federal Energy Regulatory Commission (FERC) who earned her undergraduate degree from what is now U-M’s School for Environment and Sustainability—framed her talk around the question of whether regulation can keep up with the rapidly changing energy landscape.
“The grid is no less than the backbone for a modern, resilient, competitive, and peaceful economy in the United States, period. Nothing less,” she said.
She identified several challenges, including the pressing need for action, a period of a growing electric load that’s expected to continue, competition between states, competition between countries, rising energy costs per customer, and the evolving threat of cyberattacks on the system.
The most important priority is making the existing energy grid more efficient and reliable, Clements explained.
“This is the starting line to be able to have success on all of the other issues and all of the end uses like electrification of transportation and building,” she said. “If you do anything leaving today, try to make your policy makers, your investor-owned utilities, your municipalities and cooperatives, make the existing grid more efficient.
“We have low-cost hardware and software technologies. The numbers are staggering about the opportunity for this modest-investment, near-term suite of solutions. It’s not easy to do, but the solution itself is straightforward. FERC has the ability to make regulations to address these issues, to implement these solutions.”
4. Adding more infrastructure is also important—and not easy.
The country needs to find the political will to add necessary infrastructure, Clements said. In addition, she noted that there has to be a sensitivity to poor communities or communities of color that have already been overburdened and underserved relative to infrastructure—and to build infrastructure that works for these communities.
“We have the technology; we have the solutions,” she said. “We need political will.”
