An Industry’s Varying Position Within the Scope of Global Climate Change Legislation – The Impact Felt

Within the International Brotherhood of Electrical Workers

Thomas EriksonGlobal Climate Change and U.S. Law

Professor KuhDecember 8, 2016

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Table of Contents

Section I – Introduction …………………………………………………………………………..1

Section II - American Clean Energy and Security Act (“ACES”) ……………………………….1

Section III – IBEW Support of ACES ……………………………………………………………5

Section IV – The Clean Power Plan ………………………………………………………...…..10

Section V – Basis for IBEW’s Policy and Legal Objections to the CPP ………………………..13

Section VI – ACES More Aligned with the IBEW…………………......……….....……………17

Section VII – Overview of IBEW and TUED…………………………………………………...20

Section VIII – Conclusion ………………………………………………………………………22

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Section I – Introduction

The International Brotherhood of Electrical Workers (“IBEW”) supported the American

Clean Energy and Security Act (“ACES”) in 2009 but is now legally challenging the Clean

Power Plan (“CPP”). This paper analyzes the core provisions of both ACES and the CPP and the

reasons offered for the IBEW’s support for the former and opposition to the latter as a means to

explore the complicated considerations underlying the IBEW’s approach to climate change.

Ultimately, the IBEW’s differing response to these green house gas emissions (“GHG”) control

measures is based upon the legislative process or lack thereof and the target groups each measure

was set out to control. First, I will describe the key provisions of ACES and then evaluate the

IBEW’s reasons for their support. Next, I will describe the key provisions of the CPP and the

EPA’s defense against the legal challenges they are currently facing from states and

organizations like the IBEW. Additionally, I will assess whether these differing views on each

piece of legislation meant to control GHG emissions are consistent or inconsistent and which

proposl falls more in line with the IBEW’s goals and interest as the leading union in their

industry. Finally, I will compare the IBEW’s climate change position to current initiatives such

as Trade Unions for Energy Democracy (“TUED”) and analyze how their goals may coincide

with the IBEW’s goals.

Section II – American Clean Energy and Security Act (“ACES”)

The 2008 presidential election campaign for Barack Obama was founded on the vision of

“hope and change” for future generations.1 President Obama laid out an agenda for his

presidency that addressed a number of challenges facing the United States at the time of the

1 Daniel J. Weiss, President Obama’s Clean Energy Progress: How the Top 10 Energy Priorities Fared During His First Term, Center for American Progress (Jan. 9, 2013, 12:00 AM), https://www.americanprogress.org/issues/green/reports/2013/01/09/49187/president-obamas-clean-energy-progress-how-the-top-10-energy-priorities-fared-during-his-first-term/.

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campaign.2 While the imminent threats to the global climate continued to grow, President Obama

planned to deal with the increasing concerns around public health due to climate change, air

pollution, and protecting our nation’s energy supplies.3 Quickly following the election, newly-

elected President Obama and the 111th Congress set the stage for climate regulation, placing a

comprehensive climate and energy bill at the top of the list of legislative priorities.4 In June

2009, the U.S. House of Representatives passed the American Clean Energy and Security Act of

2009, (“ACES”) otherwise known as the Waxman-Markey bill, by a vote of 219 to 212.5 The

overall purpose of ACES was to mitigate climate change while building a clean, sustainable

energy economy through a variety of strategic actions aimed at reducing GHG emissions that

contribute to global warming.6 For example, measures within the Act range from the

implementation of a “cap and trade system” and development of renewable energy sources to

requiring a carbon capture program for coal-fired energy sources while imposing new energy

efficiency standards.7 Unlike the House of Representatives, the Senate was unable to pass its

own comprehensive climate and energy bill despite the work from a number of key Senators and

committees.8

ACES sought to create clean energy jobs, promote energy independence, reduce global

warming pollution and aid in the transition to a clean energy economy.9 Titles I-V of ACES deals

2 Id.3 Id.4 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009). 5 Id.6 Timothy Ramsey, Understanding the Federal Climate Change Legislation: The American Clean Energy and Security Act of 2009, H.R.2454, The National Law Review (Sept. 1, 2009), http://www.natlawreview.com/article/understanding-federal-climate-change-legislation-american-clean-ene.7 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).8111th Congress Climate Change Legislation, Center for Climate and Energy Solutions, http://www.c2es.org/federal/congress/111 (Last visited Dec. 1, 2016).9 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).

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with clean energy, energy efficiency, reducing global warming pollution, transitioning to a clean

energy economy, and providing for agriculture and forestry related offsets, respectively.10 Key

provisions of the Act include: creating a combined energy efficiency and renewable electricity

standard and requiring retail electricity suppliers to meet 20% of their demand through

renewable electricity and electricity savings by 2020;11 setting a goal of, and requiring a strategic

plan for, improving overall U.S. energy productivity by at least 2.5% per year by 2012 and

maintaining that improvement rate through 2030;12 and establishing a cap and trade system for

greenhouse gas (GHG) emissions and setting goals for reducing such emissions from covered

sources by 83% of 2005 levels by 2050.13

In order to achieve these results, the primary method developed within ACES is the cap

and trade program. According to the Environmental Defense Fund, “cap and trade is the most

environmentally and economically sensible approach to controlling greenhouse gas emissions.”14

The “cap” sets a particular limit on emissions that continues to be lowered over time to reduce

the amount of overall pollutants released into the atmosphere which contributes to climate

change.15 The “trade” part of the program leads to investment and innovation as companies are

allowed to buy and sell carbon allowances in order to meet or come under their cap, which would

result in greater incentives to invest in cleaner technology; the less the company emits, the less

they pay.16

10 Id.11 Id. at 12. 12 Id. at 682.13 Id. at 1018.14 How cap and trade works, Environmental Defense Fund, https://www.edf.org/climate/how-cap-and-trade-works (Last visited Dec. 1 2016). 15 Id.16 Id.

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Following the passage of ACES in the House of Representatives, the EPA completed a

detailed analysis of the Act finding that “H.R. 2454 transforms the structure of energy production

and consumption.”17 Overall, the EPA’s analysis projected that this Act would substantially lead

to greater clean energy technology that would create new jobs; for example, they found that

nearly 65% of the new generation built by 2025 will be renewable with 92% being low carbon

with billions of dollars allotted to those states to create clean energy jobs.18 Accordingly, they

determined that the costs of the Act would be low especially for consumers.19 For example,

consumer spending on utility bills would be about 7% lower in 2020 due to the energy efficiency

measures implemented within the Act.20 In addition, under the Act, the economy would have the

potential to grow exponentially while implementing clean energy technology and reducing

pollution.21 According to the EPA, the nation’s gross domestic product would grow from $13

trillion in 2008 to over $22 trillion in 2030.22 Finally, the Act would lead to a balanced and

diverse mix of energy generation while creating markets that reduce emissions.23

On the other hand, an analysis conducted by the Heritage Foundation’s Center for Data

Analysis (“CDA”) concluded that ACES “represents an extraordinary level of economic

interference by the federal government.”24 Overall, they predicted not only would it directly

17 EPA Economic Analysis of “The American Clean Energy and Security Act of 2009,” ENVIRONMENTAL PROTECTION AGENCY (June 23, 2009), (http://www.c2es.org/docUploads/hr2454_epasummary.pdf. 18 Id.19 Id.20 Id.21 Id.22 Id.23 Id.24 William Beach, Karen Campbell, David Kreutzer, Ben Liberman & Nicolas Loris, The Economic Consequences of Waxman-Markey: An Analysis of the American Clean Energy and Security Act of 2009, Center for Dara Analysis Report on Energy and Environment (Aug. 6, 2009), http://www.heritage.org/research/reports/2009/08/the-economic-consequences-of-waxman-markey-an-analysis-of-the-american-clean-energy-and-security-act-of-2009

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impact consumers through high electric bills and gasoline prices, but would also suppress

economic activity and reduce employment.25

Despite such competing analysis, in addition to promoting the United States’ energy

independence and protecting the environment, ACES was drafted with the intent to create

millions of new clean energy jobs.26 As a result of this balanced approach in its wide range of

key provisions, ACES was backed by a broad array of supporters ranging from industry leaders

to environmentalists among many others including electric utilities, oil companies, major

manufactures, environmental organizations, and labor organizations.27

Section III – IBEW Support of ACES

ACES was supported by these broad coalitions of environmental groups and businesses,

including various labor unions across the United States based on a number of grounds that align

with their own goals and interests within their own industries. Within the American Federation

of Labor and Congress of Industrial Organizations (“AFL-CIO”), among the Building Trade

Unions exists the IBEW. Primarily these unions, like the IBEW, are among those that are mostly

impacted first by climate change mitigation programs, but continue to be the most active within

the labor movement in fighting global climate change.28 Commentators found union support for

ACES surprising and notable. The IBEW represents skilled workers including power plant and

building trades workers, in an industry that builds and maintains our energy’s infrastructure and

constructs buildings that consume tremendous amounts of energy.29 These electrical based jobs 25 Id. 26American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).27 111th Congress Climate Change Legislation, Center for Climate and Energy Solutions, http://www.c2es.org/federal/congress/111 (Last visited Dec. 1, 2016).28 Tim Costello, Labor and Climate Change: A Briefing Paper for Activists, LABOR NETWORK FOR SUSTAINABILITY (Mar. 19, 2010), http://www.labor4sustainability.org/wp-content/uploads/2010/03/laborandclimate_03192010.pdf.29 Id.

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range from everything involving power plant construction to maintaining our nation’s electrical

grid.30 Sean Sweeney, Director of The Cornell Global Labour Institute, seemed impressed by the

fact that unions were on the progressive side of this critically important vote for this type of

proposal.31 Collectively, the unions, including the IBEW, fought to ensure that this House Bill

protected existing jobs, established prevailing wage provisions, and funded worker training while

simultaneously creating a proper pathway to reducing GHG emissions drastically- a 17 percent

reduction below 2005 levels by 2020, and 83 percent by 2050.32 ACES ignited a spark among

these unions as they rallied behind the idea that fighting against global climate change could

drive an “industrial renaissance” and lead to the rebuilding of the middle-class.33 The term “green

job” developed new salience as policy conversations started to take place at national, state, and

municipal levels as industries anticipated the expansion of renewable energy while making

buildings and industries more energy efficient leading to the creation of new employment

opportunities.34 This led unions, such as the IBEW, to create their own labor policy regarding

global climate change. For example, the primary focus of the IBEW Utility Conference in 2009

was on changing times.35 It was acknowledged that climate change was an unavoidable challenge

going forward and solutions among many others were discussed which included energy

efficiency and new technologies to capture carbon emissions from coal-fired generation.36

30 Id. 31 Sean Sweeney, More Than Green Jobs-Time for a New Climate Policy for Labor, NEW LABOR FORUM,http://www.local2627.org/resources/pdf/More_than_Green_Jobs__Sean_Sweeneys_Labor_and_Climate_article1.pdf.32 Id. at 53.33 Id. at 54.34 Id. 35 IBEW Utility Conference Confronts Changing Times, IBEW 1245, (July 16, 2009), http://ibew1245.com/2009/07/16/ibew-utility-conference-confronts-changing-times/.36 Id.

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Certain provisions of ACES were appealing to the IBEW. For instance, ACES was

proposed as an economy wide approach and by imposing a price on carbon, would in effect “take

carbon out of competition” and also spread the burden of mitigating GHG emissions across a

number of sectors and not just the power generation industry.37 ACES also offered protections

against imported goods from countries with no carbon controls in carbon-intensive industries in

the form of International reserve allowances. More specifically, Section 768 – International

Reserve Allowance Program specifies border protection regulation for the sale, exchange,

purchase, transfer, and banking of international reserve allowances for covered goods with

respect to the eligible industrial sector.38 Therefore, unions like the IBEW showed support for

ensuring that a price on carbon introduced under the cap and trade system not be allowed to harm

U.S. manufacturers domestically in ways such as destroying jobs here at home, while driving

companies overseas to countries like China where industry is less energy efficient leading to a

carbon leakage.39 Therefore, unions supported the Act’s border adjustment measures, a carbon

tariff, and allowances for producers while encouraging even stronger measures.40 Following the

Kyoto Protocol, the United States was among the first countries to draft a bill, ACES, that set

goals to address competitiveness regarding domestic industries and issues of carbon leakage.41

Under the Act, carbon leakage is defined as, “any substantial increase in greenhouse gas

37 Interview with Sean Sweeney, Director of Cornell Global Labour Institute and the coordinator for Trade Unions for Energy Democracy (Nov. 26, 2016). 38 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).39 Sean Sweeney, More Than Green Jobs-Time for a New Climate Policy for Labor, NEW LABOR FORUM,http://www.local2627.org/resources/pdf/More_than_Green_Jobs__Sean_Sweeneys_Labor_and_Climate_article1.pdf.40 Id.41 Souvik Bhattacharjya & Nitya Nanda, Potential Impact of Carbon Barriers to Trade: The Case of India’s Exports to the US under Border Tax Adjustment (The Energy and Resources Institute Working Paper No. 3, 2012), http://www.teriin.org/projects/nfa/pdf/Working_paper3.pdf.

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emissions by industrial entities located in other countries if such increase is caused by an

increment cost of production increase in the United States resulting from the implementation of

this title.”42 In terms of promoting international reduction emissions, the Act introduced sections

that restricted imports based on an appropriate amount of carbon allowances to cover the

imported goods being brought in from developing countries.43 However, an exemption on

allowance was permitted under two conditions- only if such imports are from least developed

countries or is a party to an international agreement to which the U.S. is a party and there exists a

nationally enforceable and economy wide GHG emission reduction commitment for that specific

country that at the very least is as strict as that of the United States.44 In an effort to promote a

strong global front to significantly reduce GHG emissions, Part F – Ensuring Real Reductions in

Industrial Emissions helps to design such rebates in a way that will prevent carbon leakage while

also rewarding innovation and facility-level investments in energy efficiency performance

improvements.45 Interestingly, the topic of border adjustment measures evolved as major

concerns regarding protecting the competitiveness of American industries and developing

country participation arose.46 In 2007, the company American Electric Power (“AEP”) raised the

idea of including such measures and was able to secure the support of one of the largest labor

unions, IBEW.47 Together a proposal was drafted with intense motivation stemming from the

idea around the protection of international competitiveness of American industries and jobs, the

prevention of a global increase in GHG emissions through a shift in energy-intensive production,

42 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).43 Id.44 Id. 45 Id. 46 Harro Van Asselt & Thomas Brewer, Addressing competitiveness and leakage in climate policy: An analysis of border adjustment measures in the US and the EU, ScienceDirect, (Jan. 2010), http://www.sciencedirect.com/science/article/pii/S0301421509006399.47 Id.

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and the need to have a “stick” in place to encourage major emitting developing countries such as

China and India to participate in the fight against global climate change.48 Pieces of the

AEP/IBEW proposal can be found in a number of bills such as ACES.49

Finally, ACES introduced some “just transition” provisions that could protect worker

income and support relocation and offer other forms of assistance to workers that might be

impacted negatively.50 A major section within the Act, entitled Subtitle B – Green Jobs and

Worker Transition includes two parts regarding green jobs and worker adjustment assistance.51

For example, clean energy curriculum development grants can be awarded to develop programs

of study that are focused on emerging careers and jobs in the fields of clean energy, renewable

energy, energy efficiency, climate change mitigation, and climate change adaption.52 In addition,

Section 422 and Section 423 include increased funding for energy worker training programs and

development of information and resources clearinghouse for vocational education and job

training in renewable energy sectors, respectively.53 Most notably, Section 425 sets out

provisions for a climate change worker adjustment program where groups of workers, unions, or

employers may petition the Secretary of Labor and the Governor of the state in which the

employment site is located.54 The particular petition shall seek certification that the group

employed has been adversely impacted due to provisions of this Act, and if certified, the group

would be eligible for adjustment allowances, training and other related benefits.55 These specific

pro-worker provisions that offered a number of benefits and protections for a variety of groups, 48 Id.49 Id. 50 Interview with Sean Sweeney, Director of Cornell Global Labour Institute and the coordinator for Trade Unions for Energy Democracy (Nov. 26, 2016).51 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).52 Id. 53 Id.54 Id. 55 Id.

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as well as the economy wide approach focusing on protecting domestic American jobs from

foreign competition, along with a number of other benefits not previously analyzed here all led to

the overall support of ACES by the IBEW.

Section IV – The Clean Power Plan

A few years following the creation of ACES, President Obama and the EPA announced

another historic plan to fight climate change.56 Promulgated under the Clean Air Act (“CAA”),

the Clean Power Plan (“CPP”) was created with particular regulation and standards.57 According

to the White House and the Office of the Press Secretary, “The Clean Power Plan is a landmark

action to protect health, reduce energy bills for households and businesses, create American jobs,

and bring clean power to communities across the country.”58 This plan established the first ever

set of national standards to limit carbon pollution from power plants within the electric power

sector while promoting clean energy innovation, development, and deployment and maintaining

the reliability of our national electric grid across the United States.59 More specifically, the major

provisions of the CPP set standards to reduce carbon dioxide emissions by 32 percent from 2005

levels by 2030, 9 percent more ambitious than the proposal; provide significant public health

benefits by reducing premature deaths from power plant emissions by nearly 90 percent in 2030

compared to 2005; drive more aggressive investment in clean energy technologies resulting in 30

percent more renewable energy generation in 2030 and continuing to lower the costs of

56 Overview of the Clean Power Plan-Cutting Carbon Pollution from Power Plants, ENVIRONMENTAL PROTECTION AGENCY, https://www.epa.gov/cleanpowerplan/fact-sheet-overview-clean-power-plan.57 The Clean Power Plan: A Climate Game Changer, Union of Concerned Scientists, http://www.ucsusa.org/our-work/global-warming/reduce-emissions/what-is-the-clean-power-plan#.WCdtguErIdW.58 Fact Sheet: President Obama to Announce Historic Carbon Pollution Standards for Power Plants, The White House – Office of the Press Secretary, (Aug. 3, 2015), https://www.whitehouse.gov/the-press-office/2015/08/03/fact-sheet-president-obama-announce-historic-carbon-pollution-standards.59 Id.

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renewable energy, prioritize the deployment of energy efficient improvements in low-income

communities with wind and solar through a Clean Energy Incentive Program, and finally

continue America’s leadership on climate change by setting the goal of reducing emissions to 17

percent below 2005 levels by 2020 and to 26-28 percent below 2005 levels by 2025.60

Comprehensively, the CPP was created to achieve and maintain an affordable, reliable energy

system, while simultaneously reducing pollution and protecting the United State’s public health

and environment for both the present and for all future generations.61

In regards to this paper however, the primary opposition stems from the specific

provision set out under the Clean Air Act- Section 111(d) for existing power plants.62 This state-

based program for existing sources empowers the EPA to use its authority to issue standards,

regulations, guidelines, and modifications deemed appropriate to address carbon pollution from

existing power plants in order to meet the required reductions for air pollutants.63 This Section

for carbon pollution standards for power plants resulted from the Supreme Court decision in

Massachusetts v. EPA, 549 U.S. 497 (2007),64 holding that GHG emissions constitute

“pollutants” under the CAA and leading to the EPA’s finding that they endanger public health

and welfare.65 However, the CPP is already the subject of many legal challenges from a number

60 80 Fed. Reg. 64,662 (Oct. 23, 2015). 61 Overview of the Clean Power Plan-Cutting Carbon Pollution from Power Plants ENVIRONMENTAL PROTECTION AGENCY, https://www.epa.gov/sites/production/files/2014-05/documents/20140602fs-overview.pdf.62 42 U.S.C. §7411(d).63 Clean Power Plan-Regulatory Actions, Environmental Protection Agency, https://www.epa.gov/cleanpowerplan/regulatory-actions.64 Massachusetts v. EPA, 549 U.S. 497 (2007).65 ENVIRONMENTAL DEFENSE FUND, SECTION 111(D) OF THE CLEAN AIR ACT-THE LEGAL FOUNDATION FOR STRONG, FLEXIBLE & COST-EFFECTIVE CARBON POLLUTION STANDARDS FOR EXISTING POWER PLANTS (2013)[hereinafter WHITE PAPER], available at http://www.edf.org/sites/default/files/section-111-d-of-the-clean-air-act_the-legal-foundation-for-strong-flexible-cost-effective-carbon-pollution-standards-for-existing-power-plants.pdf =.

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of states, fossil fuel-fired power plants, and other groups that oppose limits on carbon pollution.66

The primary focus of this paper revolves around the challenge against the EPA’s authority to

regulate these carbon pollutants from the power sector across the United States. However, the

EPA firmly contends that their authority and responsibility to regulate carbon pollution under the

Clean Air Act, more specifically under Section 111(d), is well established and is ready to take on

these challenges.67 For example, the Supreme Court held in American Electric Power v.

Connecticut (2011).,68 that this specific Section “speaks directly” to the regulation of carbon

pollution from existing power plants.69 The EPA’s approach is two fold: not only do they issue

minimum environmental standards that echo the “best system of emission reduction” for these

existing sources but also permits states the opportunity to develop their own plans in order to

satisfy these requirements in the best way possible.70 This approach is fully aligned with the

“cooperative federalism” approach enacted by the EPA in which they have applied broadly for

the last forty years.71 For example, in developing these state targets, the EPA has utilized a wide

range of cost effective technologies that have been proven successful in reducing carbon

emissions by improving the efficiency of existing power plants and shifting generation to low or

even zero-emitting facilities because they have already been implemented by states and power

companies under other Clean Air Act programs.72

Overall, Section 111(d) is said to be legally grounded and fully consistent with the EPA’s

approach and authority granted by the Supreme Court ensuring that it is founded on the best 66Tomas Carbonell, ENVIRONMENTAL DEFENSE FUND, https://www.edf.org/sites/default/files/content/cleanpowerplan_strong_legal_foundation.pdf.67 Id.68 American Electric Power Company, Inc., et al., v. Connecticut, 131 S.Ct. 2537 (2011).69 Id. 70 Tomas Carbonell, ENVIRONMENTAL DEFENSE FUND, https://www.edf.org/sites/default/files/content/cleanpowerplan_strong_legal_foundation.pdf.71 Id. 72 Id.

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available technical information that will not interfere with the affordable and reliable supply of

electricity powered by these power plants.73

Section V – Basis for IBEW’s Policy and Legal Objections to the CPP

The IBEW expresses two chief policy concerns about the approach and impact of the

CPP- its impact on energy sector jobs and on the reliability of the electrical grid-each of which is

described in more detail below. In addition to other labor unions that represent energy workers,

the IBEW began to criticize the EPA’s proposed CPP claiming the Plan will not only eliminate

jobs but also put the electrical grid at risk. The crux of their argument was presented by their

previous International President Edwin D. Hill in a statement expressing fear and disbelief, “If

these rules are implemented as written, dozens of coal plants will shut down and with no plans to

replace them, tens of thousands of jobs will be lost and global carbon emissions will rise

anyway.”74 The IBEW estimated that to reduce 40,000 megawatts of coal-generating capacity by

2020, would directly impact and eliminate 50,000 jobs and indirectly eliminate another 100,000

to 150,000 jobs that are based on the economic activity created by coal plants.75 The IBEW’s

primary focus in opposition to the EPA’s plan revolves around both the issue of preserving jobs

as well as the impact it will have on the U.S.’s power system. For instance, shutting down a

number of coal plants in a short period of time will lead to these existing plants’ inability to

supply power in unexpected extreme weather situations which would result in more blackouts

and higher electric prices for customers.76 The idea of utilizing more renewable energy sources

such as solar and wind are proposed within the Plan, but according to industry wide experts these

sources and technologies will not be enough to sustain the required power needed to be

73 Id. 74 IBEW Says EPA Plan Threatens Jobs, Grid, IBEW, (July 11, 2014), http://www.ibew.org/articles/14daily/1407/140711_epa.htm.75 Id. 76 Id.

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produced.77 President Hill emphasized, “The EPA has consistently underplayed the pain of

previous regulations and working families have paid a heavy price, and we must make our voices

heard to avoid another preventable blow to working families.”78 It is their belief that highly-

skilled, middle-class jobs, primarily in the rural regions of America, would be lost with few

comparable employment opportunities.79 They also argue that the EPA’s efforts are fruitless

because despite the efforts in reduction made and achieved by the U.S., developing countries

such as China and India are continuing their large coal production in order to drive their growing

economies.80 The IBEW views this plan as “a classic example of federal tunnel vision-focusing

on a single goal with little heed for the costs and dangers.”81 They hope that politicians from both

parties will be able to unite together on this issue resulting in a bipartisan energy plan for the

future that protects jobs within the industry while setting a realistic timeline for the development

of renewable energy to combat climate change.82

The IBEW thus opposes the CPP as bad policy on a number of grounds; more recently, it

has shifted its efforts from simply criticizing the EPA and its Plan to a more involved active

approach by directly challenging the legality of the CPP in an effort to prevent a policy it

opposes from taking effect. Taking a direct and hard position, the current view of International

President Lonnie R. Stephenson falls in line with past President Hill as he stated, “We worked

with the EPA for years to address greenhouse gas emissions with a plan that is both effective and

77 Id. 78 Id. 79 Edwin D. Hill, Electrical Workers vs. the EPA, THE WALL STREET JOURNAL (Aug. 14, 2014), http://www.wsj.com/articles/edwin-hill-the-electrical-workers-union-vs-the-epa-1408057784.80 IBEW Says EPA Plan Threatens Jobs, Grid, IBEW, (July 11, 2014), http://www.ibew.org/articles/14daily/1407/140711_epa.htm.81 Edwin D. Hill, Electrical Workers vs. the EPA, THE WALL STREET JOURNAL (Aug. 14, 2014), http://www.wsj.com/articles/edwin-hill-the-electrical-workers-union-vs-the-epa-1408057784.82 Id.

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legal, unfortunately, we don’t believe this regulation is either.”83 The implementation of such a

rule would not only have a severe and detrimental impact for working men and women within

the industry but also disrupt the “engine of our economy, a reliable power grid.”84

The IBEW has filed suit and has joined other petitioners, including 27 other states,

several utilities and two other labor unions, in challenging the EPA’s authority and

implementation of these new federal regulations on power plants.85 Among the numerous core

legal arguments proposed throughout the Petitioner’s opening brief in West Virginia v. EPA,86 in

which currently a motion for stay has been ruled on by the D.C. Circuit, the most prominent

argument analyzed for this paper and the one IBEW has voiced their opinion on the most is the

clear lack of congressional authority EPA asserts to restructure the power sector.87 According to

Petitioners, EPA boldly asserts their own authority regarding the CPP that appears to be more

far-reaching than any previous effort by this agency.88 Section 111(d) grants power to the EPA to

restrict fossil fuel-fired power plants in hopes of reducing emissions not only through pollution

control measures, but more negatively through reducing or eliminating operations and shifting

their electricity generation to competitors.89 Through the EPA’s “generation shifting” proposal,

meeting these strict reduction emission requirements will result in not only limiting the use, but

also the direct shut down of hundreds of coal-fire plants.90 Here, it is well argued that this rule

goes well beyond the clear statutory instruction requiring States to submit for approval, state or

regional energy plans, which meet the EPA’s predetermined CO2 requirements for the electricity 83 Id.84 Id.85 IBEW Sues EPA to Stop Clean Power Plan, IBEW Media Center, (Nov. 19, 2015), http://www.ibew.org/media-center/Articles/15Daily/1511/151119_IBEWSues.86 West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Argued Sept. 27, 2016).87 Brief of Petitioner, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).88 Id.at 99.89 Id. 90 Id.

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sector.91 Congress would have provided detailed legislation if, and only if, they certainly wanted

to grant the EPA such extensive authority to restructure the nation’s electricity sector.92 More

specifically, when an agency such as the EPA attempts to make “decisions of vast economic and

political significance,” under a “long-extant statute,” it must show a “clear” statement from

Congress granting such authority.93 In our case, EPA can show no such statement from

Congress.94 Additionally, the EPA has issued States the power to establish standards of

performance for existing sources under Section 111(d) under a national new source standard.95

Here, it its currently being argued that the EPA has undermined the States’ own authority to

govern the intrastate “need for new power facilities, their economic feasibility, and rates and

services,” with no clear statement of authority from Congress.96 Thus, determining as a result of

a lack of clear congressional authority in which the EPA asserts not only over the individual

States’ energy grids, but also regarding the restructuring of the entire Power Sector nationwide,

the Rule must fail.97

Section VI – ACES More Aligned with the IBEW

In 2012, Jody Freeman, prior Counselor for Energy and Climate Change in the White

House under President Obama’s first administration, had characterized the state of the climate

change agenda as being pendulum swings.98 Her final pendulum analysis included the theory that

91 Brief for Members of Congress, as Amici Curiae Supporting Petitioners, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).92 Id. 93 Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014).94 Brief for Members of Congress, as Amici Curiae Supporting Petitioners, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).95 42 U.S.C. §7411(d).96 Brief of Petitioner, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).97 Id. at 126. 98 Jody Freeman, Climate and Energy Policy in the Obama Administration, 30 Pace Envtl. L. Rev. 375 (2012) Available at: http://digitalcommons.pace.edu/pelr/vol30/iss1/9.

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there has been movement away from comprehensive approaches as seen in ACES.99 I believe

that her statement possibly suggests that in order to achieve a successful and realistic plan, a

single comprehensive legislation with broad requirements is simply not enough.100 However,

although the need for a more detailed and future-oriented based legislation that includes direct

and strict national standard requirements, such as the CPP, exists; I believe and I agree with the

IBEW’s firm stance that implementing legislation as crucial as the CPP must be authorized by

Congress and should not directly target a single sector, risking hundreds of thousands of jobs of

working men and women within this particular industry, in order to achieve its overall goals.

Therefore, I conclude that ACES is the GHG emission legislation, based on its broad overall

target range and particular provisions, that falls more in line with the IBEW in terms of receiving

support and addressing any underlying concerns within such an industry represented by the

IBEW.

The difference in the procedure used to craft each of these GHG control measures played

an important role in determining the IBEW’s support, and supports the idea that a legislative

solution is preferable. In terms of ACES, both the AFL-CIO and IBEW had the opportunity to

voice their opinions and concerns through the legislative process as they lobbied both the House

of Representatives and the Senate regarding ACES as they sought to ease the short-term CO2

targets and timetables as well as strengthen the provisions regarding international trade.101 Also,

knowledgeable commentators such as Lara Skinner, Associate Director and Co-Chair of Labor,

the Environment and Sustainable Development Initiative at the Worker Institute at Cornell, have

suggested that it is quite possible the creators of ACES, Waxman and Markey, given their pro-

labor stance, did their best to engage the AFL-CIO and other labor unions in the process of

99 Id. 100 Id.101 S. REP. No. 19822-12 (2009).

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developing the legislation.102 In contrast, due to the EPA’s primary role in creating, proposing,

and implementing the CPP through a rule making authorization as opposed to a legislative

process, it appears to have left little room or opportunity for groups being impacted such as the

IBEW to reflect their major comments and concerns in crafting the plan. For example, some of

the pro-labor “sweetness” in ACES could not be included in CPP because it was limited to the

CAA authority. One possible reason offered for this happening may relate to the divisions within

labor around climate and energy policy today, and therefore, major players such as the AFL-CIO

and the IBEW have stepped back from creating a space where its affiliates can discuss and shape

climate and energy policy.103 Thus, these groups did not feel empowered to act on behalf of its

affiliates to negotiate around climate and energy policy regarding the CPP, explained Ms.

Skinner.104

Next, another concluding reason why ACES received more support from the IBEW as

previously stated as its legal opposition to the CPP revolves back to the matter concerning the

EPA’s lack of authority. According to Utility Department Director Jim Hunter, who testified

before Congress twice and met with the EPA officials’ numerous times during the writing of the

Clean Power Plan, “I don’t question the goodwill of the EPA, just their authority to make this

rule. I have been saying for years, this is a problem that only Congress can solve and they are

just not doing their job.”105 Furthermore, Hunter believes shutting down power plants was never

the intent of the creators of the Clean Air Act and thus far it has never been allowed by a court.106

Not only is this an issue that is far beyond EPA’s authority, IBEW believes a majority of the 102 Interview with Lara Skinner, Associate Director and Co-Chair of Labor, the Environment and Sustainable Development Initiative at the Worker Institute at Cornell (Dec. 7, 2016).103 Id.104 Id.105 Edwin D. Hill, Electrical Workers vs. the EPA, THE WALL STREET JOURNAL (Aug. 14, 2014), http://www.wsj.com/articles/edwin-hill-the-electrical-workers-union-vs-the-epa-1408057784.106 Id.

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burden and responsibilities set by the EPA is falling on the backs of one industry and the hard

working men and women within that industry.107 According to the IBEW, nearly 200 coal-fired

power plants have already shut down operations within the last five years, and continuing this

unfair and illegal trend will lead to severe consequences not only for the U.S.’s power grid, but

for the country’s entire economy.108

Finally, in analyzing the major differences between ACES and the CPP, the last major

concern that may have impacted the lack of support for the CPP revolves around the EPA’s

overall target sector for achieving their goal of reducing GHG emissions. For instance, according

to Ms. Skinner, “whereas ACES was a trading scheme that covers most parts of the economy, the

CPP goes specifically after emissions from power plants and its focus is on phasing out coal

plants not trying to invest in Carbon Capture Sequestration (“CCS”).”109 Despite the fact that on

each of these GHG control measure plans, the economy, jobs, and the power sector are

addressed; unlike ACES’s economy wide approach to reduce GHG emissions across a broad

spectrum of sectors, the CPP’s strict and narrow target falls directly on the power sector eager to

regulate and possibly eliminate the production of coal-fired plants wiping out an entire industry

with very little realistic recourse for the future.

SECTION VII – Overview of IBEW and TUED

This final section explores an alliance known as, Trade Unions for Energy Democracy

(“TUED”) which is a “global, multi-sector initiative to advance democratic direction and control

of energy in a way that promotes solutions to the climate crisis, energy poverty, the degradation

107 Id.108 Id. 109 Interview with Lara Skinner, Associate Director and Co-Chair of Labor, the Environment and Sustainable Development Initiative at the Worker Institute at Cornell (Dec. 7, 2016).

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of both land and people, and responds to the attacks on worker’s right and protections.” 110

According to a Local Union within the IBEW, Local Union #3, it is imperative to shift away

from the market-based solutions of corporate America that are failing to a more labor based

movement in order to unite working men and women around the major issue of climate change

to ensure a sustainable future.111 Despite the efforts made through various national and local

legislation, as well as regulations and standard policies, working men and women have never

been the focus of a possible solution.112 Furthermore, Local Union #3 claims shutting down all

the coal-fired power plants is not the answer, but rather there is a dire need to develop a

transition to new forms of renewable energy so that working people of America within this

industry who may eventually lose their jobs, are not left in the dark but trained to build and

install new technologies such as solar panels, smart meters, wind turbines, etc.113 According to

Christopher Erikson, the Business Manager of Local Union #3 IBEW, “The future of our world

is at stake and it is an unprecedented opportunity to rally together and solve the climate crisis

while raising the well-being of an entire generation of workers.”114 In addition, according to Sean

Sweeney, the Coordinator for Trade Unions for Energy Democracy, “TUED’s role is to support

the public reclaiming of energy systems from private corporations as a means to drive a well-

planned and 'just' energy transition towards public renewable power. Tens of thousands have lost

110 About the Initiative, Trade Unions for Energy Democracy, http://unionsforenergydemocracy.org/about/about-the-initiative/.111 Local 3 Attends: Murphy Institute, CUNY Climate Change Symposium, http://www.local3ibew.org/article/local-3-attends-murphy-institute-cuny-climate-change-symposium/112 Id. 113 Id. 114 Id.

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their jobs in coal, and this could have been avoided.”115 The primary goals of this initiative

include:

(1) Help build and strengthen a global trade union community for energy democracy. TUED is a platform for trade unions from all sectors and countries to debate, develop and promote real solutions to the climate crisis, land grabs, energy poverty, and pollution generated by fossil fuels — solutions that can build unions, worker and community power, and advance social and environmental justice.

(2) Develop high-impact union educational materials, distribute an electronic bulletin, and convene meetings and working retreats that encourage debate and help create a shared analysis of key energy and climate issues.

(3) Connect the energy democracy agenda to union struggles and campaigns in ways that build broad membership engagement, increase worker power, and facilitate solidarity across movements that share similar goals.116

Therefore, it has become increasingly evident that in order to achieve a smooth transition to an

equitable, sustainable energy system, a unified shift in power towards workers, communities and

the public must take place immediately.117 I believe this initiative can partner up with the IBEW

on its national scale, as one of its local unions, Local Union #3, has done locally in order to

collaborate and devise a plan now that will protect the future generations of its workers it

tirelessly represents day in and day out.

Section VIII – Conclusion

According to Dr. Michael Mann, Distinguished Professor, Director, and Author in the

area of Science and climate change, “We are way past the point which leaves no more room to

debate whether climate change even exists; the cost of inaction is far greater than taking action

so it is our time to act now.”118 Although this topic was simply just a sliver compared to the

115 Interview with Sean Sweeney, Director of Cornell Global Labour Institute and the coordinator for Trade Unions for Energy Democracy (Nov. 26, 2016).116 About the Initiative, Trade Unions for Energy Democracy, http://unionsforenergydemocracy.org/about/about-the-initiative/.117 Id. 118 Michael E. Mann, Distinguished Professor of Meteorology and Dir. Earth Sys. Science Ctr., Penn State Univ., Address at Mack Student Ctr. Hofstra Univ., The Madhouse Effect, How

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numerous other issues and topics that continue to be debated today within the area of global

climate change, my perspective of the entire scope of it has widened immensely. Overall, this

paper explored two various GHG emission control measure legislations and their core provisions

reflecting how they were crafted, proposed, and implemented in each of their own ways. This

paper took one of the leading industry’s largest labor unions, the IBEW, and analyzed its goals,

interests, and concerns leading to the support of ACES on the one hand, and the opposition, from

both a policy and legal standpoint, of the more recent climate change plan, the CPP. Primarily

due to the inability to participate in its creation via the legislative process, the burden placed on

and the target towards the single power sector across the U.S requiring immense reduction, and

legally speaking the EPA’s lack of Congressional authority regarding Section 111(d), the

IBEW’s support for ACES over the CPP became very clear, and continues to make a difference

today as the issue at hand continues to be contested. Again, quite possibly through collaboration

with initiatives such as TUED, worker alliances with local unions, and even a firm stance taken

by its National leadership to portray a powerful example, I believe it is crucial now more than

ever for labor groups such as the IBEW to refocus not only for the present, but more importantly

for the future generations and help fight against global climate change by offering and joining in

on climate change proposals with a wide focus to succeed and strong provisions.

Climate Change Denial Is Threatening Our Planet, Destroying Our Politics, and Driving Us Crazy (Sept. 12, 2016).

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