John Donvan:

We’re going to get started so you can take your seats. I’m just going to chat for a couple of minutes about how things work and unfold through the course of the debate and the important thing to share with you is that as members of your — the audience here you actually play a vital role in a couple of ways, the important is that we ask you to act as the judges of the debate. There’s a keypad at your seat and when the time comes I’ll ask you to vote your opinion on this motion. And what we do is we ask you really to listen to the debate with an open mind. I know a lot of people might come in with a particular conviction, but we’re asking you if you can to set that aside and actually listen to the arguments from both sides and be willing to change your mind if you feel that one side or the other has been the more persuasive, because our goal here really is to raise the level of public discourse by having debaters actually have to make and present an argument that they back up with facts and logic at the same time as they point out the weaknesses in their opponents arguments and you will be the arbiters of who does best at that.

So, I’ll be reminding you throughout the evening that it’s on this particular motion for or against that you will be voting at the end of the debate and it’s on that motion that these debaters are trying to persuade you to be with their side. And the way that we have you vote, there’s a keypad at your seat and when the time comes I’ll ask you to take a look at the motion. It’ll be on the screens, but it is Climate Change: The EPA Has Gone Overboard. If you agree with the motion, I’ll ask you to push number one. And if you disagree, I’ll ask you to push number two; and if you’re undecided, that’s position number three. You can ignore the other keys. They’re not live. And also, we allow about 15 to 20 seconds for the voting. If you happen to push the wrong button just correct yourself and if it’s inside the window the device will register your last vote. Also, the other way in which your role is critical is in the middle of the debate, I’ll come to you for questions and the way that will work is all you have to do is raise your hand and I will call on you and a microphone will be brought to you.

We’ll ask you to wait for the microphone, stand up, tell us your name, if you happen to be blogging with say some sort of site or working for a media outlet that’s related to the topic or not, let us know the name of the organization. We would just like to know that. And then you can ask your question. And I’m pretty tough in making sure that the question has to be on topic, again, related to this motion and what we’re looking at is the EPAs action, particularly the Clean Power Plan. If it’s sort of more distant to the motion, I’m going to have to pass on the question. The other thing about the question is I’m okay if you make a very short sort of statement of a premise, but I really need you then to immediately get to a question, not to debate with the debaters, but to get them to debate better with each other. And what I like to say is you will know that you have asked a question if a question mark naturally goes at the end of whatever you’ve said. Then you’ve completely nailed it. And I — sometimes I may be able to try to help you with a question if you’re struggling a little bit.

We exist after this debate as — in many, many forms as a podcast that goes out to all over the world obviously. It’s used in schools. We exist as a broadcast heard on public radio stations. We’re live streaming at this moment on a variety of platforms, including our own website, iq2us.org, but because there’s some production in the podcast you’re going to see a little bit of a sausage being made. There will be times when I will say, you know, I’ll be right back and I won’t go anywhere. I will still be here and it’s because we’re taking a break and I will say again and again what my name is. My name is John Donvan and it’s not because I forget, but again, it’s to come back from these breaks. So, please roll with those annoyances and don’t be annoyed by them too much. And with that I think we’re ready to begin. So, let’s please welcome our debaters to the stage and everybody have a great time.

And let’s welcome our debaters to the stage.

[applause]

Thank you for the applause. That was one other thing. One other thing I wanted to say is that unlike in a presidential debate where the audience is required never to applaud, we feel the opposite. We are very, very comfortable with people applauding. It tells the debaters how they’re doing, but more importantly it lets the podcast listeners know that these debaters were playing to a live audience who was — which was judging them. So, you’re absolutely welcome to applaud at various points. We discourage, again, booing and hissing because it’s not part of our — the culture we’re trying to propagate, but go ahead and applaud when you feel like it and there are going to be times, again, for the sake of the production when I might actually ask you to applaud spontaneously.

[applause]

Perfect. Perfect. So, let’s get going and I’ll be right back.

Okay. We’re going to begin. How about some spontaneous applause to begin?

[applause]

In the third year of his second term, the president of the United States, Barack Obama, became a man with a plan, a plan to deal with climate change. He called it the “Clean Power Plan,” which required that states cut the amount of carbon dioxide spilled into their atmosphere by the year 2030 by the amount of 30 percent, because while it’s the burning of coal that keeps the lights on in a lot of cases it’s also the burning of coal that speeds up the process known as “climate change.” Overseen by the EPA, the Environmental Protection Agency, the plan has hit a hard wall of opposition from people who say that it will be ineffective, that it will kill jobs, and that it may not be legal.

Well, we think that has the makings of a debate, so let’s have it, “Yes,” or, “No,” to this statement, “Climate Change, The EPA Has Gone Overboard,” a debate from Intelligence Squared U.S. I’m John Donvan. We are here at George Washington University in Washington, D.C. with four superbly qualified debaters who will argue for and against this specific motion, “Climate Change, The EPA Has Gone Overboard.” As always, our debate will go in three rounds. And then our live audience here at George Washington University will vote to choose the winner, and only one side wins. We want to register your vote now, so please go to the keypads at your seat and take a look at the motion which should come up on the screens. And if not, I’ll read it out to you. Actually I can’t see these screens. Is it up there? Yep, because they’re forward of me. “Climate Change, The EPA Has Gone Overboard,” push number one if you agree with this motion, number two if you disagree, number three if you’re undecided.

You can ignore the other keys. Well, you can pay attention to them, but they’re not going to do anything for you. Okay. It looks like everybody has completed because eye contact is coming back my way. So terrific, so what I want to explain is that at the end of the debate we will ask you to vote a second time after you’ve heard the arguments and how they’ve been presented. And by our rules, it’s the team whose numbers have moved the most in percentage points who will be declared our winner. So it’s the difference between the first and the second vote. So that, again, will come at the end of the evening. Okay, let’s meet our debaters. Our motion is this, “Climate Change, The EPA Has Gone Overboard.” The team arguing for the motion starts with Charles McConnell. Charles, welcome to Intelligence Squared.

Charles McConnell:

Thank you.

[applause]

John Donvan:

Charles, you are a veteran of the energy industry. You serve as executive director of Energy and Environmental Initiative at Rice. And for two years you served in the Obama administration as the assistant secretary for fossil energy in the Department of Energy. You said that you joined the administration in the hopes of advancing what you called an “all of the above energy strategy.” Can you explain what that means?

Charles McConnell:

Yeah, I was honored to serve. And really the pursuit of what the administration ran its first administration platform based on, all of the above, being renewables, nuclear, oil, gas, and coal, all forms of energy to provide energy sustainability and energy security for our country.

John Donvan:

Okay. And can you please tell us who your partner is?

Charles McConnell:

My partner is Mike Nasi, good friend and colleague for a number of years.

John Donvan:

Mike, welcome to Intelligence Squared.

Michael Nasi:

Thank you.

[applause]

John Donvan:

Mike, you’re a lawyer. You’re a partner at the firm of Jackson Walker. You practice environmental and energy law. And a lot of your work refers actually — relates to the Clean Air Act. And you have been directly involved in the fight against the Clean Power Plan with the President. In what capacity?

Michael Nasi:

Well, I serve as counsel of record to a coalition of electric power and mining interests from the Gulf Coast to North Dakota. And I’ve also served as general counsel to a group called the Clean Coal Technology Foundation, which has worked in partnership with states, Department of Energy, certainly Secretary McConnell, in pursuing carbon capture, utilization, and storage technology.

John Donvan:

Okay, that’s what we call, “full disclosure.” Welcome the team arguing for the motion, “Climate Change, The EPA Has Gone Overboard.”

[applause]

And we have two debaters arguing against the motion. Please welcome Jody Freeman. Welcome to Intelligence Squared.

Jody Freeman:

Thank you.

[applause]

John Donvan:

Jody Freeman, also a lawyer, and you served in the White House as Counselor for Energy and Climate Change.

Now you’re at Harvard Law, where you are the founding director of the school’s environmental law and policy program. Earlier this year — this is a lawyer question — the Supreme Court issued a stay, halting, for the time being, the Clean Power Plan’s implementation while it’s being litigated here in DC in circuit court — and it’s probably going to end up in the Supreme Court. And if it does, what do you think its chances of survival are?

Jody Freeman:

It’s a tricky question, because we have only eight Supreme Court justices at the moment.

John Donvan:

Yeah.

Jody Freeman:

So, we’ll be waiting to see who the ninth turns out to be. But on the merits, I’d say I think EPA has some strong arguments that it has passed a kind of very thoughtful, reasonable, and cost-effective program. So, I think it has a good shot at being upheld.

John Donvan:

Terrific. And your partner is?

Jody Freeman:

My colleague and friend, Carl Pope.

John Donvan:

Ladies and gentlemen, Carl Pope.

[applause]

Welcome, Carl. Carl, welcome to IQ2. You are a strategic advisor, right now, to Michael Bloomberg. You were long-time executive director and chairman of the Sierra Club.

And one aspect of the Clean Power Plan — as we’re going to get into — is the phase-out of a lot of coal power and coal-fueled plants, which is something the Sierra Club has been working on a long time. You had a plan called Beyond Coal there, launched under your leadership. And what — during those — that period of time, how many plants were retired, let’s say?

Carl Pope:

Well, I would guess that without the Beyond Coal campaign, the United States would be saddled with 80 brand new white elephant coal plants that no one can afford to operate. And of the 283 coal plants whose retirements have been announced, 150 of them would still be dangling uncertainly. But the reason those plants — those new plants were stopped and those old plants are being retired is that coal can’t complete. Coal costs —

John Donvan:

Okay. I’m going to stop you because you’re debating —

[laughter]

— and Round 1 hasn’t begun yet. So, hang on just a minute. But ladies and gentlemen, let’s welcome again the team arguing against the motion.

[applause]

So, that motion is Climate Change: The EPA Has Gone Overboard. We go in three rounds. The first round comprises of statements by each debater in turn, which will be uninterrupted. And they will be six minutes each. Round 1, our first debater leading — making his way to the lectern, speaking for the motion, Climate Change: The EPA Has Gone Overboard, please welcome Chuck McConnell, executive director of Rice’s University’s Energy and Environment Initiative.

[applause]

Charles McConnell:

Thank you. The motion is an interesting way to frame it. And as a matter of fact, it’s on the webpage. It says this is a bold initiative to reduce CO2 — or is it unconstitutional? You know, there’s a lot of emotion on this issue, about climate change. There’s personal feelings — what’s right, what’s wrong. And there’s certainly no shortage of politics behind all of this.

But what about the science? Everybody talks about wanting to embrace the science, wanting to trust the soundness of the science. Well, for the next 90 minutes, Mike and I would hope to provide to you an exploration of that science and the realities, to look at what the Clean Power Plan is and what it isn’t — and to pursue solutions that are going to be globally impactful. You know, the EPA has gone overboard. It’s gone in the wrong direction, and it’s provided us a false sense of accomplishment, in terms of environmental protection. So, let me be clear. The science says the climate is changing, and it is. CO2 is a forcing function. It is. We have a responsibility to mitigate CO2. We do. I’m no denier. But neither Mike or I represent any political party, or any industrial consortia per se. Hey, I was in the Obama Administration.

I was pursuing what was important for energy sustainability for our national strategy — an all-of-the-above strategy. But let me also be clear — the Clean Power Plan is not environmental legislation. It’s not environmentally-based policy. The science doesn’t support it. And why? If you take a look at the Clean Power Plan, 0.2 percent reduction of global CO2 emissions. 0.2 percent. The impact of global warming. 0.01 degree Fahrenheit. And the impact of sea level rise, the thickness of a dime. And by 2025, the total impact of this plan will be offset by three weeks of Chinese emissions. So, to me, it’s scientifically underwhelming. But it’s been called the cornerstone of our climate policy here in the United States and our leadership to the rest of the world.

Even the EPA administrator, Gina McCarthy, who’s testified before committees, same ones I have, has said as much. Don’t judge the merits of this on CO2 reduction, judge it on our leadership. And I say that’s naïve. It’s not informed and we’re breaking our arms patting ourselves on the back. But what’s troubling is we’re missing opportunities for potential environmental progress. We’re not gaining, but we certainly are absorbing pain for higher costs of electricity in our country and negative impact or reliability, and we’re treading on the responsibilities of FERC (Federal Energy Regulatory Commission) and PUCs (public utility commissions) across our country. Mike’s going to talk about that in his portion of our opening statement, but I’ll tell you what bothers me the most is we’re missing opportunities. We’re missing opportunities to advance science, to create pathways to transformative technology that are going to be real global solutions.

That’s global leadership, not environmental regulations that are not going to be globally transferrable. Environmental regulations and law works. We did it in the ’70s with clean coal plants and transformed our coal fleet. We did it in the ’90s by taking tailpipe emissions out of all automobiles with catalytic converters and hydrotreating. But we got to provide real pathways for that to happen. It’s real public private partnerships. It’s technology commercialization and readiness and a pathway to do that. It’s a commitment to interagency collaboration in our federal government working together with industry to not simply ramrod policy down the states’ throats. You know our president says it the best: Hard things are hard.

And he also says you got to think global but you have to act locally, and this plan doesn’t do that. The global facts are we’re going to have two billion more people on this earth by 2050, 90 percent of them in under-developed countries and they’re all going to be using the vast majority of fossil fuels. As a matter of fact, 75 percent of our energy will be fossil fuel. The plan doesn’t accept and appreciate those facts. It also assumes in our country that we’re going to have available gas, affordable gas. It forces wind into our system and it doesn’t consider reliability. It’s not a global recipe. But what about technology? You know there’s a thousand plants globally running on coal and the IPCC (Intergovernmental Panel on Climate Change) has identified CCUS (Carbon Capture, Utilization, and Storage) as the most important technology globally to affect climate change.

Carbon capture utilization and storage. It’s not something the EPA can simply declare ready — because it’s not. It’s still being deployed in demonstration facilities. The EPA calls it ready and insists that it be installed, and it’s not ready. The plan’s not environmentally — environmental law at its best. It’s not globally acceptable. It’s never too late for a good decision. Not this plan. Turn away from this pathway, go to a roadmap for global deployment and embrace real leadership. That’s technology, not ideology, and that’s why you should vote for the motion.

John Donvan:

Thank you, Charles McConnell.

[applause]

And that motion, reminding you, Climate Change: The EPA Has Gone Overboard, and here to make his presentation against the motion, Carl Pope. You can make your way to the lectern. He’s former director and chairman of the Sierra Club. Ladies and gentlemen, please welcome Carl Pope.

[applause]

Carl Pope:

Thank you very much. I want to start out simply by saying that these rules, which are being proposed by the Obama administration are not enough. I would agree with my esteemed opponent on that topic. I wish EPA would go further. I wish we had a more ambitious rule. I think we could implement a more ambitious rule and it wouldn’t cost anymore, but these rules as they stand are extraordinarily important. Once implemented, they will reduce CO2 emissions from the U.S. utility sector by 870 million tons a year. That is more than the total annual emissions from Germany, Iran, Korea, or Brazil. This one rule is more important in terms of climate impact than all of the emissions from any one of those countries.

This one rule has said to the rest of the world, “The United States is serious. We are a real partner.” This rule was critical, and I can say this because I was part of the conversations, in getting the government of India to agree to come to the table at the Paris COP (Conference of the Parties) and join the world in combatting climate change. And India has now just cancelled a huge portion of its planned coal bill. China actually is reducing its emissions 10 years earlier than it said it would. So the world is moving, and the American willingness to retire our outmoded and noncompetitive coal fleet, which is what this rule represents, was a very, very important part of that progress. This is not small potatoes. It’s also not a silver bullet. This is not the kind of problem that any one regulation, any one country, any one sector can solve.

But it’s a big step forward. And fortunately it’s a step that’s going to demonstrate to the world that moving away from outmoded coal plants and on to cleaner technologies, gas efficiency, wind, and solar is not only good for the climate, it’s economically attractive, because the reality is that — if you look at the latest studies — there’s one that was done in Colorado by a bunch of renewable energy experts which calculated that if the United States built the lowest cost electricity system that we can imagine with today’s technology, nothing magic, we would be able to reduce our CO2 emissions by 80 percent by 2030 at no net increase in utility bills for customers.

This morning PJM, which operates the most coal heavy graded in the United States, it includes most of the coal belts, states like Pennsylvania, New Jersey, Ohio, West Virginia, Virginia, they said that their grid — these are the people who operate the grid, these are the people left to answer the utilities, these are the people who keep the lights on — they said that the Clean Power Plan can be implemented with no loss of reliability, and their best guess was a 1 to 3 percent increase in energy prices. Now, why is this possible? Very simply, five years ago we had three — 523 coal plants generating 50 percent of our electricity but also emitting the largest quantity of sulfur, nitrogen, mercury, and carbon. Every year 13,000 Americans were estimated to be dying from those coal plants which were old, 70 percent of them were more than 30 years old, and those old plants were outmoded.

Very few had modern scrubbers. Why were they so dirty? Because in 1977, when Congress passed the Clean Air Act, the utilities promised. You don’t need to regulate these plants. We’re just going to retire them. They’re going to be gone. You don’t need to do anything about them. But they didn’t keep that promise. They operated them dirty for 40 more years. And it took an oilman from Texas, George Bush, who was the first person who actually proposed that we ought to tackle all of these pollutants together, Bush promised he would clean up from these power plants mercury, nitrogen, sulfur, and carbon. And when he became president, the coal industry unfortunately — well, let’s put it — they put enough pressure on him that he didn’t follow up on his promise. President Obama is now following up on the promise. And the war on coal you’ve heard so much about is really more or less Barack Obama carrying out one of George Bush’s unfulfilled campaign promises.

It was not a wild leftwing idea nor is it regulatory overreach. The Supreme Court ordered EPA to regulate carbon if it found that carbon caused climate change. EPA looked to the scientists who said, “It does.” And our opponents agree, carbon causes climate change, climate change is dangerous, the Clean Air Act requires that it be cleaned up, but this plan is working. Right now 238 of the coal plants have already retired. We’re almost half of the way to the goal set by the Clean Power Plan, and you will notice your lights are still on. Reliability has not been degraded. In fact, the wholesale price of electricity over the past five years has fallen by 25 percent while we are replacing coal with cleaner modern competitive alternatives.

The sky is not falling. It is getting cleaner, and that’s the reason you should vote against this motion.

John Donvan:

Thank you. Carl Pope.

[laughter]

So, a reminder of where we are. We are halfway through the opening round of this Intelligence Squared U.S. debate. I’m John Donvan. We have four debaters, two teams of two fighting it out over this motion: Climate Change: The EPA Has Gone Overboard. You’ve heard the first two opening statements, and now on to the third. Here to debate in support of the motion — Climate Change: The EPA Has Gone Overboard — Mike Nasi.

He is a partner at Jackson Walker, where he practices environmental and energy law. Ladies and gentlemen, Mike Nasi.

[applause]

Michael Nasi:

Well, thank you and good evening. I’m going to focus my introductory remarks on the legal aspects of how EPA has gone overboard. Now, don’t worry. In a six-minute introduction, we’re not going to be able to take a whirlwind tour through the thousands of pages of briefing that’s pending before the D.C. Circuit. Instead, what I’m going to do is focus and narrow my conversation to two fundamental legal defects that relate directly to what the Secretary referenced. And first, let me just set the stage about what we’re talking about here — the Clean Power Plan, the 111(d) Rule, as they refer. What EPA has done is they have passed a so — you know, a gas mileage requirement of sorts for existing coal and gas-fired power plants. And they have set that standard at a level that is more stringent than the standard that they have simultaneously passed for brand new state of the art plants.

Let that sink in. That’s like you being told by EPA that the car you already own is subject to a gas mileage standard that they recognize you can’t meet and that is actually more stringent than what is being promulgated for a brand new car. So, let’s talk about the fundamental disconnect there of an existing standard more stringent than a new standard. And how did they get there? Well, that leads you to the first fundamental legal problem. It’s called the “outside the fence” issue. And what we have here is EPA not relying upon the definitions it has used and have been interpreted under the portion of the Clean Air Act that they have used. Okay? And they have instead expanded — massively expanded — the definition of a phrase “best system of emission reduction,” which is contained within another phrase, “Standard of performance.”

And for nearly half a century of Clean Air Act jurisprudence, over Republican and Democratic administrations, that standard-setting practice under Section 111 has involved the assessment of technology and processes that can be applied inside the fence of individual sources. It has not included this reimagining and expansive definition that EPA has given, which says you can go outside the fence of a facility, and you can make assumptions about what they might be able to do by interacting in a market or by paying somebody else to generate in their place. These outside-the-fence assumptions include things like generation shifting, the idea of instead of dispatching electricity with your own power plant, you can pay somebody else to dispatch in your place — like renewable energy.

And renewable energy, by the way, isn’t even governed by the rule. So, EPA has argued — and I’m sure you’ll hear tonight — that there’s precedent for this. They’ve done this before. But let me be clear. This section of the Clean Air Act has never been used for this purpose. In over 100 separate performance standards that have been promulgated, this type of definition, this “outside the fence” approach has not been allowed. Has not been done and has not been allowed. In fact, the precedent that they will direct you to — and EPA has relied upon — involve explicit statutory direction, contemplating that you would have outside the fence type factors. That does not exist in this part of the Clean Air Act. It’s not enough to say the Clean Air Act — that they’ve done it before. This part of the Clean Air Act has never been used that way. And the authority matters. This is exactly the type of overreach that the Supreme Court was warning against in its 2014 decision of Utility Air Regulatory Group or UARG.

Let me read from the majority opinion a phrase that I think you’re going to hear a lot about in the disposition of what — whether this rule is legal. “When an agency claims to discover in a long extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency, decisions of vast economical — economic and political significance.”

So, did EPA heed the warning? Well, we know we have a long extant statue. Section 111 of the Clean Air Act that over 50 years has not been taken outside the fence and we know that in states that mine coal, produce coal, manufacture things, rely upon it for their electricity, this rule will have vast economic and political implications. So did Congress speak clearly in the Clean Air Act in the section that the EPA is relying upon?

And the frank answer is no. In fact, the terms that are contained in Section 111 and the manner in which the D.C. Circuit has interpreted those words contradict the EPAs position. So they’re really asking for an expansive definition that’s never been done before. When the Supreme Court has actually set a standard that proves that they actually have to have an explicit direction. So, the rule will fail on that ground, but let’s shift to another legal problem that maybe goes to some of the more fundamental issues that we’ll debate throughout the night, and that is that this rule is not enforceable by EPA because the assumptions it made, these outside the fence assumptions about how the grid will operate, they are not things the EPA has the power to make happen. When it sets a standard, it must be able to enforce the assumptions that are built into it.

And so you have a line of jurisprudence and a statute called the Federal Power Act, and in that area of the law, it has been held consistently that intrastate electric power systems are the purview of the state. And so I’ll wrap up by saying this, that EPA can’t just say states have flexibility. EPA has to be able to prove they can enforce the assumptions they built into the rules.

John Donvan:

Michael, I can give you one more sentence.

Michael Nasi:

I’m going to borrow from the metaphor that Professor Freeman’s colleague, Lawrence Tribe has said. If a robber approaches you and says your money or your life, it doesn’t make that action legal because he says you can pay with cash, credit, or bitcoin.

John Donvan:

Okay. Long sentence, but your time is up. Thank you, Michael Nasi.

[applause]

In fairness, Jody Freeman, I’m going to — if you need an extra 45 seconds because that’s what Michael got, I’m going to give it to you.

Jody Freeman:

Thank you. I appreciate that.

John Donvan:

Okay. So let me introduce you first of all. Our final debater against the motion Climate Change: The EPA Has Gone Overboard, Jody Freeman, the Archibald Cox Professor of Law at Harvard and founding director of the law schools environmental law and policy program. Ladies and gentlemen, Jody Freeman.

[applause]

Jody Freeman:

Good evening. Good evening. There are four reasons you should vote no against this proposition. First, the benefits of this policy vastly outweigh the costs. It’s very simple. We can concede for the moment for sake of argument, that it might cost something to transition to a cleaner energy economy. We’ll spend some time in our dialogue —

John Donvan:

Jody, I just got a note that they need you for the podcast to come closer to the mic.

Jody Freeman:

Oh. No one’s ever said that.

[laughter]

John Donvan:

Do you want to — do you need her to start over?

John Donvan:

Continue.

Jody Freeman:

Okay. As you know I’m recounting the four reasons you should vote against the proposition and the first is simply that the benefits of it — of the policy outweigh the costs and, again, we will have an opportunity through the discussion to challenge some of the claims the other side is making about skyrocketing electricity costs and reliability, which we believe we can very clearly dispute. But for the moment concede the idea that it might cost something to transition to cleaner energy and the question for you is whether it’s worth it. The projection for this rule is that by 2030 the benefits will be around between $30 and $50 billion and the cost — and that’s annual, and the cost $5 to $8 billion. So you can see there this gap, the clear gap between benefits and cost and that gap will shrink. In other words, it will be more costly to deal with this problem of climate change the longer we wait. For that you don’t have to believe EPA, you don’t have to believe us, Carl and me, you don’t have to believe the environmentalists, because economists on both sides of the aisle and, in fact, former officials from Republican administrations like Hank Paulson, the treasury secretary in the George W. Bush administration, have said very clearly that it’s economically risky to wait to deal with this problem, that it gets only more expensive as time goes by.

So the first reason to vote against the proposition is simply that the benefits overwhelm the costs of doing so. Second reason you should vote against it, Carl made in his discussion of the policy implications of the rule, that is that it matters. It’s a meaningful policy as it will actually help us make progress, contrary to the other side’s claim, as Chuck said, that this makes no difference, that it’s meaningless and insignificant and, therefore, illegitimate and shouldn’t be pursued. It’s just not the case. In fact, power plants in this country produce a disproportionate share of carbon pollution, up to 30 percent of the economy’s pollution as measured in 2013. And according to the Nonpartisan International Energy Agency, that’s 6 percent of global emissions. That on its own makes it significant.

But what’s really careless about that argument is that it amounts to saying that we shouldn’t do anything about anything because we can’t do everything all at once. That just can’t be right. You have to be able to make progress on a problem like this, a global problem, incrementally and cumulatively. And what’s required, as Carl said, is that all the major economies of the world make commitments just like this one, to cut emissions from the sectors of their economy that produce the most emissions. The third reason you should vote against the proposition is that it combines smart regulation with technology innovation. The other side’s presentation, and Chuck made this point, is resting on the idea that you should choose between technology like carbon capture and sequestration and regulation, on the other hand, and that you choose against regulation because they imply, “It doesn’t work.”

But, in fact, the best combination is the two of them. So historically what’s happened when we produce smart regulation that motivates or incentivizes technology, we get tremendous gains. The catalytic converter Chuck mentioned, it was invented in 1950 but it wasn’t widely deployed and it didn’t appear in its modern cost effective form until Clean Air Act regulation required the auto industry to reduce emissions from the tailpipes of cars and trucks. That gave wind to the sales of the catalytic converter. The same is true of the Clean Power Plan. What it does is incentivize technology, clean energy, wind energy, solar energy, and sets the course of the future and says, “This is the direction we’re going in, in this sector. You can invest in those technologies.” And it will stimulate carbon capture and sequestration just the way it stimulated catalytic converters. Just to be clear tonight, Carl and I are not anti-technology and we’re certainly not anti-carbon capture and sequestration.

We just think the two work well together. The fourth reason is really what I’ll spend the bulk of my time on, even though I’ll run out here in the opener. In discussion it’s the legal argument that Mike made. And very briefly let me say this, while I deeply respect my colleague, Larry Tribe, who said that this policy is akin to lighting the Constitution on fire, with all respect it is absolutely not the case. There is no commandeering of the states or interference with their sovereignty or guns to the head as Mike colorfully invoked because the states have a complete opt-out from this policy. The states can say, “No, not going to plan.” The federal government — you can be left to develop and enforce these standards on your own. That deal, that bargain, that the federal government sets pollution standards and the states are given the opportunity to devise plans to implement them the way they see fit in their jurisdictions is at the heart of pollution laws passed beginning in the 1970s, and for 50 years the Supreme Court has upheld that scheme as perfectly constitutional and in no way commandeering or interfering with the states.

There is no 10th Amendment violation. Second, there is no taking of private property, which you sometimes hear opponents say. Mike didn’t mention it, but I was thinking he might, and if we get there I’ll make that argument to you, too, simply because industry doesn’t have a constitutional right that is absolute in perpetuity to continue to harm the public health just because they always have on the claim that it’s their property. The Supreme Court in 200 years has never held that to be the case. There is no taking of private property. And, finally, and I’ll take my extension from you if you’re willing to grant it– and, finally, the argument that EPA is somehow veering out of its lane here and doing energy policy and creating an unprecedented scheme beyond, as Mike said, the sense line, a discussion we’ll get into in the dialogue, the EPA has taken a flexible law which Congress passed in 1970 and has amended subsequently, giving it broad discretion to set standards using the best system.

And it has done that in a creative, in a cost-effective, and in a flexible way that gives the states many, many opportunities to meet the standard. For that reason, because it’s a cost-effective, flexible, reasonable application of this law within its discretion, and because the benefits vastly outweigh the costs, you should vote no against the proposition.

John Donvan:

Thank you, Jody Freeman. And that concludes Round 1 of this Intelligence Squared U.S. debate, where our motion is Climate Change: The EPA Has Gone Overboard. Before we move on, in addition to my pen stopping, I just wanted to let you know that in the last two minutes, the IFB that lets me hear the other debaters has also stopped. But I’ll be able to hear them from here if I do a lot of this. Now we move on to Round 2. And in Round 2, the debaters take questions from me and from you, our live audience. And they address one another directly as well. It is more freeform. Our motion is this: Climate Change: The EPA Has Gone Overboard.

We have heard the team arguing for the motion. Charles McConnell and Michael Nasi argued that, number one, they made clear that they are not climate change deniers, but they do say that the EPA’s Clean Power Plan creates a false sense of security, that it is scientifically underwhelming, that the science does not support the plan, and it results in the federal government ramrodding a policy down the states, a policy that they don’t agree with, that they say will lead to higher costs and missed opportunity to really work for innovation. They also list a series of legal defects — primarily the fact, they say, that the Environmental Protection Agency is expanding what the language actually says the powers of the EPA are to regulate coal-burning plants. The team arguing against the motion — Carl Pope and Jody Freeman — say, number one — they feel the other side is really trying to make the perfect the enemy of the good.

They do not accept an argument that slight improvement is better than no improvement. They say that the plan is not a silver bullet, but it is a very, very big step forward, that it sets the United States up as an example for the rest of the world to follow, with the evidence already being changes in policy evident in India and in China. Also, they say the plan is economically attractive, that it will lead to further innovation, and that the full legal right of the EPA is not to be disputed, to be involved in its implementation and enforcement of the Clean Power Plan. I want to just go to the side, first, arguing in support of the motion — to take a point that your opponents are making, which is that — and go to you, Charles McConnell. You talked about the — what you saw as the very, very slight, slight reductions overall against the big picture of the carbon reductions that would result from the implementation of the Clean Power Plan by the year 2030.

And you said they’re so slight that they’re — that — you seem to be saying they’re just not worth it. Your opponents challenge that idea directly. Again, they’re saying to you, “Do not make the perfect the enemy of the good. Something is better than nothing.”

Charles McConnell:

I think Jody said it the best. You can shut down every single coal-fired power plant in America and you’re going to change the global balance by 6 percent. The real challenge here is that the rest of the world is looking to the United States for leadership, and not a plan that assumes that they’re going to have a bountiful acceptance and availability of natural gas — which has been the miracle in this country.

John Donvan:

Well, I want to stop you right there, because you have made that point. I want you to address — what’s wrong with 6 percent? Her argument, really, is 6 percent is a lot better than 0 percent. Why not 6 percent?

Charles McConnell:

The argument is that by shutting down every coal-fired power plant, you’re going to lose the opportunity to innovate technology and coal-fired generation. The rest of the world needs that technology. They need that leadership from the United States.

Jody Freeman:

Can I —

Charles McConnell:

That’s what they look for.

Jody Freeman:

Can I — since he quoted me, I’m going to —

John Donvan:

Yeah. I’ll let — you can come in, Jody.

Jody Freeman:

— and he misquoted me — because, to be fair, I didn’t say anything about shutting down every coal plant in America. And in fact, I really want to correct the record on this, right off the top. Even with full implementation of this plan, the projection is we’ll still be using 30 percent of coal for our electricity supply. So, it’s a red herring to suggest that this is shutting down all the coal in America.

John Donvan:

Charles, your response?

Charles McConnell:

But the fact is, if you shut them all down, it’s only 6 percent. And that was fundamentally the question that was raised to me.

John Donvan:

Yeah.

Charles McConnell:

You see, these plants provide the opportunity for the United States to implement technology leadership, to be able to provide that to the rest of the world where the rest of the world doesn’t have natural gas, doesn’t have the capabilities that we have to make this transition, and have this miracle that we’ve had happen.

John Donvan:

So wait — hang on one second. Are — I just want clarity.

Are you saying that 6 percent, you’re not just sneezing at that, but you’re saying it’s not worth what you see as the downside of the program.

Charles McConnell:

It’s not worth demonizing coal to the point where you throw away the opportunity to develop technology.

John Donvan:

Okay. Carl Pope.

Carl Pope:

That is not what is happening here. Let’s be clear. CCS, if it is developed, will be developed for new —

Jody Freeman:

CCS.

Carl Pope:

CCS is carbon capture and sequestration. We use the —

John Donvan:

Which — Carl, 30 seconds so that all of us who haven’t read the textbook know what that means.

Carl Pope:

Okay. The core concept is CO2 comes out of a power plant or a steel mill or a cement keel or a natural gas plant and you capture the CO2 in that exhaust stream and you then either store it underground or turn it into another product and thereby it does not damage the climate, which if you do that it doesn’t. That’s correct.

Jody Freeman:

That CCS?

Carl Pope:

That’s CCS.

John Donvan:

There will be a quiz after.

Carl Pope:

But CC — but doing this will not be done on 40-year-old coal plants or 30-year-old coal plants or 20-year-old coal plants.

It will be done on brand new kinds of coal technology and there is no conflict between developing those technologies, which the world could certainly use, I agree, in the right context which is for new facilities while we rapidly retire the out-moded 30 and 40-year-old dirty coal plants, which are never going to be equipped with this technology. At the same time there is no conflict. We’re not debating CCS here.

John Donvan:

All right. Let me let Charles —

Carl Pope:

We’re debating whether we’re going to clean up the existing power sector in the United States.

John Donvan:

Charles, would you like to yield to — to bring in your partner or would you like to respond directly?

Charles McConnell:

It’s up to you, Mike.

Michael Nasi:

Well, the flawed premise is that this is only going to be about new plants and the reality as the secretary mentioned is there’s already thousands of coal-fire power plants in the world.

And the world is currently building the equivalent of our entire electric fleet, about one or about 1,200 gigawatts of new power plants and not just in China and India, in Germany, in Japan, in South Korea. There is enough of a footprint of coal plants that what the secretary is saying is that we need to be leaders to commercialize the kind of —

John Donvan:

Just to be clear, when you say the secretary you’re referring to your partner.

Michael Nasi:

Yes. I’m referring to my — out of respect for his former position.

John Donvan:

We’re going to — he invited us to call him Chuck.

Michael Nasi:

I’ll call him Chuck then. He’s from Ohio. Let’s call him Chuck. So, what Chuck is getting at is if you undermine the economics of the one nation that has the affluence to actually commercialize this technology, if you undermine the economics of the industry that could do it, you’re going to lose the opportunity to create meaningful technology that can be bolted on to that fleet of power plants across the world.

John Donvan:

Jody Freeman.

Jody Freeman:

I want to make sure the audience is focused on what I think is the really key question here, which is what does the clean power plan do, really? Does it do any of these things? Undermine economics and destroy the potential for CCS and distract us from what we really should be doing and reject all this technology? It does none of that. The clean power plan is based on a projection that we can deploy more renewable energy and substitute it for dirtier for power. It’s based on a projection that we can substitute natural gas for coal and wind and solar for both coal and gas. And that’s not a wild fantasy of the government or the Obama administration or environmentalists, I’m pointing at Carl, or anybody else. It’s based on what the states in the United States today are already doing deploying these technologies. So the question I have for both Chuck and for Mike is why would you not do the cheap and ready deployable thing your states are already doing with technology in order to pursue alone exclusively a much more expensive, much more difficult to deploy, much farther off CCS strategy that we both support, but we don’t think it should displace the here and now opportunities for clean technology?

John Donvan:

Chuck. Do you take the challenge of that question, Chuck?

Charles McConnell:

What we’re doing is looking to undermine the opportunity for coal-fired generation to continue to be in the mix, and if you look at the clean power plan —

Jody Freeman:

What? Why?

Charles McConnell:

Seven percent — or excuse me, seven states bear 40 percent of the burden of the implementation of this plan. Those are coal plant states. Those states also have from the clean power plan a pounds of CO2 per megawatt hour threshold that doesn’t allow coal to be built in those states. In fact, in some of those states doesn’t even allow gas to be deployed. It requires you to install wind. So, fundamentally it’s a forced renewable portfolio standard. It’s not driven by an overall look at global technology.

John Donvan:

Carl Pope, your opponent is saying that the Clean Power Plan, I think he’s saying, actually amounts to a Trojan horse way of getting wind and solar into the system.

Carl Pope:

Well, to begin with —

John Donvan:

Was that true and —

Carl Pope:

No, that is not true. And if you look at the Clean Power Plan and if somebody wants to build a coal plant with CCS, they can do so in any one of those states. The problem is right now nobody is ready to put in the money required to build a new coal plant because in Texas — the newest coal plant in Texas, which is quite clean except for carbon, Sandy Springs, was open in 2013, in 2015 it was shut six months of the year because it costs six cents to generate a kilowatt hour of electricity and the market price in Texas right now is only three cents. And the owners of that plant went to a Texas court and a Texas jury and said that their $1.7 billion coal plant was only worth $250 million because it couldn’t compete.

And the Texas jury agreed with them and ordered the assessor to downgrade the assessed value of that plant from 1.7 billion to 400 million dollars. Coal without CCS cannot compete in Texas without the Clean Power Plan. That’s the coal economic dilemma the coal industry has, its product costs too much.

John Donvan:

Mike Nasi.

Michael Nasi:

Well, I’m glad you brought up Texas and Sandy Creek power plant. The fundamental misconception of what’s going on in the competitive electric market, okay, is that somehow coal is losing just because it can’t compete. Coal is being dispatched less — it is dispatched more when gas prices are a little higher, is dispatched a little less when gas prices are low. But it is fundamentally undermined —

John Donvan:

I’m sorry to keep doing this, when you say it’s “dispatched” —

Michael Nasi:

“Dispatched,” let me explain that, coal fire power plant being put out on the electric grid as part of the generation mix, what Carl is referring to is that the economics of a power plant, their ability to produce energy in a competitive environment drives whether or not they use that.

And the argument —

John Donvan:

And “dispatch” means they send their energy out —

Michael Nasi:

— they send it into the — yeah, an operator asks them and they put their energy out. So the misconception of what’s being argued is that, that’s happening just because, all things being equal, coal is disfavored. Let’s be clear, the market is distorted. It’s distorted by two fundamental things that are going on in the marketplace, one, in every electric market, no matter how deregulated, we as taxpayers are subsidizing wind and solar onto the grid at $23 per megawatt hour. That is more than the wholesale price of electricity. That is a market distortion. The second thing that’s happening is that environmental regulations do raise the cost.

And the question I’d have for the audience and anybody who cares about reliable and stable electricity prices is if EPA gets a blank check on the Clean Air Act and it can make its own assumptions about what can be done outside the fence, what’s to stop them from creating additional costs for gas for our generation–

John Donvan:

Jody?

Michael Nasi:

–such that gas becomes?

John Donvan:

Jody Freeman, does the EPA have a blank check? Is that what this amounts to?

Jody Freeman:

No, and I’m glad you asked it, and I’m glad Mike started to talk about dispatch and complications of how energy works because I just want to explain what the Clean Power Plan does so that we’re all on the same page. It basically takes the system Mike referred to, where there are grid operators who figure out how to match supply and demand in the moment and send out energy so your iPhone can get plugged in and charged up, and EPA looked at that grid as an interconnected whole, treating it like a giant machine. And they said, “The law asks us to set standards based on the best system.” That’s the literal language, “best system,” of emission reduction.

And we look at this utility sector and we see it’s all interconnected on these grids. And it doesn’t matter to the consumer where they get their power from as long as they get to plug in their iPhone and their laptop. So if we look at the opportunities across the entire grid for making power cleaner, we see that looking at is as an interconnected whole there are lots of opportunities. You can ramp down coal and substitute gas. You can integrate wind and solar and support it with other baseload, meaning stable power, for when the wind doesn’t blow or the sun doesn’t shine. And you can invest in energy efficiency, meaning, you don’t even ask for so much power. And all that’s available now, and the states are doing it now. And the regional grid managers are doing it now, and we at EPA think, that’s then best system of emission reduction. That’s all they did. They took flexible capacious language in the statute and then took a commonsense approach to the utility sector of the industry they’re regulating, and the particular pollutant they’re trying to get at —

John Donvan:

All right.

Jody Freeman:

— which is CO2.

John Donvan:

Charles McConnell, you were secretary at the Department of Energy. And one of your objections was that the EPA — which is a separate energy [sic] — was getting into the energy side of the bureaucracy, and that they didn’t belong there. That’s where you were. So, take that — take on the point that your opponent just made.

Charles McConnell:

Well, where is she at — I think — to the point you just made is that I sat is an agency

where inter-agency collaboration was fundamental to a good outcome.

John Donvan:

Which agency was —

Charles McConnell:

EPA, working with fossil energy at DOE and working with other parts of the Department of Energy to interact and collaborate. And that collaboration didn’t occur. It was very much singularly driven out of the EPA, and it was disappointing. It was also very frustrating. And so —

John Donvan:

Why did the EPA win those power battles?

Charles McConnell:

Power battles?

John Donvan:

Yeah. I mean, bureaucratic power struggle.

Charles McConnell:

Oh, I believe they were fundamentally given a mandate by the administration. And every one else was told to stand down. I had questions come to me about resource adequacy, and I asked, “What does that even mean?”

John Donvan:

I’m glad you had to ask this —

Charles McConnell:

Okay? I had no idea what it meant. And it was an EPA-defined term, which was theoretical — reliability based on theoretical capacity. And I said, “Look, we’ve got reliability numbers. Go out to the PUCs and ask.” But they didn’t.

John Donvan:

PUC? Public —

Charles McConnell:

Public Utility Commissions. Go out to the real people where this is happening and ask the question. Didn’t do it. Didn’t want to do it, and certainly never asked about cost.

John Donvan:

Carl, it’s your turn, but your partner would like to speak. Do you want to yield?

Carl Pope:

I yield to the gentlelady from Harvard.

Jody Freeman:

I’ll yield back. I promise to yield back. Just on this topic of interagency collaboration — here’s what happened between these two agencies. They haven’t historically always gotten along. They’re really different agencies, right? EPA is an executive branch agency, and the president appoints and fires the head of that agency and has more control. FERC, the Federal Energy Regulatory Commission, where Chuck worked, is an independent commission that has to keep its distance —

Charles McConnell:

I didn’t work at FERC. I worked at DOE.

Jody Freeman:

Oh, pardon me. At DOE. Forgive me. Forgive me. But still to my point, DOE’s an executive branch agency. DOE does not have regulatory authority. That is, it doesn’t issue regulations. It’s primarily a funder of energy much more than a regulator of energy. FERC is the agency — I misspoke — FERC is the agency — Federal Energy Regulatory Commission — which has the authority to regulate the energy markets. And FERC and EPA cooperated quite a bit on this rule, you might be surprised to learn. So, speaking of inter-agency collaboration, there was quite a bit. In fact, FERC has signed a document — and DOE has signed it too, so I’m a little curious about the idea that DOE was totally out of the loop — in which they’ve agreed to monitor the reliability of the systems jointly, together, as the Clean Power Plan is implemented. First time we’ve ever seen that, inter-agency collaboration.

John Donvan:

Okay.

Jody Freeman:

So —

John Donvan:

We’re going to do something that we call the volley round, and it’s a chance to let the debaters sort of assess where they are in this debate and take their best shot at what they’re hearing from their opponents.

And the way it will work — I will go to this side first. And one of these two debaters will have 30 seconds — he will be timed. There will be a clock on this — 30 seconds and only 30 seconds to point out what he sees so far as the real weakness in his opponents’ argument so far. When his 30 seconds are up, if he hasn’t stopped talking, I’m going to ring a bell and then he’ll have to stop talking. The opponents — both of them together — have just one minute to respond. After their response, we reverse the whole thing. So, the question — as we launch the volley round — to the team arguing for the motion, what do you feel your opponents are getting most wrong? Your 30 seconds start now. Michael Nasi.

Michael Nasi:

They’re missing the point that EPA doesn’t have the authority to enforce what it’s imposing. If a state refuses, I would ask, to do a plan, okay, and EPA has said it will impose its own plan — do they have the authority to actually enforce the assumptions that are hard-wired into the standard – a standard that is not related to technology, but is related to grid assumptions the agency has no jurisdiction or expertise in.

How will they enforce such a standard?

[bell rings]

Jody Freeman:

I’m going to owe Carl two now. This rule requires the utilities — the power plants themselves, with the units they operate — to meet a standard to reduce emissions. The burden is on them — directly. The burden is not on the states. They’re aren’t asked to do anything. They don’t own the units, right? Private utilities own the units. So, if the states decide they don’t want to draft a plan to make it very cost-effective for the units in their jurisdiction, if the states decide they don’t want to participate in regional trading markets to make costs low and make things easy — if they really don’t want to do anything like that for their in-state utilities — and I got to tell you, I find it hard to believe that they don’t want to respond to their in-state utilities and make life better for them. But if they really don’t want to just to stick the finger in the eye of the EPA, EPA will say to the power plants themselves you need to meet these targets and we see how you can do it by investing in a variety of controls, increasing efficiency on site, investing in renewable energy, investing in energy efficiency, investing in coal switching to natural gas, lots of ways, you come up with any ways you want, you guys decide on trading machines we’ll approve it.

So I think not only can EPA–

Jody Freeman:

Your time is up. You — now we switch it. Carl, do you want to put your best shot — take your best shot at your opponent’s so far? Thirty seconds starts now.

Carl Pope:

Yes. I don’t understand, given the importance that the two of you clearly do attach to perfecting the technology to capture and sequester carbon, why the overwhelmingly dominant public conversation and the place where your coalitions put your energy is not on getting adequate funding from a Republican Congress for CCS. Why you were attacking the clean power plan, which at worst is neutral to the development of the technology rather than advocating —

John Donvan:

Either one or both of you —

Charles McConnell:

I think we need to be careful about painting with a broad brush about industry, okay?

There’s many industries that are putting their own shareholder money in play right now to try to advance a technology that EPA has already deemed to be commercially demonstrated and available and required to be installed on new coal-fired power plants, and yet this administration still has an R&D budget of hundreds of millions of dollars to try to move this technology forward so it’s speaking out of both sides of your mouth. You can’t have a commercially demonstrated technology that you require and at the same time be spending money for R&D.

Michael Nasi:

You have to allow that commercialization partnership to occur. EPAs role is to police the technology once it is available to be installed inside the fence.

John Donvan:

Okay. Time is up on that. We’re going to go to audience questions.

That is our volley round. Anybody with questions? If you raise your hand. Sir, I’ll start with you.

Male Speaker:

For the side supporting the motion, could you address the issue of Chevron deference in light of the pithiness of Section 111D in the Clean Air Act?

John Donvan:

Whoa.

[laughter]

I knew we were going to get to Chevron deference, but I have no idea what it means.

Jody Freeman:

The professor in me is so excited right now. You have no idea.

John Donvan:

Can you define what we’re talking about? And do you think we want to take this question?

Michael Nasi:

Sure. Sure.

John Donvan:

Okay. Okay.

Michael Nasi:

Yeah. I mean, I think it’s a meaty legal issue, one that I addressed in part by quoting the Supreme Court’s law of the land about these rules that have vast economic consequence and the articulation of the test that clear statutory authority exists. It is no doubt after that decision that in the King v. Burwell decision in the Affordable Care Act case with a different set of justices joining the majority, they eroded the Chevron doctrine, the Chevron doctrine being that when statutes are truly ambiguous, okay, they don’t foreclose what you’re doing. The agency is given some deference. The Supreme Court has cut back on that doctrine and the argument is not just a technical one, it’s fundamental to our system of government. The deal about the Chevron doctrine is that we infer Congress wanted to delegate some of that authority to an executive branch agency. The Supreme Court has said such implied delegation does not exist when the rule is of such great consequence that you could not infer that Congress intended to do that.

John Donvan:

Okay. I want to let your opponent respond and I want to let you try to capitalize on the opportunity to educate those —

Jody Freeman:

I’m super excited right now.

John Donvan:

Because I’m just waiting for all the geologists to get up here and start asking questions.

Jody Freeman:

Here’s the deal with the word Chevron, okay? It stands for a principle that says when agencies are delegated power in a law to do stuff, to implement a law that Congress passed, when the terms of that statute are ambiguous, when they’re not clear, the agency has some room to maneuver and courts are obligated to defer to their reasonable interpretations of the language. That’s it. Simple. And in this case EPA is pointing to the language of the Clean Air Act and saying it asks us to set standards based on the best system.

And we think this system has to be influenced by the sector we’re looking at. And we think that system has to be influenced by the technologies available. And we think the best system has to be influenced by the polluters that we’re trying to control here, CO2.

And — for CO2 so they’ve taken this approach that says, “Let’s look at these alternative ways of cutting emissions. That I think is a reasonable interpretation of ambiguous language that the court should defer to under the very well established and not eroded Chevron Doctrine.

John Donvan:

Okay, Jody, point made. No, point made. Let’s bring it to another question, please.

[laughter]

Male Speaker:

I’d like to ask about costs. Mr. Pope claimed that this — the Power Plant Rules will be very cost effective, even very cheap, and that the cost of electricity would perhaps even go down. It seems — isn’t it the case that we have some examples where these policies have — are several years ahead of the EPA, and electric rates have gone through the roof? Germany is 35, 40 cents per kilowatt hour. California is double the national average.

John Donvan:

Okay, you nailed the question so let me — before — go ahead, would you like to take it on this side? Did you intend it primarily for this side or would you like to hear from both sides? Let’s start with the side against, Chuck.

Charles McConnell:

Well, you’re absolutely right. And basically the costs will go up if you look at those seven states that are going to bear 40 percent of the responsibility to make these targets happen in this country. Energy costs are going to go up between 30 and 40 percent, period. Those states are the makers. Those are the guys that make things. Everyone else who’s a taker gets to sit on the sideline and take and point their finger at the makers and say, “You got to make it better. You got to make it nicer for me, but I’m going to continue to consume, I’m going to continue to do my thing,” right, “but I don’t have to bear any responsibility for this plan.” And that’s not societal deployment of something that’s supposed to be good for society.

John Donvan:

Carl Pope.

Carl Pope:

Germany’s power rates went up because Germany adopted a very inflexible and poorly designed way of encouraging solar. In the United States we didn’t go that route. And over the past five years the percentage of renewable power in our electricity fleet has increased dramatically and is projected to increase still more dramatically. And our power bills have not gone through the roof. In fact, the wholesale price of electricity, the actual price of electrons, has gone down by 25 percent. That’s our history so far. In Indiana, which is not a renewables-rich state, the Indiana Public Service Corporation said — told the regulators that for the — from the viewpoint of their consumers, the very best plan for Indiana to comply with the Clean Power Plan was not to reduce its emissions by 30 percent but to reduce its emissions by 45 percent by shutting down every single coal plant because coal plants cost more than alternatives in Indiana.

The reality is coal in the United States is no longer economically competitive.

John Donvan:

Can we do a 15-second rebuttal to that?

Charles McConnell:

There was an article today in Bloomberg that said, “During this administration the amount of increase of renewables in this country is 2 percent.” We’ve had the CO2 reductions in this country because we’ve deployed gas. And it’s a miracle in our country but it’s not a miracle available to the rest of the world.

John Donvan:

Carl Pope?

Carl Pope:

It is perfectly true that the mix of clean energy technologies that works in the United States will be different than the mix of clean energy technologies that works in Africa or India. But the reality is that Africa and India are likely to take a much more renewables intensive pathway. And that pathway has been forged for them by the wind and solar, which we, the Germans, and the Chinese in fairness, have deployed.

The more wind and solar we use, the cheaper wind and solar will be in Africa.

John Donvan:

I want to remind you that we are in the question and answer section of this Intelligence Squared U.S. debate. I’m John Donvan, your moderator. We have two teams of debaters arguing it out against this motion, “Climate Change, The EPA Has Gone Overboard.” More questions?

Female Speaker:

So I would like a concrete example from each side of what the Clean Power Plan would do for a new energy technology, from that side and that side. I would imagine that side would argue it would enhance and something —

John Donvan:

Well, but let’s not predict. Let’s find out.

Female Speaker:

Yes.

Jody Freeman:

Let’s start with the side arguing against the motion. Which of you would like to take it? And I’d like you to sort of do this one in 30 seconds.

Carl Pope:

In Colorado, the —

John Donvan:

Carl Pope.

Carl Pope:

— Public Service Corporation has 10 coal-fired power plants. Seven of them cost more just to operate than it would cost to replace them with new contracts for wind and solar. Under the Clean Power Plan, Colorado could decide to pay that utility the forgone profit on those plants, shut them down, replace them with new stuff, and give the utility the money it’s entitled to, and cheaper power for people in Colorado.

John Donvan:

Other side?

Michael Nasi:

So, I —

John Donvan:

Michael Nasi.

Michael Nasi:

— spend a lot of time with people who actually own power plants. And the problem with this rule — it is — it undermines the economics of being able to invest in them. There is such a thing as dirty old coal plants in this country, and they’re falling out of the grid, just like dirty old gas plants — and at one point in the future, old wind turbines.

The point is that we are throwing away well-controlled units and the opportunity that Chuck is talking about to allow for them to invest in partnership with DOE to commercialize technology. So it is CCUS that is not being able to be deployed because the economics of doing it are undermined before we get off–

John Donvan:

Did we go through CCUS?

Michael Nasi:

Carbon Capture Utilization and Storage.

John Donvan:

Yeah. We did. Before, it was CCS. So, you threw a U in there.

Michael Nasi:

There’s an important difference that Chuck might talk about.

Male Speaker:

Hi. This is a question for Professor Freeman. My name is Marlowe Lewis [spelled phonetically] — and it’s about the cost-benefit analysis that you touched upon. You said that the benefits from the Clean Power Plan vastly outweigh the costs. If you look at EPA’s own estimates, roughly $8 billion a year, just in the compliance costs — they don’t talk about the economic impacts, but just — then they say a mid-range estimate, $31 billion a year in benefits, climate benefits. It’s bigger if you include PM 2.5–those are fine particulate matter effects. But just looking at the climate —

John Donvan:

We knew that.

Male Speaker:

— $31 billion a year in 2030 —

Jody Freeman:

Yes.

Male Speaker:

Now, I’m asking — my question is: how is that even possible, when EPA’s own analysis indicates that in 2100, we may see less than a two-tenths of a degree reduction in global temperatures as a result of the Clean Power Plan, and as —

Jody Freeman:

I’m going to —

Male Speaker:

As the Secretary said —

John Donvan:

I’m going to — there was a question mark there.

John Donvan:

So, let’s take it.

Jody Freeman:

Let me try to do this in a way that’s simplifying and helpful. And that is —

John Donvan:

Well, you don’t have to patronize us. I mean —

Jody Freeman:

No. No. I —

John Donvan:

— we can keep up.

[laughter]

Jody Freeman:

I — for myself. For myself.

John Donvan:

[laughs] Okay.

Jody Freeman:

It’s helpful to simplify. What EPA’s done in its projections is told you about a range of benefits that are public health and welfare benefits for things that will happen to people that will be averted, right, as a result of shifting to cleaner energy.

Now, there are direct benefits from public health impacts — you know, avoiding going to the emergency room, kids not getting asthma, people not getting sick — that are incremental benefits over time, that add up the numbers you’re talking about. And they dwarf the costs. I’m not sure I understand the 2100 problem with it. Consistently, from now to 2020, from 2020 to 2030 and beyond, the benefits consistently are multiples of the costs, and nobody disputes that these are the social costs of carbon in perpetuity. So, I’m not seeing the challenge to EPA’s analysis. But even if you don’t believe EPA — you know, if you just want to throw out their numbers, there are economists who are very well respected, considered conservative economists — look at Nordhaus in Princeton — not considered a crazy liberal — who has modeled climate costs and benefits. And he himself has advocated for doing something now, in terms of regulations to prevent climate change.

John Donvan:

Let’s let Mike —

Jody Freeman:

Forget EPA’s numbers. These are economists’ numbers on both sides of the aisle.

John Donvan:

Mike Nasi.

Michael Nasi:

We could spend a full hour talking about the shell game that is EPA’s assessment of how, somehow, this rule creates benefits — including a reliance upon a bunch of things that don’t have anything to do with carbon dioxide, okay? And it’s fundamentally a dishonest process, frankly. But what I’d actually bring us back to is the rule of law. The Supreme Court has said when these vast economic and politically significant issues are being determined, the agency has to have clear authority. They can’t just make up a new approach for the first time in 50 years and be talking about consequences that are that significant.

John Donvan:

Mike, can I put this question to you, though?

Michael Nasi:

Yeah.

John Donvan:

You just said that they’re playing a shell game. You used the word “dishonest” — that there’s an ulterior motive. Why — what is — what do you think the game is —

Michael Nasi:

It’s an advocacy game, to try to make —

John Donvan:

Controlled by whom?

Michael Nasi:

By the Environmental Protection Agency, the administration.

John Donvan:

Well, who in the environmental — I don’t mean to name names, but I mean you’re saying it’s filled with fanatics, or — ?

Michael Nasi:

No, no. The regulators, they’re advocates. They want their rule to survive. And one way of trying to make their rule survive is to create a public perception that it has some consequence, positively speaking economically and the way they do that is they put a very complex set of assumptions together about how there are economic benefits to so-called life — you know, a longer life and a healthier life.

John Donvan:

Okay.

Jody Freeman:

I love the idea of getting back to the rule of law. So I would like to get there, too. I want to review with the audience what the Supreme Court has done. Mike keeps invoking the Supreme Court on his team, but here’s what the Supreme Court has done with respect to EPAs management of carbon regulation. The Supreme Court ordered EPA to determine whether greenhouse gases posed an endangerment to human health and welfare. They did that in 2007 in the very famous Massachusetts v. EPA case.

EPA made the finding that greenhouse gases endangered health or welfare after an exhaustive scientific review. That finding was challenged in the federal courts and upheld by the D.C. Circuit and the Supreme Court refused to review it. Then, EPA regulated carbon emissions from cars and trucks. I was there in White House working on that policy and they issued a rule that will essentially double fuel efficiency standards by 2025. That rule was also part of a challenge to the D.C. Circuit. That was upheld and the Supreme Court refused to review it.

John Donvan:

Jody.

Jody Freeman:

I’m not — you got to let me finish because it’s the Supreme Court. It’s Mike’s territory. And finally —

John Donvan:

No, no, no. No, no, no. I’m the moderator. You made two points and we can’t keep track of the list. You’ve made two points and I want to ask you how do those points refute your opponent’s argument that the EPA is populated by bureaucrats who want to cook the game?

Jody Freeman:

Well, I can answer that, but I did think the rule of law point was important because I think we have three times the Supreme Court telling them to regulate carbon emissions.

Jody Freeman:

Okay. So we know there were three, but can you take that question?

Jody Freeman:

Okay.

I think it’s a very serious accusation to suggest that the United States government across the board, including the office of management and budget staffed with economists who typically are suspicious of agency agendas to accuse them of cooking the books. What they’ve used is well established economic principles of regulatory impact analysis that every credentialed economist would agree are the typical ways of assessing cost and benefits, including putting a number on the social global cost of carbon and that policy has been ratified and endorsed across the entire U.S. government.

John Donvan:

And when you —

Jody Freeman:

I think it’s a very dangerous thing to suggest that that’s fictional and made up and should be given absolutely no credibility.

John Donvan:

And the Supreme Court rulings play into that how?

Jody Freeman:

The Supreme Court rulings have never suggested that any of these analyses are cooking the books. They’ve enforced the requirement that they be done. Cost benefit analysis must be done, but they have consistently ratified EPAs authority under the Clean Air Act to regulate greenhouse gases. They have the authority has said the Supreme Court, even in the case he keeps citing in which he said they’ve established EPA lacks the authority. It is the opposite.

John Donvan:

All right. That’s what I wanted to get to. So I want to take that back to Mike now. So your opponent is saying that basically your suggestion that there’s an ideology at work in the EPA is somewhat belied by the fact that the Supreme Court going by the law is interpreting the law in a way that supports what the EPA is doing if they were — and it was the suggestion being if they were cooking the books, not a term you used, I used, that the Supreme Court would catch them out at it.

Michael Nasi:

Well, the court did not give EPA blank license to regulate. It authorized that they could under the Act generally it is up to EPA to establish a legal mechanism to do so and it is quite important that in the opinion where it struck down an effort by EPA to try to kind of make its own law as it relates to a permitting program or a tailoring rule that was struck down in that case, that the court shot across EPA’s bow this language about how EPA can’t do that.

So it’s one thing to say you can regulate generally, but they did not give them a roving license to go outside of the rule of law.

Jody Freeman:

Here’s what’s fair.

John Donvan:

Fifteen seconds for last word.

Jody Freeman:

What’s fair to say is it’s a hard legal question. Whether the words best system of emission reduction can allow the agency to think about the whole system it operates in the utility sector, it’s a fair thing to say the Supreme Court has never decided that particular specific issue and will be seeing new law, but it is not fair to infer that just because an agency has never done something before it is precluded legally from doing it under the principle of deference for reasonable interpretations of ambiguous statutory terms.

John Donvan:

And that concludes round two of this Intelligence Squared U.S. debate where our motion is Climate Change: The EPA Has Gone Overboard.

[applause]

And now we move on to round three. In round three the debaters make closing statements uninterrupted. They will be two minutes each.

And here making his closing statement in support of the motion, “Climate Change, The EPA Has Gone Overboard,” Chuck McConnell, executive director of Rice University’s Energy and Environment Initiative.

Charles McConnell:

You know, we can’t help ourselves in America. We think about the U.S. and we see everything through our eyes. And the real story for climate change is being written globally. As a matter of fact, 65 percent of the emissions in the world will come from China and India by 2030. Think about that. So we’re here talking about in some ways majoring on the minor, but what’s the problem here is that if EPA wants to truly develop technology much the same way that we did during the ’70s with coal fired power plants and the ’90s with tailpipe emissions, the EPA collaborates with industry, sets up a roadmap with timing that can allow technology to be developed, deployed, and implemented. Not set up situations where technology is declared commercially ready — and that’s what this power plan does, it requires people to install it on new coal fired power plants — and there’s nobody that’s going to put it on a new coal fired power plant when it’s still in R&D.

So it’s a disingenuous way of being passively aggressively stopping technology development. I’ll tell you the other thing that’s really disappointing about this is we think about the world having the same access to resources that we do. We’ve had a natural gas miracle in this country for the last 10 years. And for all the talk about renewables and how it’s going to change the world and save the day, we’ve increased renewables in this country in the last eight years during this administration by 2 percent. The impact to CO2 in this country has been increased tenfold by natural gas compared to renewables. That’s a great assumption if you’ve got gas. It’s a lousy assumption if you’re in China and India.

And I think we need and owe the rest of the world an approach that gets technology to the marketplace.

John Donvan:

Thank you, Chuck McConnell. Our — you can give Chuck one of these.

[applause]

The motion, “Climate Change, The EPA Has Gone Overboard,” and here summarizing his position against the motion, Carl Pope, former executive director and chairman of the Sierra Club.

Carl Pope:

You’ve heard from the other side a small set of arguments. One, you’ve heard that the Clean Power Plan, EPA’s gone too far because it hasn’t provided the funding needed to commercialize carbon capture and sequestration technology. I think you can make a fair argument that the United States government is not invested enough in that technology. You can make a fair argument the coal industry has not invested enough money. But that has nothing to do with the Clean Power Plan.

The only argument they’ve made for why the Clean Power Plan might impede this technology is that people won’t be building new coal plants to test it out. Guess what? Without the Clean Power Plan nobody is going to be building new coal plants in the United States because the last round that was built, including Sandy Springs in Texas and a number of others, have all been huge economic white elephants because it is a reality, we do have cheap natural gas in this country. And the combination of cheap natural gas and renewables means that building a new coal power plant is not a commercial proposition in the United States. So we are not going to be the ones who do that. The second thing that you’ve heard, which I’m going to leave to Jody, is that the rule is too friendly, too efficient, too flexible.

That’s not how — EPA doesn’t have the power to issue a rule that good. I think that’s — I’d better let Jody answer the legal issues. Finally, what you haven’t heard from the other side is what they would have EPA do to clean up carbon dioxide from our power system in place of that to comply with its Supreme Court mandate to clean up carbon dioxide from the American economy. EPA is a regulator. It’s not fundamentally a technology developer. And we haven’t heard from the other side what they think their version of a power plant rule to clean up carbon dioxide would look like that would not represent in their view overreaching by EPA.

Jody Freeman:

Thank you, Carl Pope.

[applause]

The motion, “Climate Change, The EPA Has Gone Overboard,” and here making his closing statement against the motion, Mike Nasi, partner at Jackson Walker where he practices environmental and energy law.

Michael Nasi:

The most fundamental answer to Mr. Pope’s question is that it’s not EPA’s job. The executive branch may be able to embark on a policy. The statutes that Congress has passed that our elected officials and we have consented to don’t provide them the authority to do what they’re talking about. But let me try to draw you all into who really gets impacted by this rule. Imagine you’re in 1980 and you’re a community leader in rural America. And you get a pitch from the USDA, the Department of Agriculture. The — let’s start a rural electric co-op. Let’s build a power plant to further the dream of rural electrification. And so, you borrow several hundred million dollars with the federal government as your banker and build a plant. You choose coal because the Federal Use Act makes it illegal to use natural gas. And you choose coal because the Democratic national platform says “We should use more coal and expand coal usage because it’s a national imperative.”

Fast-forward 20 years, and the EPA asks you to install pollution control technology. And you do it, and you spend a few — tens of millions more dollars. And you build that in to your rate structure. Now, because you have poor rural electric customers, you relied upon the ability to spread that over the entire life of your facility, which was supposed to be 55 years. And then the last year, EPA shows up and passes a standard that is one half of what your emissions are. It tells you, “Don’t worry. It’s flexible.” But what that means is you’ve got to go pay somebody else to generate zero carbon for twice as much of your power plant — and that cost, again, on rural rate payers. The face of this rule isn’t just some monolithic industry. Rural electric cooperatives and small business are impacted by this rule because they are going to have to retire assets prematurely and their rate payers will be impacted dramatically.

Jody Freeman:

Thank you, Mike Nasi.

[applause]

The motion — Climate Change: The EPA Has Gone Overboard — and here to make her closing statement against the motion, Jody Freeman, professor at Harvard Law and founding director of the law school’s environmental law and policy program.

Jody Freeman:

I wanted to find a quote that would be fun or at least interesting to close with, and I found this one. It’s not so fun, but it’s at least interesting. It’s from the president of Southern Company — a big utility that is adamantly opposed to the Clean Power Plan. And the quote is this: “This policy will increase the cost of electric power, increase the risk and reliability of electric service, dispute — disrupt the long-range planning of utilities, frustrate the regulatory process, and foreclose the use of clean coal technologies.” And that quote was Edward Addison, the president of Southern — the CEO of Southern — talking about the acid rain program in 1989.

The same arguments you heard tonight — “This will lead to rate payer costs skyrocketing,” “it’s too hard,” “it’s too costly,” “it’s going to stultify technology that ought to be developed otherwise” — is the playbook that the coal industry has been playing from for decades and decades. They always say the same thing. The auto industry said this in the 1970s when they were being regulated to control pollution from cars and trucks. And the catalytic converter came and developed, and made that cost-effective. The same was true with the acid rain program. The coal industry said about the acid rain program, as I just read to you — it’s impossibly expensive. And yet, the acid rain program to control sulfur dioxide pollution and nitrogen oxide from the power sector reduced emissions dramatically and more cost-effectively than anyone ever predicted. Peabody Coal said at the time it would be $9 billion, up to 8 or $9 billion to implement that program, and it was on the order of $830 million.

They’re off by multiples. It’s important context, because they say it every time that the sky will fall. EPA is doing its job. It’s just not true that it’s not EPA’s job. Congress said EPA is an environmental regulator. It’s gone where the pollution is — the power sector. And it’s implemented a rational, flexible, reasonable program to move us to cleaner energy.

Jody Freeman:

Thank you, Jody Freeman, and that concludes Round 3 of this Intelligence Squared U.S. debate —

[applause]

— where the motion is Climate Change: The EPA Has Gone Overboard. And now, it’s time to learn which side you feel has argued the best. We’re going to ask you again to go to the keypads at your seat. Same as before — take a look at the motion: Climate Change: The EPA Has Gone Overboard. Press number one if you agree with this motion, number two if you disagree, and number three if you became or remain undecided. And we’ll lock it out in about 15 seconds and we’ll have the results in about a minute and a half actually.

And while we’re waiting for that calculation to happen the first thing I want to say is this is without question one of the most technical debates that we’ve held, both because we were talking about the law and Chevron not a gas station, it turns out, and because we were talking about bureaucratic standards and because we were talking about science and geology. It was very complex and I appreciated how the debaters when requested to brought it down to a more general level of understanding. Thank you for cooperating with that, but more than that, thank you for the spirit in which you debated with each other, which really showed the respect and the level of intelligence for one another that we appreciate and encourage. You really were wonderful about that, so I appreciate what you did.

So this was the first debate of our fall season and we’re going to be back in Washington on November 14th. Here again at GW the motion will be gerrymandering is destroying the political center.

And we’d love to have all of you come back and bring your friends and information on tickets — it’s going to be similar to tonight, but you can get more information about that on our website, but the timing will be the same. Same time of day. Most of our debates, I don’t know if you know, are held in Manhattan in New York City. We’re starting our New York season next week on the 13th. We are going to be debating this motion: Blame the Elites for the Trump Phenomenon. Arguing for the motion we have the Washington Examiner’s Tim Carney and the Federalist’s Ben Domenech. Against them the Washington Post’s Jennifer Rubin and the Wall Street Journal’s Bret Stephens. You can visit our website if you’re going to be up there to buy tickets and for those who can’t join our live audience there are, as we said at the beginning, many, many ways to follow Intelligence Squared debates. You can visit our brand new website at iq2us.org. You can vote on the debates there. You can watch. You can listen. You can comment and a lot more.

Membership for the site is free so you can set up an account and start tracking your favorite debates, and you can build your own IQ score. So, it’s a little bit of gamification of the process, so check it out. You can also watch all of our debates now on demand on our new Roku and Apple TV apps and just search for IQ2 on Apple and Roku. And as I said also at the beginning, we’re a podcast and you can listen to us on public radio stations across the country. One other thing before we do the vote, what we really hope to demonstrate with these debates is that debate can really be a very sort of energizing, exciting, interesting, and entertaining experience all at the same time. We hue to the Oxford style this for and against motion because we believe that debate is something where the two sides really have to try to prove something and we saw that tonight, both sides really trying to prove their points and working hard by marshalling facts and logic and wit and charm as well.

And we contrast these with what we get at the so-called presidential debates, which in our view are not debates because candidates are not actually called upon to prove anything. There is no argument happening in those debates, and so we’ve launched a petition at change.org website encouraging the presidential debate commission ultimately to adopt the Oxford style for at least one of the debates down the road. It’s not going to happen this session, but it’s up there now. We launched it a few weeks back, a few months back, and we’ve not got over 60,000 signatures. We’d love to double that number or triple that number so that it sends a message in the future. If you feel that this kind of presentation, this true debate, this real debate where arguments are presented and well-intentioned, good-willed people who are very intelligent are trying to persuade you in an honest way, that’s what we would love to see happen on the presidential debate stage. So go to the web — go to change.org and sign the petition.

Okay. So I have the final results. Again, reminding you it’s the team whose numbers have changed the most in percentage points between the first and the second vote who will be declared our winner. The motion is this: Climate Change: The EPA Has Gone Overboard. In the first vote 18 percent agreed with this motion, 59 percent were against the motion and 23 percent were undecided. So the team arguing for the motion they had 18 percent. Let’s look at their second vote, 25 percent. That means they pulled up seven percentage points. That is the number to beat, that 7 percent. Let’s look at the team against the motion. Their first vote 59 percent. Their second vote 71 percent. They picked up 12 percent. That means the team arguing against the motion by our rules is declared the winner of this Intelligence Squared U.S. debate where the motion has been Climate Change: The EPA Has Gone Overboard. Thank you from me, John Donvan, and Intelligence Squared. We’ll see you next time.