Carbon Regulation and Its Impact on the Appalachian Basin: Why the Coal-Fired Energy Industry in Appalachia Should Embrace, Prepare for, and Help Shape a Comprehensive Legislative Scheme that Limits Greenhouse Gas Emissions

Abstract

The premise of this article – the coal-fired energy industry in Appalachia should embrace, prepare for, and help shape a comprehensive federal legislative scheme that limits carbon dioxide and other greenhouse gas emissions – may sound counterintuitive. Why would an industry that emits greenhouse gases (GHGs) get on board with a national plan to limit GHG emissions? The reason is threefold. First, some form of regulation limiting emissions is inevitable. Second, in many respects, a comprehensive federal scheme is preferable to the current patchwork that exists. Finally, a comprehensive federal scheme can be tailored to be advantageous (or at least less painful) to the region. Rather than fighting the inevitable, the Appalachian energy industry should devote its efforts to preparing for and helping shape the scheme that will ultimately emerge. Limits on GHG emissions are coming. Recent decisions from the United States Supreme Court, the Environmental Appeals Board, and state permitting agencies show that, if Congress does not act to curb GHGs, EPA can and, arguably, must. With a new administration that supports mandatory caps and major international discussions upcoming to set post-Kyoto commitments, it is not a choice between curbing GHGs and not curbing them. Rather, the choice for Appalachia is whether it will play any role in shaping the regulatory scheme that will emerge. This article concludes that a comprehensive federal approach rather than a patchwork of Clean Air Act regulatory and enforcement efforts could benefit Appalachia’s coal-fired energy dependence in many ways: by gradually phasing in emission-reduction caps; by promoting certainty; by allowing technological flexibility in achieving reduction goals; by providing at least some assistance to low-income consumers who will bear the brunt of the costs associated with emission-reducing technological innovations; and by allowing the purchase of carbon offsets or allowances rather than EPA penalties in the event commitments cannot be met. Appalachian efforts should be focused not on resisting Congressional efforts, but on preparing for mandatory caps and helping to shape the emerging scheme.