Deep Dive Episode 138 – It Can Be Done Live: The Future of Our Earth

The creators of the award-winning documentary, They Say It Can’t Be Done, in partnership with the Federalist Society’s Regulatory Transparency Project, present It Can Be Done Live – a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The third of four panel events, It Can Be Done Live: The Future of Our Earth, took place on September 24th, 2020.

By 2050, 9 billion humans will share this planet and how we protect it is one of the most important questions of our time. How will we ensure that we can adapt to a changing climate, that we will all have access to clean air and fresh water, and that habitats are protected? While these goals have notable public support, reasonable people differ on the best methods to protect the environment. Are there more effective and less burdensome ways to accomplish these vital goals? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

Nate Kaczmarek:  Hello to our audience and welcome. For our audience, please feel free to say hi in the chat and tell us where you’re watching from tonight. My name is Nate Kaczmarek. I am Vice President and Director of the Regulatory Transparency Project for The Federalist Society. This is our third virtual panel for the new film They Say It Can’t Be Done. And in my view, our panels continue to get better and better with each one. 


This evening, RTP and Just Add Firewater are looking forward to a great dialogue on the future of our Earth. We have a very insightful group gathered, and we’re honored that EPA Administrator Andrew Wheeler is here to kick things off. We’re also very fortunate to have a fantastic moderator in Susan Dudley. 


Susan is the Director of the George Washington University Regulatory Studies Center. She is also a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. She previously served as Administrator of the Office of Information and Regulatory Affairs at OMB. Susan holds a masters degree from the Sloan School of Management at MIT and a bachelor’s of science degree in resource economics from the University of Massachusetts Amhurst. 


We’re lucky to have her leadership at RTP and also grateful for her appearance in the film. I would note that Susan’s CV is much larger and more accomplished than what I’ve stated, but you can find her full bio and a complete bio of all of our speakers tonight on our website. The website is That’s If you’re in the audience and you have questions for the panel, please send them along via the chat, and we will ask those questions towards the end of the program. With that, thank you all very much for being here. I’ll turn it over to Susan. 


Susan Dudley:  I was muted there. Thank you, Nate. And I agree. We have an accomplished panel for this evening’s conversation, and I look forward to a lively discussion of the film and other topics that may come up. Now, because Administrator Wheeler has to leave us by 7:30, I’m going to hold off introducing our other speakers until after we’ve heard from him. And I will also try to be brief in my introductions. But I’ll get right to that now. 


Andrew Wheeler is the 15th Administrator of the Environmental Protection Agency. He’s had a long career focused on environmental policy, starting in the George H. W. Bush administration, then serving on Capitol Hill as staff director for the Senate Committee on Environment and Public Works in both the majority and the minority, as well as in the Subcommittee on Clean Air, Climate Change, Wetlands, and Nuclear Safety. He’s also held leadership positions in the private sector at Faegre Baker Daniels Law and Consulting Practices. With that, Administrator Wheeler, the floor is yours. 


Andrew Wheeler:  Thank you, Susan, and thank you, Nate, for inviting me this evening to participate in this. It’s an exciting film. And the film in its premise of wanting to encourage innovation by the private sector, innovation by new market entrance — sitting as the head of regulatory agency, we’re very mindful here. 


I’m very mindful of the impediments that regulatory agencies put into the marketplace that actually stop innovation by new market entrants and the fact that we need to make sure we are encouraging innovation, that we are encouraging a level playing field among everyone in trying to come up with the latest great invention. And we’ve done that in a number of ways. We’re doing that this year in the COVID response on improving disinfectants. EPA improves the disinfectants — think of chlorine wipes that you use on surfaces or think of aerosol sprays. 


And there’s been a lot of applicants this year that have come to us with new products. And it’s important that we don’t just look at the products that come to us from the large multinational chemical companies, but we’re also looking at products from startups, from mom and pop companies, from small businesses. And in order to encourage that, we have to make sure that the tools that we have at EPA are available for everyone. 


So one of the things that we’ve done during this administration is take a hard look at how we are structured internally to make sure that the information that we use for our programs is readily available to the public. And we’ve had five pillars of reform here at EPA to try to open up — shed some light into the regulatory process so everybody understands what we do as a regulatory agency. And those five pillars, the first is our cost-benefit approach on our rule makings. 


We are going through a statute by statute basis to put out a cost-benefit regulation that will require for every regulation that EPA does going forward that we identify the cost of the regulation and we identify the benefits of the regulation so that everybody knows the basis for our regulations. Our second pillar is on science transparency. And I started at EPA — as Susan said, I started my career as a career employee here at EPA back in 1991 working on TSCA and Community Right to Know — the Community Right to Know Act. And I fundamentally believe that everyone has a right to know the basis of our EPA regulations. 


So we have a science transparency regulation. We proposed it two years ago. We put out a second version asking for more comment, and we will be finalizing it sometime later this fall where we will require that the science that we use as the basis for our regulation to be made available to the public. In the event that there is a scientific study that is just very important and that information is not available, the Administrator always has the right to waive that. But it’s important for our regulations on both the cost-benefit and the science transparency side that people know what the basis is for our regulations. 


And I found a lot of the people who are opposed to that are people who would prefer to have our regulations written in the proverbial smoke filled back room. What I’m trying to do is shed light on how we make decisions at the Agency. I’m trying to shed light on the information that we use so that I believe, at the end of the day, our regulations will be better accepted by industry, will be better accepted by environmental organizations and better accepted by the American public. 


Along with this, we reorganized our regions. We have ten regional offices across the country. And every regional office had different names for all their offices. For example, in one of our regions, they didn’t even have a division that had “clean air” in the title. So if you went to our EPA website and you wanted information — if you were a startup business in California or a startup business in Ohio or Florida, you should be able to go to the EPA website and find out which office you needed to talk to. 


So we reorganized our EPA offices. All of our regional offices now mirror headquarters for the first time in our 50-year history. So it’s much easier to navigate across the Agency. If you’re somebody who’s not used to working with the EPA, you can get information much easier now because we have our regional offices mirroring our federal headquarters. 


The fourth — and I announced this at The Federalist Society I think two weeks ago — is our new guidance document. And this is really important particularly for small businesses. For years, our guidance documents, you had to go to EPA to our docket rooms, our physical rooms here at EPA headquarters or in the regional offices, and go through the file cabinets to find the applicable guidance documents that laid out the rationale or the directions or the guidance for our regulations or our rules. And you had to know what you were looking for. 


What we did is we put all of them — our of our guidance documents on a searchable database. We discovered that we had 10,000 guidance documents. All 10,000 are now searchable on the database. This is a huge improvement over the practices of years gone where you had to hire a D.C. law firm — and I actually — when I was in private practice, I had a multinational — it was a top 500 firm that hired us. 


They wanted to know information about a specific program at EPA, whether or not the Agency had ever made any statements on it. They were being sued. They had a product in market, and they were being sued by a competitor. And the competitor was alleging that EPA would not have approved the product. 


So they came to me as a lawyer. I brought them into the EPA. We went to the enforcement office. This is during the Obama administration. And we met with two great career attorneys, and they were very helpful. And they told us, to their knowledge — they’d been at the Agency for, I think, together 15 years. And they knew of no document, no guidance. But they said, “But if you really want to have the answer, you’re going to have to hire somebody to go through all of our dockets to make sure that we didn’t say anything about this 40 years ago.” 


Can you imagine if you’re a small business? This is a large, multinational top 500 company. If you’re a small business wanting to know what the Agency has said about a particular subject, it’s almost impossible. It’s a real barrier to entry into the marketplace. So now all 10,000 of our guidance documents are available for search on our website. 


The fifth area of our reform — of our five pillars is on lean management. And this is where we’ve taken — also called the Toyota system and implemented it across the Agency. And it is improving the way that we process everything. We no longer have — we’ve reduced our backlog on permits over 55 percent. 


State implementation plans under the Clean Air Act, we had one — we found one dating back to 1975 that had never been acted on from the state. It had just been sitting in the EPA Clean Air Office with no action. We had state implementation plans 20, 30, 40 years old. Wherein implementing lean management across the board is speeding up the way we process things. It’s much more fair for everyone, eliminating a backlog. 


It’s also helping the environment. I saw somebody — I was just scrolling through on the people who are tuning into this. There’s someone from Lakewood, Colorado. We have our large enforcement lab in Lakewood, Colorado. And they do the large multimedia enforcement inspections. We would do an inspection in a facility, and it was taking on average 270 days to issue the inspection report to the facility to tell them what their issues and problems were. 


That meant 270 days without any changes. If our inspectors found a problem, nothing was happening at that facility to improve it for the environment. We implemented lean management at our Lakewood facility in Colorado, and, again, they’re the ones that do all of the national multimedia enforcement inspections across the country. We’re now getting 90 percent — I believe it’s 90 percent done within 30 to 45 days. So that is not only providing more certainty if you’re a regulated business, but it’s improving the environment because we’re getting to those facilities and telling them what they’re doing wrong so that they make the corrections and change. 


So these five pillars that I’ve discussed are ways that we are opening up the Agency to sunlight, opening up our regulatory process, making things more fair so that you don’t have to be a large company to hire a fleet of attorneys to come into D.C. and search through our file cabinets. You don’t have to be a large multinational company to figure out the cost or the benefits behind the regulation and what the Agency means. And you don’t have to be somebody who deals with EPA on a day in and day out basis. If you have a Clean Air question and you live in California or you live in New York, you should be able to go on our website and figure out which office in the region where you live that you can ask your question to. 


So this is all about transparency, what we’re trying to do here at the Agency, and I believe it’s leveling the playing field between large companies and small companies. One quick final point I’d like to make, there are a lot of opportunities that we are not taking where large companies come in and want a regulation set that would make it more prohibitive for smaller companies to enter into the marketplace. A perfect example is our recent methane regulations where we changed the Obama methane regulations. 


We had large multinational companies come in and say, “We want you to do a more strict methane emissions regulation.” But the smaller companies are doing some of the most innovative emission reduction techniques in the marketplace, and the regulations that the large companies were asking for would have put some of those smaller companies out of business our priced them out of business. We’ve seen this time and time again over the 50-year history of the EPA where large companies have taken advantage of the regulatory state in order to drive up the regulatory costs to make it harder for small businesses to compete or small businesses to enter into the marketplace. 


So we’re very cognizant of that. And there are several other examples. I don’t want to pick on any particular company, so I won’t. But there’s been several other examples since I’ve been here of large companies coming in and asking for a regulation. And then you look into it, and you see wait a minute. That’s going to cause a monopoly between a couple of large companies, and nobody else is going to be able to compete. And that’s not the American way. 


At the same time we’re doing all of this, just in close, we’ve reduced air pollution 7 percent under President Trump’s administration. Our water’s cleaner than it’s ever been. We’ve invested over $40 billion in clean water infrastructure over the last four years. We’re cleaning up superfund sites at the fastest rate in 20 years. 


And on the enforcement side, because a lot of people have attacked us from the environmental organizations to politicians on saying we’re not enforcing the laws, we announced last week enforcement action against Daimler. We have at this point collected more civil and criminal fines, double what the Obama/Biden administration did during their first four years. So our enforcement stats are twice as good as what the Obama/Biden enforcement stats were at this time during their administration. 


We are enforcing the law if anybody is breaking it. And that’s another form of competition. If you have a company that’s breaking the law in addition to polluting the environment, they’re getting the competitive advantage against their competitors. So we want to make sure that everyone is compliant with the laws of the land, the environmental laws, and if they aren’t, we will go after them. With that, Susan, I’ll be happy to answer any questions you have. 


Susan Dudley:  Thank you. That was great. And especially about innovators, the small innovators, that really does relate to the film that we’re talking about today, in particular the one — I think there’s several things you said that I’d love to follow on in our discussion with the other panelists today. 


The one that we’re talking about today has to do with technologies to reduce climate change. And I want to ask you, there seems to be a mismatch between EPA’s statutory authorities that are focused on conventional pollutants and environmental quality within U.S. borders and the challenge of climate change. So Massachusetts v. EPA required EPA to address greenhouse gases using the Clean Air Act. 


So I wanted to ask you how’s that going? Given your experience both at EPA and Capitol Hill, do you think Congress should try to develop a different approach? And then I’ll just throw in, because I’m the economist on this panel, would a mechanism like a carbon tax incentivize innovations like the carbon capture and sequestration that we saw on the film? 


Andrew Wheeler:  Sure. Well, first, I have to be very careful. I can’t endorse legislation without the approval of OMB or the White House. But I will say that a carbon tax, a cap on trade, other programs would certainly be a different approach than what we are dealing with at EPA because the Clean Air Act was not written or designed to address climate change. Quoting the late John Dingell, the dark headed Congressman from Michigan who helped write the Clean Air Act and the 1990 amendments, he said using the Clean Air Act to regulate climate change would be a glorious mess. 


Actually, I think he said to regulate CO2 would be a glorious mess. And it is. And the Obama/Biden administration found that out when they put their Clean Power Plan proposal out there and the Supreme Court issued their historic stay. We’re often accused of rolling back the Clean Power Plan, but you can’t roll back something that actually never took effect. 


So when we got into office, we looked at what Massachusetts v. EPA said. We looked at our authorities under the Clean Air Act, and we went forward with our ACE rule, which will reduce CO2 emissions from the electric power sector. And we’ve actually taken four concrete regulatory steps to reduce greenhouse gases. 


Our SAFE rule will reduce CO2 emissions going forward from automobiles. The methane regulations will reduce greenhouse gases. And then the fourth one is we’re reducing greenhouse gases from — we proposed this summer. The first three are final. The fourth is a proposal this summer to reduce greenhouse gases from the aviation industry, first time that’s ever been proposed. 


Is the Clean Air Act the best method or the best statute to use for this? No, it really isn’t. There are limitations. And again, the Obama administration found that out when they tried and failed on their Clean Power Plan. But at the same time, it’s important to note that our greenhouse gas emissions have dropped 12 percent since 2005. At the same time, most European countries have gone up. Since 2005, China has increased their greenhouse gas emissions 50 percent. 


There’s a lot of innovation going on in the United States, and I think we need to continue to encourage that innovation. And the film highlights a lot of innovative techniques. And we need to do that. 


On the electric power sector, we’re going to have to solve the battery storage issue if we want to solve energy efficiency long term. And that isn’t there yet. But there are certainly other really promising scientific ingenuity innovations. I’m really encouraged from what I see, and I think we need to make sure that we don’t end up — a mistake that some countries have made and a mistake that we occasionally make not just in environmental regulations but other regulations where we as a government decide what the technology should be. And we regulate to that technology instead of setting standards that allow for innovation in the marketplace. 


And I just want to always be mindful of that that we should not stifle innovation in the marketplace. On the methane, a perfect example, we have doubled — the methane is natural gas. We have doubled our natural gas production since 1990. At the same time, we’ve reduced our methane emissions 15 percent. 


That tells me that there’s a lot of innovation going on in the marketplace to reduce those emissions because it makes sense for the companies involved. Methane is their product that they’re selling. And we need to make sure whatever regulation we impose upon the American public does not stop innovation from occurring. 


Susan Dudley:  Yes. And I think your point, too, about the technology — being careful not to focus on particular technologies, that was something that does come out in the film that that can get in the way of innovation as opposed to finding ways to streamline permitting, not so much in the environmental vignettes in the film but in the other ones, the issues where we don’t know who to go to to get the permits or there’s no process for getting permits to do the things that we want. Could you talk to us a little bit more about what you’re doing? That was one of your pillars. 


Andrew Wheeler:  Actually, one of our goals for the second term on the permitting — sure. And just one more point on the progression, and then I’ll go ahead and discuss the permitting. So we have reduced our permitting backlog, as I said, I think it’s about 55 to 60 percent here at EPA. But it’s important to remember that at this point in time EPA is — well, 96 to 97 percent of all water permits are done by the states. 


On the clear air side, 48 of the 50 states have the permitting programs delegated to them. So the majority of the environmental permits today are done by the states. So one of the things that we’re going to do in the second term is focus on working with the states to speed up their permitting and to help get them more resources, which is not necessarily money. It can be technical assistance, etc. 


But we are going to — as of now when we delegate programs to the states, the only thing we look at — the only measured statistic we look at is on the enforcement side. So starting next year, in addition to looking at their enforcement statistics, we will also start looking at how they process permits and the permitting statistics as well. So that will be something that we will be doing going forward. 


Susan Dudley: Your discussion about the regional work and how the regions work with the states and community-based programs, could you talk to us just a little bit more about that? 


Andrew Wheeler:  Certainly, and that is another priority for our second term. And this is something that I’ve been thinking about and watching the community struggle with for at least 25 years. Back when I worked in the Senate back in 1997, we had a minority mayor from Benton Harbor, Michigan testify in front of the Senate committee. 


And she came in front of the committee, and she said “The EPA Brownfields office is encouraging us because we have a lot of abandoned facilities across our inner city — they’ve come to us and they’ve recommended that we apply for Brownfields grants in order to rehabilitate these old industrial facilities, turn them into productive use, encourage new businesses to move in.” And she said, “The Air Office at EPA has come in and said, ‘You are in nonattainment, and you cannot increase your air emissions.’ What am I supposed to do? I have the Brownfields office saying you need to redevelop, and I have the Air Office saying you can’t bring any new businesses into your city.” 


It’s a paradox that we’ve put a lot of cities into across the country. We also have, I believe, a perverse environmental outcome — it’s an unintentional outcome over the last 50 years of EPA where we have encouraged businesses, instead of redeveloping in our inner cities — we have encouraged them to move out into green space, into former farmland and put new facilities in those areas. Instead, we should be encouraging them for the jobs to clean up sites in inner cities and reuse those facilities. 


So instead of diverting resources, we want to work with the cities to look at their environmental programs holistically. We want them to look at their air issues, their water issues, their waste issues all at one time. So we’re going to promote a community environmentalism at the community level going forward. 


One of the ways we want to do that is to create, for example, a master grant application for cities. We take maybe a dozen different EPA small grants and package them together. But what I’ve told my staff we can’t take 10 grant applications, each one 10 pages long, and then give a mayor 100-page grant application. We have to, as an Agency, restructure the way we think and combine those programs and combine them into a smaller grant application. So it will help the cities think holistically about their environmental problems, and it will also help the EPA staff think holistically about environmental problems. 


We are a very siloed agency. We have our air program, our water program, our waste program, and our chemicals program. And our offices have historically had a hard time talking across the silos. So what I’m trying to do and what we’re trying to do as a team going into the second term is to take a look at those silos, tear them down, work more together on a holistic approach to solve the environmental problems in the communities where the people live. 


Susan Dudley:  If I have time for one more question, speaking of cities and where people live, there are serious concerns about worse environmental degradation in areas of people who are low income. What can we do about that? 


Andrew Wheeler:  Well, we have taken that head on. Under President Trump, we elevated environmental justice to the Administrator’s office. In the past, it was just in our enforcement program. And that puts it at the end of the process. You can’t really take into account environmental outcomes and the way the environment impacts low income communities if you only look at it after the pollution’s already occurred. 


So we have elevated environmental justice in our administration for the first time to the Administrator’s Office, where we now look at it across the entire regulatory process, at the very beginning when we’re developing our policies, developing our regulations. You have to do that in order to take environmental justice seriously. I think that President Trump’s Opportunity Zone tax credit program in the 2017 Trump tax plan was probably the biggest environmental boom to environmental justice communities than all the environmental justice grants over the years because that’s focusing — it’s focusing private sector money into these low-income neighborhoods by ZIP Code. 


There are inner city opportunity zones. There are rural counties that qualify for opportunity zone tax preference or tax treatment. That is helping these communities deal with their environmental issues and concerns. And then the water bill that President Trump signed into law two years ago was the first time that environmental justice — the concept of environmental justice office at EPA has ever been recognized in law. So we’re doing a lot there. 


But we’re also doing it in focusing on the superfund side. When I said earlier that we cleaned up 27 superfund sites last year, the most in any one year since 2001. We will have by the end of this year I believe it’s 81 or 82 superfund sites cleaned up during this first four years, which is equal to what the Obama/Biden administration did in their first eight years — or their only eight years, I guess. 


So we are really focusing on, in particular, superfund cleanups and Brownfields in low income neighborhoods and minority communities. And that what we need to do. But by putting environmental justice at the beginning of the process instead of only looking at it at the end I think is going to be a big help going into the future. 


Susan Dudley:  Well, thank you very much, Administrator Wheeler. 


Andrew Wheeler:  Thank you. 


Susan Dudley:   And I’m sure that there’ll be a lively discussion after you leave us, so tune into the recording later. 


Andrew Wheeler:  I’m sure I said nothing at all controversial, and I’m sure everybody will agree with everything that I’ve done. 


Susan Dudley:  I’m sure. 


Andrew Wheeler:  Thank you. 


Susan Dudley:  All right. Thank you. So let me now introduce our other fine panelists, and I’ll start with — I’ll introduce all three of our panelists first. And then we’ll go in that same order with some opening remarks. 


So David Doniger is speaking to us today as a senior advisor to the Natural Resources Defense Council Action Fund. David is a lawyer and climate expert who joined NRDC in 1978 and is now Senior Strategic Director of its Climate and Clean Energy Program. He served in the White House and the EPA during the Clinton administration. 


Next we’ll hear from Charles Hernick. He’s the Director of Policy and Advocacy at the Citizens for Responsible Energy Solutions Forum in Washington, D.C., where he leads policy work and executes strategies to advance clean energy solutions and innovative approaches to reducing carbon emissions. Charles is an energy and climate change expert who’s worked at the crossroads of economic development, energy, and natural resource management across the U.S. and in over a dozen countries in Africa, Latin America, and the Caribbean. 


And then James Coleman is an associate professor at Southern Methodist University’s Dedman School of Law where his scholarship focuses on energy law, including the regulation of North American energy companies, how countries account for and influence regulation of fuel and electricity in their trading partners, and how global energy companies respond to competing pressures from investors and regulators in multiple jurisdictions. So David, would you start us off with some opening remarks?


David Doniger:  Yes, thank you very much. It’s good to be here and talk at a Federalist Society session. Hopefully, I can convey some perspectives that you might not hear so often. 


As I listened to Andy Wheeler, I heard in the first part of his talk a focus on managerial steps, some of which are important. Others quite frankly are, from our vantage point — reflect an agenda of trying to impose barriers to public health and environmental protection. What I didn’t hear was any focus on the core threats to people’s health and wellbeing. That should guide EPA’s mission. 


And the number one thing that is missing from this administration’s environmental agenda is a serious and honest approach to climate change. Climate change is the central environmental challenge in this country and the whole world. It might have been thought speculative and doubted — you might have been more free or more credible in doubting this 10, 15, 20 years ago, 40 years ago. But the chickens are coming home to roost. 


We have another season of horrible wildfires in the West, another season of record hurricane activity in the Atlantic and in the Gulf of Mexico. We have so many signs, so much evidence that not only is climate change a future threat, it’s a present threat. And it is a threat to our health, to our economy, to our infrastructure, to our most vulnerable communities, and to all the other kinds of life on this planet. 


It will have — but it’s already having even more impact than something on the scale of the global COVID pandemic, only slower, but far more permanent in its pace and scale. The pollution that’s driving climate change, once it goes into the air, it lasts for centuries. Carbon dioxide lasts well over a century. Methane is a little bit shorter, still several decades. We are way over — the atmosphere’s way overloaded already. We’re way deep in over time to address this problem. 


The last administration took significant first steps here at home and brought us into what I would call a virtuous global cycle. The previous administrations had said “I won’t do it.” And in the Paris Agreement and in the diplomacy leading to it, we moved from that to “I will if you will,” a virtuous cycle. 


And with all due respect to Administrator Wheeler, this administration’s climate denial, its protection of the fossil fuel industry, its wreckage of our international relationships and leadership can never be forgiven. If this administration is only a one term affair, we will be able to save EPA as an institution and save the Clean Air Act and the other laws that are the tools for action. And we’ll be able to restore Congress’ ability to function, at least I hope so. 


And if we take smart action, climate solutions can be part of a new era of public and private investment in clean energy, in new American industries and jobs, and in repairing long festering racial, social, and economic inequities. But the time lost due to this administration’s denial and rollbacks, we can never get that back. It’s irremediable, and our children and our grandchildren will pay for that in the impacts that could have been averted. 


Now, I would just like to take a moment to respond to several of the things that Administrator Wheeler said about carbon — about climate regulation. His four steps that he mentioned are all rollbacks, are all intended to disassemble first steps taken in the last administration or impose barriers to taking steps in the future. The vehicle rule, the so-called SAFE rule, is actually an unsafe rule. It will lead to more, not less, death from pollution and traffic accidents. 


It rolls back the progress that was — we were going to have vehicle emissions cut in half from new cars — the carbon emissions, the greenhouse gas emissions compared to where they were in 2012 by 2025. They basically are [Inaudible 37:00], and there will be nearly a billion tons more carbon pollution introduced into the air from the vehicles built under these weaker standards. The powerplant regulation that they [Inaudible 37:16] in place of the Clean Power Plan is actually an attempt to lock in a do nothing rule and maybe even to revive coal plants so that they run more and pollute more rather than less as a result of the rule. If it makes any progress at all, it’s on the order of a 1 percent change by the end of this decade. 


The airplane regulation is actually a proposal to lock into EPA regulations less than what the airlines are already doing — a less efficient aircraft fleet than the airlines are doing. So you might say it would be irrelevant because it’s surpassed by what happens in the marketplace. I’m a believer that standards should be based — they should be set as performance standards. We shouldn’t be picking technologies. We should be using economic instruments like a cap in tradable permits. We are open to reforming how regulation occurs. 


But we just cannot solve this problem by appealing to innovation alone. We need innovation, but it needs to be — as someone said in the film, standards and regulations create the conditions that drive innovation by making it necessary and actually rewarding to solve a problem that nobody recognized was a problem. You know, the market [Inaudible 38:59]. When you have standards that are smartly designed to internalize those costs, you get tons of innovation and cost reduction. And we should be designing the rules to produce that. 


But we need rules because otherwise there’s no drivers, no rewards for that kind of innovation. And until we get serious in recognizing the extremity of the climate change threat and start using EPA’s current powers and thinking about new legislation — until that, we are failing our children and our grandchildren on a scale that [Inaudible 39:46] they will — and they will hate us for it. So those are my thoughts, and when the time comes, happy to answer questions. 


Susan Dudley:  Thank you, David. Charles, let’s hear from you now. 


Charles Hernick:  Sure. Thank you, Susan, and thanks to Nate and The Federalist Society for putting this event on. It was a pleasure for me to watch the movie and think about this. I agree with the title of this conversation. It can be done. 


I don’t disagree with David at all in terms of the urgency of the climate change problem and the situation that we’re in, but I don’t believe that we’ve lost any time on the clock. And I know that focusing on the two pillars the movie really focused on, innovation and regulation — the right kind of regulation — we can go far. I think one thing that is clear — and the Administrator mentioned this — is that the law constrains the Executive Branch right now in terms of what can be done to regulation CO2


And so that’s not to say that nothing has happened in the United States though. I think in a very federalist and appropriate way states have stepped up. We’ve seen great state leadership and different policy courses overtaken over the last four years and more and more states committing to net zero, more and more companies committing to net zero, focused on what they can do — tech companies like Microsoft and Amazon, but oil companies as well, Shell, BP, Total, just to name a couple of the companies that have dedicated to reduce emissions as quickly as possible and achieve net zero by midcentury, which is consistent with what the science tells us that we need to do. 


These are good independent actions. It’s not only up to the federal government to solve the climate problem. We, as individuals and as consumers, can do a lot. And I think that what you’re seeing is a response to unprecedented demand from individuals and other companies to reduce emissions. 


I want to provide a little background and context, and I’ll keep my remarks relatively short so that we can get to the meat of the conversation here. But my background is informed by over a decade of work, working as a consultant to the U.S. Environmental Protection Agency in states and really understanding what that federal-state policy nexus is but also working for over six years in countries in Africa and Latin America. And scrolling through the list of where people are attending from, it’s not just folks from the United States but from the developing world, too. 


One of the major challenges that we have in the United States to tackle the climate change problem is 100 years of built infrastructure. Every morning, I wake up. I go to the bathroom and brush my teeth, and I turn on the light. And it comes on. And that doesn’t happen everywhere in the world. And that’s something that is fantastic but also creates a lot of drag and inertia in terms of our ability to change and upgrade and move to that clean energy future that we know that we want to head to. 


To overcome those burdens of what is our historical infrastructure legacy, we need a keen focus on regulation to be able to permit new technologies the way the Administrator was talking about in a seedy way. The administration has put a good focus on modernizing NEPA and providing businesses a single point of contact when they’re dealing with the U.S. federal government. It’s not an easy process. 


And when you look at something like a hydropower relicensing, that’s something that can take almost a decade. And if we’re really serious about tackling climate change, we need to be able to deploy all of the above technology resources as quickly as possible. And so to do that, we do need to look at what are the appropriate regulations, what’s the appropriate amount of red tape to assure that safeguards for people and public health are being met? I agree with David in that standpoint, but we also need to be able to actually implement the project that will deliver that clean energy and those environmental benefits as quickly as possible. 


On the innovation standpoint, we have a lot of technologies at our fingertips to be able to make this transition. But in every corporate plan, how to get there in years 2040 and 2050, it’s still to be determined. And we know that there’s more technology that we’re going to need. That focus on innovation is absolutely critical, not just for tackling climate change but for creating the jobs that we know that we need to have come with it. 


Two-thirds of all new jobs come from small businesses. And right now, when we’re looking at an era where a lot of folks have unfortunately been either put to working from home or have had their paychecks decreased or lost their jobs entirely, we need to look at how we can create robust economic growth and tackle climate change at the same time. So assuring that all technologies can compete and that we’re focusing on innovation and what are the appropriate roles for government, what are the appropriate roles for the corporate sector in fostering that innovation, and deploying those technologies is something that we need to work on. 


We’re developing new nuclear technologies and small modular reactors here in the United States. But we can’t deploy them. We have to look to other countries to be able to do that just because regulations haven’t been modernized. 


There are new types of hydropower that have smaller environmental impacts than ever before in the history of hydropower. And that’s the oldest way of generating electricity. There are 88,000 dams in the United States, and only 3 percent of them generate electricity. A lot of those dams need to be taken down to restore environmental benefits and salmon corridors and restore environmental benefits that are needed in local areas. But if we can add and electrify even a percentage of those 88,000 dams, we’re talking about a lot of clean electricity. 


And that’s something that we do need to be able to focus on. But if those types of projects are caught up in seven plus years of regulatory red tape, it’s not going to happen. And it’s not going to happen on a fast-enough timeline to safeguard my young daughters, who I hope can grow up in an environment that is clean and readily available. 


The good news is that for a lot of the world there’s still folks that need those first kilowatt hours of electricity. For my friends that tuned in from Brazil and other parts of the world, there’s a lot of need and there’s an open field where new technologies can be deployed. And a lot of folks will be able to leapfrog the types of old legacy technologies that we’re stuck with here in the United States. And that’s a good thing. 


So looking at that innovation as beneficial not just here in the United States but it means that if we can innovate here at home, those — we can export to other countries. And there will be an American flag put on the clean energy when it’s developed across Africa, Latin America, and part of Asia. So I’ll leave it at that, and I’ll look forward to this conversation. 


Susan Dudley:  Thank you, Charles. All right, James. 


James Coleman:  Thank you so much. And it’s just wonderful to be here. Thank you so much to all the panelists. This is an amazing amount of expertise on one panel. 


So I’m going to start by building on something that I think all of our panelists have said, which is that this is an incredibly urgent task. There’s an urgent need for cleaner energy sources because we need to both lower our greenhouse gas emissions here in the United States and also to lower them globally to address the climate challenge. So in fact, I just wanted to deepen that challenge –which it’s not just climate because, in fact, if you look at our most urgent challenge environmentally is clean air. 


If you look at some of the rules that were proposed during the Obama administration — if you looked at them on a cost-benefit basis, often even here in the United States the biggest benefits they produced was as a side matter by cleaning up our air. And in most of the world, clean air is an even bigger concern than it is here in the United States. And then there’s a third challenge, which is increased energy access because there are billions of people in the world who do not use as much energy as all of us use just for our refrigerator in our house. 


So we need to massively expand access to energy across the globe. But if you look at the people that do have energy, most of that comes from the biggest source in the world is coal power. So they don’t always have access to the same clean energy technologies that we have here in the United States, so it’s a huge challenge. 


I think the other thing I would say about — so I totally agree with the urgency of the task but also the importance of focusing on technology. Because for those of you who spend any time on energy issues, what you’ll know is there are so many possible solutions that people look at. They look at — we heard talks of dams. You have existing solar wind batteries, as the Administrator discussed. You could go to more advanced forms of solar power. A lot of people are exited about forms of nuclear power, geothermal. 


There are a lot of different available options. And each of those options comes with different challenges when we’re looking at the impact on air quality, when we’re looking at the impact on our need for resources and mining, when we’re looking at the impact on climate. So I think it is very important, as all of us has emphasized, that we don’t yet know — the energy system has produced so many surprises over the last decades. We’re not sure which of these mix of technologies is going to get us where we need to go. 


As David said, that doesn’t mean we can stand still. We can’t just wait until we’ve got the technology figured out. We need to have regulations that don’t lock us in to bad choices but do encourage good choices. As Susan said, one option potentially is a carbon tax. If you look on the capture, one solution that you see in the video is carbon capture. And that is something that we are incentivizing through certain policies, basically through these 45Q tax credits that are designed to encourage at $35 or $50 a ton carbon capture and sequestration. And so there are efforts to do that, but we obviously need to have a more systematic way of encouraging all of these. 


So the last thing I would just say is that, in keeping with the name of our movie, it can be done. So there are these huge challenges in front of us. But if you look at what U.S. greenhouse gas emissions were projected to be in 2004 or 2005, we have made drastic progress — dramatic progress in cutting those emissions. And it’s fair to say we should have cut much more. 


But if you look at the change in what was projected then and what we’ve done now, you see the impact on some of the technologies, our improved deployment of wind and solar, our increased production of natural gas. So we have had a lot of things that have caused us to have lower emissions, so we’ve already made great progress on these. We know it’s possible to produce economic growth and energy — reliable energy access while addressing these problems. But it is an urgent problem that we need to be pushing through all the different technology options. 


Susan Dudley:  Okay. Thank you everyone. I think I heard a lot of agreement that, yes, this is something — climate change is something that we do need to address, the urgency of the problem. I’m curious whether people think the Clean Air Act is a tool that can help us do that and that there are going to be a lot of different technologies that we need to be able to use to address this problem. 


I’m going to bring us back to the film if I can. I was struck by the difference between the four innovator scenarios. For three of them, the entrepreneurs’ frustration seemed to be getting permission from regulators to test and bring their innovations to market. But for the CO2 capturing machines, the entrepreneur seemed to be asking for new regulation that required carbon capture and sequestration. 


So I’m curious what you all thought about that. Because when I hear someone calling for regulation that requires other companies to use their technology, it raises a red flag. That was something Administrator Wheeler said that they’re alert to — that when big businesses come in and say regulate in a certain way, that raises a red flag that maybe it’s to give them a competitive edge. 


And that’s something that we know about regulation, that often it does get hijacked to provide well connected interest competitive advantage, undermining the purported goal. But the entrepreneur in that vignette, I think he does raise important points. For those who haven’t seen it, he’s creating artificial trees, windmill machines that do try to — that can capture and then sequester carbon. 


What policies can we find that incentivize solutions like that? So I’ll just pop in the carbon tax again. I hear from — I’ve heard from some of you all of the above. David, you did talk about a carbon tax where you pay a tax when the carbon is taken from the ground, and then you get a rebate when it gets put back into the ground. So I’d love to just open it up to everyone. And I see David is already eager to jump in. 


David Doniger:  Yeah. Well, I guess a point I should have made in just how dire the emissions overload is, we use to think about we have an emissions budget left to spend. There are pathways to get to net zero by 2050 or earlier if you can, but we really ought to think about that as everything we do from now until then is adding to a problem which is already serious and making it worse. So that puts a big premium on figuring out not just how to stop putting carbon dioxide into the air but how to remove it from the atmosphere. 


So these technologies that are being explored in the film are very interesting and should be encouraged and can be encouraged by regulatory structures, a variety of them. Tax would be one approach. Although, there are a lot of issues with how you could get an effective tax implemented, frankly. 


A cap in trading approach is another approach, some sort of responsibility — corporate responsibility approach, mainly you need to be responsible for removing what you put in the air, sort of cradle to grave approach. There are various ways to do that, and they can be structured in ways that are technology neutral and innovation friendly. 


But mainly you need a constraint, an economic one or a quantity one, which is going to motivate people to invest in and pay for the use of technologies like that. And NRDC is in favor of exploring those technologies, especially if the CO2 is permanently sequesters. We’re less comfortable with using it as an incentive for more oil production, but that’s a different matter. 


If I could just say one thing more in response to Susan’s concern about — and Andy’s concern about big companies/small companies. My view of the methane situation is quite different from what Andy Wheeler portrayed. What you have is a bunch of small companies, all of which are really — they’re decent size companies. They may be in trouble [Inaudible 57:10] at the moment because of [Inaudible 57:14], but they are companies that are millionaires and billionaires. 


And they have just, whether it’s on libertarian principle or self-interest or cussedness, they have resisted doing really simple things to zip up the leakage of methane from their operations. Then you have the majors who are willing to do that and in many cases have been doing it. Many of the smaller companies have been doing it too, but there are a number of them which have been pushing for this rollback ever since the Trump administration began. And it has the flimsiest of justifications. And it will be struck down in the courts. And I’m very confident of that. 


So yes, there is a possibility, and it happens that companies use the regulatory process to try to gain specific advantage. But if we’re smart about how we design these performance standards, we should be able to prevent that and still address these problems, create the signals that drive innovation in the marketplace, which can only come by limiting or pricing these things that the marketplace is currently ignoring. 


Charles Hernick:  I want to jump in and disagree with David a little bit because I think that, if we’re in a hurry to solve the climate problem, we can’t wait for the political miracle to occur where legislation is passed to establish mandates and regulations and cross our fingers that what comes out the other end is going to be useful for solving the climate problem in a meaningful and quick way that actually is beneficial to all Americans. The best quote that I loved in the movie was that voters aren’t very organized. Lobbyists are very organized. 


And I think that if we rely on a regulatory approach, we’re going to end up with a solution that favors a lot of the existing actors, which are interested in moving as slowly as possible and maintaining the longest economic life of their existing assets. And we’re not going to solve the problem as quickly as we can. The best way I think to do this is a nonregulatory approach that favors improving information for consumers, small/large investors, and allowing supply to match demand. 


And the reason for that is we can talk about carbon tax. We can talk about a cap in trade. We can talk about a clean energy standard. These are all ways from the economic perspective — and Susan, you can correct me if I’m wrong — to internalize an externality. But the problem and what’s changed is that climate change isn’t an externality anymore. 


Everybody knows about climate change. Any Twitter feed that you follow — and Republicans and conservatives and Democrats and liberals all agree that climate change is real, and we need to do something about it. Where the disagreement occurs is what and how. And that’s where, if we can provide consumers with the right information, then they can empower themselves to take the action and choose product A or choose product B and reduce emissions. 


Imagine a world where you’re driving down the street — and now that we’re driving more and more again, this is actually realistic. But if you’re going to choose the gas station at the left or the gas station at the right, right now we’re shopping on price point. But imagine a scenario where these carbon capture utilization storage technologies have been deployed, as oil and gas companies want to, and gas station on the left is your traditional gas. Gas station on the right is selling net zero gasoline where carbon was sequestered on the front end and what comes up, it’s still gasoline. 


It’s still going to emit CO2, but that carbon has been otherwise sequestered further up in the system. This is a way that we could empower consumers and deliver these solutions to the marketplace a lot faster without extra regulations mandating carbon capture. But by empowering consumers, this is a way that we could help solve the problem in a much quicker way. 


Susan Dudley:  James, do you have any thoughts on that? 


James Coleman:  Let me say something in a comment because I think I probably come down more on the regulatory side. Although, I would say that the correct amount of carbon emissions isn’t zero either, so I’d be more on the tax. Make companies pay for the externality. 


But I was thinking one thing I think we have in common is the need for building new infrastructure. Whatever you believe in, we need more clean energy infrastructure. And I think if you look at the plans of the current administration or a potential Biden administration, one big goal is building a lot of new energy infrastructure. And I think currently our permitting system — it’s not just NEPA; it’s a bunch of things. But it has slowed those things down. So there needs to be work on permitting reform to make that faster. 


Susan Dudley:  I’m seeing some really interesting questions in the chat box, and maybe I’ll just bring out one of them that I saw flashing by. And that was what about energy poverty? We do care about environmental justice. And to what extent do the costs of increasing — so now, Charles, you talked about the gas station that uses the capture and sequestration. 


But that gas is going to be more expensive. And people are still going to be making decisions based on their pocketbooks. So how is it that we do internalize those, rather than just provide the information? And second, what do we do about the problem that this is going to increase energy costs? And increasing energy costs are going to hit the lowest income people obviously the hardest. 


Charles Hernick:  That’s absolutely true for the oil and gasoline example. If we were to sequester right now, the costs are higher. But James mentioned the 45Q tax credit. That’s helping and will help reduce the cost of carbon capture and storage. The more it’s deployed — and this is the story with any innovative technology. The more it’s deployed the more the costs come down. And as we’re able to manufacture more of this technology in the United States, eventually it will be cost competitive and cheaper. 


And that story is true when you look at solar power and wind power. Right now, it is cheaper in every part of the United States to build new solar and build wind than it is to build any other type of fossil fuel generation, with the exception of natural gas in some cases. So we’ve reached that point where even without subsidies, solar and wind are competitive. 


So we can look at the energy poverty equation, and I think that that’s absolutely true when you look at liquid fuels in the automotive sector. There might be that trade off right now. But when you’re talking about solving the energy poverty question in the United States as it relates to electric power or even around the world, we’re at this point where solar and wind are really the best bet and where there are other renewable resources that can be brought online in a cost competitive way, hydropower, for example. 


But if you have to pay attorneys on an hourly basis for seven years, it gets to be a very expensive hydropower project just on attorney fees. So if we can look at fast tracking some of these permit approval processes, still creating environmental benefits to the waterway but also from a clean energy generation standpoint, then we’ll be moving quickly. 


David Doniger:  I have two points. Some of the worst forms of regulatory capture that are being exhibited right now are by the owners of legacy coal plants and nuclear plants that are trying to get public subsidies to keep them open. And the worst example of that is HB6 in Ohio, which passed. And we now discovered the passage of that bill was lubricated by $60 million in outright bribery. So environmentalists and libertarians can agree that there are many places where the regulatory system is screwed up in this way. 


One other thing that I neglected to mention earlier is one of the steps that Andy Wheeler and the Trump administration have taken that is most destructive in the climate area is refocusing what they call the social cost of carbon. In any effort to balance benefits and costs and to figure out really where you would want to put the limits or how you would want to price the pollution, you’d have to have some decent idea of what the benefits of curbing the pollution are. Now, back in the Bush administration — the second Bush administration, the National Highway Traffic Safety Administration published a fuel economy rule. 


And in that rule they said the benefits of curbing carbon dioxide pollution are uncertain, so we will assign them a value of zero in the cost-benefit analysis. And the Ninth Circuit court of appeals said, “That’s the one answer that has to be wrong. If you’re acknowledging that there’s damage but you put zero into the equation, that’s the one answer that’s clearly wrong.” 


So the Obama administration attempted to develop a principled, articulated, transparent methodology for determining what benefit number you should associate with the reduction of one ton of carbon dioxide. And one of the principles of that is, well, this stuff spreads all around the world. We should take into account not just the damage that occurs in our own borders but the damage that’s imposed on other countries. And there’s a reciprocity principle there. 


You want China to do that. You want the European Union to do that — to take into account the damage they’re doing to us, not just the damage they’re doing to themselves. This administration has scraped that and substituted an analysis which confines itself to the damage that our pollution does solely within our borders. And I don’t think they estimate that very well. But even so, it ignores the bulk of the damage that’s done outside our borders. 


And if everybody did that, it would be the equivalent of my neighbor throwing his trash into my garden and me throwing my trash into his garden. And we would both wonder why our gardens are full of trash. So this is one of the most damaging and least honest analytical changes that this administration has imposed in the climate area. And they’ve lost on this point a couple of times already in court. And they’re headed for more defeats on the implementation of this cramped methodology. 


Susan Dudley:  But David, I’ll ask you a question I asked the Administrator. Doesn’t that argue that the Clean Air Act just isn’t the right tool because the Clean Air Act does talk about air quality in the United States? How can that be a tool to look at air quality in other countries? 


David Doniger:  Well, actually, the Clean Air Act has provisions in it that directly address when our pollution is causing harm in other countries. It does not limit itself to the damage or the welfare impacts that occur in our country. So that’s simply not a limitation. 


Look, if we were starting from scratch, I wouldn’t say that the Clean Air Act is absolutely ideal exactly as it’s written. But in 1965, President Johnson asked Congress to pass new clean air legislation that included tackling climate change — in 1965. And in 1970, Congress did that. The authority has been there. The courts have recognized that it’s there. You can do very effective things under the Clean Air Act. You can’t do everything that’s needed. 


And there are good arguments that there might be ways to do things more efficiently. But to paraphrase Donald Rumsfeld, you fight climate change with the laws you have, not the laws you wish you had. And that has been the guiding principle to do what we can under this law, which was built to be adapted for new pollution problems, not just the things that were right in front of the first EPA Administrator. 


Charles Hernick:  It’ll be a frustrating next 30 years if we’re still waiting to figure out how to use the Clean Air Act to regulate CO2 and get that done. And that’s why I’m a bigger fan of doubling down on the existing federal and state roles. What David’s been talking about is mechanisms for increasing costs of CO2 emissions using federal powers to do that. I’m not interested in figuring out how we can raise costs. 


That’s going to exacerbate the energy poverty problem, Susan, that you mentioned. The historical and best federal role has been to help signal the market — send a strong signal to the market through tax incentives. And it’s worked. It’s taken nascent technologies from solar and wind that are fully deployable, even now without the tax incentives. Maybe we need to revisit those tax incentives to better understand if they should be utilized not now for a new industry but to tackle the climate problem. 


We can send a price signal. It doesn’t have to be increasing costs. It can be focused on reducing costs for sequestration like carbon capture utilization and storage as James mentioned or for carbon emissions avoidance, which is really what you’re talking about when you’re looking at renewable technologies. States, on the other hand, are the only places where you’ve seen the types of policies that David has been talking about in terms of increasing costs. 


States have capped and traded carbon dioxide emissions. States have been able to put in clean energy standards that guide, at the state level, the types of policies and regulations that need to be enacted to tackle the climate problems. And I think that that’s a good thing. State regulators, state elected officials are much easier to hold to account than folks at the federal level. And I think that there’s less likely to be some of the problematic regulatory design and really slow regulatory design that you do see at the federal level. 


James Coleman:  And I would also say that states are nothing to sneeze at. So I’m very interested in Canada’s climate policy, very interested in Alberta’s climate policy. And California is bigger than the entirety of Canada. And for better or for worse, sometimes we see things about how some of these policies work out by working with the states. 


I do think there are some coordination problems that occur that in some ways FERC has a role in managing. And I do think that, if we see a lot of climate action, I don’t believe that the majority of it’s going to happen under the Clean Air Act going forward. I think, to the extent you see climate action, it may be with majorities that are interested in pushing it through different methods. But these still are important regulations obviously under the Clean Air Act. 


Susan Dudley:  Well, Nate, I think maybe it’s time for me to turn things over to you to look at the audience questions and maybe share some of those with our panelists. There’s a lot going on in the chat. I have one line — yeah. And a lot going on there, too. 


Nate Kaczmarek:  I’m doing my best to track them. There’s a bunch of questions that kind of are around a similar theme. I think they want some discussion from the panelists about the technologies that are being advanced that everyone’s most excited about. I think they want to hear more about innovations in this space and also maybe resources so they can learn more about where would you direct people if they want to learn more about such technologies.


David Doniger:  I’ll just say that what we need is a portfolio. And it’s a portfolio of investment in new technologies, so the government has a key role in that. I mean, it’s going back to the promotion of the railroad. Federal government has been instrumental in reducing the cost of many of the clean energy technologies through the research and development that was done through the Energy Department. And while some people like to pick on a couple of losers, overall, their portfolio is damn good and has very good returns. 


The tax credits, which are even more neutral in the sense that — well, they’re just more technology neutral — are also very important in bringing down clean energy costs. But deployment is going to be a problem, except where you’re really able to get the costs below current incumbent technologies. If the incumbent technologies are dirty but they’re cheaper, they’re going to stick around. They’re going to stick around forever until we have some sort of limits on the pollution. But we do need a portfolio of investment in clean technologies and deployment through getting the market signals right. 


Charles Hernick:  To talk about some of the technologies that I’m most excited about, I think the carbon capture utilization and storage space is really fascinating to me. So this is taking carbon dioxide — and here in Maryland there’s a coal fire powerplant where they take the carbon dioxide and then they utilize it, purify it, and it comes out. And they can use if for fizzy drinks, to carbonate beer and soda and what not. And that seems good and fine. 


Sequestering it underground in large quantities is the next step and scalable and something that has been demonstrated in Texas and in Illinois. And it’s right around the corner. We just need to actually have those market signals come across better and in a longer-term way. And that’s been one step in the right direction through the 45Q tax credit. 


So I think that whole space where we can look at how to reduce emissions in heavy industry and in some of the existing oil and gas and fossil fuel fleet that we have is vital, not because we’re ever going to build a new coal fire powerplant in the United States. We won’t. But they’re still building coal fire powerplants in Africa, in Asia, and in Latin America. And if we can have U.S. technologies where we’ve refined carbon capture storage and we can retro fit and help sell those technologies around the world, than we can help solve what is truly a global problem. 


When it comes to here in the United States, some of the things that I’m most excited about and maybe that I lose the most sleep about are how to keep and maintain nuclear power online. David mentioned the great scandals that have unfolded protecting some legacy assets. And it’s a problem. I’m not going to hid that at all because some of these plants aren’t nearly as economical as they used to be. But we still need to be able to value their environmental contribution. 


Nuclear power provides something like 30 percent of the electric power to the United States. That 30 percent is a pretty big slice of the pizza, but it provides 60 percent of the zero emissions power that we have available today — 60 percent. That’s not something that we can walk away from. And a lot of these nuclear assets are reaching the end of their useful life or will do so in the next 20 years. The small modular reactors that need to fill in and bridge the gap behind them are still very early in their infancy. And that’s something that we need to see piloted and fast tracked with support of the federal government from a very clean permit standpoint and siting standpoint. 


So there’s more that the government can do. It has to do with regulatory modernization rather than making new regulations. And then one of the commenters that I did see talked about hydropower, and the question is like aren’t hydropower project really terrible for waterways? Yeah. In a lot of cases they have been. And that’s why I think looking at existing dams and infrastructure — and I mentioned 88,000 dams in the United States. 


A lot of those are on the cusp of falling apart. Some of them were built 80 years ago, 100 years ago. They need to be retrofit, or they need to be taken down. If it would restore a waterway, let’s take it down. And we can have the Army Corps of Engineers help and do that work. 


If there’s a way to establish a public/private partnership so that the work can be undertaken to retrofit that dam and generate electricity, the money comes from the private sector. The benefit is that a public asset, that dam, gets revitalized and rehabilitated. It creates local jobs and creates clean energy in a local way. That’s a big win. And I think that that’s what I’m really interested in seeing is how we can lower costs and create locally appropriate clean energy solutions all around the United States and then be able to deploy those solutions around the world. 


James Coleman:  So I would say in terms of things that have been very impressive, if we look at the last decade, certainly the expansion in solar, wind, and natural gas power that we had that allowed us to clean up our power system dramatically, that has been something that we weren’t necessarily looking for. I think the other big surprise that’s helped us clean up both our air and our climate has been rise of electric vehicles. I think people thought it was going to be a bigger challenge to make a profitable electric car that people wanted to buy. And it’s done. And as a result, you have a company worth an insane amount of money. 


But I think there are those challenges that we don’t necessarily expect, and then we can get them. But I would say that in terms of our biggest challenge, one of our biggest challenge is permitting around innovation. And if you look at Green New Deal, the idea — let’s get off of fossil fuel and go to all zero carbon renewable sources in ten years. Well, if you look at the current time to permit a powerline — like if I just wanted a little more wind power on the system, it’s over ten years. 


So how are you supposed to entirely change the system if it takes over ten years to permit a single power line? And as I said, I think NEPA is part of the issue there, the National Environmental Policy Act. But there are other issues as well. If you look at — in 1935 San Francisco decided to build Treasure Island, and it was finished in 1937. 


In 2001, they decided they wanted a new bus lane on Van Ness. A couple years ago they said, you know, maybe we’ll get to it by 2022. So there is — in all public planning processes and regulatory process, there has been an extreme — there has been extreme lengthening of timelines and particularly for somebody who’s interested in integrating more renewable power into the grid. 


Texas has more wind power than anywhere. Why is that? That’s because we figured out a permitting process to get the power from — to ease permitting for the powerlines. And that’s a huge challenge with respect to all of our clean energy sources, whether it’s renewable or natural gas, etc. It is getting permitting done is very difficult, whether you’re looking to provide a new product or do new infrastructure. So I think there’s an opportunity to accomplish big things if we can solve some of those permitting issues. 


Susan Dudley:  I did think, getting back to the film again, that the project — those artificial trees — if the incentives are right so that he can build them, he’s going to run into permitting problems. So we’ll run into the other problem that we have. But I’d just like to agree with you, James, that I think we can’t predict today what the solutions are going to be. And trying to do that, trying to predict what technologies and give them a nudge I think is dangerous because it gets in the way of maybe an innovation that we hadn’t thought of. Nate, do we have time for another audience question, or should we wrap up? 


Nate Kaczmarek:  Well, I think we’ve done a pretty good job actually of answering a bunch of the questions in the chat, so I guess I would just give maybe 30 seconds to each of our panelists to maybe conclude. If you have a final thought to leave with our audience, that would be great. And David, if you’d like to go first, we’d love to have your reflection. 


David Doniger:  Well, thanks. I am actually encouraged by the fact that everybody on this panel seems to agree that the climate change problem is real and serious, while we may have differences about how to deal with it. This is not the kind of dialogue I had at The Federalist Society meetings a few years ago. And so if we can all agree that we have a huge problem on our hands, then it should be easier to see our way to some solutions. And I look forward to working with anybody to achieve that. So thanks for including me. 


Charles Henrick:  Sure. And maybe I’ll just build off of what David said. I think there is consensus. We have reached this tipping point that there will be federal action. There will be additional state action, and I think that we can welcome that. It’s not just up to the states. It shouldn’t just be up to the federal government either. It should be up to corporations. It should be up to individuals to be able to take action and do something of their own accord to be able to drive home this net zero future that we need to get to. 


From a policy standpoint at the federal level, I’d love it to be as limited as possible and focused on reducing costs and increasing options. And if we can do that, we will be able to assure that all of the options are on the table for local governments, for businesses, for individuals to be able to site what’s locally appropriate. And if it’s at the lowest possible costs, we’ll be able to deploy it quickly, get more bang for the buck, more emissions reductions in the near term and in the long term and be able to export those solutions to the least developed countries in the world and really tackle this problem on the time horizon that we have left ahead of us. 


And I think that it can be done, and I am encouraged by this conversation. So thanks for the opportunity to participate. 


James Coleman:  Thank you so much to all of you. I really am very encouraged as well. And I’d just say that if you are looking for more information on some of these things, I do with Southwestern, University of Texas, Colorado, and South Carolina, we have an website where we look at — we do a bunch of podcasts on that. I’ve got a lot on my website at But I would also encourage please, everybody, watch this movie. It’s pretty cool. The technology is really amazing, and I’m optimistic about humanity’s ability to solve this using innovation. It’s one of our best qualities. We’ve got some bad ones. That’s a good one. 


Susan Dudley:  Nate, I’ll just say thank you for hosting this. And yes, if you haven’t watched the movie, do. Nate, you told me earlier today that it actually won an award. I guess you did say that to the group. So it’s an award-winning movie. 


Nate Kaczmarek:  That’s right. Best Documentary at the Anthem Film Festival. So we’re very excited about that. I think it was also tied for the audience’s pick for the best documentary. So great stuff and great stuff again with this conversation. I’m grateful to all of you for joining us, certainly to Administrator Wheeler and Susan and David, Charles, and James. We really appreciate it. We welcome your feedback on tonight’s program by email at [email protected]


In the chat box, you’ll see a link to next Thursday’s program. That will be on the future of our food. That’s October 1st at 7:00 p.m. That panel will feature the Secretary of Agriculture, Sonny Perdue. We will have John Mackey, the CEO of Whole Foods, join us. We’ll also have Joss Tetrick, the CEO of Eat JUST who was featured in the film, and Anastasia Boden who will moderate it from the Pacific Legal Foundation. With that, it’s been a wonderful panel. Thanks, everyone. Have a great night. 

James W. Coleman

Robert G. Storey Distinguished Faculty Fellow and Professor of Law

Southern Methodist University Dedman School of Law

David Doniger


Climate & Clean Air Program, Natural Resources Defense Council

Charles Hernick

Vice President of Policy and Advocacy

Citizens for Responsible Energy Solutions

Andrew Wheeler


Office of Regulatory Management, Office of the Governor of Virginia

Susan Dudley

Director, GW Regulatory Studies Center & Distinguished Professor of Practice

Trachtenberg School of Public Policy & Public Administration, George Washington University

Energy & Environment

They Say It Can’t Be Done

It Can Be Done Live

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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