Final Paper Global Climate Change and US Law - Professor Kuh (edits)

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An Industry’s Varying Position Within the Scope of
Global Climate Change Legislation – The Impact Felt
Within the International Brotherhood of Electrical
Workers
Thomas Erikson
Global Climate Change and U.S. Law
Professor Kuh
December 8, 2016

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Table of Contents
Section I – Introduction …………………………………………………………………………..1
Section II - American Clean Energy and Security Act (“ACES”) ……………………………….1
Section III – IBEW Support of ACES ……………………………………………………………5
Section IV – The Clean Power Plan ………………………………………………………...…..10
Section V – Basis for IBEW’s Policy and Legal Objections to the CPP ………………………..13
Section VI – ACES More Aligned with the IBEW…………………......……….....……………17
Section VII – Overview of IBEW and TUED…………………………………………………...20
Section VIII – Conclusion ………………………………………………………………………22

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Section I – Introduction
The International Brotherhood of Electrical Workers (“IBEW”) supported the American
Clean Energy and Security Act (“ACES”) in 2009 but is now legally challenging the Clean Power
Plan (“CPP”). This paper analyzes the core provisions of both ACES and the CPP and the reasons
offered for the IBEW’s support for the former and opposition to the latter as a means to explore
the complicated considerations underlying the IBEW’s approach to climate change. Ultimately,
the IBEW’s differing response to these green house gas emissions (“GHG”) control measures is
based upon the legislative process or lack thereof and the target groups each measure was set out
to control. First, I will describe the key provisions of ACES and then evaluate the IBEW’s reasons
for their support. Next, I will describe the key provisions of the CPPand the EPA’s defense against
the legal challenges they are currently facing from states and organizations like the IBEW.
Additionally, I will assess whether these differing views on each piece of legislation meant to
control GHG emissions are consistent or inconsistent and which proposl falls more in line with the
IBEW’s goals and interest as the leading union in their industry. Finally, I will compare the
IBEW’s climate change position to current initiatives such as Trade Unions for Energy Democracy
(“TUED”) and analyze how their goals may coincide with the IBEW’s goals.
Section II – American Clean Energy and Security Act (“ACES”)
The 2008 presidential election campaign for Barack Obama was founded on the vision of
“hope and change” for future generations.1 President Obama laid out an agenda for his presidency
that addressed a number of challenges facing the United States at the time of the campaign.2 While
1 Daniel J. Weiss, President Obama’s Clean Energy Progress: How the Top 10 Energy Priorities
Fared During His First Term, Center for American Progress (Jan. 9, 2013, 12:00 AM),
https://www.americanprogress.org/issues/green/reports/2013/01/09/49187/president-obamas-
clean-energy-progress-how-the-top-10-energy-priorities-fared-during-his-first-term/.
2 Id.

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the imminent threats to the global climate continued to grow, President Obama planned to deal
with the increasing concerns around public health due to climate change, air pollution, and
protecting our nation’s energy supplies.3 Quickly following the election, newly-elected President
Obama and the 111th Congress set the stage for climate regulation, placing a comprehensive
climate and energy bill at the top of the list of legislative priorities.4 In June 2009, the U.S. House
of Representatives passed the American Clean Energy and Security Act of 2009, (“ACES”)
otherwise known as the Waxman-Markey bill, by a vote of 219 to 212.5 The overall purpose of
ACES was to mitigate climate change while building a clean, sustainable energy economy through
a variety of strategic actions aimed at reducing GHG emissions that contribute to global warming.6
For example, measures within the Act range from the implementation of a “cap and trade system”
and development of renewable energy sources to requiring a carbon capture program for coal-fired
energy sources while imposing new energy efficiency standards. 7 Unlike the House of
Representatives, the Senate was unable to pass its own comprehensive climate and energy bill
despite the work from a number of key Senators and committees.8
ACES sought to create clean energy jobs, promote energy independence, reduce global
warming pollution and aid in the transition to a clean energy economy.9 Titles I-V of ACES deals
with clean energy, energy efficiency, reducing global warming pollution, transitioning to a clean
3 Id.
4 American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).
5 Id.
6 Timothy Ramsey, Understanding the Federal Climate Change Legislation: The American
Clean Energy and Security Act of 2009, H.R.2454, The National Law Review (Sept. 1, 2009),
http://www.natlawreview.com/article/understanding-federal-climate-change-legislation-
american-clean-ene.
8111th Congress Climate Change Legislation, Center for Climate and Energy Solutions,
http://www.c2es.org/federal/congress/111 (Last visited Dec. 1, 2016).

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energy economy, and providing for agriculture and forestry related offsets, respectively.10 Key
provisions of the Act include: creating a combined energy efficiency and renewable electricity
standard and requiring retail electricity suppliers to meet 20% of their demand through renewable
electricity and electricity savings by 2020;11 setting a goal of, and requiring a strategic plan for,
improving overall U.S. energy productivity by at least 2.5% per year by 2012 and maintaining that
improvement rate through 2030;12 and establishing a cap and trade system for greenhouse gas
(GHG) emissions and setting goals for reducing such emissions from covered sources by 83% of
2005 levels by 2050.13
In order to achieve these results, the primary method developed within ACES is the cap
and trade program. According to the Environmental Defense Fund, “cap and trade is the most
environmentally and economically sensible approach to controlling greenhouse gas emissions.”14
The “cap” sets a particular limit on emissions that continues to be lowered over time to reduce the
amount of overall pollutants released into the atmosphere which contributes to climate change.15
The “trade” part of the program leads to investment and innovation as companies are allowed to
buy and sell carbon allowances in order to meet or come under their cap, which would result in
greater incentives to invest in cleaner technology; the less the company emits, the less they pay.16
Following the passage of ACES in the House of Representatives, the EPA completed a
detailed analysis of the Act finding that “H.R. 2454 transforms the structure of energy production
10 Id.
11 Id. at 12.
12 Id. at 682.
13 Id. at 1018.
14 How cap and trade works, Environmental Defense Fund, https://www.edf.org/climate/how-
cap-and-trade-works (Last visited Dec. 1 2016).
15 Id.
16 Id.

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and consumption.”17 Overall, the EPA’s analysis projected that this Act would substantially lead
to greater clean energy technology that would create new jobs; for example, they found that nearly
65% of the new generation built by 2025 will be renewable with 92% being low carbon with
billions of dollars allotted to those states to create clean energy jobs. 18 Accordingly, they
determined that the costs of the Act would be low especially for consumers.19 For example,
consumer spending on utility bills would be about 7% lower in 2020 due to the energy efficiency
measures implemented within the Act.20 In addition, under the Act, the economy would have the
potential to grow exponentially while implementing clean energy technology and reducing
pollution.21 According to the EPA, the nation’s gross domestic product would grow from $13
trillion in 2008 to over $22 trillion in 2030.22 Finally, the Act would lead to a balanced and diverse
mix of energy generation while creating markets that reduce emissions.23
On the other hand, an analysis conducted by the Heritage Foundation’s Center for Data
Analysis (“CDA”) concluded that ACES “represents an extraordinary level of economic
interference by the federal government.”24 Overall, they predicted not only would it directly impact
17 EPA Economic Analysis of “The American Clean Energy and Security Act of 2009,”
ENVIRONMENTAL PROTECTION AGENCY (June 23, 2009),
(http://www.c2es.org/docUploads/hr2454_epasummary.pdf.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 William Beach, Karen Campbell, David Kreutzer, Ben Liberman & Nicolas Loris, The
Economic Consequences of Waxman-Markey: An Analysis of the American Clean Energy and
Security Act of 2009, Center for Dara Analysis Report on Energy and Environment (Aug. 6,
2009), http://www.heritage.org/research/reports/2009/08/the-economic-consequences-of-
waxman-markey-an-analysis-of-the-american-clean-energy-and-security-act-of-2009

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consumers through high electric bills and gasoline prices, but would also suppress economic
activity and reduce employment.25
Despite such competing analysis, in addition to promoting the United States’ energy
independence and protecting the environment, ACES was drafted with the intent to create millions
of new clean energy jobs.26 As a result of this balanced approach in its wide range of key
provisions, ACES was backed by a broad array of supporters ranging from industry leaders to
environmentalists among many others including electric utilities, oil companies, major
manufactures, environmental organizations, and labor organizations.27
Section III – IBEW Support of ACES
ACES was supported by these broad coalitions of environmental groups and businesses,
including various labor unions across the United States based on a number of grounds that align
with their own goals and interests within their own industries. Within the American Federation of
Labor and Congress of Industrial Organizations (“AFL-CIO”), among the Building Trade Unions
exists the IBEW. Primarily these unions, like the IBEW, are among those that are mostly impacted
first by climate change mitigation programs, but continue to be the most active within the labor
movement in fighting global climate change.28 Commentators found union support for ACES
surprising and notable. The IBEW represents skilled workers including power plant and building
trades workers, in an industry that builds and maintains our energy’s infrastructure and constructs
25 Id.
26American Clean Energy and Security Act, H.R. 2454, 111th Cong. § 1 (2009).
27 111th Congress Climate Change Legislation, Center for Climate and Energy Solutions,
http://www.c2es.org/federal/congress/111 (Last visited Dec. 1, 2016).
28 Tim Costello, Labor and Climate Change: A Briefing Paper for Activists, LABOR NETWORK
FOR SUSTAINABILITY (Mar. 19, 2010), http://www.labor4sustainability.org/wp-
content/uploads/2010/03/laborandclimate_03192010.pdf.

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buildings that consume tremendous amounts of energy.29 These electrical based jobs range from
everything involving power plant construction to maintaining our nation’s electrical grid.30 Sean
Sweeney, Director of The Cornell Global Labour Institute, seemed impressed by the fact that
unions were on the progressive side of this critically important vote for this type of proposal.31
Collectively, the unions, including the IBEW, fought to ensure that this House Bill protected
existing jobs, established prevailing wage provisions, and funded worker training while
simultaneously creating a proper pathway to reducing GHG emissions drastically- a 17 percent
reduction below 2005 levels by 2020, and 83 percent by 2050.32 ACES ignited a spark among
these unions as they rallied behind the idea that fighting against global climate change could drive
an “industrial renaissance” and lead to the rebuilding of the middle-class.33 The term “green job”
developed new salience as policy conversations started to take place at national, state, and
municipal levels as industries anticipated the expansion of renewable energy while making
buildings and industries more energy efficient leading to the creation of new employment
opportunities.34 This led unions, such as the IBEW, to create their own labor policy regarding
global climate change. For example, the primary focus of the IBEW Utility Conference in 2009
was on changing times.35 It was acknowledged that climate change was an unavoidable challenge
29 Id.
30 Id.
31 Sean Sweeney, More Than Green Jobs-Time for a New Climate Policy for Labor, NEW LABOR
FORUM,http://www.local2627.org/resources/pdf/More_than_Green_Jobs__Sean_Sweeneys_Lab
or_and_Climate_article1.pdf.
32 Id. at 53.
33 Id. at 54.
34 Id.
35 IBEW Utility Conference Confronts Changing Times, IBEW 1245, (July 16, 2009),
http://ibew1245.com/2009/07/16/ibew-utility-conference-confronts-changing-times/.

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going forward and solutions among many others were discussed which included energy efficiency
and new technologies to capture carbon emissions from coal-fired generation.36
Certain provisions of ACES were appealing to the IBEW. For instance, ACES was
proposed as an economy wide approach and by imposing a price on carbon, would in effect “take
carbon out of competition” and also spread the burden of mitigating GHG emissions across a
number of sectors and not just the power generation industry.37 ACES also offered protections
against imported goods from countries with no carbon controls in carbon-intensive industries in
the form of International reserve allowances. More specifically, Section 768 – International
Reserve Allowance Program specifies border protection regulation for the sale, exchange,
purchase, transfer, and banking of international reserve allowances for covered goods with respect
to the eligible industrial sector.38 Therefore, unions like the IBEW showed support for ensuring
that a price on carbon introduced under the cap and trade system not be allowed to harm U.S.
manufacturers domestically in ways such as destroying jobs here at home, while driving companies
overseas to countries like China where industry is less energy efficient leading to a carbon
leakage.39 Therefore, unions supported the Act’s border adjustment measures, a carbon tariff, and
allowances for producers while encouraging even stronger measures. 40 Following the Kyoto
Protocol, the United States was among the first countries to draft a bill, ACES, that set goals to
36 Id.
37 Interview with Sean Sweeney, Director of Cornell Global Labour Institute and the coordinator
for Trade Unions for Energy Democracy (Nov. 26, 2016).
39 Sean Sweeney, More Than Green Jobs-Time for a New Climate Policy for Labor, NEW LABOR
FORUM,http://www.local2627.org/resources/pdf/More_than_Green_Jobs__Sean_Sweeneys_Lab
or_and_Climate_article1.pdf.
40 Id.

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address competitiveness regarding domestic industries and issues of carbon leakage.41 Under the
Act, carbon leakage is defined as, “any substantial increase in greenhouse gas emissions by
industrial entities located in other countries if such increase is caused by an increment cost of
production increase in the United States resulting from the implementation of this title.”42 In terms
of promoting international reduction emissions, the Act introduced sections that restricted imports
based on an appropriate amount of carbon allowances to cover the imported goods being brought
in from developing countries.43 However, an exemption on allowance was permitted under two
conditions- only if such imports are from least developed countries or is a party to an international
agreement to which the U.S. is a party and there exists a nationally enforceable and economy wide
GHG emission reduction commitment for that specific country that at the very least is as strict as
that of the United States.44 In an effort to promote a strong global front to significantly reduce
GHG emissions, Part F – Ensuring Real Reductions in Industrial Emissions helps to design such
rebates in a way that will prevent carbon leakage while also rewarding innovation and facility-
level investments in energy efficiency performance improvements.45 Interestingly, the topic of
border adjustment measures evolved as major concerns regarding protecting the competitiveness
of American industries and developing country participation arose. 46 In 2007, the company
American Electric Power (“AEP”) raised the idea of including such measures and was able to
41 Souvik Bhattacharjya & Nitya Nanda, Potential Impact of Carbon Barriers to Trade: The
Case of India’s Exports to the US under Border Tax Adjustment (The Energy and Resources
Institute Working Paper No. 3, 2012),
http://www.teriin.org/projects/nfa/pdf/Working_paper3.pdf.
43 Id.
44 Id.
45 Id.
46 Harro Van Asselt & Thomas Brewer, Addressing competitiveness and leakage in climate
policy: An analysis of border adjustment measures in the US and the EU, ScienceDirect, (Jan.
2010), http://www.sciencedirect.com/science/article/pii/S0301421509006399.

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secure the support of one of the largest labor unions, IBEW.47 Together a proposal was drafted
with intense motivation stemming from the idea around the protection of international
competitiveness of American industries and jobs, the prevention of a global increase in GHG
emissions through a shift in energy-intensive production, and the need to have a “stick” in place
to encourage major emitting developing countries such as China and India to participate in the
fight against global climate change.48 Pieces of the AEP/IBEW proposal can be found in a number
of bills such as ACES.49
Finally, ACES introduced some “just transition” provisions that could protect worker
income and support relocation and offer other forms of assistance to workers that might be
impacted negatively.50 A major section within the Act, entitled Subtitle B – Green Jobs and Worker
Transition includes two parts regarding green jobs and worker adjustment assistance. 51 For
example, clean energy curriculum development grants can be awarded to develop programs of
study that are focused on emerging careers and jobs in the fields of clean energy, renewable energy,
energy efficiency, climate change mitigation, and climate change adaption.52 In addition, Section
422 and Section 423 include increased funding for energy worker training programs and
development of information and resources clearinghouse for vocational education and job training
in renewable energy sectors, respectively.53 Most notably, Section 425 sets out provisions for a
climate change worker adjustment program where groups of workers, unions, or employers may
47 Id.
48 Id.
49 Id.
52 Id.
53 Id.

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petition the Secretary of Labor and the Governor of the state in which the employment site is
located.54 The particular petition shall seek certification that the group employed has been
adversely impacted due to provisions of this Act, and if certified, the group would be eligible for
adjustment allowances, training and other related benefits.55 These specific pro-worker provisions
that offered a number of benefits and protections for a variety of groups, as well as the economy
wide approach focusing on protecting domestic American jobs from foreign competition, along
with a number of other benefits not previously analyzed here all led to the overall support of ACES
by the IBEW.
Section IV – The Clean Power Plan
A few years following the creation of ACES, President Obama and the EPA announced
another historic plan to fight climate change.56 Promulgated under the Clean Air Act (“CAA”), the
Clean Power Plan (“CPP”) was created with particular regulation and standards.57 According to
the White House and the Office of the Press Secretary, “The Clean Power Plan is a landmark action
to protect health, reduce energy bills for households and businesses, create American jobs, and
bring clean power to communities across the country.”58 This plan established the first ever set of
national standards to limit carbon pollution from power plants within the electric power sector
54 Id.
55 Id.
56 Overview of the Clean Power Plan-Cutting Carbon Pollution from Power Plants,
ENVIRONMENTAL PROTECTION AGENCY, https://www.epa.gov/cleanpowerplan/fact-sheet-
overview-clean-power-plan.
57 The Clean Power Plan: A Climate Game Changer, Union of Concerned Scientists,
http://www.ucsusa.org/our-work/global-warming/reduce-emissions/what-is-the-clean-power-
plan#.WCdtguErIdW.
58 Fact Sheet: President Obama to Announce Historic Carbon Pollution Standards for Power
Plants, The White House – Office of the Press Secretary, (Aug. 3, 2015),
https://www.whitehouse.gov/the-press-office/2015/08/03/fact-sheet-president-obama-announce-
historic-carbon-pollution-standards.

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while promoting clean energy innovation, development, and deployment and maintaining the
reliability of our national electric grid across the United States.59 More specifically, the major
provisions of the CPP set standards to reduce carbon dioxide emissions by 32 percent from 2005
levels by 2030, 9 percent more ambitious than the proposal; provide significant public health
benefits by reducing premature deaths from power plant emissions by nearly 90 percent in 2030
compared to 2005; drive more aggressive investment in clean energy technologies resulting in 30
percent more renewable energy generation in 2030 and continuing to lower the costs of renewable
energy, prioritize the deployment of energy efficient improvements in low-income communities
with wind and solar through a Clean Energy Incentive Program, and finally continue America’s
leadership on climate change by setting the goal of reducing emissions to 17 percent below 2005
levels by 2020 and to 26-28 percent below 2005 levels by 2025.60 Comprehensively, the CPP was
created to achieve and maintain an affordable, reliable energy system, while simultaneously
reducing pollution and protecting the United State’s public health and environment for both the
present and for all future generations.61
In regards to this paper however, the primary opposition stems from the specific provision
set out under the Clean Air Act- Section 111(d) for existing power plants.62 This state- based
program for existing sources empowers the EPA to use its authority to issue standards, regulations,
guidelines, and modifications deemed appropriate to address carbon pollution from existing power
59 Id.
60 80 Fed. Reg. 64,662 (Oct. 23, 2015).
61 Overview of the Clean Power Plan-Cutting Carbon Pollution from Power Plants
ENVIRONMENTAL PROTECTION AGENCY, https://www.epa.gov/sites/production/files/2014-
05/documents/20140602fs-overview.pdf.
62 42 U.S.C. §7411(d).

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plants in order to meet the required reductions for air pollutants.63 This Section for carbon pollution
standards for power plants resulted from the Supreme Court decision in Massachusetts v. EPA,
549 U.S. 497 (2007),64 holding that GHG emissions constitute “pollutants” under the CAA and
leading to the EPA’s finding that they endanger public health and welfare.65 However, the CPP is
already the subject of many legal challenges from a number of states, fossil fuel-fired power plants,
and other groups that oppose limits on carbon pollution.66 The primary focus of this paper revolves
around the challenge against the EPA’s authority to regulate these carbon pollutants from the
power sector across the United States. However, the EPA firmly contends that their authority and
responsibility to regulate carbon pollution under the Clean Air Act, more specifically under
Section 111(d), is well established and is ready to take on these challenges.67 For example, the
Supreme Court held in American Electric Power v.Connecticut (2011).,68 that this specific Section
“speaks directly” to the regulation of carbon pollution from existing power plants.69 The EPA’s
approach is two fold: not only do they issue minimum environmental standards that echo the “best
system of emission reduction” for these existing sources but also permits states the opportunity to
develop their own plans in order to satisfy these requirements in the best way possible.70 This
63 Clean Power Plan-Regulatory Actions, Environmental Protection Agency,
https://www.epa.gov/cleanpowerplan/regulatory-actions.
64 Massachusetts v. EPA, 549 U.S. 497 (2007).
65 ENVIRONMENTAL DEFENSE FUND, SECTION 111(D) OF THE CLEAN AIR ACT-THE LEGAL
FOUNDATION FOR STRONG, FLEXIBLE & COST-EFFECTIVE CARBON POLLUTION STANDARDS FOR
EXISTING POWER PLANTS (2013)[hereinafter WHITE PAPER], available at
http://www.edf.org/sites/default/files/section-111-d-of-the-clean-air-act_the-legal-foundation-
for-strong-flexible-cost-effective-carbon-pollution-standards-for-existing-power-plants.pdf =.
66Tomas Carbonell, ENVIRONMENTAL DEFENSE FUND,
https://www.edf.org/sites/default/files/content/cleanpowerplan_strong_legal_foundation.pdf.
67 Id.
68 American Electric Power Company, Inc., et al., v. Connecticut, 131 S.Ct. 2537 (2011).
69 Id.
70 Tomas Carbonell, ENVIRONMENTAL DEFENSE FUND,
https://www.edf.org/sites/default/files/content/cleanpowerplan_strong_legal_foundation.pdf.

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approach is fully aligned with the “cooperative federalism” approach enacted by the EPA in which
they have applied broadly for the last forty years.71 For example, in developing these state targets,
the EPA has utilized a wide range of cost effective technologies that have been proven successful
in reducing carbon emissions by improving the efficiency of existing power plants and shifting
generation to low or even zero-emitting facilities because they have already been implemented by
states and power companies under other Clean Air Act programs.72
Overall, Section 111(d) is said to be legally grounded and fully consistent with the EPA’s
approach and authority granted by the Supreme Court ensuring that it is founded on the best
available technical information that will not interfere with the affordable and reliable supply of
electricity powered by these power plants.73
Section V – Basis for IBEW’s Policy and Legal Objections to the CPP
The IBEW expresses two chief policy concerns about the approach and impact of the CPP-
its impact on energy sector jobs and on the reliability of the electrical grid-each of which is
described in more detail below. In addition to other labor unions that represent energy workers,
the IBEW began to criticize the EPA’s proposed CPP claiming the Plan will not only eliminate
jobs but also put the electrical grid at risk. The crux of their argument was presented by their
previous International President Edwin D. Hill in a statement expressing fear and disbelief, “If
these rules are implemented as written, dozens of coal plants will shut down and with no plans to
replace them, tens of thousands of jobs will be lost and global carbon emissions will rise
anyway.”74 The IBEW estimated that to reduce 40,000 megawatts of coal-generating capacity by
71 Id.
72 Id.
73 Id.
74 IBEW Says EPA Plan Threatens Jobs, Grid, IBEW, (July 11, 2014),
http://www.ibew.org/articles/14daily/1407/140711_epa.htm.

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2020, would directly impact and eliminate 50,000 jobs and indirectly eliminate another 100,000
to 150,000 jobs that are based on the economic activity created by coal plants.75 The IBEW’s
primary focus in opposition to the EPA’s plan revolves around both the issue of preserving jobs
as well as the impact it will have on the U.S.’s power system. For instance, shutting down a
number of coal plants in a short period of time will lead to these existing plants’ inability to supply
power in unexpected extreme weather situations which would result in more blackouts and higher
electric prices for customers.76 The idea of utilizing more renewable energy sources such as solar
and wind are proposed within the Plan, but according to industry wide experts these sources and
technologies will not be enough to sustain the required power needed to be produced.77 President
Hill emphasized, “The EPA has consistently underplayed the pain of previous regulations and
working families have paid a heavy price, and we must make our voices heard to avoid another
preventable blow to working families.”78 It is their belief that highly-skilled, middle-class jobs,
primarily in the rural regions of America, would be lost with few comparable employment
opportunities.79 They also argue that the EPA’s efforts are fruitless because despite the efforts in
reduction made and achieved by the U.S., developing countries such as China and India are
continuing their large coal production in order to drive their growing economies.80 The IBEW
views this plan as “a classic example of federal tunnel vision-focusing on a single goal with little
75 Id.
76 Id.
77 Id.
78 Id.
79 Edwin D. Hill, Electrical Workers vs. the EPA, THE WALL STREET JOURNAL (Aug. 14, 2014),
http://www.wsj.com/articles/edwin-hill-the-electrical-workers-union-vs-the-epa-1408057784.
80 IBEW Says EPA Plan Threatens Jobs, Grid, IBEW, (July 11, 2014),
http://www.ibew.org/articles/14daily/1407/140711_epa.htm.

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heed for the costs and dangers.”81 They hope that politicians from both parties will be able to unite
together on this issue resulting in a bipartisan energy plan for the future that protects jobs within
the industry while setting a realistic timeline for the development of renewable energy to combat
climate change.82
The IBEW thus opposes the CPP as bad policy on a number of grounds; more recently, it
has shifted its efforts from simply criticizing the EPA and its Plan to a more involved active
approach by directly challenging the legality of the CPP in an effort to prevent a policy it opposes
from taking effect. Taking a direct and hard position, the current view of International President
Lonnie R. Stephenson falls in line with past President Hill as he stated, “We worked with the EPA
for years to address greenhouse gas emissions with a plan that is both effective and legal,
unfortunately, we don’t believe this regulation is either.”83 The implementation of such a rule
would not only have a severe and detrimental impact for working men and women within the
industry but also disrupt the “engine of our economy, a reliable power grid.”84
The IBEW has filed suit and has joined other petitioners, including 27 other states, several
utilities and two other labor unions, in challenging the EPA’s authority and implementation of
these new federal regulations on power plants.85 Among the numerous core legal arguments
proposed throughout the Petitioner’s opening brief in West Virginia v. EPA,86 in which currently
a motion for stay has been ruled on by the D.C. Circuit, the most prominent argument analyzed for
82 Id.
83 Id.
84 Id.
85 IBEW Sues EPA to Stop Clean Power Plan, IBEW Media Center, (Nov. 19, 2015),
http://www.ibew.org/media-center/Articles/15Daily/1511/151119_IBEWSues.
86 West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Argued Sept. 27, 2016).

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this paper and the one IBEW has voiced their opinion on the most is the clear lack of congressional
authority EPA asserts to restructure the power sector.87 According to Petitioners, EPA boldly
asserts their own authority regarding the CPP that appears to be more far-reaching than any
previous effort by this agency.88 Section 111(d) grants power to the EPA to restrict fossil fuel-fired
power plants in hopes of reducing emissions not only through pollution control measures, but more
negatively through reducing or eliminating operations and shifting their electricity generation to
competitors.89 Through the EPA’s “generation shifting” proposal, meeting these strict reduction
emission requirements will result in not only limiting the use, but also the direct shut down of
hundreds of coal-fire plants.90 Here, it is well argued that this rule goes well beyond the clear
statutory instruction requiring States to submit for approval, state or regional energy plans, which
meet the EPA’s predetermined CO2 requirements for the electricity sector.91 Congress would have
provided detailed legislation if, and only if, they certainly wanted to grant the EPA such extensive
authority to restructure the nation’s electricity sector.92 More specifically, when an agency such as
the EPA attempts to make “decisions of vast economic and political significance,” under a “long-
extant statute,” it must show a “clear” statement from Congress granting such authority.93 In our
case, EPA can show no such statement from Congress.94 Additionally, the EPA has issued States
the power to establish standards of performance for existing sources under Section 111(d) under a
87 Brief of Petitioner, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).
88 Id.at 99.
89 Id.
90 Id.
91 Brief for Members of Congress, as Amici Curiae Supporting Petitioners, West Virginia, et al.
v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).
92 Id.
93 Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014).
94 Brief for Members of Congress, as Amici Curiae Supporting Petitioners, West Virginia, et al.
v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).

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national new source standard.95 Here, it its currently being argued that the EPA has undermined
the States’ own authority to govern the intrastate “need for new power facilities, their economic
feasibility, and rates and services,” with no clear statement of authority from Congress.96 Thus,
determining as a result of a lack of clear congressional authority in which the EPA asserts not only
over the individual States’ energy grids, but also regarding the restructuring of the entire Power
Sector nationwide, the Rule must fail.97
Section VI – ACES More Aligned with the IBEW
In 2012, Jody Freeman, prior Counselor for Energy and Climate Change in the White
House under President Obama’s first administration, had characterized the state of the climate
change agenda as being pendulum swings.98 Her final pendulum analysis included the theory that
there has been movement away from comprehensive approaches as seen in ACES.99 I believe that
her statement possibly suggests that in order to achieve a successful and realistic plan, a single
comprehensive legislation with broad requirements is simply not enough.100 However, although
the need for a more detailed and future-oriented based legislation that includes direct and strict
national standard requirements, such as the CPP, exists; I believe and I agree with the IBEW’s
firm stance that implementing legislation as crucial as the CPP must be authorized by Congress
and should not directly target a single sector, risking hundreds of thousands of jobs of working
men and women within this particular industry, in order to achieve its overall goals. Therefore, I
conclude that ACES is the GHG emission legislation, based on its broad overall target range and
95 42 U.S.C. §7411(d).
96 Brief of Petitioner, West Virginia, et al. v. EPA., No. 15-1363 (D.C. Cir. Apr. 22, 2016).
97 Id. at 126.
98 Jody Freeman, Climate and Energy Policy in the Obama Administration, 30 Pace Envtl. L.
Rev. 375 (2012) Available at: http://digitalcommons.pace.edu/pelr/vol30/iss1/9.
99 Id.
100 Id.

20
particular provisions, that falls more in line with the IBEW in terms of receiving support and
addressing any underlying concerns within such an industry represented by the IBEW.
The difference in the procedure used to craft each of these GHG control measures played
an important role in determining the IBEW’s support, and supports the idea that a legislative
solution is preferable. In terms of ACES, both the AFL-CIO and IBEW had the opportunity to
voice their opinions and concerns through the legislative process as they lobbied both the House
of Representatives and the Senate regarding ACES as they sought to ease the short-term CO2
targets and timetables as well as strengthen the provisions regarding international trade.101 Also,
knowledgeable commentators such as Lara Skinner, Associate Director and Co-Chair of Labor,
the Environment and Sustainable Development Initiative at the Worker Institute at Cornell, have
suggested that it is quite possible the creators of ACES, Waxman and Markey, given their pro-
labor stance, did their best to engage the AFL-CIO and other labor unions in the process of
developing the legislation.102 In contrast, due to the EPA’s primary role in creating, proposing, and
implementing the CPP through a rule making authorization as opposed to a legislative process, it
appears to have left little room or opportunity for groups being impacted such as the IBEW to
reflect their major comments and concerns in crafting the plan. For example, some of the pro-labor
“sweetness” in ACES could not be included in CPP because it was limited to the CAA authority.
One possible reason offered for this happening may relate to the divisions within labor around
climate and energy policy today, and therefore, major players such as the AFL-CIO and the IBEW
have stepped back from creating a space where its affiliates can discuss and shape climate and
101 S. REP. No. 19822-12 (2009).
102 Interview with Lara Skinner, Associate Director and Co-Chair of Labor, the Environment and
Sustainable Development Initiative at the Worker Institute at Cornell (Dec. 7, 2016).

21
energy policy.103 Thus, these groups did not feel empowered to act on behalf of its affiliates to
negotiate around climate and energy policy regarding the CPP, explained Ms. Skinner.104
Next, another concluding reason why ACES received more support from the IBEW as
previously stated as its legal opposition to the CPP revolves back to the matter concerning the
EPA’s lack of authority. According to Utility Department Director Jim Hunter, who testified
before Congress twice and met with the EPA officials’ numerous times during the writing of the
Clean Power Plan, “I don’t question the goodwill of the EPA, just their authority to make this rule.
I have been saying for years, this is a problem that only Congress can solve and they are just not
doing their job.”105 Furthermore, Hunter believes shutting down power plants was never the intent
of the creators of the Clean Air Act and thus far it has never been allowed by a court.106 Not only
is this an issue that is far beyond EPA’s authority, IBEW believes a majority of the burden and
responsibilities set by the EPA is falling on the backs of one industry and the hard working men
and women within that industry.107 According to the IBEW, nearly 200 coal-fired power plants
have already shut down operations within the last five years, and continuing this unfair and illegal
trend will lead to severe consequences not only for the U.S.’s power grid, but for the country’s
entire economy.108
Finally, in analyzing the major differences between ACES and the CPP, the last major
concern that may have impacted the lack of support for the CPP revolves around the EPA’s overall
target sector for achieving their goal of reducing GHG emissions. For instance, according to Ms.
103 Id.
104 Id.
106 Id.
107 Id.
108 Id.

22
Skinner, “whereas ACES was a trading scheme that covers most parts of the economy, the CPP
goes specifically after emissions from power plants and its focus is on phasing out coal plants not
trying to invest in Carbon Capture Sequestration (“CCS”).”109 Despite the fact that on each of these
GHG control measure plans, the economy, jobs, and the power sector are addressed; unlike
ACES’s economy wide approach to reduce GHG emissions across a broad spectrum of sectors,
the CPP’s strict and narrow target falls directly on the power sector eager to regulate and possibly
eliminate the production of coal-fired plants wiping out an entire industry with very little realistic
recourse for the future.
SECTION VII – Overview of IBEW and TUED
This final section explores an alliance known as, Trade Unions for Energy Democracy
(“TUED”) which is a “global, multi-sector initiative to advance democratic direction and control
of energy in a way that promotes solutions to the climate crisis, energy poverty, the degradation
of both land and people, and responds to the attacks on worker’s right and protections.” 110
According to a Local Union within the IBEW, Local Union #3, it is imperative to shift away from
the market-based solutions of corporate America that are failing to a more labor based movement
in order to unite working men and women around the major issue of climate change to ensure a
sustainable future.111 Despite the efforts made through various national and local legislation, as
well as regulations and standard policies, working men and women have never been the focus of
109 Interview with Lara Skinner, Associate Director and Co-Chair of Labor, the Environment and
Sustainable Development Initiative at the Worker Institute at Cornell (Dec. 7, 2016).
110 About the Initiative, Trade Unions for Energy Democracy,
http://unionsforenergydemocracy.org/about/about-the-initiative/.
111 Local 3 Attends: Murphy Institute, CUNY Climate Change Symposium,
http://www.local3ibew.org/article/local-3-attends-murphy-institute-cuny-climate-change-
symposium/

23
a possible solution.112 Furthermore, Local Union #3 claims shutting down all the coal-fired power
plants is not the answer, but rather there is a dire need to develop a transition to new forms of
renewable energy so that working people of America within this industry who may eventually lose
their jobs, are not left in the dark but trained to build and install new technologies such as solar
panels, smart meters, wind turbines, etc.113 According to Christopher Erikson, the Business
Manager of Local Union #3 IBEW, “The future of our world is at stake and it is an unprecedented
opportunity to rally together and solve the climate crisis while raising the well-being of an entire
generation of workers.”114 In addition, according to Sean Sweeney, the Coordinator for Trade
Unions for Energy Democracy, “TUED’s role is to support the public reclaiming of energy systems
from private corporations as a means to drive a well-planned and 'just' energy transition towards
public renewable power. Tens of thousands have lost their jobs in coal, and this could have been
avoided.”115 The primary goals of this initiative include:
(1) Help build and strengthen a global trade union community for energy democracy.
TUED is a platform for trade unions from all sectors and countries to debate, develop and
promote real solutions to the climate crisis, land grabs, energy poverty, and pollution
generated by fossil fuels — solutions that can build unions, worker and community
power, and advance social and environmental justice.
(2) Develop high-impact union educational materials, distribute an electronic bulletin,
and convene meetings and working retreats that encourage debate and help create a
shared analysis of key energy and climate issues.
(3) Connect the energy democracy agenda to union struggles and campaigns in ways that
build broad membership engagement, increase worker power, and facilitate solidarity
across movements that share similar goals.116
112 Id.
113 Id.
114 Id.
116 About the Initiative, Trade Unions for Energy Democracy,
http://unionsforenergydemocracy.org/about/about-the-initiative/.

24
Therefore, it has become increasingly evident that in order to achieve a smooth transition to an
equitable, sustainable energy system, a unified shift in power towards workers, communities and
the public must take place immediately.117 I believe this initiative can partner up with the IBEW
on its national scale, as one of its local unions, Local Union #3, has done locally in order to
collaborate and devise a plan now that will protect the future generations of its workers it tirelessly
represents day in and day out.
Section VIII – Conclusion
According to Dr. Michael Mann, Distinguished Professor, Director, and Author in the area
of Science and climate change, “We are way past the point which leaves no more room to debate
whether climate change even exists; the cost of inaction is far greater than taking action so it is our
time to act now.”118 Although this topic was simply just a sliver compared to the numerous other
issues and topics that continue to be debated today within the area of global climate change, my
perspective of the entire scope of it has widened immensely. Overall, this paper explored two
various GHG emission control measure legislations and their core provisions reflecting how they
were crafted, proposed, and implemented in each of their own ways. This paper took one of the
leading industry’s largest labor unions, the IBEW, and analyzed its goals, interests, and concerns
leading to the support of ACES on the one hand, and the opposition, from both a policy and legal
standpoint, of the more recent climate change plan, the CPP. Primarily due to the inability to
participate in its creation via the legislative process, the burden placed on and the target towards
the single power sector across the U.S requiring immense reduction, and legally speaking the
117 Id.
118 Michael E. Mann, Distinguished Professor of Meteorology and Dir. Earth Sys. Science Ctr.,
Penn State Univ., Address at Mack Student Ctr. Hofstra Univ., The Madhouse Effect, How
Climate Change Denial Is Threatening Our Planet, Destroying Our Politics, and Driving Us
Crazy (Sept. 12, 2016).

25
EPA’s lack of Congressional authority regarding Section 111(d), the IBEW’s support for ACES
over the CPP became very clear, and continues to make a difference today as the issue at hand
continues to be contested. Again, quite possibly through collaboration with initiatives such as
TUED, worker alliances with local unions, and even a firm stance taken by its National leadership
to portray a powerful example, I believe it is crucial now more than ever for labor groups such as
the IBEW to refocus not only for the present, but more importantly for the future generations and
help fight against global climate change by offering and joining in on climate change proposals
with a wide focus to succeed and strong provisions.

Final Paper Global Climate Change and US Law - Professor Kuh (edits)

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