Last Friday, President Trump directed the Department of Energy to find a way to keep struggling coal and nuclear power plants in operation. Soon after, a draft of the DOE’s plan to fulfill that directive leaked to reporters. The proposal, if implemented, would force energy-grid operators across the country to buy power from these plants for a period of two years — and fulfill a key promise of Trump’s to stand up for the coal industry.
Does the DOE have the authority to implement the plan? In the leaked draft, the agency cites two relevant statutes: the Federal Power Act, passed in 1920, and the Defense Production Act, passed in 1950. Section 202(c) of the Federal Power Act grants the executive wide latitude to control the energy grid during national emergencies, and the Defense Production Act affords the executive similar powers to fulfill national-security goals. These acts traditionally have seen sparing use. President Truman invoked the Defense Production Act during the Korean War to shore up American steel, and it was last used during the 2001 energy crisis in California; last February, when coal lobbyists asked the DOE to invoke the Federal Power Act to bail them out, assistant DOE secretary Bruce Walker said the agency “would never use a 202 to stave off an economic issue.” “That’s not what it is for,” Walker said.
DOE officials say the leaked memo is a preliminary document. But the Trump administration clearly is flirting with invoking these laws absent any discernible or discernibly looming crisis. Its argument that a supposed “dependence” on natural gas represents a national emergency is specious. The real rationale is that grid operators’ buying more-expensive power from failing coal plants would keep those plants in operation and mark a political victory for the president. “These statutes are in place to protect the electric grid from serious stability and national-security concerns,” Oren Cass, energy-policy expert at the Manhattan Institute, tells National Review. “Using them to score political points . . . is not different in kind from using various Clean Air Act provisions to shut down coal plants.”
Sound familiar? When Barack Obama directed the EPA to do just that, he drew ire from conservatives. Trump won plaudits from the right for rolling back the so-called Clean Power Plan. But on trade, his administration has abused its power via dubious statutory interpretation to serve its political goals. Were this plan to become policy — there have been reports of internal division — it would be doing the same.