Winter 2017

Chair’s Column

Chair’s Column

Few presidents have focused on infrastructure policy more visibly or earlier in their administrations than President Donald J. Trump. In his Inaugural Address, President Trump twice promised renewal of the nation’s infrastructure, and in the short time since taking office he has issued at least three Presidential Memoranda and one Executive Order relevant to infrastructure development in the United States. What exactly will the Trump administration’s infrastructure program look like and how can President Trump promote more private investment in the nation’s infrastructure—a measure widely expected to be a cornerstone of his administration’s infrastructure policy? The authors suggest that at least four themes will characterize the Trump administration’s infrastructure policy over the next four years. The Trump administration will likely: (1) enforce with great vigor all federal “Buy America” statutes and revise their implementing regulations to expand their scope; (2) pursue reforms of federal infrastructure planning and environmental permitting procedures in order to expedite the approval of large-scale infrastructure projects: (3) pursue a project-driven infrastructure program that values action over ideological signaling; and (4) promote investment of private capital in the nation’s infrastructure by endorsing the use of public-private partnerships (P3s) for large-scale projects. The authors further suggest three initiatives that the Trump administration should consider: (1) instituting a program of incentives for states and local governments to “unlock” value currently trapped in government enterprises that could be re-deployed as investment in new projects; (2) making private activity bonds (PABs) available for all classes of infrastructure that serve a public purpose; and (3) urging Congress to make new appropriations to expand federal credit programs designed to finance infrastructure.

This is the second of a two-part article regarding the future of the Clean Power Plan (CPP) that the Environmental Protection Agency issued in October 2015. See Part One in Infrastructure, Vol. 56-1, Fall 2016. In Part One, the authors analyze the legal challenges to the Clean Power Plan. In Part Two, they analyze the prospects of the CPP in light of the recent election of Donald J. Trump, including the possible legal paths available to the new administration (and its opponents) to roll back (or preserve) the Clean Power Plan. Focusing on possible actions by the judicial, executive, and legislative branches, the authors suggest that whatever the Trump administration does, we are unlikely to see a knockout blow for or against accelerated de-carbonization of the U.S. electricity sector in the foreseeable future. The new obstacles in the CPP’s path can be expected to motivate environmental groups, certain states, and other parties to resort to creative litigation aimed at power plant GHG emissions (directly or indirectly) by increasing the cost or curtailing the dispatch of fossil fuel-fired generation. Also, certain states will continue to pursue state and regional regulatory programs applicable to EGUs’ GHG emissions. State renewable energy and energy efficiency mandates, together with federal subsidies for renewable energy, will continue to drive electric sector GHG emissions downward. Together with low natural gas prices, power plant GHG emission reductions under business as usual could outpace the CPP’s goals. On the other hand, the accelerated retirement of nuclear generating capacity, inadequate transmission capability for renewable generation, and restrictions on permitting gas pipelines in certain “critical areas” could make decarbonization all the more challenging.

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