Banning Coal: Feasibility and Constitutionality
Elias Khoury
Abating the accelerating climate crisis will require drastic measures. Countries like the United States, with its outsized contribution to environmental breakdown, need to do the most. One major driver of American ecological impact is coal. America runs on it.
In 2007, coal was responsible for a whopping 49% of all electricity generation in the United States.[1] That number has fallen since. By 2015, it was responsible for less than a third of electricity generation.[2] Now, that figure is likely below 20%.[3] Reuters reports that, since 2017, “coal use for electricity generation” has declined by 44%.[4]
Accordingly, coal mining has also decreased. From 2014 to 2019, it dropped nearly 30%.[5] It fell another 47.15% from 2019 to 2023. The United States, in that span, went from producing 705 to 436 million tons of coal.[6]
But that precipitous decline hardly means coal production is not an issue. It still is. Alarmingly, America must keep 92% of its coal in the ground to stay below two degrees of global warming.[7]
To reach this goal, a federal coal ban is in order. A ban could take a number of forms: it could directly target mining, or it could target coal-fired power plants, eliminating the incentive to mine.
As environmental law scholar, Alexandra Klass, notes, the former would neatly fall under the current mainstream interpretation of the Commerce Clause.[8] The Supreme Court case Hodel v. Virginia Surface Mining and Reclamation Association, Inc. (1981) is illustrative. The Court unanimously found for Hodel, holding that “coal mining” is economic activity with “substantial effects on interstate commerce.”[9] That means Congress could regulate or even prohibit it.
Constitutional jurisprudence was not always so friendly to bans on coal mining. Consider Carter v. Carter Coal Co. (1936), another Supreme Court case. A slim majority of justices held that the Bituminous Coal Conservation Act was unconstitutional. The Act was supposed to counteract coal overproduction.[10] It heavily taxed bituminous coal — the kind used for electricity generation — but rebated 90% for complying with codes governing labor conditions and marketing.[11] The Supreme Court ruled the Act unconstitutional because mining, according to them, is a strictly local activity.[12] It therefore did not fall under the Commerce Clause, which precludes such federal regulation.
Luckily, given subsequent expansions in its scope, the Commerce Clause no longer poses such a barrier. A national ban on coal mining probably is almost certainly constitutional per our contemporary understanding of the document.[13] Provided it’s reasonably tethered to controlling “environmental and other adverse effects” — a formalistic bar in this case — it passes muster.[14]
The Constitution therefore poses no absolute barrier to a national ban on coal mining. But it may provide some friction via the Takings Clause. This clause mandates payouts if a ban denies “owner[s] economically viable use of… land,” which it would.[15] The totality of these payments may be quite expensive. But it would not be anywhere near as costly as extreme climate change, which already costs $391 million per day.[16]
It seems perverse that, in trying to save the environment, the government would have to reimburse its despoilers. This violates not just the “polluter pays” principle, but also more general and basic notions of fairness.[17] In the face of the impending climate crisis, however, the ends may justify the means.
Alongside the Takings Clause, politics pose another barrier. Simply, there is little appetite in the halls of power for a national coal ban. Even half-measures that fall short of outright prohibition but still accomplish little face heavy scrutiny.
For example, during the Obama administration, the Department of Interior proposed what they called the Stream Protection Rule. It prohibited coal mining within 100 feet of streams.[18] The goal was to mitigate environmental consequences including degradation of water quality and the displacement of fish species.[19] Its scope was incredibly limited and seemingly uncontroversial.
Yet, upon initial implementation, the Stream Protection Rule faced immediate legal challenge from Republican state Attorneys General.[20] However, it was the legislative rather than the judicial process that ultimately killed the rule. Congress invoked the Congressional Review Act to overturn it, and former President Donald Trump signed that revocation into law in February 2017.[21]
The Commerce Clause does not preclude a national coal mining ban. But the Takings Clause and political process provide major friction. One can only hope that this friction does not continue to prove prohibitive. Climate science makes one thing abundantly clear: to keep the planet, coal must go.
[1] US Electricity Sources (2007), U.S. Global Change Research Program, https://nca2009.globalchange.gov/us-electricity-sources-2007/index.html.
[2] Our Energy Sources, National Academies of Sciences, https://needtoknow.nas.edu/energy/energy-sources/electricity/ (last visited Mar. 8, 2024).
[3] Short-Term Energy Outlook, U.S Energy Info. Assoc., https://www.eia.gov/outlooks/steo/report/BTL/2023/02-genmix/article.php#:~:text=In%20our%20February%20Short%2DTerm,in%20both%202023%20and%202024 (Feb. 6, 2024).
[4] Gavin Maguire, US thermal coal exports hit 5-year highs and top $5 billion in 2023, Reuters (Feb. 1, 2024, 8:00 AM), https://www.reuters.com/markets/commodities/us-thermal-coal-exports-hit-5-year-highs-top-5-billion-2023-2024-02-01.
[5] United States Coal Production, CEIC, https://www.ceicdata.com/en/indicator/united-states/coal-production (last visited March 8, 2024).
[6] Maguire, supra note 4.
[7] Christopher McGlade & Paul Ekins, The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2 °C, 517 Nature 187 (2015).
[8] Interview with Alexandra Klass, Professor, U. Mich. L. Sch., in Ann Arbor, Mich. (Feb. 8, 2024).
[9] Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 280 (1981).
[10] Richard D. Friedman & Julian Davis Mortenson, Constitutional Law: An Integrated Approach 420 (2021).
[11] Id.
[12] Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).
[13] Klass, supra note 8.
[14] Hodel, 452 U.S. at 282.
[15] Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).
[16] Lee Ying Shan, The climate crisis has a price — and it’s $391 million a day, CNBC (Oct. 23, 2023), https://www.cnbc.com/2023/10/24/the-climate-crisis-has-a-price-and-its-391-million-a-day.html.
[17] Ensuring that polluters pay – toolkit, European Commission, https://environment.ec.europa.eu/economy-and-finance/ensuring-polluters-pay_en#:~:text=The%20polluter%20pays%20principle%20is,pay%20to%20cover%20the%20costs (last visited Mar. 21, 2024).
[18] Implications of the Proposed Stream Protection Rule: Hearing Before the S. Comm. on Environment and Public Works, 114th Cong. (2016) (statement of Joseph G. Pizarchik, Director, Office of Surface Mining Reclamation and Enforcement).
[19] Id.
[20] Hiroki Tabuchi, Republicans Move to Block Rule on Coal Mining Near Streams, The New York Times (Feb. 2, 2017), https://www.nytimes.com/2017/02/02/business/energy-environment/senate-coal-regulations.html.
[21] Ari Natter & Catherine Traywick, Senate Votes to Reverse Obama-Era Coal Rule, Sends to Trump, Bloomberg News (Feb. 2, 2017), https://www.bloomberg.com/news/articles/2017-02-02/senate-votes-to-reverse-obama-era-coal-rule-sends-to-trump.