Incapax imperii, nec fossores laborant

The FERC rejection of Perry’s coal proposal as an example of the general incompetence of the Trump Administration.

President Trump, first SOTU:

We have ended the war on American energy — and we have ended the war on beautiful, clean coal.

The past tense is a nice touch. Like Napoleon returning to Paris from Egypt, he just declares that defeat is victory.

Candidate Donald Trump promised not only to stop the decline in coal mining jobs but to bring lost ones back. This wasn’t a casual campaign lie, like support for LGBTQ rights, abandoned from the inauguration. Trump, Pence and Cabinet members repeated the promise after the election, for instance in May. The promise was critical to securing votes in rural counties in Pennsylvania. It was part of the wider narrative of support for the white American working class, which won him crucial defections from the Obama coalition in Michigan and Wisconsin. This was a central Trump commitment. How is it working out?

Not well. True, US coal production and jobs have ticked up in 2017:

(Data to January 5. The chart being from FRED, you can update it from here whenever you like.)

The increase came entirely from exports. French nuclear power stations had unexpected maintenance issues. Chinese planners miscalculated and shut down dozens of small coal mines ahead of the trend fall in consumption, which surprisingly ticked up too. These are just blips. The world trend in coal is steadily down, and imports are vulnerable everywhere. Continued export growth is most unlikely. US consumption, the only solid basis for American coal mining, fell by 2.6%.

The domestic prospects are even worse. In 2017, US utilities closed 8 GW of coal capacity and announced the retirement of 27 coal plants over time.  It takes roughly 6 GW of operating coal capacity to support a thousand mining jobs, so the annual rate of job loss should be around 2,000 at current rates, allowing for the fact that the high-cost, labour-intensive mines will go first.  This will accelerate. The coal generating fleet (290 GW nameplate in 2016) is old. The mean weighted age is 40 years, a typical design life. Just carrying on is often not an option: it’s an expensive refit or closure. According to Lazards,

As LCOE values for alternative energy technologies continue to decline, in some scenarios the full-lifecycle costs of building and operating renewables-based projects have dropped below the operating costs alone of conventional generation technologies such as coal or nuclear.

This is already happening in Texas and Colorado. It doesn’t look as if coal closures will stay as low as 10 GW a year, or the industry survive 30 years. No US coal plant is safe for long, ergo no coal mine or mining job. This has nothing to do with the suspended CPP, a paper tiger, which basically put a diplomatic gloss on current economic trends.

So how is President Canute’s plan to stop the tide (endnote) going? Let’s look at this through the lens of the recent FERC decision throwing out Perry’s proposal for a coal and nuclear subsidy.

Perry’s DoE sent a proposed regulation (“Grid Resiliency Pricing Rule”), to FERC in October. This claimed, in dramatic language (my emphasis), that the rapid shutdown of coal generation, and the slower one of nuclear, created high risks to the “resilience” of the US bulk electricity supply (section II.I in fine):

Nevertheless, the fundamental challenge of maintaining a resilient electric grid has not been sufficiently addressed by the Commission or the ISOs and RTOs. The continued loss of fuel-secure generation must be stopped. These generation resources are necessary to maintain the resiliency of the electric grid. FERC must adopt rules requiring the Commission-approved ISOs and RTOs to reduce the chronic distortion of the markets that is threatening the resilience of the Nation’s electricity system.

The proposed solution was to guarantee cost recovery for generating plants with 90 days’ fuel on site, meaning coal and nuclear. The considerable extra cost would be recovered from consumers through higher electricity prices.

This was always going to be a hard sell. Telling an expert bureaucracy like FERC that they have been asleep at the wheel rarely goes down well. The proposal went against decades of FERC support for market liberalisation. It was opposed not only by wind and solar interests, but by the powerful natural gas lobby, by state regulators, regional transmission operators, and a clear majority of utilities. It would have been resented by electricity ratepayers and voters if it were ever adopted.

But there wasn’t even a fight. The FERC response justifying the unanimous rejection of the proposal consists of just three paragraphs. Key extracts (my emphasis):

14. […] The FPA [Federal Power Act of 1920] is clear: […] there must first be a showing that the existing RTO/ISO tariffs are unjust, unreasonable, unduly discriminatory or preferential (21). Then, any remedy proposed under FPA section 206 must be shown to be just, reasonable, and not unduly discriminatory or preferential (22). For the reasons discussed below, the Proposed Rule did not satisfy those clear and fundamental legal requirements under section 206 of the FPA .Given those legal requirements, we have no choice but to terminate Docket No. RM18-1-000.

15. Neither the Proposed Rule nor the record in this proceeding has satisfied the threshold statutory requirement of demonstrating that the RTO/ISO tariffs are unjust and unreasonable. While some commenters allege grid resilience or reliability issues due to potential retirements of particular resources (23), we find that these assertions do not demonstrate the unjustness or unreasonableness of the existing RTO/ISO tariffs. In addition, the extensive comments submitted by the RTOs/ISOs do not point to any past or planned generator retirements that may be a threat to grid resilience (24). […]

16. Turning to the second prong of the section 206 analysis, we note that the Proposed Rule would allow all eligible resources to receive a cost-of-service rate regardless of need or cost to the system (26). The record, however, does not demonstrate that such an outcome would be just and reasonable (27). It also has not been shown that the remedy in the Proposed Rule would not be unduly discriminatory or preferential. (28) For example, the Proposed Rule’s on-site 90-day fuel supply requirement would appear to permit only certain resources to be eligible for the rate, thereby excluding other resources that may have resilience attributes.

Footnotes 21 and 27 also bear citation:

21. 16 U.S.C. § 824e(a) (2012). See also, e.g, Emera Maine v. FERC, 854 F.3d 9, 25 (D.C. Cir. 2017) (“Without a showing that the existing rate is unlawful, FERC has no authority to impose a new rate.”); FirstEnergy Serv. Co. v. FERC, 758 F.3d 346, 353 (D.C. Cir. 2014) (“Regardless of whether it is charged with completing step two, proposing new just and reasonable rates, [petitioner] still must complete step one, demonstrating that PJM’s existing rates are unjust and unreasonable.”).

27. For example, the Proposed Rule proposes that RTOs/ISOs pay a cost-of-service rate to a resource that has a 90-day fuel supply on site to enable it to operate during an emergency, extreme weather conditions, or a natural or man-made disaster. However, neither the Proposed Rule nor the record demonstrate why the existence of an on-site 90-day fuel supply is a reasonable basis to find that rate to be just and reasonable and not unduly discriminatory or preferential. In addition, the Proposed Rule does not address the concern that an eligible resource located in a constrained area may not assist with the resilience of the bulk power system to warrant that rate.

The obvious reading of these paragraphs is as a rebuke: DoE’s homework does not meet the threshold standard of applicable law. It confirms the analysis of Ari Peskoe, an environmental law scholar at Harvard:

[The NOPR] does not even propose that current rates are unjust and unreasonable. You couldn’t correct that by just adding evidence in the record. That was a threshold deficiency that FERC couldn’t correct.

There are other possible explanations for FERC’s decision: the commissioners are honest professionals who judged the proposal idiotic public policy; the commissioners are corrupt stooges of the gas industry; they were manipulated in a Deep State conspiracy by Democratic partisans (read: honest professionals) in the career bureaucracy. But Ockham’s Razor suggests we should accept FERC’s own statements at face value. Whatever their political sympathies, the commissioners saw Perry’s proposal as legally indefensible. And they would certainly have had to defend it in court.

To review, Perry’s DoE:
1. proposed a radical change in policy based on an undefined new concept of “resilience”. It offered no clear discussion how this differed from the traditional criterion of reliability. This was not hard – FERC provided a definition in its response (paragraph 23). Basically, resilience is resistance to and rapid recovery from shocks. It is part of reliability, the other component of which is meeting peaks in demand without outages;

2. offered no legal argument why existing arrangements were unreasonable in the light of the FPA and case law;

3. offered no legal argument why the proposed arrangements were not discriminatory, which they prima facie would be, in the light of the FPA and case law;

4. offered no technical analysis or modelling justifying the claim that the US grid is becoming less resilient, beyond selective quotations from a NERC report raising a general concern (in fact the grid came through the recent cold weather much better than the Polar Vortex of 2014);

5. offered no technical analysis or modelling justifying the claim that 90-day onsite fuel storage is a critical requirement for resilience. This is particularly hard to show: bulk supply disruptions have been an insignificant proportion of outages in recent years; during the Polar Vortex several coal plants crashed because the coal piles froze; the gas pipeline network is quite resilient through its inbuilt storage capacity from pressure variations, and intrinsic islanding, in contrast to the highly connected electricity grid that must stay with a narrow voltage range at all times;

6. offered no economic analysis of the costs and benefits of the proposal beyond handwaving.

FERC has a Republican majority, and four of its members, including the chair, are Trump appointees. They would start with a prejudice in favour of a proposal reflecting a key priority of the Administration. But the proposal was prepared with such incompetence that they had no choice but to throw it out. See the concurring opinion of commissioner Neil Chatterjee, who is actually sympathetic to the subsidy.

What if the proposal had been professional? The policy reversal, the influence of the gas lobby, and the certainty of litigation from more than a few of the many other institutional players in the Rube Goldberg contraption called the US electricity market, would have made it problematic in any case. We don’t know what would have happened – but Perry made certain.

The FERC has kicked the can a long way down the road, calling for information and comments on dozens of questions, followed by a timewasting Grand Débat as the French call it. Meanwhile the coal closures will continue.


The promise to save coal jobs has been, remember, one of the defining shibboleths of the Trump campaign and Administration. Since a proposal for an explicit coal subsidy would be laughed out by the Tea Partiers in the GOP House caucus, the only possible plan was to make electricity consumers pay. And this dog’s dinner was the best they could do. What was the White House doing? As far as I can make out, nothing. There certainly was no counterpart to the massive effort of Obama’s staff on ACA. Perry seems to have been left to his own devices and limited abilities.

Incompetence is also a defining feature of this Administration, a continuo to the harsh signature blare of bigotry. It starts with Trump’s own laziness, stupidity, lack of focus, and temper tantrums, and has spread down like mould in a house. You don’t have to look hard to find other examples. Interior’s Ryan Zinke announced another unpopular new policy to open coastal waters to offshore oil and gas development. Then Governor Scott Walker of Florida, a vulnerable Republican, predictably complained – and Zinke promptly gave him an exception. The AGs of California and New York must be rubbing their eyes in disbelief. The exception is blatantly based on considerations of party advantage, making the policy discriminatory and vulnerable in court. What was Zinke thinking?

It’s not much consolation to note that none of these people would have lasted long in Berlin or Moscow in the 1930s.

Endnote 1

Cnut the Great ruled a short-lived empire including Denmark, Norway, and England until his death in 1035 AD. By all accounts he was a capable ruler. The ahistorical legend of the tides comes from a 12th-century English chronicler, Peter of Huntingdon.  It was designed to illustrate Canute’s deference to the will and power of God, which Peter’s successors contrasted to the hubris and flattery of his courtiers. See also “Potemkin village”, a smear put about by the enemies of a vigorous and very effective satrap who founded several cities and created the Russian Black Sea Fleet.

Endnote 2
American electricity supply does face a problem of reliability. The standard indicator of outages, SAIDI, is 10-12 minutes a year in Denmark and Germany. It’s typically over 200 in the USA, though nobody knows for sure – a data problem which FERC should address. The outages do not come from the very reliable bulk supply system but from distribution, very often on rickety and vulnerable poles. If Americans want a more reliable supply, they will have to pay for widespread and expensive burial of cables. They should want it – in Jacobson’s world, everything will be electrified, and reliability becomes as essential to a house as it is today for a hospital.


The title of this post is a lame riff on Tacitus’ brutal epigram on Servius Sulpicius Galba, a short-lived claimant to the imperial title in 68 AD, between Claudius and Vespasian: capax imperii nisi imperasset. “Capable of power if only he had not won it”. Latin epigrams aren’t easy, and Tacitus sets an impossible benchmark.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

9 thoughts on “Incapax imperii, nec fossores laborant”

  1. "So how is President Canute’s plan to stop the tide (endnote) going? "

    It's going pretty well, thank you very much, as long as we interpret his call for renewed coal as a dog whistle, not a policy stance. Hyping coal or just saying "clean coal" is Repug short-hand for "We loves us some anti-environmentalism". I have seen Fox News loving regressive conservatives boil the entire AGW debate to two words among themselves: "Al Gore".

    There may be a half-hearted effort to promote coal, gotta give Rick Perry something to do, but these guys get paid by the Koch brothers et al not to promote coal, (there's not any real money to be made there, and these after all, are jobs that go to hillbillies) but to do damage to renewable energy. Hence the tariff on solar panels (and, lest we forget, washing machines just in case you thought he was being biased ;>D). Hence the effort to end EV tax credits, Hence the effort to eviscerate funding for alternative energy research monies. (And it may be own personal madness, but I also believe they are behind many efforts to promote a carbon tax, because it will be predicated on the immediate ending of RE subsidies, and will almost certainly be useless in practice)

    The Koch brothers have more money than God, a willingness to spread it around, and they play a long game very very well. Evil incarnate.

    1. The solar tariffs are a serious blow, which will benefit gas not coal, so they fit your Kochtopus theory. The R& D cuts just hurt American industries down the road, as everybody else is still spending. It's hard to believe the support for coal is purely a con, because it will blow up electorally, in 2020 if not 2018. The cockup and the conspiracy theories run close in terms of fitting the data, but conspiracies need intelligence.

  2. This is why the trump administration complains about the "deep state". They mean all the people who understand that there are rules about how to do things, and that changing laws and regulations requires following (at least some of) the rules.

    If Perry and his almost non-existent senior staff had a clue, they could have faked up a case that would at least have required careful scrutiny. But they're used to organizations that are "run like a business" where what the CEO says, goes.

  3. Being an untutored barbarian, I felt it necessary to feed the title through Google Translate, which suggests the meaning "Inca empire, and the miners work,"

    Being fairly sure this was not intended, I noodled around a bit and suggest that the original might better have been "Non capax " &c., which the Google machine says is "It is not capable of in the government and miners toil not, neither."

      1. Nice.
        I made up "incapax", but it's actually in Lewis and Short's standard Latin dictionary, as a post-classical word. What are Google using, Cliff's Notes?
        My doubtful epigram also turned out a legitimate hexameter.
        Laugh if you like, but this was the education that trained the administrators of the British Empire. Coerced mental effort on a difficult random object (cf. tort law), plus exposure to an alien culture, perhaps. I caught the trailing edge of a dying tradition.

        1. > What are Google using, Cliff's Notes?

          Possibly. I doubt that Latin feature gets exercised much, and probably gets little feedback to correct it. DeLong has the original as "omnium consnesu capax imperii, nisi imperasset," with the meaning "universally seen as capable of ruling, had he never ruled." Translate almost makes sense of that, with "Was unanimously capable of ruling, not ruled." A bit of poking at the alternatives makes it yield "Generally held capable of ruling, had he not ruled."

          Even untutored barbarians such as myself know that Tacitus was a famously challenging stylist.

          1. Turns out Google Translate is as statistical as any other machine-learning algorithm. And hence, it produces some (uh) interesting output. There's been a couple of articles written by people who actually know what translation is as a skill and art, about this subject. It's remarkable that Google can get as far as they do, basically with no real understanding of the text. But it's no substitute for a real skilled human, if you're trying to do more than produce walking tours of foreign cities or translate web-pages on-the-fly.

        2. It was a great tradition. I wish I'd caught it, but sadly, my education was somewhat backward. I got some taste of (half of) it perhaps by studying mathematical logic in grad school — a difficult random subject with absolutely no use in the real (or even imaginary) world.

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