Politics & Policy

Resist the EPA’s Carbon Rule — in Court and Out

Legal victory alone won’t save states from Obama’s carbon crusade.

Last month, a majority of the states sued the federal government over the so-called Clean Power Plan, the centerpiece of President Obama’s climate agenda. As the states explained, the president’s carbon regulation “unlawfully expands the federal government’s regulatory power over electricity production and consumption in nearly every State.” The suit will wind its way through the courts, with legal resolution years away.

Although legal challenges are necessary, they are not enough. If states have any chance of defeating the EPA’s attempt to take control over our energy choices, they must mobilize all three branches of government.

The EPA’s carbon regulation forces states to reduce carbon dioxide emissions by 32 percent, on average, by 2030. The limits are so strict that many states will be forced to shut down affordable energy sources, mandate more-expensive sources, and join regional cap-and-trade schemes — all of which will drive up energy prices, to the detriment of the poor and middle class.

States have responded by suing the Obama administration and requesting a stay of the rule. And while legal scholars across the political spectrum agree that the EPA has a weak case, pinning our hopes on a legal victory is a mistake. In fact, it is a mistake the EPA is counting on states to make.

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The problem with relying on the legal challenge is that it will take years before the fate of the regulation is decided. Even if a stay is granted, the danger facing states is still very real. As recent history shows, utilities will begin shutting down power plants before the courts have a chance to weigh in.

The problem with relying on the legal challenge is that it will take years before the fate of the regulation is decided.

Last summer, the U.S. Supreme Court remanded the EPA’s mercury rule for failing to consider costs. The EPA’s defeat in court came too late: Utilities had already moved to shut down about 40 gigawatts of reliable coal-fired capacity, enough to power millions of homes. That generation isn’t coming back, and households will suffer from higher electric bills as a result.

The Obama administration knew this would happen. In an interview with liberal talk-show host Bill Maher, EPA administrator Gina McCarthy revealed their strategy. When asked about the mercury rule, she answered that she was confident the EPA would win the case, but “even if we don’t, it was three years ago.” Tellingly, she added: “Most of them are already in compliance, investments have been made.” In other words, the legal victory was merely symbolic.

RELATED: The Cynicism of the Clean Power Plan

The states should not allow history to repeat itself. States that bank on the Supreme Court’s striking down this rule in the future are conceding defeat today. Instead, states should adopt a multi-pronged approach that engages all three branches of government.

#share#The most effective way for a state to protect its citizens is for the governor to refrain from submitting a state implementation plan before there is legal resolution — the “do no harm” approach. This will help send a clear signal to utilities and state regulators that no steps shall be taken to implement the rule until its legality is determined.

EDITORIAL: Emissions Overreach

There is no reason for governors to submit a state plan in 2016. The EPA wants states to believe they have two choices — a state plan or a federal plan — but this is a false choice. States can instead submit an “initial filing” that criticizes the rule and requests a two-year extension. The initial filing does not force states to make any binding commitments to implement the rule. In fact, states should be able to acquire an extension simply by saying the regulation is so drastic and expensive that they need more time to consider options and engage with “vulnerable communities” (EPA’s words) who will suffer the most. Such a filing would be consistent with the bold leadership of Governors Fallin (Okla.), Pence (Ind.), Walker (Wis.), and others who have said they do not intend to submit a state plan.

State legislators also have a role to play, especially in states where the governor is uninterested in stepping up or intends to support the Obama administration. Already more than half of the states have introduced or enacted measures that ensure legislative accountability. Arkansas, for instance, passed a law last year that requires the legislature to approve any state plan before the governor submits it to the EPA.

#related#The legislative role is overlooked but important. To comply with the EPA’s requirements, many states would need to pass new laws mandating renewables or setting up cap-and-trade systems. The EPA has no authority to tell states to pass laws they may otherwise oppose, and legislators should assert their right to refrain from being commandeered to do the EPA’s bidding.

The president’s carbon regulation is so legally vulnerable that states actually have a chance to defeat it. However, states will lose if they bank on legal challenges alone. Without strong signals from the executive and legislative branches in the states, utilities will begin to comply with the rule well before the courts decide its fate, rendering hollow any future legal victory. To protect their citizens, state leaders should reject calls to implement Obama’s federal energy takeover before full legal resolution.  

— Thomas Pyle is president of the American Energy Alliance.

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