Last Tuesday, Senate Majority Leader Mitch McConnell argued in the Lexington Herald-Leader that states should flatly refuse to file the state implementation plans to reduce greenhouse gas emissions from power plants requested of them by the EPA’s Clean Power Plan.
Don’t be complicit in the administration’s attack on the middle class. Think twice before submitting a state plan—which could lock you in to federal enforcement and expose you to lawsuits—when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism.
Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back. We’re devising strategies now to do just that.
So for now, hold back on the costly process of complying. A better outcome may yet be possible.
Senator McConnell’s call for state resistance is an important endorsement of a strategy widely embraced by conservative activists. And make no mistake; there is nothing in the EPA rules requiring the states to file a state implementation plan. If they choose not to, the EPA will write one for them.
Let’s consider the arguments for “just saying no.”
1. EPA regulations will likely be overturned by the courts anyway. Maybe, maybe not. If the states resist and the rules are thrown out, they will indeed save a bit of time and energy. If the states resist and the rules survive, they run the risk of failing to meet EPA deadlines and, consequently, being forced to accept an agency-drafted regulatory plan. Given the relatively light cost of the former and the heavy cost of the latter (see below), this would seem to be a poor argument for resistance.
2. Filing the implementation plans will expose states to lawsuits. How so? I’ve seen no arguments to that effect anywhere in the legal discussions associated with the Clean Power Plan.
3. EPA does not have the capacity to write (and enforce) a multitude of state regulatory plans. That sounds like wishful thinking. The agency has loudly proclaimed—persuasively, I think—that they have both the means and motive to write federal implementation plans if necessary. In fact, Republicans in the Senate have been suggesting that the EPA—and the environmentalist community—is plotting to do exactly that. Whatever the case may be, EPA has announced that it is releasing a draft federal implementation plan this June.
4. Federal implementation plans will be draconian and politically unsustainable. Perhaps. Here’s how attorneys Peter Glaser, Carroll McGuffey III, and Hahnah Williams Gaines from Troutman Sanders see it:
EPA’s federal-plan authority would be limited [by law] to inside-the-fence measures applied to coal plants. But given its aggressive carbon-reduction goals, EPA could not establish the traditional type of emission-rate limitations, based on cost-effective, inside-the-fence measures, that it has previously adopted under the New Source Performance Standards program, where facilities could operate as much as they wish so long as they meet the emission-rate standard. Instead, to impose its aggressive carbon goals through federal plans, the Agency would have to order a hard limit on a State’s coal-plant operations, either through a limitation on the plants’ annual carbon dioxide emissions or a limitation on their annual hours of operation (which are effectively the same thing). Since EPA could not order other generating facilities to operate more (or the State’s electric consumers to consume less), EPA would leave it to the State to figure out how to replace the coal generation that EPA has prevented from operating.
Given the stakes involved, it is hard to imagine that EPA would want to take this action. States that do not submit the type of plan that EPA is demanding would be motivated by real fear that the plan EPA wants would create unacceptable consumer electric rate increases and jeopardize reliable operation of the grid. If EPA dismisses these concerns and simply mandates that the coal generators operate less, it takes the risk that other resources will be not be available in the time frame needed to maintain grid reliability.
Loyola Law professor Daniel Selmi sees it the same way and adds this:
However, in the short term under a FIP [federal implementation plan], a state’s ratepayers would very likely fare worse than they would under a state-crafted compliance plan. The Clean Air Act employs the state plan as its central implementation mechanism, and a principal reason for that choice is to maximize state autonomy and flexibility in choosing pollution controls. States are more familiar than EPA with the pollution sources in their jurisdiction and have better information about both their operations and the opportunities for controlling emissions. EPA is simply not in as good a position as a state to identify and adopt a mix of responsive measures that would minimize costs.
And for good measure, Brian Potts, a partner at the law firm of Foley & Lardner, offers the same caution:
The irony of all this is that most Republican state lawmakers are opposed to the Clean Power Plan because they believe it will raise electric rates and hurt the businesses in their states. Now, the coal industry’s own study shows that, if these lawmakers don’t cooperate, they will exacerbate the exact thing that they are trying to avoid.
Is it really a good idea for states to play chicken with the EPA? Given the administration’s determination to regulate greenhouse gases, it’s hard to imagine the EPA backing down and letting a collection of red states thumb their noses at the feds. The price of guessing wrong about EPA’s determination would be, as Glaser et al. note, extremely steep.
5. Refusing to submit a state plan buys political time for Congress to fight back. And how exactly are they going to do that? I suspect what Senator McConnell really means to say is that noncompliance “would give Congress more time to pass doomed messaging legislation.”
6. Better that the EPA takes ownership of the regulations than state legislatures. Whoever writes the rules, the theory goes, will take the political blame. But Prof. Selmi doesn’t buy the argument that state rulemaking invites a backlash at state legislatures or regulatory offices:
This “backlash” argument is dubious for two reasons. First, the upcoming rules do not present a situation where the federal government is trying to avoid responsibility for its actions. The so-called “Clean Power Plan” is the centerpiece of the Obama Administration’s response to climate change, and it has widely advertised that fact. No one thinks that states implementing the federal health care law are responsible for “Obamacare,” and here very few are likely to mistake the source of the clean power rules.
Second, if state officials (and utility executives, for that matter) feel a need to publicize that they are complying with a federal mandate for which they are not responsible, they possess numerous tools to disseminate information. “Saying no” to EPA is hardly the only way to spread that message.
Whatever its other faults, the EPA’s Clean Power Plan has one clear virtue; it gives states plenty of flexibility to decide how to meet the emissions reductions dictated by the agency. To argue that any given regulatory plan—no matter who writes it—will be as costly as another is not only flatly wrong (see above) but ignores everything conservatives proclaim to know about markets. Command-and-control regulations are a costly means of reducing emissions. Market-oriented regulations are much more efficient. States have an opportunity to embrace the latter in their state implementation plans. EPA, however, is almost certain to embrace the former. God put conservatives on earth to minimize regulatory costs, not to inflate them in futile attempts at making a point.