Mitch McConnell Takes On the EPA
Senate Majority Leader Mitch McConnell (R., Ky.) has come out swinging against the Clean Power Plan (CPP), the Environmental Protection Agency's proposal to limit carbon-dioxide emissions from power plants. In a letter to the National Governors Association, McConnell writes of his "serious legal and policy concerns" with "this deeply misguided plan." He is not alone. To date, 32 states have expressed opposition to the CPP. McConnell's letter may look to inspire more to go and do likewise.
McConnell charges the EPA with "attempting to compel states to do more themselves than what the agency would be authorized to do on its own." The Clean Air Act -- the law the EPA says authorizes the CPP -- does empower the agency to require states to enhance the efficiency of their power plants. But McConnell argues that the EPA's interpretation "overreach[es]." McConnell states that the CPP would now require states to "switch electricity generating sources," build "new generation and transmission," and "reduce demand." None of this is authorized by the Clean Air Act.
In addition to violating the law, McConnell writes, the CPP "would impose the greatest hardship on low-income families, including those with a fixed income and those dependent on Social Security." Citing a recent report issued by National Economic Research Associates, McConnell claims that the CPP will spark "double-digit electricity rate increases" in 43 states, with a total national cost of "nearly $479 billion over 15 years."
Does EPA's stated purpose -- to combat global climate change through shutting down coal-fired power plants -- justify this move? McConnell labels such an effort "largely symbolic" so long as other nations are not doing the same. "Even then," he adds, "the EPA admits that the 'climate' benefits of the CPP cannot be quantified." Moreover, the EPA has "refused to estimate the impact [the CPP] would have on global temperatures or sea levels."
Convinced that the courts will "likely strike down" the CPP, McConnell next asks why "the EPA is asking states at this time to propose their own compliance plans in the first place." His answer is troubling: "The EPA's deadlines were very likely designed to force states to develop and submit implementation plans before the courts can decide on the legality of the CPP." McConnell may have in mind the damage that could be done to any court challenge to the CPP if a number of states are already complying and therewith implicitly granting the CPP’s legitimacy. Therefore, his admonition to states is to "just say no" to the plan's request that states submit State Implementation Plans (SIPs).
If states decline to submit SIPs, the EPA's "only recourse" will be to craft its own plan for each nonparticipant. McConnell reminds states that, under the Tenth Amendment, the EPA "has no authority" to sue nonparticipating states or to "withhold federal funds" from them. The Supreme Court's recent NFIB v. Sebelius (Obamacare) decision, which relied heavily on the 1992 case New York v. U.S., confirmed that the federal government cannot force states to participate in federal regulatory schemes.
But might not the EPA, if it imposes its own plan on nonparticipating states, wreak more havoc than would occur had states handled the matter themselves? McConnell finds it "difficult to see" how an EPA-imposed plan "could be any worse" than what would result from its request that states impose plans on themselves. Why? The first section or "Building Block" of the CPP, which is "most likely within the agency's authority," costs $17.6 billion -- a "fraction" of the $479 billion cost of the full plan that the EPA "is counting on states to impose on themselves."
Most dangerous of all, according to the majority leader, is the precedent that state submission to federal plans would establish, "allowing the EPA to wrest control of a state's energy policy if they or any other federal agency becomes dissatisfied" with a state's progress on reducing emissions. A state's submission of an SIP, in the view of the EPA, provides the agency with "broad new authority to control the state's energy future."
Is McConnell's salvo simply a partisan move? Those who think so will be hard-pressed to explain why no less than Harvard law professor -- and liberal icon -- Laurence Tribe, whom McConnell cites in the letter, goes even further in his condemnation of the CPP, labeling it "constitutionally reckless." Tribe argues that the CPP would "usurp the prerogatives of the States, Congress, and the Federal Courts -- all at once." Tribe went further still in his testimony before the House Committee on Energy and Commerce in March: "EPA's proposal impermissibly trenches on state authority over intrastate energy regulation in a way that in unprecedented under the CAA [Clean Air Act] and raises serious questions under the Tenth Amendment and long-settled principles of federalism. ... In short, the [CPP] poses the most serious invasion of federalism principles in the history of the CAA."
Will more states jump on the anti-CPP bandwagon as a result of McConnell's call? This is already happening here in Texas, where the legislature has filed six measures opposing the CPP. The bill most in line with McConnell's aims is the No SIP bill, under which no Texas state agency may "finally adopt a rule or submit a state implementation plan [SIP] to comply with the [CPP] ... if those federal rules give the Environmental Protection Agency authority to regulate a person, entity, or activity that it did not regulate on January 1, 2015."
It is not difficult to understand Texas's opposition to the CPP. According to one study, the CPP would impose "by far, greater economic harm" on Texas "than any other state," raising the average Texas household's electricity and gas bills "by more than 54 percent by 2020." In real dollars, the average Texas household's annual power and gas bills would rise by $1,060 as a result of the CPP.
Despite the CPP's destructive impact on the Lone Star State, it is unclear whether the "No SIP" bill will pass this session. Some here, although they oppose the Clean Power Plan and federal overreach generally, believe the best strategy is to wait and see. This stance stems from the belief that the CPP's transparent unconstitutionality will bring about its ultimate demise in the Supreme Court in a few years. But proponents of the "No SIP" bill worry that the wait-and-see crowd's confidence that time is on the side of the states and their citizens is misplaced. At this writing, coal-fired power plants are already shutting down or moving out of the country merely as a result of the EPA's proposing the rule. Even if the Supreme Court should strike down the CPP in the future, it will be too late: The EPA's overriding purpose -- decimating coal power -- will already largely have been accomplished.
Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of SeeThruEdu.com. He was deputy chairman of the National Endowment for the Humanities under George W. Bush.