The EPA’s Clean Power Plan oversteps federal authority


By Terry Jarrett



The quest for cleaner energy is one of the great challenges of the 21st Century, and has fueled many “green” initiatives in recent years. But something troubling is coming down the pike now that the Obama Administration has announced its new “Clean Power Plan” (CPP). In a full-speed-ahead quest to lower carbon dioxide emissions from the nation’s power plants, the administration is implementing new Environmental Protection Agency (EPA) rules that raise troubling legal issues.

For starters, the EPA, which has never previously demonstrated any expertise in regulating America’s vast power grid, will begin to shut down coal plants under a vague authority derived from the Clean Air Act. Essentially, coal, the most affordable and abundant fuel used to generate electricity in the U.S.—and which currently generates about 40% of the nation’s power supply—will be phased out in favor of higher priced and less reliable wind and solar.

The problem, as legal experts are now pointing out, is that the EPA plan oversteps federal authority. Harvard University Constitutional Law Professor Laurence Tribe, who is generally a supporter of the president’s agenda, told Congress earlier this year that that the plan exceeds the EPA’s authority under federal law. According to Professor Tribe, the CPP makes states unacceptably subservient to Washington on energy and environmental matters because it “invades state regulatory control in an unprecedented manner” that “raises grave constitutional questions that the Act must be construed to avoid.”

How exactly is the EPA overreaching its authority? As Professor Tribe explains, the EPA will force states to adopt policies that will raise energy costs, a blunt approach that runs counter to the mandates of many state energy commissions. The EPA rules are deceptive, too, in that they claim to provide states with a “choice” in devising new energy approaches. As Professor Tribe notes, there is little real choice when state policies are in fact compelled by the EPA: “Such sleight-of-hand offends democratic principles by avoiding political transparency and accountability.”

The EPA doesn’t recognize this conflict of interest, unfortunately. As EPA Administrator Gina McCarthy said recently, “We’re particularly interested in making sure states and utilities can achieve emissions reductions along a flexible glide path so that they can meet their targets.”

Far from being flexible, the CPP simply seizes the authority long held by states to regulate their power systems. And what’s being imposed is disturbing because it could lead to heavy-handed plant closures in states that currently rely on coal for everyday living.

Not only are wind and solar intermittent sources of energy—the wind doesn’t always blow, the sun doesn’t always shine—but the coal plants on the chopping block have continually proven their durability and reliability in supplying robust electricity. As the EPA shuts down these high-performing coal plants, the reliability and affordability of electricity in many states will become victims to a misguided, one-size-fits-all agenda. Consumers will thus pay higher electric bills while facing potential blackouts during peak usage.

Which brings us to the pushback emerging from states as they realize their authority to structure internal energy supply is being usurped by Washington. Oklahoma Governor Mary Fallin has issued an executive order directing that her state will not comply with “such a clear overreach of federal authority.” Indiana Governor Mike Pence has made the same declaration regarding a policy he believes “will drive up electricity prices without any discernible impact on global carbon dioxide emissions.”

All in all, more than 20 states are preparing to join a lawsuit against the EPA’s overreach. Historically, states have established their own energy policies to ensure adequate and reliable service at reasonable prices. But the EPA’s vast federal bureaucracy faces no such mandate. Instead, it seeks to impose a heavy-handed “solution” that will likely dismantle decades of carefully managed, localized energy regulation. This poses a troubling and expensive problem for working class America, and state governors should reject such unwise federal mismanagement.

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Terry M. Jarrett is an attorney with Healy Law Offices, LLC in Jefferson City, Missouri, and a former Commissioner of the Missouri Public Service Commission.

By Terry Jarrett

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