States Fight Costly EPA Power Regulations In Court As More Coal Jobs Are Lost
“In two separate but related cases to be jointly argued in the United States Court of Appeals for the District of Columbia Circuit, the country’s two largest coal companies, along with 14 coal-producing states, have challenged a proposed Environmental Protection Agency regulation, which the agency issued under the authority of the Clean Air Act, to curb planet-warming carbon pollution from coal-fired power plants. If put in effect as E.P.A. officials have proposed, the rule is intended to fundamentally transform the nation’s power sector, shuttering hundreds of coal plants and expanding renewable energy sources such as wind and solar. . . .
“In the two cases, Murray Energy v. E.P.A. and West Virginia v. E.P.A., the plaintiffs contend that the E.P.A. lacks the authority to issue the rule in the first place, and so should stop working on the rule before making it final. Among the lawyers arguing on behalf of the coal companies is Laurence H. Tribe, a renowned Harvard scholar of constitutional law, who was also a mentor to Mr. Obama when he attended law school. Republicans who opposed the rule have cheered Mr. Tribe’s role in the case.”
In an op-ed for the Washington Examiner today West Virginia Attorney General Patrick Morrissey explains the background of the case: “In June of last year, the Obama Administration's EPA launched an aggressive assault against states' rightful powers by proposing federal carbon regulations that require states to reduce carbon dioxide emission by a staggering 30 percent in just 15 years. Since announcing the proposed regulation, the Administration's EPA has employed unprecedented, threatening tactics designed to bully states into compliance, irrespective of the feasibility or legality of its proposal. States that don't comply face the potential of losing regulatory control on energy matters to the federal government.
“This case is vitally important to the nation. If the EPA's proposed rule is permitted to go forward, it will cause great harm to the states and their citizens. The agency's threats to finalize the plan this summer already have had a dampening effect on states, the energy industry, and its employees. . . . Regardless of what utilities ultimately decide, taxpayers and consumers will foot the bill, as EPA's regulations create an over reliance on other sources of energy to meet base-load power demand. To be clear, it doesn't matter where you live — you will face the daunting prospect of skyrocketing energy costs. This is an unacceptable situation and one that cannot go unchallenged.”
He points out, “The case being heard on April 16 deals with just one major legal defect in EPA's proposed rule. It seeks to require states to regulate coal-fired power plants even though EPA already regulates those same plants under the hazardous air pollutant program. As the Clinton EPA explained, such double regulation is expressly prohibited by the 1990 Amendments to the Clean Air Act.
“Indeed, EPA's arguments defending its actions are so blatantly contrary to the Clean Air Act that even Laurence Tribe — a noted liberal constitutional scholar and former mentor of President Obama's at Harvard — likened the regulations to ‘burning the Constitution,’ in recent congressional testimony.”
Further, the West Virginia AG writes, “What makes this case unique — outside of the fact that courts typically do not hear arguments until after a rule is finalized — is that the EPA's repeated threats to finalize that rule this summer are causing immediate and irreparable harm now. As recently as March 11, EPA Administrator Gina McCarthy declared, ‘The EPA is going to regulate ... If folks are thinking any of those pieces aren't going to happen — and [the Clean Power Plan] isn't going to be implemented, I think they need to look at the history of the Clean Air act more carefully. This isn't how we do business.’
“That's not how government agencies should do business in this country. An agency should not be permitted to threaten to impose a rule that it knows will never survive judicial review, in order to scare utilities, power plants, and coal mines into closing their doors in anticipation of the rule being finalized. It is an abuse of power that directly harms West Virginia and other coal-producing and coal-burning states.”
Senate Majority Leader Mitch McConnell has been leading the fight against this costly regulation. Last month, he urged all 50 of the nation’s governors to seriously consider whether their state should comply with an EPA regulation of dubious legality, which the agency is trying to get them to do pre-emptively.
Leader McConnell wrote, “Some have recently suggested that failing to comply with the EPA’s requirements would be to disregard the law. But the fact is, it is the EPA that is failing to comply with the law here. . . . In other words, the EPA is attempting to compel states to do more themselves than what the agency would be authorized to do on its own, as many states have noted in their comments in response to the rule. This point has been repeatedly stressed by noted Harvard Law School professor Laurence Tribe . . . . As Professor Tribe has noted, the Clean Air Act not only fails to authorize the EPA’s plan, it forbids it. Professor Tribe recently called the EPA’s plan ‘constitutionally reckless’, saying it ‘usurp[s] the prerogatives of the States, Congress and the Federal Courts — all at once.’ . . .
“I believe you will find, as I have, that the EPA’s proposal goes far beyond its legal authority and that the courts are likely to strike it down. All of which raises the very important question of why the EPA is asking states at this time to propose their own compliance plans in the first place. As others have suggested, 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. Their hope is that states will commit to these plans before serious legal questions are resolved. This in itself should be a sufficiently compelling reason to deny the EPA’s request. Given the dubious legal rationale behind the EPA’s demands, rather than submitting plans now, states should allow the courts to rule on the merits of the CPP.”
This pushback has infuriated liberals. Earlier this week, the AP noted, “Clearly irked by aggressive pushback from the strengthened Republican majority in Congress, [President] Obama also singled out Senate Majority Leader Mitch McConnell for criticism, saying the Kentucky Republican had been ‘telling the world’ not to have confidence that the U.S. can meet its own climate change goals. McConnell has been urging U.S. states not to comply with Obama's power plant rules, and arguing that the U.S. could never meet Obama's target even if those rules do survive.”
National Journal wrote on Tuesday, “Senate Democrats are fighting back against Majority Leader Mitch McConnell's ploy to get governors to opt out of the EPA's climate rules for power plants . . . . In a letter to all 50 governors, the Democrats—including Massachusetts' Elizabeth Warren—say that states should not listen to the Kentucky Republican, who has called on states to wait for legal challenges to play out before submitting plans to comply with the emissions reduction rules. . . . Besides Warren, the letter was signed by Rhode Island's Sheldon Whitehouse, California's Barbara Boxer, Minnesota's Al Franken and independent Bernie Sanders of Vermont. . . .
“The Democrats' letter is part of a larger attack from the left on McConnell. The Natural Resources Defense Council Action Fund on Wednesday will launch an ad targeting McConnell over a GOP agenda that aims to scale back environmental rules. On Tuesday, several environmental groups held a press call blasting McConnell on his first 100 days as majority leader . . . .”
Democrats and their strident environmentalist allies, though, have blinded themselves to the human costs of their expensive regulations. The Hill reported yesterday, “A major Appalachian coal mining company is laying off hundreds of workers in West Virginia and blaming the lost jobs on President Obama’s environmental policies.
“Murray Energy Corp. will lay off the 214 workers at three mines in Marion and Marshall counties. Murray said in a late Tuesday statement that the layoffs are ‘due to the ongoing destruction of the United States coal industry by President Barack Obama, and his supporters, by the increased utilization of natural gas to generate electricity, and by the extremely excessive coal severance tax in the state of West Virginia.’ . . . Although the Environmental Protection Agency’s carbon limit for power plants has not been made final, Murray has argued in court briefs that it is already causing power utilities to switch away from coal use, and it needs to be stopped.”
Tags: EPA, power regulation, Obama administration, War on Coal, lost jobs, States, Courts To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!
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