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The Senate Majority Leader is itching to pass legislation that allows your state to opt out of the Obama administration’s CPP rule. Some states are trying to pass laws so that their legislatures will be able to veto the rule, and Oklahoma Governor Mary Fallin recently issued an Executive Order prohibiting the state’s Department of Environmental Quality from beginning efforts to develop a state implementation plan (SIP) to implement the CPP. EPA’s administrator is storming the country saying, “You can’t do that.” A left-leaning intellectual is saying that the CPP proposal, as written, is unconstitutional. The Federal Energy Regulatory Commission (FERC) held a series of conferences to discuss implications of compliance approaches to the proposed CPP rule and has called for flexibility in compliance deadlines and timelines through a Reliability Safety Valve. And that’s just some of the action.
What the CPP Proposes
As proposed, the CPP would achieve a 30 percent reduction in carbon dioxide (CO2) emissions from existing coal-fired power plants by 2030 (over a 2005 baseline) by setting goals specific to individual states relative to their existing energy profiles.
The EPA based its proposal on Section 111(d) of the Clean Air Act (CAA), a rarely used provision that requires that state plans establish standards of performance that reflect the degree of emissions limitations achievable through the application of the best system of emissions reduction (BSER).
In this case, the proposal describes BSER as four building blocks that include use of diverse fuels, energy efficiency, and demand-side management. States would be required to demonstrate in their SIPs how they will meet the goals. The EPA says the proposal provides states the flexibility to design a program that makes the “most sense for their unique situation.” States may do this independently by developing individual plans or work together with other states to develop multistate plans.
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Just Say No Contingent
Senate Majority Leader Mitch McConnell (R-KY), in a letter to all the governors, says that the EPA is overreaching its authority by requiring states to submit SIPs that would apply the four blocks of BSER. McConnell contends that the EPA can require states to submit SIPs related only to improving power plant efficiencies.
According to McConnell, EPA’s Section 111(d) foundation for the CPP is probably not allowed under the CAA, and states should “think twice” before submitting a SIP that would lock the state into the federal enforcement regime and open the door to lawsuits.
The Ratepayer Protection Act (H.R. 2042), recently introduced in the House of Representatives, calls for judicial review of any final rule addressing CO2 emissions from existing fossil fuel-fired electric utility generating units before requiring compliance and would allow states to opt out of rules that would have significant adverse effects on electricity ratepayers or reliability.
Perhaps most buttressing of all to the “just say no” argument is Professor Laurence Tribe’s comments to the EPA concerning the CPP proposal. Tribe is a professor of constitutional law at Harvard. He has been on the liberal side of issues, including environmental ones, for his entire career. Tribe claims that the proposed rule raises serious constitutional questions and rests on a “fatally flawed interpretation of [CAA] Section 111.” The proposed rule, says Tribe, “lacks any legal basis and should be withdrawn.” It violates limits on EPA’s authority and the principles of federalism, according to Tribe.
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Can’t Do That Contingent
EPA Administrator Gina McCarthy had a strong response to Senate Majority Leader Mitch McConnell’s (R-KY) recommendation that states sit on their hands rather than answer the Agency’s expected call for state SIPs to demonstrate how they will comply with the Agency’s CPP.
When a state does not submit its SIP in a timely manner under an EPA CAA rule, the Agency must impose a federal implementation plan (FIP) on the state. McCarthy said EPA’s dialogue with the states on the CPP is active, and she saw no indication that states are backing away from the regulatory process. McCarthy added that she is confident that states will act independently to discuss with their lawmakers in Congress whether states should do nothing in response to a SIP call under a final rule, as McConnell recommends. She said that one way or another, the EPA is going to regulate, and if states choose not to participate in the SIP process, FIPs will follow.
What a FIP Means for You
The EPA plans to propose a FIP for the CPP rule this summer. According to Tribe, in his comments on the CPP, “ … a state that failed to adopt an EPA-approved plan would face Draconian sanctions including loss of highway funds, loss of support for air pollution planning and control programs, and a selective toughening of the regulatory regime applied to the state, in the form of a 2:1 ratio of emission reductions to increases—the so-called ‘offset penalty.’”
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