Congress, Courts and Governors

A Republican-controlled Congress, several important cases before courts and growing opposition in governors’ mansions across the country offer three venues where blows could be struck to the Environmental Protection Agency’s (EPA) Clean Power Plan, according Hal Quinn, President and CEO of the National Mining Association (NMA).

“The 114th Congress is one reason to think we will see an effective counterweight to executive policies that restrict our nation’s energy choices,” said Quinn, speaking at the US Energy Association’s State of the Industry Forum. “ The House of Representatives was quite active in the last Congres [and] we fully expect the Senate under new leadership to join [it] this year in conducting robust oversight and advancing corrective legislation.”

Meanwhile, “the dust from the stampede to the court house will be visible” when the EPA finalises emissions rules for new, modified and existing power plants, said Quinn. But all that could be avoided by a case pending in the D.C. Circuit in which Murray Energy and 11 states claim the EPA is prevented from regulating power plants using Section 111(d) of the Clean Air Act because it already regulates them under Section 112 and such double regulation is outlawed in the act.

“It is entirely possible the court may decide to dismiss the case as premature,” said Quinn. “But there are compelling reasons for the court to decide sooner than later the threshold questions of [the] EPA’s authority to regulate power plant CO2 emissions.”

Quinn concluded by noting that a growing number of governors were realising that they would be the one’s responsible for implementing the CPP long after the current administration had left the White House. “They will be left explaining to their citizens why they must live with a risky power plan where the costs are real but the benefits are not,” said the NMA chief, before questioning what penalties – in practice – a state would face if it refused to implement the CPP.

“Let’s consider: can the EPA actually step in and run a state’s grid; order some plants to run less, others more; decree the build-out of more renewables, transmission and pipelines; and tell businesses and households their darkest days and ahead because they must use less energy?” asked Quinn. “This may be a dog with more bark than bite.”

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