Standing Up to the EPA
The West Virginia Legislature is considering bills (HB 2004 and SB 4) that would give lawmakers oversight for how the state Department of Environmental Protection plans to meet the federal EPA’s sweeping plan for reducing greenhouse gas emissions.
Under the EPA’s Clean Power Plan, states must submit plans for reducing carbon emissions using “building blocks” established by the EPA. They include making coal-fired power plants more efficient, increasing the use of natural gas at power plants, using more alternative fuels, such as wind and solar, and increasing energy efficiency in homes and businesses.
Lawmakers pushing the bills say this is an important issue for legislative purview because it’s a matter of balancing the power of the executive and legislative branches. However, it’s also a pushback against an overreach by the EPA.
And West Virginia is not alone. At least nine states, including West Virginia, and a number of organizations are mounting a legal challenge against the EPA, questioning its authority to use a section of the Clean Air Act to dictate to states how they generate their electricity.
Laurence Tribe, professor of constitutional law at Harvard, arguing on behalf of Peabody Energy, contends the EPA’s actions violate the 10th Amendment, which reserves for the states powers that are not delegated to the federal government by the Constitution.
“The proposed rule lacks legal basis and represents an improper attempt by EPA unilaterally to remake a vast portion of the American economy on the basis of a hitherto obscure provision of the Clean Air Act, Section 111.”
Other legal experts share Tribe’s view. Dr. David Schnare is legal counsel for the non-partisan Energy and Environmental Legal Institute, but before that he spent 33 years as an EPA regulator, enforcing the Clean Air Act. Schnare says the EPA does not have the authority to dictate to states where they get their energy as a method of reducing carbon.
“These policy choices are not EPA’s to make,” Schnare writes. “States—not EPA—are responsible for managing their energy resources through such measures as choosing what type of fuels or resources should be used to generate electricity and whether the limitation of energy consumption is a desirable policy.”
It’s understandable that West Virginia’s DEP feels pressure to submit a plan that meets federal EPA requirements. Schnare says EPA claims it has two enforcement tools: It could direct the U.S. Transportation Department to withhold highway funds until a plan is in place and EPA can force its own plan on the states.
But these bully tactics work only as long as the states let them get away with it. If enough states and independent groups push back, the EPA may have to reconsider it’s unilateral action. Additionally, opponents of the EPA’s Clean Power Plan have a decent chance of winning in court.
This isn’t so much about the human contribution to greenhouse gases and climate change or the deniers versus the alarmists; this is about the lengths to which an unelected federal agency will go to impose its will.
What are the limits of federal power? At what point does Washington’s authority become so consuming that administrative fiat trumps the democratic process and federalism is reduced to a quaint anachronism?
West Virginia should follow Schnare’s “wait and see” approach to this EPA overreach. At some point the EPA’s legal house of cards based on its perversion of the Clean Air Act and the agency’s unrelenting extension of federal power will collapse upon itself.
Read the article here.
- On February 6, 2015