Health care, Wall Street, the Internet—by the time President Obamaleaves office, there may not be much of the economy left for his successor to take over. The better news is that his attempt to do the same to the energy industry is meeting heavy resistance in the states.
The Environmental Protection Agency is finishing a rule—expected in June or July—that requires the states to meet carbon-reduction targets by reorganizing their “production, distribution and use of electricity,” as the EPA puts it. This is an unprecedented federal usurpation of what has been a state responsibility since the invention of the modern steam turbine in the 1880s.
States are normally allowed as much as three years to comply with EPA mandates that are far less complex than this one. But the EPA will instruct them to submit implementation plans by summer 2016 and make interim progress as soon as 2020. The rule is intended to impress the greendees of the Paris climate conference this year, so Mr. Obama can announce a global climate deal.
States will be told to meet the targets using four “building blocks.” The first is uncontroversial: improving the efficiency of fossil-fuel power plants and installing pollution-control technology like smokestack scrubbers. But for the first time the EPA is also telling states to roam “outside the fence line” of power plants to force coal and eventually natural gas to shut down, mandate quotas for renewables like wind and solar, and impose energy conservation.
The problem is that the federal government has no legal power outside the fence line. Last year the D.C. Circuit Court of Appeals slapped down the Federal Energy Regulatory Commission’s bid to claim authority over “demand response” on the electric grid.
Thus the EPA is trying to coerce the states into doing what it can’t do itself. Most will need to pass new laws or rush through new rules to comply, jammed into a single year. The EPA wants to embed policy changes that a Republican President couldn’t reverse and deny Governors and legislatures the time to think through the consequences. But some states are thinking, and they may tell the agency: No mas.
Under the cooperative federalism of the Clean Air Act, states are invited to draw up implementation plans for EPA approval. But they have no legal obligation to do so, because the feds cannot commandeer the states. The EPA can pursue a fallback federal plan if it doesn’t like what states do. But there is good reason for the states to band together, refuse to participate, and thus call the EPA’s bluff.
In particular, states would avoid making themselves complicit in dangerous behavior. Virtually everyone who understands the electric grid, from state utility commissions to the regional transmission operators, warns that the EPA’s ambitions threaten reliability. These apolitical organizations think brownouts or cascading blackouts are possible.
To take one example, the northeast blackout of 2003 cost about $13 billion, and the New York Independent Systems Operator now reports that the EPA’s reductions “cannot be sustained while maintaining reliable electric service to New York City.” It calls the plan “inherently unreasonable” that “no amount of flexibility can fix.” This is not Texas talking.
The section 111(d) rewrite will be litigated for years or decades and almost certainly resolved by the Supreme Court. The 2016 White House budget requests $52 million merely to hire lawyers to defend this single rule. It would be prudent for states to postpone cooperation until the lawsuits shake out, rather than spend billions of dollars now that may turn out to be unnecessary.
We also know from ObamaCare that the feds do not have the bandwidth to successfully reconstruct part of the economy without state participation. A mass state-by-state boycott, though risky, could limit some of the damage by overloading the EPA’s limited resources and personnel.
More to the point, the states ought to decline to lend political legitimacy to an extraordinary abuse of federal power. The EPA is not merely exercising the lawmaking that belongs to Congress but frustrating democratic accountability. If the EPA causes a blackout, then voters should understand that the EPA is the cause, not a Governor.
Senate Majority Leader Mitch McConnell is urging Governors to wait before cooperating, and the irony is that the White House is assailing him for “interfering” with state deliberations. The truth is that the EPA is attempting to steal state sovereignty in order to dominate everything from power plants to ceiling fans. The EPA’s imperiousness is creating the case for noncooperation. States can only protect their energy futures by declining to do the EPA’s dirty work.
See the article here.
- On April 10, 2015