The Clean Power Plan bursts the boundaries of regulatory authority

This commentary originally appeared in the Washington Times on August 10, 2015.

The Environmental Protection Agency’s now-adopted rule to reduce carbon dioxide from existing electric power plants injects the force of law behind an unprecedented expansion of federal administrative power — a regulatory power asserted without clear statutory authority.

Dubbed the EPAClean Power Plan, this federal takeover of the electric sector will elicit scores of commentaries about the convoluted mandate. However, crucial questions about the constitutionality of EPA’s grand scheme risk getting lost in the mix.

These questions should remain front and center. Surrender to the growing federal technocracy out of a pragmatic necessity is what nourishes the administrative state at the expense of fundamental democratic principles. Regrettably, many states and industries apparently intend to submit compliance plans in hopes of making the best of it.

The EPA’s expansive Clean Power Plan recalls Justice Antonin Scalia’s rebuke to another EPA overreach in an earlier, more light-handed carbon rule:

“When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”

If that earlier rule requiring relatively modest energy efficiency measures for large industries merits Justice Scalia’s sweeping rebuke, the EPA’s final rule to re-engineer the electric power sector takes regulatory purview to uncharted territory. Adoption of the Clean Power Plan rule is a milestone in federal regulation.

If the Affordable Care Act federalizes medical care and Dodd-Frank federalizes the banking system, the EPA’s Clean Power Plan federalizes the electric sector, but with a glaring distinction. Congress has considered, but always rejected, any new laws authorizing the EPA’s regulation of carbon dioxide.

Operating like the central nervous system of the economy and each home, the power sector affects every other sector. Over the last century, the United States has developed a highly intricate electric system that reliably generates abundant and affordable power. The EPA now has arrogated the authority to redesign that system under the Clean Power Plan’s ill-suited, tight-fisted interpretation of the Clean Air Act. Under the new rule, carbon content — rather than cost, safety and supply — will determine the operation of the electric grid.

Although of “vast economic and political significance,” the EPA’s enforceable plan carries no measurable climate benefits — the raison d’etre of this regulatory action. If the tons of carbon dioxide equivalent to the rule’s mandated 32 percent reduction of emissions are plugged into the science on which the EPA relies, the new rule will only reduce predicted warming by approximately 0.02 degrees Celsius.

With global warming off the table, the EPA has offered at least four different justifications for the Clean Power Plan: prevention of early deaths; an investment opportunity; “climate justice for communities of color”; and finally what appears to be the real driver: “leading the world.” The president repeatedly declares that the power plan is a “symbol” providing “leverage” for an international climate agreement. Our president, who also claims that climate change is a greater threat to civilization than radical Islamist terror, is unusually proactive in pursuit of a binding international climate accord later this year.

The EPA’s plan puts our country on the same green path that Germany and the United Kingdom began several years ago. Those countries created new laws to authorize replacement of their well-functioning electric system with uncontrollable and expensive renewable generation. Their bold efforts, however, have led to “environmental lunacy” according to The Economist. Over the past two years, the mainstream media has similarly assessed Europe’s “false hope” in renewables as “a fatal blunder with ugly consequences,” “a systematic industrial massacre,” and even a “green energy basket case.”

After investing billions in taxpayer money, the Germans and the British are left with ballooning subsidies, spiraling electric bills, collapsing energy markets, industrial flight to other countries, and energy poverty — while subsidizing the return of coal-fired plants and unavoidably rising emissions of carbon dioxide. The clincher: Wood has now become the most widely used source of renewable energy.

There is no wiggle room for give and take on the EPA’s seizure of the electric power sector. With relatively light judicial restraint, the agencynow acts as an independent technocracy without accountability to the three constitutional branches of government. Congress alone can end this inglorious mess by establishing clear limits to the EPA’s authority, which knows no bounds.

Kathleen Hartnett White is distinguished senior fellow and director of the Center for Energy and Environment at the Texas Public Policy Foundation and is a former chairman of the Texas Commission on Environmental Quality.