What’s next for the EPA’s ‘all pain, no gain’ Clean Power Plan?

This commentary originally appeared in The Washington Examiner on August 12, 2015. 

The EPA's so-called Clean Power Plan is an illegal takeover of the electric power production sector and amounts to a national energy tax on all Americans. The administration's goal is to force states to replace their current mix of low cost, reliable energy fuels with a higher cost mix of renewables that are largely dependent on the weather.

Without the approval of Congress, this new regulation is aimed at reducing "carbon pollution" by 32 percent by 2030. The president is using executive power to impose the rule in order to meet his promise to the United Nations.

States will be under pressure to comply "or else," once again becoming victims of power-grabbing federal overlords bent on imposing their will on the states regardless of the effect on communities. The bottom-line is that the increased cost of electricity from this rule is estimated to be 12 percent to 17 percent, depending on the state. That means every home, business, church, daycare center, hospital, police and fire station, school and university building and union hall will pay more for electricity.

Many members of Congress oppose the plan, as will the courts. What motivates this kind of environmental zealousness cannot be explained by the immeasurable benefits of this rule (0.018 degree C by 2100). As many industry experts have said, this expensive plan is "all pain for no gain."

After its recent loss in the U.S. Supreme Court over the Mercury and Air Toxics (MATS) rule, EPA Administrator Gina McCarthy slyly admitted that it did not matter if the courts reject the rule, because states had made the changes EPA wanted before the courts reacted. Legality was not important. So much for rule of law and democracy.

As the American Energy Alliance has said, "States must decide how they should respond to best defend their sovereignty and protect their residents." It is important to understand that states are not required to submit a state plan and they should not. The EPA is requiring states to voluntarily do things the EPA itself does not have the legal authority to do.

States that file plans to comply with the Clean Power Plan open themselves up to the complete federal takeover of their power grid. Under the Clean Air Act, the EPA can fully enforce any state plan submitted to them. Even more significant is the fact that state plans will be vulnerable to "sue and settle" lawsuits by environmental groups who can use the courts to compel the EPA to force the states to comply. These groups, after all, have little interest in the low cost, reliable and abundant energy available from traditional fossil fuels.

States should band together to oppose the rule by joining an Interstate Power Compact (IPC). The compact, once passed into law by state legislatures, allows states to protect themselves against the deeply flawed Clean Power Plan by stating that they will, at most, only submit a state plan within the legal limits of the EPA's authority to require emission reductions at the power source. Additionally, IPC members agree to petition the federal government to protect them from any EPA-imposed federal plan.

What happens next? Congress has already acted.

A majority of the U.S. House of Representatives recently passed the Ratepayer Protection Act, limiting EPA's ability to enforce the plan. The bill extends the rule's compliance dates pending judicial review, including the dates for submission of state plans, and provides that "no state shall be required to implement a state or federal plan that the state's governor, in consultation with other relevant state officials, determines would have a significant adverse effect on (i) retail, commercial or industrial ratepayers; or (ii) the reliability of the state's electricity system."

The Senate is currently holding hearings on The Affordable Reliable Energy Now Act (ARENA Act), which would also protect ratepayers.

As soon as the final rule is in place (i.e., printed in the Federal Register), it is anticipated that at least 15 states will file suits challenging its constitutionality. Six governors have said their states will not comply and dozens of other states have filed negative comments on the rule.

In the final rule, the Clean Power Plan consists of three buckets (they call them "blocks") of measures that states must undertake to reduce emissions from coal-fired electrical generation. These requirements are costly and, in some cases, states themselves lack the legal authority to impose the changes. They include reducing the emission rates of coal-fired power generation, replacing coal-fired electrical generation with natural gas, and replacing coal-fired electrical generation with renewables.

Ordinarily the EPA can impose only one of these blocks (Block 1) under the Clean Air Act. Even under Block 1, many state environmental agencies are studying only partial compliance, because fully meeting the EPA's goal of 6 percent improvement in the heat rate for Block 1 is unrealistic for power plant operators.

The American people are starting to recognize that there is nothing good in this rule. Multiple polls indicate widespread opposition to any plan that raises electricity rates, especially in low income Latino and African-American communities.

The EPA is an overreaching federal agency unbounded by public opinion or congressional oversight that acts recklessly on secret science. It is high time to withdraw the Clean Power Plan rule.

The Honorable Doug Domenech is the director of the Fueling Freedom Project at TPPF.