This commentary originally appeared in The Morning Consult on February 22, 2016.
In the wake of the U.S. Supreme Court’s decision to stay the controversial EPA carbon emissions regulations, states are questioning what they should be doing now while the courts consider the merits of the rule. Experts predict a final resolution in the Supreme Court is not likely until mid-2017.
West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton, lead litigants on behalf of the 27 states that sued the EPA, outlined their advice in a February 12 letter to the National Association of Regulatory Utility Commissioners, and the National Association of Clean Air Agencies. These organizations represent the states on air quality matters and are in significant discussions about what the stay means for the States. Morrisey and Paxton’s letter was prompted by news reports that EPA Administrator Gina McCarthy spoke to the groups and “urged States to continue to take voluntary steps toward compliance with the Clean Power Plan.”
The AGs had a simple message: States are under no legal obligation to continue to spend taxpayer funds on compliance efforts and in the unlikely event the Power Plan is ultimately upheld by the courts more than a year from now, there will be ample time then to restart those efforts.
Simply put, the President’s Power Plan has no legal effect whatsoever during the entire judicial review process, and states and agencies should “put their pencils down.” Further the AGs said, any taxpayers dollars spent during the judicial review process are unnecessary and likely to be entirely wasted.
Citing Supreme Court precedent, Morrisey and Paxton explained that the stay means EPA and its agents — including Administrator McCarthy — “have no authority to take any action requiring States to comply with or respond to the Power Plan.” Thus all of the obligations in the President’s Power Plan are effectively void and, in the unlikely event that the Plan is upheld, EPA would be forced to completely reset all Power Plan deadlines.
“[T]here should be no mistake,” the AGs also warned, “the decisions by state officials to move forward in preparing for a stayed and likely-unlawful Power Plan are not required or compelled by the Power Plan or any of its presently-void deadlines.”
Finally, Morrisey and Paxton reminded the states that while the EPA might continue to provide “tools and outreach” that States should not perceive these efforts by EPA as requiring States to act. The Rule has been suspended and has no legal force. It is a violation of the Court’s order for EPA to formally approve or disapprove any State plan or action regarding the president’s Power Plan.
The EPA is in denial. They are now cajoling the States to continue their work with promises that the rule will certainly be ruled constitutional, especially in light of the untimely death of Justice Scalia, who supported the stay of the rule. It is important that Governors exercise their constitutional duties to protect their citizens by mandating that all work associated with complying with this questionable environmental regulation be halted immediately.