The State Electricity RevoltPosted: April 10, 2015
Health care, Wall Street, the Internet—by the time President Obama leaves 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.
The plan hangs on an obscure section of the 44-year-old Clean Air Act. That law’s section 111(d) was well understood but the EPA has published a new interpretation of these several hundred words that runs 1,200 pages. No less a dean of legal liberalism than Harvard’s Larry Tribe is stunned by this attempt to nationalize U.S. electric generation.
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…..(read more)