Rule Of Law: How Republican AGs Are Fighting The EPA, And Fighting For Federalism

Jessica Medeiros-Garrison President, Rule of Law Defense Fund
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Far from the universe of federalism, an interesting constellation has formed. Democratic state attorneys general have circled around the EPA to support a proposed federal agency action, commonly referred to as Rule 111(d). The rule would have uncommon results, raising electricity rates and the costs of goods and services under the guise of reducing emissions. Republican AGs have opposed the tactic for over a year and last month filed suit to return the regulatory authority to the states, as Congress originally intended.

At issue is the overreach of the Obama administration and the EPA. The group of 12 states, led by West Virginia Attorney General Patrick Morrisey, asked the U.S. Court of Appeals to invalidate a 2011 settlement agreement in which the EPA promised to regulate carbon dioxide emissions from existing coal-fired power plants under Section 111(d) of the Clean Air Act (CAA).

The agreement is illegal because coal-fired power plants are already regulated under a separate section of the Clean Air Act and the law explicitly forbids the “double-regulation” of these plants.

You may be wondering, “Why does this technical lawsuit matter to me?” The answer is that these regulations with little environmental benefit will not only result in higher costs for families at the grocery store and in their monthly electricity bills, they will also hinder business growth and cripple the hiring of new workers, increased wages, or new equipment purchases. Equally as significant will be the substantial job losses – at least 75,000 in the coal sector, according to the United Mine Workers, and an average 224,000 fewer U.S. jobs every year through 2030, according to the U.S. Chamber of Commerce.

West Virginia was joined in the lawsuit by the AGs of Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming, all of whom but one are Republican. If you are from one of those states you certainly have someone looking out for your best interests.

On the other hand, Democratic AGs from 11 states and the District of Columbia are now intervening on behalf of the EPA in this case. You read that right; these states are rushing to the side of the EPA in a power grab over their own citizens. If you are from one of these places – California, Connecticut, D.C., Delaware, Maine, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington – you should be very concerned about your leadership.

The line could not be clearer. Republican attorneys general are working to free the people of their states from the overbearing hand of the federal government, while Democrats are helping to tighten that hand around the neck of American families and businesses.

But, let’s take a step back and consider a more general look at the Clean Air Act (42 U.S. Code § 7401): The Congress decides that air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of states and local governments.

In layman’s terms, it is up to the states to manage air pollution. Nevertheless, this delineated state power is of no consequence to an administration bent on catering to the whims of extremists on the left. As recently highlighted by Thomas Yeatman of the Competitive Enterprise Institute, Obama has been starkly more aggressive than previous administrations when it comes to EPA takeovers of state air quality programs, known as Federal Implementation Plans (FIPs).

Yeatman notes that past administrations have proved reluctant to impose these FIPs. For example, in the administrations of George H.W. Bush, Bill Clinton, and George W. Bush, there were atotal of five FIPs. By comparison, President Obama’s EPA has already issued 51 FIPs.

And this goes to a broader problem at the EPA. The agency is no longer willing to work with states, but would rather rule by fiat and use the courts to assist them. Its cue comes from the West Wing, which has been willing to work only with those members of Congress who already agree with them.

The Republican attorneys general are willing to take on the fight to restore the balance of power between the states and the federal government. They are the ‘last line of defense’ in the fight to prevent federal overreach in so many areas. Whether it is health care, environmental, or property rights issues, the Republican AGs have been on the side of the Constitution and rule of law.

With the November elections around the corner, not only do Republicans have a chance to take back the Senate, but they also have a great opportunity to grow their numbers in state attorney general offices around the country – including some of those carrying the flag of the EPA and the Obama administration.