Opinion

What Should States Do About Obama’s New EPA Regs?

Doug Domenech Director, Fueling Freedom Project, TPPF

In an unprecedented decision, the U.S. Supreme Court on Tuesday issued five separate rulings all asking for a stay of the EPA 111(d) regulations referred to as the Clean Power Plan. They all said the same thing, “The application(s) for a stay submitted to the Chief Justice and by him referred to the Court is granted.”

These are perhaps the words we will look back on as the time when sanity turned the tide on faulty climate policy. Of course, a disappointed EPA responded by saying, “you can’t stay climate action.”  They anticipate winning the case on the merits scheduled for argument in the DC Court of Appeals in June.  Never mind that the anticipated benefit of the rule to the climate is an immeasurable 0.018 degrees C. In essence, SCOTUS’s decision conveys their concern about the underlying rule. But we will not know the court’s views on the merits of the 111 (d) rule until mid-2017 at the earliest.

Constitutional lawyers David Rivkin and Andrew Grossmann wrote in the Wall Street Journal, “Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power.”

But states are not yet protected. The inertia of the environmental industrial complex might still prevail unless affirmative action is taken. David Doniger at the Natural Resources Defense Council said, “It was totally unexpected and unprecedented…but it is only a temporary halt.”

The direction for the states is now clear: stop all ongoing implementation activities. For instance, Governors could immediately issue Executive Orders to halt the expenditure of state funds for the development of state plans initially due to EPA September 6, 2016. Attorneys General could issue advisory opinions that expending taxpayer funds for this planning lacks legal standing.  State Legislatures could pass emergency legislation prohibiting any further planning action by their state Departments of Environmental Quality. And state Public Service Authorities could clearly assert that they will deny the attempt to recover any expenditures by utilities on ratepayers.

The SCOTUS decision virtually assures that the carbon emission regulation, a crucial element of President Obama’s climate agenda, will not go into effect until after he leaves office. That is even if the Court rules in favor of EPA on the merits, which seems unlikely given the 5 to 4 decision on the stay.

The SCOTUS decision also guts the proposed treaty negotiated by the administration in Paris last December. In fact, under its treaty power, the U.S. Senate has the ability to immediately call up the agreement and have an up or down vote on its ratification. Together the House and Senate could overturn the President’s veto of their resolutions of disapproval of the Clean Power Plan regulation and the Budget and Appropriations Committees could resolve to defund any EPA programs dedicated to implementing the rules.

Last March, Senate Majority Leader Mitch McConnell wrote to all of the Governors urging them to reject the EPA plan as illegal and unconstitutional. He deserves a lot of credit for signaling what the Courts have now confirmed.

West Virginia Attorney General Patrick Morrisey has said, “all states, even those that support the administration’s plan, are obligated under the court’s decision to stop all activity related to complying with the plan’s goals.” This is the best advice. All states should follow it.

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