Critics Fear The EPA Is Trying To Circumvent Major Supreme Court Ruling


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Michael Bastasch DCNF Managing Editor
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The Environmental Protection Agency (EPA) said it’s respecting a recent Supreme Court ruling halting the implementation of the agency’s key global warming regulation, but the agency’s top official is sending a different message to states.

On the one hand, the EPA said it would support the Supreme Court’s issuing of a stay on the so-called Clean Power Plan (CPP) — a rule forcing states to cut carbon dioxide emissions from power plants.

On the other hand, the agency is telling states it will offer assistance to them if they want to “voluntarily”comply with the rule.

“Are we going to respect the decision of the Supreme Court? You bet, of course we are,” EPA Administrator Gina McCarthy told utility executives last week. “But it doesn’t mean it’s the only thing we’re working on and it doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”

Do McCarthy’s remarks signal the EPA is trying to find ways to get around the Supreme Court’s ruling against the agency? That’s what concerns experts at the free market Competitive Enterprise Institute (CEI).

“It’s definitely worth monitoring—and investigating,” Marlo Lewis, a CEI senior fellow, told The Daily Caller News Foundation. Lewis pointed out the EPA may be trying to circumvent the Supreme Court’s stay.

“I mean, if communications between EPA and its state counterparts vis-à-vis the Clean Power Plan continue as if nothing has changed, then wouldn’t that be an end-run around the Court?” Lewis said.

The Supreme Court issued a stay against the CPP Feb. 9, reversing the decision of a lower court not to halt implementation of the rule. The high court’s ruling was seen as a major blow to President Barack Obama’s global warming agenda.

EPA said it was disappointed with the ruling, but promised to respect the court’s decision and not implement the rule. But in the days following the decision, top EPA officials began making remarks that seemed to hint the agency was encouraging states to go ahead and cut emissions anyways.

“Congress should invite McCarthy to testify and explain what types of communications and coordination with state counterparts she has suspended and/or prohibited pending final resolution of CPP litigation on the merits,” Lewis said.

McCarthy told utility executives the agency would support states wanting to “move forward” in cutting carbon dioxide emissions. Likewise, the head of EPA’s air and radiation office, Janet McCabe, has also suggested the rule will eventually be upheld — despite it being in legal limbo.

“EPA utility rules have been stayed twice before, and ultimately upheld,” McCabe said while participating in a panel discussion in Bloomington, Indiana last week. “It’s only smart for states to keep working on this.”

“We stand ready at EPA to help any state that wants to move forward with their planning activities,” McCabe said, noting that some states pledged to cut CO2 after the Supreme Court stayed the CPP.

McCabe is referring to an agreement signed by 17 states in the aftermath of the Supreme Court decision pledging to push forward with green energy projects. The agreement, signed mostly by Democratic governors, looks to promote cooperation between states in promoting green energy, but the agreement makes no mention of global warming.

Michigan Republican Gov. Rick Snyder signed onto the agreement even though the state’s attorney general is suing the EPA over the CPP. Snyder has also prohibited state officials from working to implement the rule. Michigan is one of 29 states and state agencies suing the EPA to roll back the CPP.

“The Obama administration’s Environmental Protection Agency has once again been stopped from an attempt to push beyond its constitutional powers,” Michigan Attorney General Bill Schuette said about the high court ruling. “The EPA continues to show that they don’t take the real world into account when they make sweeping rules that change daily life for average Americans.”

The EPA disagreed that it was working to undermine the Supreme Court’s stay, and restated its belief the CPP will be upheld by the courts.

“Implementation and enforcement are on hold while the stay is in place,” an EPA spokeswoman told TheDCNF. “For example, states are not required to make initial submittals on September 6, 2016.”

But the spokeswoman said the agency “will continue to work with states that want to work with us on a voluntary basis,” though the agency was not able to say if any CPP incentives would be made available to states that decide to voluntarily comply with the rule.

“For the states that choose to continue to work to cut carbon pollution from power plants and seek the agency’s guidance and assistance, EPA will provide tools and support,” she said. “We will make any additional information available as necessary.”

Lewis, however, was skeptical, and argued statements by EPA officials seem to signal it’s trying to find ways to skirt the Supreme Court ruling.

Update: A previous version of this article state Gov. Snyder was suing the EPA. This is incorrect. Michigan’s attorney general is suing EPA in his individual capacity and not on Snyder’s behalf. The article has been corrected to reflect this.

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