Legal Experts Skeptical Trump Can Unilaterally Subsidize Appalachian Coal

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Michael Bastasch DCNF Managing Editor
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West Virginia Gov. Jim Justice believes President Donald Trump can unilaterally set up a subsidy program for Appalachian coal through an executive order, but legal experts are unsure of where such authority would come from.

“The basic constitutional principle is that the President cannot spend money unless it is authorized by congressional statute, and Congress has appropriated funds that year for the program,” University of California-Berkeley law professor John Yoo told The Daily Caller News Foundation.

Justice’s proposal that Trump create a $4.5 billion program to subsidize utilities for every ton of Appalachian coal they burn is already causing a stir among Republicans. And it’s unclear how this would work without congressional appropriations.

Justice believes Trump can set up a program on his own, but his office did not respond to The Daily Caller News Foundation when asked for more specifics on what authority the president could rely on.

“I’m not sure how the executive could come up with 4.5 billion based on Article II authority,” Will Yeatman, a senior fellow at the libertarian Competitive enterprise Institute, told TheDCNF.

“I don’t see any details, but presumably the argument is based on the president’s inherent national security authority,” Yeatman said.

Appalachian producers have been hardest hit by the coal industry’s downturn. Their coal is much more expensive to mine than western coal in the Powder River Basin, and increased competition from low natural gas prices have curbed utilities’ appetite for coal.

Add to that Obama administration environmental regulations that most utilities played a role in closing coal plants. Trump promised to lift the regulatory weight off the coal industry, and has already taken steps to roll back Obama-era rules.

Justice wants Trump to go even further and subsidize Appalachian coal.

“There could be existing statutes that provide for subsidies for industries that are harmed by unfair trade competition or that are advancing innovative techniques for energy development,” said Yoo, who worked in the Bush administration Justice Department and was a major proponent of the “unitary executive” theory of government.

“The program you mention, however, doesn’t seem to fall within these categories,” Yoo said. “If no existing statute exists creating the program, then President Trump will have to ask Congress for new funds this upcoming year.”

Justice, who switched party affiliations from Democrat to Republican, recently told reporters Trump was “really interested” in the subsidy plan to pay utilities $15 for every ton of Appalachian coal for electricity.

Western state Republicans have come out against the plan, saying it would be government picking winners and losers. Appalachian Republican lawmakers have largely been silent on the issue, and it’s unclear how much support the proposed subsidy would get in Congress.

“Ultimately, I’d imagine that Congress would have to pass this,” Yeatman said.

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