The Case Against Sulking

by Daniel Farber

April 07, 2015

States will only lose out if they refuse to cooperate with the Clean Power Plan.

Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court.  He has been accused of inciting lawless behavior on the part of state governments.  Let me come to his defense on this.  (How often do I get to do that??) The states are under no legal obligation to submit plans.  The Clean Air Act does not require them to do so.  Coercing states to administer a federal regulatory program would violate the Constitution, at least as the current Court sees things.  So there’s nothing illegitimate about McConnell exercising his American right of free speech and advising them what to do.  The fact that he’s doing so presumably reflects his own inability as the leader of the Senate to do anything about it.

As it is said, this is completely legitimate advice.  But it’s also very bad advice.  Assuming the courts uphold the EPA regulation, states have three choices:refuse to submit a state plan, submit a bad faith plan that tries to game the system, or submit a good faith plan.  The first option is the one that McConnell recommends.  The problem is that EPA is already developing a template so it can step in with a federal plan.  In some contexts, the threat to impose a federal plan is a hollow threat because EPA doesn’t have the resource needed.  But given a template, and the relatively small number of power plans in any one state, it really shouldn’t be that hard.  It’s probably not EPA’s first choice, but it’s by no means an empty threat.  And some experts predict much higher electricity prices in states that choose to follow that option.

The second option is bad faith compliance.  As it turns out, there are ways of designing a plan that could actually increase greenhouse gases by allowing a state to claim more of the electricity market.  That probably sounds pretty good to some of the states.  But a new paper from Resources for the Future shows that states that are cooperating in good faith can defeat this strategy if they’re smart.  So this looks like it’s not going to work either.

The final option is to comply in good faith.  States that do so are probably not going to find the price to be as high as they’re afraid.  And they’ll probably get cleaner air for their troubles, because cutting greenhouse gases generally means reducing other nasty pollutants as well.  They may also save their consumer’s some money, since EPA is urging the use of energy efficiency measures that typically cover their own costs and more.

In short, as adults are supposed to have learned, there’s no point in sulking and threatening to take your ball home if you don’t get your way.  If the EPA plan is upheld, the smart thing for states to do is to get with the program.

This blog is cross-posted on Legal Planet.


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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Environmental Law and Policy at the University of California, Berkeley.

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