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.
Showing 2,834 results
Daniel Farber | April 7, 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 […]
Joel A. Mintz | March 31, 2015
When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That’s particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices […]
Frank Ackerman | March 30, 2015
There must be a global template for business complaints about regulation, located on some secret right-wing server. Just type in the industry and the name of the regulation: Billions of dollars are at stake, companies will be driven out of the industry and consumers will lose access to low-priced products, if the government dares to […]
Catherine O'Neill | March 26, 2015
The U.S. Supreme Court yesterday heard oral argument in the consolidated cases challenging the Environmental Protection Agency’s rule regulating mercury and other toxic emissions from coal- and oil-fired power plants. These utilities remain by far the largest domestic source of mercury emissions, contributing more than half of the mercury releases nationwide. Mercury emissions are at […]
Erin Kesler | March 25, 2015
Today, the Supreme Court heard oral argument in Michigan v. EPA. CPR Member Scholar and University of Texas School of Law professor Thomas O. McGarity responded to the debate with the following statement: Following today’s oral arguments, the Supreme Court must decide whether EPA misinterpreted a section in the Clean Air Act requiring it to regulate hazardous […]
James Goodwin | March 25, 2015
When it comes to public safeguards, industry never wants to talk about keeping people healthy and protecting the environment; they’d much rather have a conversation about how safeguards will cut into their profits — the costs in the cost-benefit equation. Even on matters where Congress, by statute, has made the discussion of regulatory costs legally […]
James Goodwin | March 25, 2015
In the run-up to this morning’s oral arguments before the Supreme Court on the Environmental Protection Agency’s rule to limit hazardous air pollutants from fossil-fueled power plants—and indeed throughout the oral arguments themselves—opponents repeatedly pointed out that the benefits of the rule in reducing mercury pollution were “only” between $4 million and $6 million. Putting […]
Erin Kesler | March 24, 2015
In the United States, a handful of large corporations including Perdue and Tyson direct and oversee nearly every step in the poultry production process, essentially serving as overlords to the tens of thousands of small farmers with whom they contract to raise their chickens for slaughter. While deriving the lion’s share of the profit, these […]
Erin Kesler | March 23, 2015
Last Friday marked the 10 year anniversary of the BP Texas City Refinery explosion that killed 15 people and injured 170 others. In an opinion piece for the Houston Chronicle, CPR President Rena Steinzor describes the systemic failures which led to the explosion and the regulatory gaps that remain. She calls for criminal investigations, “everytime refinery operations kill, maim, or threaten […]