March 19, 2015

National Governors Association
444 North Capitol Street NW, Suite 267
Washington, D.C. 20001-1512

 

Dear Governors:

I write concerning the Environmental Protection Agency’s (EPA) proposed “Clean Power Plan”, or CPP, a new Obama Administration regulation that would require states to dramatically restructure their electricity systems based on the EPA’s view of how electricity should be produced and used in each state. This new proposal calls for a 30% reduction in carbon emissions from existing power plants by 2030 (from 2005 levels) through federally-enforceable state plans submitted to the EPA.  I have serious legal and policy concerns regarding this proposal.

Some have recently suggested that failing to comply with the EPA’s requirements would be to disregard the law. But the fact is, it is the EPA that is failing to comply with the law here. By requiring states to submit a plan aimed at achieving a lower emissions target based upon four so-called “building blocks” — (1) improved power plant efficiencies, (2) switching electricity generation sources, (3) building new generation and transmission, and (4) reducing demand — the EPA is overreaching, as its authority under the Clean Air Act extends only to the first building block related to source specific energy efficiency upgrades.

In other words, the EPA is attempting to compel states to do more themselves than what the agency would be authorized to do on its own, as many states have noted in their comments in response to the rule. This point has been repeatedly stressed by noted Harvard Law School professor Laurence Tribe, an otherwise strong supporter of President Obama who taught the first course in environmental law in the United States. As Professor Tribe has noted, the Clean Air Act not only fails to authorize the EPA’s plan, it forbids it. Professor Tribe recently called the EPA’s plan “constitutionally reckless”, saying it “usurp[s] the prerogatives of the States, Congress and the Federal Courts — all at once.”

Moreover, while the Supreme Court has ruled that the EPA may regulate carbon dioxide under the Clean Air Act, the Court never sanctioned an effort as far-reaching as the CPP. In fact, the Court recently struck down a key part of another EPA rule aimed at regulating carbon dioxide emissions and, in a decision issued shortly after the CPP was announced, pointedly warned the EPA against claiming regulatory powers for itself not clearly granted to it by Congress.^[1] In the same case, the Supreme Court declared that it “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.””^[2]  This rule clearly meets that definition. 

The CPP would impose the greatest hardship on low-income families, including those with a fixed income and those dependent on Social Security. A recent study by National Economic Research Associates (NERA) found that under the EPA’s proposed plan, double-digit electricity rate increases are projected for 43 states, and the costs could total nearly $479 billion over 15 years nationwide. In Kentucky alone, this proposed regulation is projected to shrink the state’s economy by almost $2 billion, jeopardizing electricity delivery and throwing countless individuals out of work. Its impact would be devastating at a moment when the Kentucky coal industry has already shed nearly 8,000 jobs. 

The EPA’s stated rationale for attempting to shut down America’s coal-fired power plants is to combat global climate change. Yet, this costly effort is largely symbolic unless and until other major nations impose similar requirements on their own economies. Even then, the EPA admits that the “climate” benefits of the CPP cannot be quantified and has refused to estimate the impact it would have on global temperature or sea levels. 

For all these reasons, I hope you will carefully review the consequences before signing up for this deeply misguided plan. I believe you will find, as I have, that the EPA’s proposal goes far beyond its legal authority and that the courts are likely to strike it down. All of which raises the very important question of why the EPA is asking states at this time to propose their own compliance plans in the first place.

As others have suggested, the EPA’s deadlines were very likely designed to force states to develop and submit implementation plans before the courts can decide on the legality of the CPP. Their hope is that states will commit to these plans before serious legal questions are resolved. This in itself should be a sufficiently compelling reason to deny the EPA’s request. Given the dubious legal rationale behind the EPA’s demands, rather than submitting plans now, states should allow the courts to rule on the merits of the CPP.

States should also know that if they are either unwilling or unable to submit a plan to the EPA’s satisfaction, the only recourse for the EPA is to develop and impose its own federal plan for that state. The EPA has no authority to either bring a lawsuit against any state that fails to submit a state plan^[3], or to withhold federal funds from states that decline to submit a plan.^[4] 

More importantly, there is serious doubt about whether the EPA has the authority to impose a federal plan that mandates the measures and actions it wants states to undertake, including switching electricity generation away from coal-fired plants and requiring other plants to make up the difference; requiring the construction and use of higher-cost and variable renewable sources; and imposing programs to reduce the use of electricity by residents or businesses. Thus, a federal plan likely would be limited to regulating a power plant itself, such as the efficiency measures under the EPA’s building block 1. 

Moreover, even if the EPA does attempt to impose a federal plan, it is difficult to see how it could be any worse than the plan it is asking states to impose on themselves. According to estimates, the cost of implementing the first building block — the one most likely within the agency’s authority — amounts to $17.6 billion. That’s a fraction of the $479 billion price tag for the full plan the EPA is counting on states to impose upon themselves. 

Finally and perhaps most importantly, submitting a plan exposes states to the real danger— allowing the EPA to wrest control of a state’s energy policy if they or any other federal agency becomes dissatisfied with a state’s progress in reaching federal emissions goals. As both the EPA and other environmental groups have noted, a state plan must be “federally enforceable.” The meaning of this language is clear: as the EPA sees it, a state-issued plan would give the agency broad new authority to control that state’s energy future — not to mention the ability to place the blame for future consequences squarely on the state itself.

This proposed plan is already on shaky legal grounds, will be extremely burdensome and costly, and will not seriously address the global environmental concerns that are frequently raised to justify it. Moreover, declining to go along with the administration’s legally dubious plan will give the other two branches of government time to address the proposal and will not put your state at risk in the interim. It will provide time for the courts to rule on whether the EPA’s proposed rule is legal, and it will give Congress a chance to address numerous concerns surrounding this latest power grab by the EPA.

Thank you for your attention. I encourage you or your staff to contact my office with any further concerns.

Sincerely,

 

MITCH McCONNELL

United States Senator