By Matthew Whitley
Coal has been a bedrock component of our national economy and energy policy for decades. Not so long ago, John F. Kennedy said, “It would be the height of folly for this nation to permit its coal mines to be abandoned… and to neglect further research and development in this major American industry.”[i] Even under the current administration, U.S. policy has supported investing in clean coal technologies. As recently as 2010, the Environmental Protection Agency (hereinafter “EPA”) acknowledged that “[c]lean coal is an important part of our energy future,”[ii] and listed advanced coal technologies among its key environmental initiatives.[iii]
Nevertheless, the EPA now desires to upend decades of bipartisan federal policy promoting investment in domestic coal production with the Clean Power Plan (hereinafter “Power Plan”)—a regulatory proposal aimed at reducing carbon emissions from the country’s electricity power plants.[iv] The Power Plan would accelerate the decline of coal-fired power plants through the implementation of state-by-state mandates. Moreover, the EPA projects that these mandates would eliminate coal production completely in twelve states.[v] Not only would the implementation of this plan be imprudent, but it would be wholly unconstitutional.
Through the Power Plan, the EPA would establish a carbon dioxide emission goal for each state, and then require each state to develop a plan to meet that goal within approximately one year.[vi] Upon agency approval, each state would then subsequently impose their plan on power plants.[vii] The EPA pitches this process as an opportunity for each state “to shape their own emissions reduction pathways,” but that claim is entirely disingenuous.[viii] Rather, the EPA would effectively control the energy mix of each state. In NFIB v. Sebelius (i.e., the Obamacare decision), the Supreme Court determined that such federal coercion of state governments undermines federalism, which is essential to our constitution.[ix]
An equally essential tenant of the constitution is that the EPA, an administrative agency, may not infringe upon the legislative authority of Congress—especially when Congress has not delegated such authority to it.[x] Undeterred, the EPA seeks to defend the Power Plan by offering a colorful reinterpretation of the 1990 Amendments to the Clean Air Act. Specifically, the EPA asserts that Section 111 of the Clean Air Act authorizes the implementation of the Power Plan. However, not only has nothing like the Power Plan ever been supported by Section 111, the EPA’s argument rests on an a fatally flawed interpretation of it. In footnote 7, the law explicitly makes it impermissible to regulate power plants where (like here) “those plants are already being regulated as Congress contemplated under another part of the law, Section 112—one involving hazardous pollutants.”[xi]
This interpretation of Section 111 has been clearly adopted by federal courts. In fact, the D.C. Circuit struck down a much less far reaching EPA proposal pursuant to the same statutory language involved here.[xii] This is simply another attempt by the EPA to slip the restraints that Congress deliberately wrote into the Clean Air Act in order to justify a constitutionally untenable power grab. Clearly, the current Administration failed to get any traction with climate change legislation in Congress. However, frustration with congressional inaction does not justify any attempt to circumvent Congress and the Constitution with an EPA proposal that has no legal basis.
Additionally, it is no defense that the EPA is acting to avert would could be a global catastrophe. This issue solely concerns the rule of law—not how this country should combat the threat of climate change. Accordingly, the EPA’s rule proposal should be withdrawn.
[i] Senator John F. Kennedy, Campaign Speech at Mercer Cnty. W. Va. (May 9, 1959), available at http://www.wvculture.org/history/1960presidentialcampaign/newspapers/19590510bluefielddailytelegraph.html.
[ii] Administrator, U.S. Environmental Protection Agency Lisa Jackson, Statement of the Issuance of Further Guidance on Mountaintop Mining, (Apr. 1, 2010), available at https://yosemite.epa.gov/opa/admpress.nsf/8d49f7ad4bbcf4ef852573590040b7f6/7bcedbd7dd6e34ec852576f800630f.
[iii] U.S. Environmental Protection Agency, Catalog of Environmental Programs 2012, https://archive.epa.gov/oig/catalog/web/html/ (last visited Nov. 11, 2016).
[iv] U.S. Environmental Protection Agency, Fact Sheet: Clean Power Plan Overview, https://www.epa.gov/cleanpowerplan/fact-sheet-clean-power-plan-overview (last visited Nov. 11, 2016).
[v] Laurence H. Tribe, The Clean Power Plan is Unconstitutional, N.Y. Times (Dec. 22, 2014, 7:06 AM), http://www.wsj.com/articles/laurence-tribe-the-epas-clean-power-plan-is-unconstitutional-1419293203.
[vi] See Carbon Pollution Emission Guidelines for Existing Stationary Sources, 80 Fed. Reg. 64662 (proposed October 23, 2015) (to be codified at 40 C.F.R. pt. 60).
[vii] See id.
[viii] U.S. Environmental Protection Agency, Fact Sheet: Components of the Clean Power Plan, https://www.epa.gov/cleanpowerplan/fact-sheet-components-clean-power-plan (last visted Nov. 11, 2016).
[ix] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2660 (U.S. 2012).
[x] Loving v. United States, 517 U.S. 748, 758 (1996) (holding that pursuant to Article I and the separation of powers doctrine, “the lawmaking function belongs to Congress” and may not be delegated or taken up by any other “branch or entity”).
[xi] Tribe, supra note v; See also 42 U.S.C. § 7411 (1990).
[xii] New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (rejecting EPA’s authority to implement a proposed regulation because the “EPA promulgated the… regulations for existing EGUs under section 111(d), but under EPA's own interpretation of the section, it cannot be used to regulate sources listed under section 112”).