Clean Power Plan Puts States’ Rights On Trial

Posted on Tue 10/11/2016 by


Larry-Bell_avatar-80x80By Larry Bell ~

A pending District of Columbia Court of Appeals ruling will determine within the next several months whether the Obama Administration’s latest and arguably most dangerous federal government usurpation of state regulatory authority under the Constitution will succeed.

On September 27, ten judges heard oral arguments in a consolidated case known as West Virginia, et al. v. EPA, which challenges the agency’s power to require states to restructure their energy mixes and to reorganize their energy economies across electric plants, energy-intensive industries, and even households.

cleanpowerplan01The D.C. court proceedings follow a stayed implementation of the EPA’s “Clean Power Plan” (CPP) by the U.S. Supreme Court last February. This rare rebuke responded to lawsuits filed by 28 states arguing that the CPP exceeds the federal government’s constitutionally limited and enumerated powers — which leave broader plenary “police powers” to the states.

Congress had previously turned down Obama’s request to pass supporting CPP legislation.

Federal agencies work to get around such limitations through legal schemes described as “cooperative federalism.” This approach offers states the choices either to regulate their own agencies and citizens according to laws passed by Congress, or to step aside and have the feds take over and regulate directly.

With the CPP, the EPA parcels out specific state-by-state emission reduction targets they consider achievable based upon their own internal estimates of the maximum amount of energy shifting the nation’s power grids can accommodate. States are mandated either to prepare plans regarding how they will meet these targets or have the EPA do this for them.

The CPP power grab greatly extends the EPA’s regulatory reach, obliterating the last vestige of vertical separation of state and federal powers altogether. Whereas previous climate alarm-premised greenhouse gas regulations have focused upon reductions for particular facilities, the CPP essentially forces shifts from EPA-disfavored facilities (coal-fired plants) to expansion of those the EPA prefers (natural gas/renewables).

Even the EPA admits that such mandates will have no detectable impact on climate whatsoever. The American Enterprise Institute (AEI) estimates that all of this unnecessary regulatory pain asserted under authority of the 1970 Clean Air Act which Congress never intended for “climate pollution” will reduce temperatures only about 0.0015 of one degree by the year 2100.

cleanpowerplan02Nevertheless, the CPP will cause states, taxpayers, and energy consumers to get stiffed with huge cost burdens, including capital-intensive, decades-long transitions needed for adding expensive and unreliable wind and solar infrastructures, coal plant retirements and upgrades, restructured transmission lines, and new natural gas pipelines. The EPA silently passes these costs along with “responsibility to maintain a reliable electric system” to the states.

According to William Schughart II and his Utah State University colleague Michael Jensen, CPP implementation will shutter enough coal-fired plants to otherwise supply electricity to 2.5 million homes. The Heritage Foundation estimates that the new rule will cost about 500,000 lost jobs, close to $100 billion annually in lost GDP output, and more than $1,000 per year in higher household energy expenditures.

NERA Economic Consulting estimates that the plan will cost $366 billion through 2031 and bring double-digit electricity rate increases to 43 states.

Compliance for states transferring energy dependencies to far more costly and less reliable wind and solar sources will bankrupt industries and businesses, imposing disproportionate stresses upon the poorest households. Prices of everything manufactured, grown, eaten, or needed to keep lights on and buildings air conditioned will be adversely impacted. These burdens will weigh heaviest upon residents of states that depend upon coal and natural gas for most of their power.

As appellate and constitutional attorneys David Rivkin, Jr., and Andrew Grossman observe in a September 26 Wall Street Journal opinion piece, the Clean Power Plan implicates every evil associated with unconstitutional commandeering:

“It dragoons states into administering federal law, irrespective of their citizens’ views. It destroys accountability by directing the brunt of disapproval for increased electricity costs and lost jobs onto state officials, when the federal government deserves the blame. And it subverts the horizontal separation of powers, by allowing the executive branch to act where Congress has refused to legislate.”

Even the Supreme Court is belatedly showing signs of impatience with EPA abuses of statutory powers. Slapping down a 2012 rule to reduce mercury and other emissions targeted on killing the coal industry, the Court observed that:

“When an agency claims to discover in a long-extant statute unheralded power to regulate a significant portion of the economy, we typically greet its announcement with a measure of skepticism.”

As West Virginia Attorney General Patrick Morrisey states, “We believe in this final [CPP] rule, the EPA is trying to convert itself from an environmental regulator to a central planning authority of states’ energy economies.” Expect more of the same so long as Senate Democrats continue to pack the Supreme Court, D.C. Appeals Court, and others with revisionists who will determine whether the U.S. Constitution still matters.

NOTE:  A version of this article also appears at:

Larry Bell contributes posts at the CFACT site. He heads the graduate program in space architecture at the University of Houston. He founded and directs the Sasakawa International Center for Space Architecture. He is also the author of “Climate of Corruption: Politics and Power Behind the Global Warming Hoax.”

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