by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Last month, a majority of the states sued the federal government over the so-called Clean Power Plan, the centerpiece of President Obama’s climate agenda. As the states explained, the president’s carbon regulation “unlawfully expands the federal government’s regulatory power over electricity production and consumption in nearly every State.” The suit will wind its way through the courts, with legal resolution years away.
Although legal challenges are necessary, they are not enough. If states have any chance of defeating the EPA’s attempt to take control over our energy choices, they must mobilize all three branches of government. …
… The problem with relying on the legal challenge is that it will take years before the fate of the regulation is decided. Even if a stay is granted, the danger facing states is still very real. As recent history shows, utilities will begin shutting down power plants before the courts have a chance to weigh in. …
… The most effective way for a state to protect its citizens is for the governor to refrain from submitting a state implementation plan before there is legal resolution — the “do no harm” approach. This will help send a clear signal to utilities and state regulators that no steps shall be taken to implement the rule until its legality is determined.
There is no reason for governors to submit a state plan in 2016. The EPA wants states to believe they have two choices — a state plan or a federal plan — but this is a false choice. States can instead submit an “initial filing” that criticizes the rule and requests a two-year extension. The initial filing does not force states to make any binding commitments to implement the rule. In fact, states should be able to acquire an extension simply by saying the regulation is so drastic and expensive that they need more time to consider options and engage with “vulnerable communities” (EPA’s words) who will suffer the most. Such a filing would be consistent with the bold leadership of Governors Fallin (Okla.), Pence (Ind.), Walker (Wis.), and others who have said they do not intend to submit a state plan.
State legislators also have a role to play, especially in states where the governor is uninterested in stepping up or intends to support the Obama administration. Already more than half of the states have introduced or enacted measures that ensure legislative accountability. Arkansas, for instance, passed a law last year that requires the legislature to approve any state plan before the governor submits it to the EPA.