ALEC model pushes states to veto EPA’s Clean Power Plan 

Source: Scott Detrow, E&E reporter • Posted: Wednesday, December 10, 2014

If members of an influential conservative group get their way, state legislatures across the country will soon pass measures giving themselves veto power over how their states comply with U.S. EPA’s Clean Power Plan (CPP).

The American Legislative Exchange Council’s energy subcommittee approved a model bill last week that would block states’ plans to reduce greenhouse gas emissions, unless both chambers of the state legislature give the proposals their blessing.

The measure is based in part on a Pennsylvania law signed earlier this year. But at the same annual meeting, held in Washington, D.C., ALEC tabled another measure that would bar state agencies from spending any money complying with CPP until every legal challenge to the groundbreaking EPA rule has been settled (E&ENews PM, Dec. 2).

ALEC has long been a conservative bogeyman for liberal groups and open-government advocates, who view it as a shadowy network that eases the way for large corporations’ business interests. “ALEC represents a number of polluting industries and is looking to undermine EPA’s Clean Power Plan in any way possible,” said Aliya Haq of the Natural Resources Defense Council, who spends a considerable amount of time tracking the progress of the group’s model bills.

The group frames its mission a bit differently on its website, saying it “works to advance limited government, free markets and federalism at the state level.” The primary way ALEC does this is by bringing representatives from companies together with state lawmakers to draft “model” bills that can later be introduced in state legislatures across the country.

Bill copied from new Pa. law

Confronting EPA’s greenhouse gas regulations is “incredibly important,” according to John Eick, who directs ALEC’s Energy, Environment and Agriculture Task Force. “In many instances, a lot of our members — private-sector members — this is a rule that directly impacts their activities. And for a number of our legislators, especially in rural communities, this impacts their constituents — especially their electricity rates.”

ALEC, along with many other conservative groups, has made EPA a top target as it develops strategies for upcoming sessions where Republicans will control nearly 70 percent of the country’s legislative chambers, as well as 31 gubernatorial offices. In a resolution passed earlier this year, the group blasted EPA’s attempt to reduce the power industry’s greenhouse gases by 30 percent as a path to “devastating job and family income losses,” among other concerns.

ALEC’s energy subcommittee approved a model bill giving state legislatures final say over states’ CPP compliance plans. Typically, environmental authorities have discretion to draft and submit plans like this to the federal government without legislative input. This model bill, however, would give both legislative chambers an effective veto over any compliance plan.

The key passage reads: “The [state agency] shall not submit to EPA any State plan until [both chamber of the state legislature] have adopted resolutions that approve the State plan.”

The bill is modeled after a new Pennsylvania law that could dramatically impact how the energy-rich Keystone State complies with CPP. Democrat Tom Wolf defeated Republican Gov. Tom Corbett in November. And while Corbett is a staunch ally of the state’s booming energy industry, Wolf has said he’s interested in bringing the nation’s third-highest greenhouse gas emitter into the Northeast’s cap-and-trade program, the Regional Greenhouse Gas Initiative (ClimateWire, July 11).

Despite Wolf’s big win, Republicans hold broad majorities in both Pennsylvania’s House and Senate. And it’s unlikely GOP leaders would go along with a cap-and-trade plan in the coal- and natural-gas-rich state where the world’s first oil well was drilled.

Handcuffs for a new Democratic governor?

Under Act 175, signed by Corbett in October, either chamber can reject the Wolf administration’s eventual CPP plan. “In the absence of successfully winning approval from the General Assembly, there is no authority to [Pennsylvania’s Department of Environmental Protection] to submit a state plan to EPA,” Corbett Energy Executive Patrick Henderson explained in an email.

“It is up to the individual states as a matter of state law to delineate what process the individual state will go through — and to designate who officially speaks for the state — and in this particular situation the General Assembly has exerted its authority to have final review/approval of the state plan.”

Pennsylvania Democrats are skeptical of the new law’s timing. “It was pretty clear the people in the state were going to elect Tom Wolf for probably over six months,” said former Pennsylvania DEP Secretary John Hanger, who Keystone State insiders say will likely play a role in the incoming administration.

Still, Hanger said he’s not worried legislative approval will scuttle the eventual plan. “What I think will bring everybody together is the recognition that if Pennsylvania doesn’t file a plan, the EPA will do it for Pennsylvania. And I would think everyone should agree it’s much, much preferable that Pennsylvania should write its own plan.”

A more aggressive bill fails

But while ALEC’s energy committee endorsed the legislative approval measure, it failed to approve a broader measure that would have barred state agencies from developing a CPP strategy — in fact, from spending any money on a plan — until every legal challenge to the EPA rule had been exhausted. Eick said the model bill’s sponsors “essentially withdrew it.”

“My suspicion,” he added, “is the votes may not have been there to pass it at that meeting.”

And that fact emboldens ALEC critics like NRDC’s Haq. “It’s a good signal for how far these bills are going to go in the next legislative session,” she said. “If ALEC can’t get these kinds of model bills — fake legislation — through their own meetings, then that does not bode well” for passage in state legislatures.

Eick said about 90 of the energy subcommittee’s 243 members attended last week’s meeting. ALEC does not release committee members’ names, though the group did allow a Washington Post reporter to attend some of its sessions.

The remaining EPA bill is not an official ALEC model legislation yet — it still needs to be approved by the group’s national board. “That usually takes a couple months,” Eick said, “but I believe we are going to request to expedite” the process so that the measures are approved when state legislatures reconvene in January.