ALEC scores win against Clean Power Plan in W.Va. 

Source: Scott Detrow, E&E reporter • Posted: Friday, March 6, 2015

The American Legislative Exchange Council won a significant victory this week when West Virginia Gov. Earl Ray Tomblin (D) signed a law requiring legislative approval of the eventual plan the state submits to comply with U.S. EPA’s ambitious Clean Power Plan.

Under the new law, West Virginia’s Department of Environmental Protection will have to produce a study examining the impact of the federal guidelines, which aim to drop the power sector’s greenhouse gas emissions 30 percent below 2005 levels over the next 15 years.

The coal-heavy state’s actions came three months after a December conference where the conservative group endorsed model legislation accomplishing the two same goals: legislative approval for compliance plans, and economic impact studies. The model bills giving legislatures effective veto power over their states’ Clean Power Plan compliance strategies are the key thrust of ALEC’s effort to confront President Obama’s signature climate change effort.

West Virginia is the first state to create a new law similar to ALEC’s model legislation, although the group’s language was inspired by a 2014 Pennsylvania statute (ClimateWire, Dec. 9, 2014).

John Eick, director of ALEC’s Energy, Environment and Agriculture Task Force, said the group has three main concerns about EPA’s landmark rule: its potential impact on energy prices, its potential implications on grid reliability, and the fact that “this proposed rule represents a pretty fundamental shift in the relationship states have [had] with the EPA until now.” Specifically, the group is targeting the way the Clean Power Plan would reshape states’ energy-producing landscapes by emphasizing low- and no-carbon sources like natural gas, wind and solar power.

“Since the New Deal, the regulation of retail electricity sales and local distribution has been a sovereign state function,” reads an ALEC white paper published last year. “In proposing the Clean Power Plan, EPA is intruding into the sovereign authority of states without any clear congressional authorization.”

Anti-EPA language from Ariz. to Ark.

ALEC works, generally speaking, by hosting conferences where state legislators meet with business groups and produce “model” bills that lawmakers can take back and introduce in their statehouses. ALEC critics like the Natural Resources Defense Council say the bills are often nothing more than codified lobbyist wish lists.

“It seems pretty clear that [state legislators] are not organically thinking of this idea,” said NRDC’s Aliya Haq, who tracks ALEC environmental legislation. “It is definitely coming from polluters,” she said, referring to coal companies and coal-heavy utilities.

In the months since an ALEC task force approved a model bill requiring state agencies to produce economic impact reports and to submit their final compliance plans for legislative approval, bills mandating one or both of those requirements have been introduced in Arizona, Kansas, Mississippi, Missouri, Oklahoma and Tennessee, among other states. Arkansas’ Senate recently approved a bill mirroring ALEC’s language, although a similar measure was blocked in committee in Virginia.

Many state environmental agencies have warned against these types of restrictions. “The more of these state laws that are passed by some state legislatures, they’re setting them up for failure,” National Association of Clean Air Agencies Executive Director Bill Becker told ClimateWire last year (ClimateWire, Dec. 10, 2014).

Indeed, the West Virginia Department of Environmental Protection’s response to the new law appeared terse and carefully worded. “The legislation presents some unique challenges,” said spokeswoman Kelley Gillenwater, “but the DEP will abide by the law and put forth our best effort to develop an effective state implementation plan.”

EPA will release its final rule this summer. After that, states will have one or two years to figure out how to reduce their power sectors’ carbon footprints.