McConnell to states: Don’t comply with EPA’s Clean Power Plan 

Source: Jean Chemnick, E&E reporter • Posted: Thursday, March 5, 2015

The Senate’s top Republican waded into state regulatory policy today, urging state officials in an newspaper op-ed to not let themselves be “bullied” into complying with U.S. EPA’s Clean Power Plan.

Sen. Mitch McConnell of Kentucky wrote in the Lexington Herald-Leader op-ed that state lawmakers and officials have little to fear from EPA if they don’t comply with its draft rule for power plants’ carbon dioxide emissions. Compliance, he said, could make states legally vulnerable.

“Here’s my advice: Don’t be complicit in the administration’s attack on the middle class,” he wrote.

EPA has warned that states that don’t complete plans by deadlines beginning next year could face a federal plan that would be less protective of their interests than ones they could have designed. The agency has promised to release a proposed plan this summer.

“It sounds like a scary outcome,” McConnell wrote. But he argued that the agency has little legal authority to make its model rule “draconian,” and there is even a good chance that it will never happen.

“For starters, the legal basis for this regulation is flimsy at best,” wrote McConnell, pointing to Harvard Law School professor Laurence Tribe’s criticism that the rule exceeds EPA authority. “And even in the unlikely event that the regulation does pass legal muster, it’s difficult to conceive how a plan imposed from Washington would be much different from what a state might develop on its own.”

The draft rule sets interim and final emissions targets for states but allows them to decide how to meet them. EPA says that flexibility will allow states to craft plans that ensure reliability of power supply and protect other economic interests. Refusing to submit a plan would mean forgoing those advantages, the agency says.

Kentucky has enacted legislation that limits its Clean Power Plan compliance strategy to what can be achieved inside the fence line at a power plant. The state’s Energy and Environment Cabinet is mulling whether that law will allow it to submit a state plan to EPA (see related story).

But McConnell said the rule’s much-touted flexibility is cover for a costly and burdensome rule, and that EPA will not approve state plans that don’t track with its anti-coal “ideological agenda.” And by submitting a plan, he said, states would make their energy policies federally enforceable and open themselves up to litigation by stakeholders.

McConnell promised like-minded state policymakers that congressional Republicans are doing what they can to kill the rule legislatively. Refusing to submit a state plan would buy Congress more time, he wrote.

“We’re devising strategies now to do just that,” he wrote. “So for now, hold back on the costly process of complying. A better outcome may yet be possible.”

But EPA shot back that McConnell and other critics misrepresent the economic consequences of the rule.

“During the development of power sector rules including the proposed Clean Power Plan, EPA devoted significant attention to ensuring that important public health and environmental protections are achieved without interfering with a reliable and affordable supply of electricity,” the agency said in an email to Greenwire.

“We believe most states will choose to develop their own state plans,” the agency said, reiterating that the Clean Air Act authorizes it to enforce a federal plan if states do not.