States’ ‘no’ gives courts time to kill power rule — McConnell 

Source: Jean Chemnick, E&E reporter • Posted: Friday, March 20, 2015

The Senate’s top Republican advised states again yesterday not to submit implementation plans for U.S. EPA’s Clean Power Plan, predicting that the rule would not survive judicial review.

Senate Majority Leader Mitch McConnell (R-Ky.) argued in a letter to governors that EPA’s existing power plant carbon dioxide draft is highly and legally vulnerable and likely to be overturned in court. States have little to fear and everything to lose by complying with it, he said.

“EPA is attempting to compel states to do more themselves than what the agency would be authorized to do on its own,” the Kentucky Republican wrote.

And McConnell argued that there was little downside in waiting, despite EPA’s pledge to craft a backstop rule for states that opt not to comply.

“Even if the EPA does attempt to impose a federal plan, it is difficult to see how it could be worse than the plan it is asking states to impose on themselves,” he said.

McConnell said the courts will likely limit EPA to writing an implementation plan that requires only those cuts that can be achieved “inside the fence line” at a fossil fuels power plant.

But those on-site heat-rate improvements make up only a small fraction of the draft rule’s overall reductions, he noted. The draft envisions a 30 percent cut in power sector carbon compared with 2005 levels by 2030 because it assumes states will implement “system-wide” policies including fuel switching, zero-carbon energy investment and demand-side efficiency.

All of those reductions, he argued, would be cut from the rule after judicial review. Republicans in Congress are also constructing a strategy to kill the rule, he noted.

“Declining to go along with the administration’s legally dubious plan will give the other two branches of government time to address the proposal and will not put your state at risk in the interim,” he wrote.

McConnell first touted his “just say no” strategy in a newspaper column earlier this month. But many of the rule’s supporters say he is wrong to assume EPA lacks the authority to require the same level of reductions the draft assigns. Refusing to offer a compliance path will only cut states out of the process, they say, reducing states’ ability to tailor plans to protect their interests.