U.S. must be candid about hurdles facing Obama agenda — AGs

Source: Amanda Reilly, E&E reporter • Posted: Wednesday, November 25, 2015

U.S. negotiators must make clear to the international community that the centerpiece of the Obama administration’s domestic climate agenda is “unlikely to survive” court challenges, two attorneys general who are opposing the rule said.

In a letter to Secretary of State John Kerry, West Virginia Attorney General Patrick Morrisey (R) and Texas Attorney General Ken Paxton (R) said they expected their many legal arguments against the Clean Power Plan — including that it gives U.S. EPA too much authority over the nation’s energy policy — to win in court.

“We believe you have a duty to acknowledge to negotiating nations at Paris 2015 that the centerpiece of the President’s domestic CO2 reduction program is being challenged by a majority of States and will likely be struck down,” Morrisey and Paxton wrote in the letter dated yesterday.

Today, 626 state and local Democratic officials from 32 states also sent a letter to President Obama supporting the United States’ taking a leadership role in the upcoming negotiations but expressing concerns about the administration’s carbon rules for power plants.

Obama is scheduled to travel to Paris for the U.N. climate change negotiations on Monday. Ahead of the talks, the administration has pledged to reduce U.S. greenhouse gas emissions 26 to 28 percent by 2025 compared to 2005 levels.

At the talks, U.S. officials are expected to lean heavily on the Clean Power Plan, EPA’s rule that requires states to write and put in place plans to reduce carbon dioxide emissions at existing power plants, to show the U.S. commitment to addressing climate change.

The rule is under fire in both the courts and Congress. Twenty-seven states, including West Virginia and Texas, have challenged the rule, while 18 states are backing it in the U.S. Court of Appeals for the District of Columbia Circuit.

Last week, the Senate voted to pass two resolutions through the Congressional Review Act that would block the Clean Power Plan and EPA’s carbon rule for new power plants. House members are expected to take up the resolutions, through the White House has promised to veto both.

Pointing to their court challenge and the broader opposition, Morrisey and Paxton wrote to Kerry that the Clean Power Plan has been “under withering scrutiny from both Republicans and Democrats since it was proposed.”

“The President’s representations regarding his Administration’s CO2 emission reduction plans are based on unilateral executive action that is unlikely to be the law for very long,” they wrote.

Outlining their main legal arguments against the rule, the attorneys general argued that it gives EPA wide-reaching economic power, that the Clean Air Act prohibits EPA from issuing the rule and that it infringes on states’ rights.

The 622 Democrats today charged that the Obama administration’s carbon rules ignore the fact that fossil fuels will remain an essential source of energy for the world “for decades to come.” They said Obama is attempting to “wish” away carbon dioxide emissions from the coal sector rather than focusing on managing them through the deployment of carbon-mitigating technologies.

“If we are going to provide real leadership in the world community on climate, we cannot begin by implementing policies that have no hope of succeeding outside of the United States, or possibly even within the United States,” the Democrats wrote. “The EPA, while well intentioned, has lost sight of the importance of preserving affordable and reliable energy in its pursuit of clean energy.”

The Democrats are aligned under the CoalBlue Project, chaired by former Rep. Zack Space (D-Ohio).

State challengers to the Clean Power Plan have asked the court to immediately halt the rule, arguing that they are being “immediately and irreparably harmed” by its requirements. EPA’s supporters say the rule is a necessary step to tackling climate change.

The court is expected to decide whether to grant the request for a stay early next year — after the Paris negotiations conclude.

Administration attorneys are confident they will prevail in the lawsuit, which is expected to be ultimately decided by the Supreme Court (Greenwire, Oct. 29).

Morrisey and Paxton also called on U.S. officials to submit whatever agreement comes out of the Paris talks to the Senate for approval, echoing requests by opponents of the Obama administration’s climate change agenda in the upper chamber.

While the Senate is responsible for giving advice and consent on binding international treaties, a nonbinding agreement would not require approval. The administration has said the Paris deal would be politically, not legally, binding, obviating the need for Senate approval.

Senators and House members have warned that they won’t make money available for the Green Climate Fund, which is meant to assist developing countries in mitigating and adapting to climate change, if Congress is not allowed a say in the final Paris agreement.

Rep. Morgan Griffith (R-Va.) yesterday announced he is leading 110 Republican members of the House in expressing opposition to the Obama administration’s pledge to commit $3 billion to the fund.

In a letter to House Appropriations Chairman Hal Rogers (R-Ky.) and ranking member Nita Lowey (D-N.Y.), the Republican coalition said that Americans have already spent “tens of billions of dollars on climate change” and that “serious budget constraints” prevented more money from going toward the GCF.

“This request from the President appears to be just the beginning of a commitment to the United Nations that could dwarf previous such climate commitments made by the United States government,” the Republican members wrote in the letterdated Friday.

Thirty-seven Republican senators last week sent a similar message to Obama (E&E Daily, Nov. 20).