Tuesday, March 24, 2015

It is in Every State’s Best Interest to “Just Say Yes” to EPA’s Clean Power Plan

By Amelia Schlusser, Staff Attorney

The past few weeks have seen a flurry of debate over whether states will actually have to comply with the Environmental Protection Agency’s (EPA) Clean Power Plan. Some state regulators are starting to rally behind Senator Mitch McConnell’s call to “just say no” to implementing the Clean Power Plan, and some legal scholars are supporting this challenge by arguing that EPA cannot force states to implement its final rule. Although EPA cannot directly compel states to implement the rule, the U.S. Constitution compels states to comply with federal law, and states that refuse to implement the Clean Power Plan will subject their citizens to potentially significant penalties.

A Call to Arms: Pro-Coal Conservatives Tell States to “Just Say No”

On March 3, Sen. Mitch McConnell (R– Ky.) wrote an op-ed in the Lexington Herald-Leader calling for states to fight back against the proposed federal regulations. Senator McConnell argues that “a respected group of economists” claim the rule will cost the U.S. “about a third of a trillion dollars.” These compliance costs and resulting electricity rate spikes, McConnell argues, will hurt lower-income families and seniors, in addition to putting thousands of Kentuckians out of work. Senator McConnell further asserts that EPA’s legal authority to issue the rule—which he refers to as “the administration’s attack on the middle class”—is questionable. The Senator’s proposed response to this so-called “political extremism”? “Just say No” and refuse to comply with the final rule. More specifically, McConnell calls for states to refuse to submit a state implementation plan as required by section 111(d) of the Clean Air Act. On March 19, Senator McConnell sent a letter to every state governor imploring him or her to adhere to his advice and forgo crafting a 111(d) implementation plan.

To support his argument against the legality of the Clean Power Plan, Senator McConnell’s op-ed quotes law professor Laurence Tribe’s assertion that EPA acted “far beyond its lawful authority.” Professor Tribe gained some notoriety in December when he submitted comments to EPA on behalf of the Peabody coal company. Professor Tribe recently spoke out against the proposed rule to a House Energy and Commerce subcommittee. According to Greenwire, Tribe argued that the proposed Clean Power Plan violates the Constitution and the federal Clean Air Act, stating, "[b]urning the Constitution should not become part of our national energy policy." According to Professor Tribe, EPA’s rule violates the separations of powers established by the U.S. Constitution, because it would “commandeer state governments” by directing states to issue state implementation plans.

Laurence Tribe isn’t the only law professor to speak out against the legality of the Clean Power Plan this week. On March 16, law professor Jonathan Adler wrote an op-ed in the Washington Post, asserting, “states may choose which federal laws to implement.” Professor Adler defended the legality of Senator McConnell’s recommendation that states refuse to implement EPA’s rule. He argued that the Clean Air Act gives EPA authority to adopt regulations, but doesn’t give the Agency authority to enforce these regulations against the states. Professor Adler accurately points out that Clean Air Act section 111(d) doesn’t require states to create implementation plans; if states choose not to adopt their own plans, the statute directs EPA to adopt a federal implementation plan in their stead. However, Adler argued, states still have no obligation to comply with this federal plan, because it is “well established that the federal government may not direct states to implement federal programs.”

Why States Should “Just Say Yes”

While the argument that the federal government cannot explicitly direct states to implement federal programs is accurate from a technical standpoint, it is in the states’ best interest to comply with EPA’s final Clean Power Plan and issue effective state implementation plans in a timely manner.

The Supremacy Clause in Article XI of the U.S. Constitution establishes federal law as "the supreme Law of the Land," and state courts are thus obligated to adhere to federal law. Article I, section 8 of the U.S. Constitution grants Congress authority to regulate interstate commerce. Congress exercises this authority by adopting legislation, such as the Clean Air Act. When Congress enacted the Clean Air Act, it delegated authority to EPA to adopt regulations implementing the statute’s provisions. Section 111(d) of the Clean Air Act specifically directs EPA to issue regulations establishing a procedure for states to submit plans for implementing standards of performance for air pollutant emissions from existing source categories. If a state fails to submit a satisfactory state implementation plan, section 111(d) gives EPA authority to issue a federal implementation plan for that state.

More significantly, the statute gives EPA authority to enforce the provisions of both federal and state implementation plans. Contrary to the implications raised by Laurence Tribe’s arguments, however, this enforcement authority doesn’t attempt to authorize EPA to direct states to implement section 111(d). The statute does not explicitly give the Agency authority to bring enforcement actions against states that fail to implement the statutory requirements (although the EPA Administrator can bring suits against state regulators under the citizen suit provision in section 304). Instead, Clean Air Act section 113 gives EPA authority to enforce implementation plan requirements against individuals. This means that if an individual source fails to comply with the requirements imposed by a state or federal plan, EPA can order the source to comply, impose a penalty, or bring a civil action against the owner or operator of that source. The Agency can choose to impose an administrative penalty of up to $25,000 per day against any individual that fails to comply with an implementation plan. If the Agency decides to bring a civil action, they can seek a temporary or permanent injunction in addition to assessing a civil penalty of up to $25,000 a day against the individual violator.  

So the “just say no” advocates are technically correct—states are not obligated to issue state implementation plans under 111(d), and EPA cannot directly force states to implement a federal plan. However, this does not mean that states do not have to comply with federal law—EPA still has authority to enforce an implementation plan's requirements. The EPA Administrator can bring a suit against state air quality regulators for failing to comply with a state or federal implementation plan. In addition, Sections 110(m) and 179(b) of the Act give EPA authority to sanction states that fail to implement an approved plan by withholding federal highway funding. While this option refuses to confer a federal benefit on noncompliant states, it doesn’t equate to a “commandeering of state governments.” The Clean Air Act solicits state assistance in implementing the statute’s objectives, but ultimately imposes compliance obligations on individual regulated facilities. Under the Supremacy Clause of the Constitution, state courts must uphold the Clean Air Act's requirements. States that refuse to implement the final Clean Power Plan will therefore subject their citizens to federal enforcement, judicial oversight, and the risk of potentially significant economic penalties. Refusal to implement federal law is a short-sighted and irresponsible policy direction for states to follow, and regulators should think twice before jumping onto Mitch McConnell’s “just say no” bandwagon. 

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