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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