America vs. The EPA: Fighting ‘A Massive Executive Power Grab’

Michael Bastasch

The Environmental Protection Agency finally published a regulation that will be the backbone of President Barack Obama’s plan to fight global warming: a sweeping rule called the Clean Power Plan.

Attorneys general from 26 states and numerous business groups, however, aren’t going to stand idly by while EPA regulations threaten the closure of hundreds of coal-fired power plants across the country. A deluge of legal challenges to the Clean Power Plan (CPP) have been filed, alleging the rule violates the Clean Air Act.

On the political side, a bipartisan group of federal lawmakers are pushing legislation to derail the CPP and force the EPA to go back to the drawing board on how it will regulate carbon dioxide emissions from power plants.

States and industries representing tens of millions of Americans are rising up the stop Obama’s global warming agenda. It’s a legal effort that rivals the fight against the Affordable Care Act, and one that will likely find its way to the Supreme Court.

EPA Publishes Its Rule To End Coal Power

A slew of lawsuits almost immediately smacked the EPA Friday when it published its final version of the CPP in the Federal Register.

First a coalition of 24 states, led by the attorneys general of West Virginia and Texas, filed suit against the EPA, alleging the CPP violated the Clean Air Act because the agency was now regulating power plants under two sections of the law — which it can’t do.

Oklahoma and North Dakota quickly joined those 24 when they filed suit, also arguing the EPA’s rule re-regulated power plants under the Clean Air Act.

“It’s an attempt by the administration to transfer decision-making on the fuels used to generate power from state policy makers to bureaucrats at the EPA,” Oklahoma Attorney General Scott Pruitt, a Republican, said in a statement.

States suing the EPA also said the CPP would cause electricity prices to spike as coal plants around the country that can’t comply with the rule are shut down and replaced with more expensive natural gas plants or green energy power sources.

The Electric Reliability Council of Texas (ERCOT), for example, found “energy costs for customers may increase by up to 16% by 2030 due to the CPP alone.”

Energy industry-backed studies claim the CPP could cost Americans between $37 billion a year and $58 billion per year.

“The results will be financially harmful for states, and consumers ultimately will pay the price through much-higher utility rates and a less reliable power supply,” Pruitt said.

But not all states are against the CPP. A coalition of 15 states, led by New York’s attorney general, plan on intervening in any lawsuit filed against the CPP. These states will also be joined by Washington, D.C., and New York City — both of which have spent lots of tax dollars on green energy.

It’s not just states suing the EPA, however, as they’ve been joined by a coalition of 16 business groups representing a wide range of industries, from paper products to refiners to coal producers. The suit, led by the U.S. Chamber of Commerce, is also asking federal courts to block the rule from implementation while it’s being challenged.

“Not only are these regulations bad for our economy, they also represent a massive executive power grab,” Tom Donohue, the Chamber’s president, said in a statement. “EPA completely bypassed the legislative branch, basing its 2,000-page rule on roughly 300 words in the Clean Air Act and including a host of policies that have already been considered and rejected by Congress.”

The CPP has already withstood two legal challenges in federal court this year. The EPA came away from both cases unscathed because judges ruled the CPP needed to be published in the Federal Register before it could be challenged.

EPA and environmentalists maintain the rule can withstand any legal challenge thrown at it because of the “flexibility” the rule gives to states to cut carbon dioxide emissions. EPA is also handing out incentives to states that move quickly to cut emissions the agency blames for causing global warming.

“We are confident we will again prevail against these challenges and will be able to work with states to successfully implement these first-ever national standards to limit carbon pollution the largest source of carbon emissions in the United States,” EPA Administrator Gina McCarthy said Friday.

Congress Isn’t Happy

Federal lawmakers have also been busy this past week pushing legislation to derail the CPP.

Senate Majority Leader Mitch McConnell and Sen. Joe Manchin, a West Virginia Democrat, promised to file a resolution of disapproval under the Congressional Review Act (CRA) this coming week to challenge the CPP.

Sens. Shelley Moore Capito, a West Virginia Republican, and Heidi Heitkamp, a North Dakota Democrat, will file a separate CRA resolution to challenge the EPA’s rule.

“I have vowed to do all I can to fight back against this Administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle,” McConnell said Friday. “The CRAs that we will file will allow Congress the ability to fight these anti-coal regulations.”

The CRA allows Congress to overturn a regulation imposed by a federal agency after it’s been published in the Federal Register. A CRA resolution only needs 51 votes to pass the Senate, meaning Democrats wouldn’t be able to filibuster the bill, but any legislative effort to kill the CPP is likely to meet an Obama veto.

Congress can override, but that would require 67 votes in the Senate. CPP critics are unlikely to persuade the necessary 11 Democrats to join their cause.

On the House side, Kentucky Republican Rep. Ed Whitfield will file a CRA resolution against the CPP which is likely to pass, but Whitfield may not be able to convince as many as 43 Democrats to override an Obama veto.

Is This The End Of Coal?

The CPP aims to cut carbon dioxide emissions from power plants 32 percent by 2030 as part of Obama’s Climate Action Plan. In anticipation, the EPA is forcing states to submit plans on how they’ll cut CO2 and ramp up green energy production.

The Obama administration hopes the CPP and other rules will convince the world the U.S. is serious about tackling global warming and encouraging other major economies, like China and India, to cut their emissions.

Aside from trying to appease other countries, the EPA claims the CPP will yield $26 billion to $45 billion in net health and climate benefits from fewer power plants. EPA also claims that shuttering power plants will reduce traditional air pollutants and avoid “3,600 premature deaths … 1,700 heart attacks” and “90,000 asthma attacks” every year.

In contrast to energy industry studies, EPA says its rule will only cost about $8 billion a year and actually cause electricity prices to fall after 2030 due to energy efficiency programs.

At the same time, EPA admits the CPP will raise electricity prices 5 percent by 2030 and cause coal production to collapse by 25 percent. EPA also projects  as many as 34,000 jobs could be lost by 2030 as the coal industry contacts.

But other studies show EPA could be vastly underestimating the CPP’s costs. A study by the U.S. Energy Information Administration — an arm of the Energy Department — found the CPP will increase electricity prices 3 percent to 7 percent by 2025 from increased natural gas prices.

On a regional level, however, electricity prices increases could be more severe. EIA noted in “Florida and the Southeast, the Southern Plains, and the Southwest regions the projected electricity prices in 2030 are roughly 10% above baseline.”

EIA also found that coal production will collapse 30 percent in the next decade as 90 gigawatts of coal-fired power capacity is shuttered due to the CPP and other EPA rules.

But even EIA’s estimates may underestimate the impacts on Americans. A National Black Chamber of Commercestudy published in June claims the CPP will “increase Hispanic poverty by more than 26% and Black poverty by more than 23%” as energy prices increase.

The NBCC study found Americans will pay $565 billion more for energy every year by 2030 than in 2012 because of the CPP — that’s a 121 percent increase in power prices. The study also found the CPP will “[r]equire the average family to pay over $1,225 more for power and gas in 2030 than they did in 2012.”

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