What if states just say ‘no’ to climate rule?

Senate Majority Leader Mitch McConnell is counseling states to defy a key pillar of President Obama’s climate change initiative. 

But while it may be politically attractive for some states to heed the call to just say “no,” to the Environmental Protection Agency’s landmark limits on power plant emissions, experts say doing so could bring unwanted consequences.

McConnell, a Republican from coal-rich Kentucky, reasoned in a column in the Lexington, Ky., Herald-Leader that states’ refusal to comply with the contentious rule could be a powerful display of protest against an administration he accuses of overreach. At the same time, he argues, states could avoid expensive impacts of a regulation that he thinks is doomed by either Congress or the federal courts.

“Don’t be complicit in the administration’s attack on the middle class,” he warned states

The advice drew swift rebuke from McConnell’s political rivals, who called it unprecedented and misguided.

“I can’t recall a majority leader calling on states to disobey the law — and I’ve been here almost 24 years,” Sen. Barbara Boxer (D-Calif.), the top Democrat on the Environment and Public Works Committee, said in a statement, referring to the Clean Air Act.

Further, experts and supporters of the regulation contend, refusing to write a state plan would invite the EPA to impose its own system for reducing emissions, denying state officials the ability to craft rules in a way that best fits the state’s unique circumstances.

The outcome, the say, could be a more expensive plan than could otherwise be achieved by the states themselves.

“I think it’s a bad idea,” said Jamie Van Nostrand, director of the Center for Energy and Sustainable Development at the West Virginia University College of Law.

“It might feel good to not play with the EPA, but I think it’s bad for the states’ citizens,” he said. “You’re less likely to end up with the least-cost compliance strategy.”

Daniel Selmi, a professor at Loyola Law School in Los Angeles, said the “just say no” approach has the advantage of being “pithy.”

“Before taking that step, however, states should carefully consider the consequences,” Selmi wrote in a paper published by the Columbia University Law School. “If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages.”

State implementation plans are central to the EPA’s plan to cut carbon from the power sector 30 percent by 2030. The regulations were proposed last June and scheduled to be made final this summer.

Like many pollution control regulations under the Clean Air Act, EPA plans to rely on what it calls “cooperative federalism,” in which it sets carbon reduction targets for each state’s power sector and asks the states to write plans to comply.

If the EPA deems a plan to fit with the rule, officials would be able to use a wide variety of measures, like increasing energy efficiency or renewable energy, or cutting back the use of coal-fired power plants, to comply.

If a state does not submit a plan that’s up to snuff, the EPA can swoop in and write its own rules for the state.

David Doniger, climate change director at the Natural Resources Defense Council, said that’s the way it has worked since the 1970s, and the EPA has successfully defended its right to formulate plans.

“The general rule is that states choose to do it, because they take into account state and local circumstances, and they do things their own way, and they do things under state authority,” he said. “So when a state writes a plan under the Clean Air Act, it has the ability to make a lot of choices.”

Janet McCabe, acting assistant administrator at the EPA for air, announced in January that it was working on a “model” federal plan on which it would base its strategies for states.

While she argued that it would give states guidelines to work from, it also acted as a threat to states considering bucking the rules.

But McConnell pushed back.

“The Obama administration’s so-called ‘clean power’ regulation seeks to shut down more of America’s power generation under the guise of protecting the climate,” he wrote in his Herald-Leader column.

While McConnell recognized that the Obama administration has threatened federal plans, he said the rules are probably not even legal.

“And even in the unlikely event that the regulation does pass legal muster, it’s difficult to conceive how a plan imposed from Washington would be much different from what a state might develop on its own,” he said.

No states have committed to ignoring the carbon rules, but a top Texas official said his state was seriously considering the tactic.

Additionally, under coordination from the conservative American Legislative Exchange Council, multiple states have passed laws that hinder their abilities to write implementation strategies, through provisions like requiring legislative approval of plans and prohibiting any rules that would cut coal-fired generation.

Peter Glaser, an attorney at Troutman Sanders, made a similar case to McConnell’s in a recent paper he published with two colleagues through the Federalist Society.

“We actually don’t think that a federal plan would be worse than a state plan, given what states are being required to do under at least the proposed rules The proposed rules are so stringent for so many states, and the flexibility that states supposedly have just isn’t there,” he said.

As an example, Glaser said many states would need to cut coal-fired generation dramatically under their own plans, so a federal plan isn’t likely to be worse.

But a key to Glaser’s case is that he does not believe the federal government has the power to implement the sweeping, so-called “outside the fence-line” changes that the EPA is allowing, since that would require changes that have nothing to do with actual power plants.

“The notion that EPA has authority to order a state to require more renewable resources, or to use less electricity or even just to run their natural gas more, that’s ridiculous,” he said. “It’s not even within the realm of anything anybody could argue.”

West Virginia University’s Van Nostrand also said it might be difficult for the EPA to go beyond the fence-line.

That’s why it’s so much better for states to use their own power, which is not necessarily limited to power plants.

“As a practical matter, I don’t know how they come up with a federal compliance plan that directs the utility to have more energy efficiency programs, or to ramp up some solar and wind,” he said.

Instead, the EPA would probably have to achieve a state’s entire reduction target by cutting emissions directly from power plants, which would cost much more to electric customers, Van Nostrand said.

The EPA, for its part, believes that its power isn’t limited to generating plants.

“Clearly our hope is that states will provide the necessary plans,” EPA Administrator Gina McCarthy said at a March 4 Senate hearing. “If not, there will be a federal system in place to allow us to move forward.”

NRDC’s Doniger said the ability to write a federal plan is explicitly outlined in the Clean Air Act.

“It’s EPA’s legal obligation, legal mandate — it’s required — that EPA propose, publish and implement a federal plan for the state that hasn’t got an approvable state plan,” he said.