States preview arguments against Obama’s climate rule

Two state attorneys general gave a preview Tuesday of their legal arguments against the Obama administration’s climate rule for power plants on Tuesday.
 
Patrick Morrisey of West Virginia told a Senate panel that Obama’s plan is based on conflicting statutes within the Clean Air Act and promised his state would pursue further legal action after the Environmental Protection Agency approves the rules this summer.

Oklahoma’s Scott Pruitt said the plan is “nothing more than an attempt by the EPA to expand federal bureaucrats’ authority over states’ energy power generation mixes.”

Last week, Oklahoma became the first state to announce it would decline to write a strategy to comply with the Clean Power Plan, which sets carbon emission reduction targets for states to meet. The federal government will write a plan for Oklahoma to use instead.
 
The legal implications of the federal government setting emissions standards and writing reduction plans were front and center for the committee. Pruitt said the plan amounted to a “gun to the head” for states and improperly expanded the EPA’s role in emissions regulations.

“Why is the EPA presently in the process of developing a uniform federal implementation plan, to put on the shelf to demonstrate to states: unless you act a particular way, unless you act consistent with the rule, this is what you’re going to get?” he said. “This does not sound like cooperation.”

But Lisa Heinzerling, a former EPA lawyer and current Georgetown University law professor, defended the plan as a federalist approach to reducing greenhouse gas emissions.

“This plan sets out what states are to do, gives them the targets to meet, gives them the flexibility to choose the way they want to meet those targets,” she said. “In this respect, it’s surprising to me that states are already saying that they prefer the federal government set their plans.”

Both West Virginia and Oklahoma have sued the EPA over the Clean Power Plan. Morrisey said the plan has no legs, legally, because it seeks to add a state layer of regulations onto emissions that are already regulated federally, something he said is banned by the Clean Air Act.

This debate is one conservative lawyers have pushed for a while.

When Congress reformed the Clean Air Act in 1990, it included two conflicting amendments dealing with the regulatory approach Morrisey referenced. Revisers included only one of the amendments in the U.S. Code.

Heinzerling said interpretations of legal ambiguities like that are often left to the agencies. She said EPA has “long offered an interpretation of [the law] that aims to take something from each of these amendments.”

In a statement, EPA spokeswoman Liz Purchia defended the agency’s plan as “built on a time-tested state-federal partnership in the Clean Air Act.”

“We addressed the legal foundation for our Clean Power Plan proposal when we issued the proposed rule in June and we will address all comments concerning the legality of the rule when we issue the final rule,” she said. “Courts have reaffirmed repeatedly the science, law and reasoning on which our rule-makings have relied.”

Sen. Shelley Moore Capito (R-W.Va.), chairwoman of the Senate Energy and Public Works Subcommittee on Clean Air and Nuclear Safety, said she will introduce a bill as early as next week meant to address the balance between state and federal authority over greenhouse gas regulations.

Lawmakers on the panel mostly left the legal sniping to the witnesses on Tuesday, but they didn’t shy away from dust-ups over the underlying reason for the power plant rule: climate change.

Sen. Sheldon Whitehouse (D-R.I.) pressed the Republican attorneys general on whether or not they agreed with the science behind global warming.

“I’m not going to make an argument today about climate change or whether the temperature is evolving,” Morrisey said, “because regardless of the policy merits of anyone’s proposal, policies have to be implemented in a lawful manner.”