Regulatory Reform

Clean Power Plan Published in Federal Register

Almost three months after being finalized by the U.S. Environmental Protection Agency (EPA), the much anticipated Clean Power Plan has been published in the Federal Register.  Today’s publication means a couple different things.

First, states and other impacted organizations can now file lawsuits challenging the legality of the rule, the first of which may come as soon as today. Elbert Lin, Solicitor General of West Virginia, led the multistate lawsuit against the draft Clean Power Plan that was dismissed in June for being premature as well as the request for administrative stay from this past August that was ultimately ignored by EPA. This summer, Lin spoke at the 42nd ALEC Annual Meeting about his legal strategy and his intention to, once again, lead a multistate effort to challenge the legality of the finalized Clean Power Plan. Such challenges will likely consist of at least two different arguments:

  • In 1990, Congress passed amendments updating the Clean Air Act. In doing so, the Senate and the House of Representatives inadvertently adopted two versions worded slightly differently. Despite this ambiguity, it appears that EPA cannot regulate under 111 existing facilities in source categories already regulated under §112. Since EPA’s illegally promulgated MATS rulefalls under §112, regulating greenhouse gas emissions from power plants under §111 could be problematic. Unsurprisingly, EPA has interpreted the statute in a way that grants the agency wide latitude in regulating greenhouse gas emissions.
  • The Clean Power Plan will compel states and utilities to make significant changes in how electricity is generated in each state. Instead of merely requiring that certain technologies be installed on affected units (i.e., inside the fence of the power plant), EPA will direct states to deploy greater amounts of renewables or natural gas to generate electricity (i.e., outside the fence). This transformation of a state’s utility mix appears to go far beyond the scope of EPA up until now, which is to merely establish “standards of performance for any existing source.”

Second, publication in the Federal Register now gives Congress 60 days to conduct a potential Congressional Review Act (CRA) vote. The CRA is a seldom-used tactic adopted in 1996, which allows Congress to review any new major rule issued by a federal agency and vote to overrule implementation of the regulation in question. A CRA vote only needs a simple majority (rather than the 60 votes typically needed in the Senate), but would require a two-thirds majority to override a presidential veto.

Cobbling together a simple majority shouldn’t be hard to do in the House or Senate, but given the Clean Power Plan is the cornerstone of President Obama’s Climate Action Plan, it is highly probably the president will veto the CRA as soon as it reaches his desk. Symbolically, however, Congress passing a CRA would be an embarrassing blow to President Obama in his efforts to negotiate an international climate agreement later this year in Paris. More importantly, it would show Congress stands with hardworking taxpayers against government overreach.

In Depth: Regulatory Reform

In his first inaugural address, Thomas Jefferson said that “the sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry.” Sadly, governments – both federal and state – have ignored this axiom and…

+ Regulatory Reform In Depth