When all else fails, fall back to federalism. As the Senate attempts to curtail the power of the EPA and its unilateral decision to go after power production through the Clean Power Plan, Majority Leader Mitch McConnell appealed to governors to return unilateralism for unilateralism. Arguing that the EPA’s plan for enforcement is illegal, McConnell urged them to defy the EPA and block their actions — and offered detailed legal advice on how to do it, the New York Times reported last night:
Since Mr. McConnell is limited in how he can use his role in the Senate to block regulations, he has taken the unusual step of reaching out to governors with a legal blueprint for them to follow to stop the rules in their states. Mr. McConnell’s Senate staff, led by his longtime senior energy adviser, Neil Chatterjee, is coordinating with lawyers and lobbying firms to try to ensure that the state plans are tangled up in legal delays.
On Thursday, Mr. McConnell sent a detailed letter to every governor in the United States laying out a carefully researched legal argument as to why states should not comply with Mr. Obama’s regulations. In the letter, Mr. McConnell wrote that the president was “allowing the E.P.A. to wrest control of a state’s energy policy.”
The Republican majority in the Senate has already begun using the Congressional Review Act to push back against regulation, but that is “limited,” as Coral Davenport notes. The CRA reverses regulation as a statutory act, but like all statutory acts, it requires either a presidential signature or a veto override to become law. McConnell would need 67 Senators to sign onto a reversal of a key EPA effort on behalf of global-warming advocates, and McConnell will not find 13 Democrats to go along with Republicans on that effort. (Both the House and Senate have tried to use the CRA with the NLRB’s ambush-election rule, which will get an Obama veto shortly.)
The next-best option would be to defund the EPA’s efforts in this area. That won’t happen until at least FY2016, if at all. Such an effort would surely pass through Congress, but again, Barack Obama will simply veto the Interior and Environment Appropriations bill with that funding zeroed out, and we’re back to the same problem as before. Congress could separate the entire EPA from the Interior and Environment Appropriations bill and force Obama to endure an EPA shutdown; it would be exponentially less unpopular than the DHS shutdown that Republicans threatened over Obama’s executive action on immigration. That would still require passage of the broader Interior and Environment Appropriations bill, though, and Obama will certainly veto such a bill without EPA funding.
Until Republicans can regain the presidency, this may be the best option they have. Laurence Tribe has already described the EPA’s effort as “burning the Constitution,” and a source on Capitol Hill told me that he may be their most powerful ally. Their letter to the government relies on Tribe’s reasoning to explain why the EPA is overshooting their authority:
Some have recently suggested that failing to comply with the EPA’s requirements would be to disregard the law. But the fact is, it is the EPA that is failing to comply with the law here. By requiring states to submit a plan aimed at achieving a lower emissions target based upon four so-called “building blocks” — (1) improved power plant efficiencies, (2) switching electricity generation sources, (3) building new generation and transmission, and (4) reducing demand — the EPA is overreaching, as its authority under the Clean Air Act extends only to the first building block related to source specific energy efficiency upgrades. …
More importantly, there is serious doubt about whether the EPA has the authority to impose a federal plan that mandates the measures and actions it wants states to undertake, including switching electricity generation away from coal-fired plants and requiring other plants to make up the difference; requiring the construction and use of higher-cost and variable renewable sources; and imposing programs to reduce the use of electricity by residents or businesses. Thus, a federal plan likely would be limited to regulating a power plant itself, such as the efficiency measures under the EPA’s building block 1.
Moreover, even if the EPA does attempt to impose a federal plan, it is difficult to see how it could be any worse than the plan it is asking states to impose on themselves. According to estimates, the cost of implementing the first building block — the one most likely within the agency’s authority — amounts to $17.6 billion. That’s a fraction of the $479 billion price tag for the full plan the EPA is counting on states to impose upon themselves.
Finally and perhaps most importantly, submitting a plan exposes states to the real danger— allowing the EPA to wrest control of a state’s energy policy if they or any other federal agency becomes dissatisfied with a state’s progress in reaching federal emissions goals. As both the EPA and other environmental groups have noted, a state plan must be “federally enforceable.” The meaning of this language is clear: as the EPA sees it, a state-issued plan would give the agency broad new authority to control that state’s energy future — not to mention the ability to place the blame for future consequences squarely on the state itself.
This is why the source on Capitol Hill calls this a “sneaky way” for the EPA to claim jurisdiction. If states submit plans to the EPA, it essentially grants the EPA authority to enforce those plans — plus it then allows the EPA to push the blame off to the states, too, for the economic consequences. That is why McConnell wants governors to refuse to cooperate. “Don’t give them the authority to do what they can’t do,” the source described the strategy this morning.
McConnell pledged to fight back against the war on coal, and that’s what he’s doing here. Rather than an act of defiance, as the media has painted it, it’s an attempt to use federalism to force the EPA to operate within its own legal boundaries. The long-term solution will be to elect a Republican president that will reverse the regulatory adventurism of the Obama era and reduce the footprint of federal jurisdiction back to a manageable level, but for now this is an adept strategy for containing the arrogance of the EPA. Hopefully, the governors will take McConnell’s advice.