Obama's $4B "clean power" slush fund is likely unconstitutional

The President’s recent budget proposal contained all sorts of unpleasant surprises, but one item of interest to the green energy crowd was a four billion dollar, taxpayer generated slush fund designed to coerce states into complying with the EPA’s “clean energy” initiatives. States would qualify for a piece of the pie by coming into compliance with the costly mandates ahead of schedule.

The American Coalition for Clean Coal Electricity condemned President Obama’s 2016 Fiscal Year budget for prioritizing his politicized environmental policies at the expense of American families and businesses.

The proposal calls for the creation of a $4 billion fund – paid by taxpayers – to encourage states to comply with the Environmental Protection Agency’s costly Clean Power Plan. The $4 billion, however, is just a tiny fraction of the more than $366 billion in compliance costs associated with the plan. States can qualify for a portion of the $4 billion by reaching the targets stipulated by EPA in an accelerated manner or by exceeding EPA’s targets. A number of state governors have already cried foul at the cost and reliability impacts of the Clean Power Plan.

For every carrot there is a stick, though. While states might qualify for some cash if they toe the line on these mandates early, the administration is ready to cut their federal highway funding if they don’t manage to meet the requirements on time. This portion of the formula should be shot down in the courts before it ever gets off the ground. As Phil Kerpen explains, there is a clear parallel between this move by the Obama administration and their failed attempt to implement one aspect of Obamacare.

The most famous holding in the same landmark case NFIB v. Sebelius was on the individual mandate that John Roberts contrived to rewrite as a tax. But the other major holding in the case struck down the law’s feature that required states to expand Medicaid, originally designed as a program for specific, vulnerable populations (children and the disabled) into a new, universal welfare program for able-bodied working-age adults. The penalty for states that didn’t cooperate was supposed to be the loss of all of the state’s federal Medicaid funding.

The Court said no. It made clear that Congress cannot commandeer the states into adopting a new program by threatening to remove funding for an existing program. It wasn’t even particularly controversial, with liberals Breyer and Kagan joining the five Republican appointed justices in a strong 7-2 decision.

The precedent on this one seems fairly clear. You can’t punish the states for failing to adopt a particular program by threatening to withhold funding on some other, unrelated program. And with seven SCOTUS justices agreeing, simply saying that two things are the same does not make it so. That sort of discretionary power would unleash a monster, allowing the Feds to cut off education funding if the state didn’t save the habitat of the purple billed panda grouse.

The so called clean power plan initiatives are going to drive up costs for homeowners and pretty much anyone who uses energy in any form, all for no measurable difference in the alleged climate interests at stake here. Governors who don’t wish to bend a knee to such a mandate should simply refuse and let the matter go to the courts. With NFIB v. Sebelius as precedent, such a plan should be quickly tossed into the dust bin of history.