The lesson we should take from Michigan v. EPA

There was some partying taking place in the energy sector after the Supremes delivered their smackdown to the EPA on Monday, and rightly so. The overreach attempted by the agency which delivered a crushing economic blow to a large, vital segment of the nation’s infrastructure was a dark harbinger of things to come if extra-legislative rules were allowed to go unchallenged. But while it may provide reason for hope in the future it’s clearly too soon to celebrate. The reason is that pretty much the entire energy sector – particularly the coal industry in this case – will tell you that the damage from the EPA’s Mercury and Air Toxics Standards (MATS) was already done. Rather than facing the wrath of Uncle Sam, most producers were browbeaten into incorporating the expensive (and frequently overblown) changes to avoid penalties rather than waiting for the outcome of a court case which was anything but certain.

Environment & Energy Publishing summarized how this played out, noting how this should be a reminder to the states to not just bow down to the EPA when they know they are in the right.

“While much of the damage of this regulation has already been done, the ruling serves as a critical reminder to every governor contemplating the administration’s demands to impose more regressive — and likely illegal — regulations that promise even more middle-class pain,” said Senate Majority Leader Mitch McConnell (R-Ky.). “Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today.”

The key point here is that much of the damage of this regulation has already been done. And if you think that the green energy warriors don’t know this already you’re missing one of the biggest weapons in their took kit. Both the EPA and the Sierra Club were still looking smug even after the ruling because they nearly knocked out the opponent before losing the decision on the judges’ cards.

EPA expressed disappointment at the ruling but noted that the regulation “was issued more than three years ago [and] investments have been made and most plants are already well on their way to compliance.”

The Sierra Club agreed that the ruling couldn’t reverse decisions energy companies have already made to comply.

“Practically speaking, today’s decision won’t revive the fortunes of Big Coal or slow down our nation’s transition to clean energy,” said Mary Anne Hitt, director of Sierra Club’s Beyond Coal Campaign. “Most utilities have long since made decisions about how to meet the standard. Only a few dozen coal plants are still operating today with no pollution controls for mercury and air toxics and no clear plans to install them.”

Make no mistake… the carbon rules are on the way. The President isn’t going to let the clock run out on his fourth quarter without trying to get some form of sweeping, anti-carbon regulations through. And having seen how many coal plants they managed to shut down through illegal regulations simply by shoving them through faster than the court system could respond, there’s no reason to think they won’t do it again on carbon. McConnell is right. Governors around the country should be taking a unified stand in light of the Michigan ruling and refusing to establish any new carbon standards until the inevitable court challenge has made its way through the system.