Just Say 'No' to Obama Climate Change Regulations?

This could turn out to be a classic case of losing by winning. States are being counseled to defy a key pillar of President Obama’s climate change initiative. And while it may be politically attractive for some states to heed the call to just say “no,” to the Environmental Protection Agency’s landmark limits on power plant emissions, experts say doing so could bring unwanted consequences.

Why such bold assertions? It is reasoned that states could avoid expensive impacts of a regulation that no less than Senate Majority Leader Mitch McConnell (R-KY) thinks is doomed by either Congress or the federal courts. (O.K., McConnell said it but I did write that last sentence with tongue firmly planted in cheek.)

State implementation plans are central to the EPA’s plan to cut carbon from the power sector by 30 percent by 2030. The regulations were proposed last June and are scheduled to be made final this summer. Like many pollution control regulations under the Clean Air Act, the EPA plans to rely on what it calls “cooperative federalism,” (prototypical oxymoron if ever there was one) in which the EPA sets carbon reduction targets for each state’s power sector and asks the states to write plans to comply.

If the EPA deems a plan to fit with the rule, state officials would be able to use a wide variety of measures, like increasing energy efficiency or renewable energy, or cutting back the use of coal-fired power plants, to comply. If a state does not submit a plan that’s up to snuff, the EPA can swoop in and write its own rules for the state.

And therein lay the conundrum. In the unlikely event that state regulations do pass legal muster, it’s difficult to conceive how a plan imposed from Washington would be much different from what a state might develop on its own.

The upside for California is that, as usual, we’re ahead of the pack in drafting a plan, so the “just say no’ tact isn’t going to happen here. In addition, if you read the fine print, much of what’s being bantered about for many states is to cut coal-fired generation dramatically under their own plans. Coal-fired power generation is not an issue in the Golden State.

The downside for California is the EPA’s limits can go beyond power plants emissions and can be applied to any power generating activity. That’s “cooperative federalism”… the EPA tells you what to do. The EPA, for its part, believes that its power isn’t limited to generating plants. And the notion that the EPA has the authority to order a state to require more renewable resources, or to use less electricity or even just to run more on natural gas is disconcerting.

The usual suspects think “just say no” is a horrible idea and the other usual suspects are taking a hard look at defying the feds. Ultimately, it will come down to the legality of the federal government having the power to implement so-called “outside the fence-line” changes that the EPA is allowing, since that would require changes that have nothing to do with actual power plants.