Obama's illegal coal regulations must be stopped

By Patrick Morrisey | Apr 29, 2015

EDITOR'S NOTE: This opinion piece originally appeared in the Washington Examiner.

CHARLESTON – In June of last year, the Obama Administration's EPA launched an aggressive assault against states' rightful powers by proposing federal carbon regulations that require states to reduce carbon dioxide emission by a staggering 30 percent in just 15 years.

Since announcing the proposed regulation, the Administration's EPA has employed unprecedented, threatening tactics designed to bully states into compliance, irrespective of the feasibility or legality of its proposal. States that don't comply face the potential of losing regulatory control on energy matters to the federal government.

On April 16, the U.S. Court of Appeals for the D.C. Circuit heard arguments on two separate but related lawsuits filed by numerous states and energy companies in the wake of last June's proposed rule. The lawsuits contend that the rule and EPA's compliance threats are illegal.

This case is vitally important to the nation. If the EPA's proposed rule is permitted to go forward, it will cause great harm to the states and their citizens. The agency's threats to finalize the plan this summer already have had a dampening effect on states, the energy industry, and its employees.

Uncertainty is rife. Utility companies are currently deciding whether to invest in new technologies to make plants compliant, or to scrap certain power plants altogether. Regardless of what utilities ultimately decide, taxpayers and consumers will foot the bill, as EPA's regulations create an overreliance on other sources of energy to meet base-load power demand.

To be clear, it doesn't matter where you live — you will face the daunting prospect of skyrocketing energy costs. This is an unacceptable situation and one that cannot go unchallenged. That is why I am proud to lead a bipartisan group of states in a lawsuit against EPA's illegal rule. It is imperative that the states' combined opposition to these regulations are heard. Otherwise, we risk not only West Virginia's economic well-being, but that of the national economy as a whole.

The case heard on April 16 deals with just one major legal defect in EPA's proposed rule. It seeks to require states to regulate coal-fired power plants even though EPA already regulates those same plants under the hazardous air pollutant program. As the Clinton EPA explained, such double regulation is expressly prohibited by the 1990 Amendments to the Clean Air Act.

Indeed, EPA's arguments defending its actions are so blatantly contrary to the Clean Air Act that even Laurence Tribe — a noted liberal constitutional scholar and former mentor of President Obama's at Harvard — likened the regulations to "burning the Constitution," in recent congressional testimony.

What makes this case unique — outside of the fact that courts typically do not hear arguments until after a rule is finalized — is that the EPA's repeated threats to finalize that rule this summer are causing immediate and irreparable harm now. As recently as March 11, EPA Administrator Gina McCarthy declared, "The EPA is going to regulate ... If folks are thinking any of those pieces aren't going to happen — and [the Clean Power Plan] isn't going to be implemented, I think they need to look at the history of the Clean Air act more carefully. This isn't how we do business."

That's not how government agencies should do business in this country. An agency should not be permitted to threaten to impose a rule that it knows will never survive judicial review, in order to scare utilities, power plants, and coal mines into closing their doors in anticipation of the rule being finalized. It is an abuse of power that directly harms West Virginia and other coal-producing and coal-burning states.

The EPA has characterized our lawsuits as premature and further argued that allowing the cases to move forward would be "truly extraordinary." What is truly extraordinary is the far-reaching and radical nature of the EPA's proposal, and the legal theories the agency is relying upon to advance it. A positive ruling is warranted because of the significant harms occurring now.

As the Attorney General of West Virginia, I won't hesitate to fight for the rule of law, and try to rein in an out-of-control EPA. We understand we are fighting a difficult battle and asking a court to take some extraordinary steps. But in situations like this, bold action must be taken to protect the greater interests of states and their citizens.

Morrisey is the Attorney General of West Virginia.

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