Our fight against an unchecked bureaucracy

By Patrick Morrisey | Oct 11, 2016

CHARLESTON — Did Congress give the EPA the power to make states like West Virginia change the way we get our electricity? And even so, is EPA’s plan to do so even realistic?

Those were the questions that my office and other challengers to the so-called “Clean Power Plan” addressed in an historic court proceeding in Washington, DC, where lawyers argued for more than six hours before ten judges.

If you haven’t heard yet of EPA’s “Power Plan,” you need to look into it.

The Power Plan is one of President Obama’s many efforts to circumvent Congress. This attempt involves the regulation of carbon dioxide emissions from existing fossil-fuel-fired power plants. Except it isn’t about making those power plants burn cleaner; it’s about closing them down.

The emission rates that EPA has set for those existing power plants (1,305 lb CO2/MWh) is stricter even than the rates they are requiring under a different rule for brand new plants (1,400 lb CO2/MWh). That’s right; even if existing fossil-fuel-fired power plants retrofit with the supposedly state-of-the-art technology that EPA is requiring for new plants, they couldn’t satisfy EPA’s rule.

That disparity isn’t a mistake.

It’s by design.

The whole point of EPA’s aptly-named “Power Plan” is to restructure our energy economy. The rates are unachievable precisely to require shutting down existing fossil-fuel-fired power plants and to force us to get our electricity from EPA’s preferred forms of low- or zero-carbon energy generation, like wind and solar.

As the White House itself said when the plan was finalized last fall, the rule is intended to “drive” an “aggressive transformation” of the domestic energy economy. And as EPA’s Administrator admitted to Congress, the rule is “not about pollution control,” but rather “investments in renewables and clean energy.”

Whatever you think about climate change, the exercise of this kind of power by an unelected administrative agency should make you pause. Should an agency charged with reducing pollution be permitted to require sweeping and fundamental changes to our nation’s energy policy?

Not even the Federal Energy Regulatory Commission has that authority; by law, FERC is expressly prohibited from regulating “facilities used for the generation of electric energy.”

The argument from EPA and many of its supporters is basically that the ends justify the means. But that is not only unconstitutional, it is unworkable as a system of government. It may be convenient today for those who like the President’s policies. But what about a year or ten years from now, when another person or another party is in power?

In February, this troubled the Supreme Court enough to cause the high court to take the unprecedented step of putting the rule on hold while the lower court reviews it. And it has troubled Harvard Law Professor Laurence Tribe, a favorite of the left, who has said that “coping with climate change is a vital end, but it does not justify using unconstitutional means.”

In court, at least some of the ten judges seemed to agree. Several focused in on the transformative difference between this rule and any other rule EPA has promulgated under the law that it cites for support.

A number of judges invoked the “clear statement rule” — an argument pressed during the hearing by the 27 challenging states — which requires courts to take an especially hard look for Congress’s approval when an agency is claiming unusually expansive power.

We also heard in court that even if EPA has the kind of power it claims, its Power Plan is based on flawed reasoning.

One key part of the rule is EPA’s projection of the amount of new wind generation that can realistically be expected to be built. EPA based those projections, however, on numbers artificially inflated by those seeking to take advantage of a tax credit that expired at the end of 2012.

The amount of new wind generation in 2012 was 13,131 megawatts; the next year, it had dropped to 1,100 megawatts. This isn’t just tilting at windmills; it’s a fundamental and obvious error that reflects a deeper problem with having an environmental agency making energy policy.

It will probably be a few months, at least, before the court in DC issues its decision.

We in West Virginia will be waiting — not just to see whether we will be spared the devastating economic impact of this rule, but also to see what kind of a country we really live in.

Are we still a nation with three co-equal branches, or one where a President’s claimed urgency trumps all?

Morrisey is the Attorney General of West Virginia.

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