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STATE REACTIONS TO FEDERAL CLEAN POWER MANDATES RANGE FROM COMPLIANCE TO CIVIL SUITS

© Krantz News Service, August 1, 2015

  


As the Obama administration touts its progress on climate change in advance of a United Nations conference this fall in Paris, states have wrestled with their own climate policies.

They have offered a variety of creative approaches -- and pockets of fierce resistance to federal mandates.

A focal point of the argument is the Clean Power Plan, an Environmental Protection Agency regulatory proposal under the Clean Air Act. Its goal is to cut carbon pollution from power plants.

A final revision of the plan is expected to be released on Monday.

States need not worry, the EPA has stated in an explanation of its plan: 'The Clean Air Act creates a partnership between EPA and the states -- with EPA setting a goal and the states deciding how they will meet it."

EPA critics disagree. Familiar partisan contours shape much of the debate over climate change; however, two of the three significant expansions of the Clean Air Act occurred during Republican administrations, while the most acclaimed critic of President Obama's climate change agenda is liberal constitutional law scholar Laurance Tribe.

Noting the impact on states, Tribe was blunt in arguing the unconstitutionality of the EPA's actions when he testified before a House committee earlier this year:

"Noncomplying States would face sanctions, including the potential loss of federal highway funds, and the takeover of their energy sectors by an inflexible federal plan of uncertain scope that would inflict significant economic damage. EPA lacks the statutory and constitutional authority to adopt its plan."

States, he said, would have no policy options: "EPA's plan will force States to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the Emperor's garb of state 'choice' even though in fact the policies are compelled by EPA."

Many states have no problem with either the policy goals or the administration's plan.

New England governors are well into their second decade of cooperating with Canadian premiers from the eastern provinces on regional climate change action.

And on July 9, at the Climate Summit of the Americas, Vermont Democratic Gov. Peter Shumlin signed a first-ever Pan-American Climate Action statement to emphasize his state's cooperation with neighboring governments.

Meanwhile, California Democratic Gov. Jerry Brown has imposed extensive conservation mandates by executive order to deal with his state's serious drought.

"I can tell you," he said in an interview on "This Week," the ABC program, "from California, climate change is not a hoax."

In the state of Washington, Gov. Jay Inslee, unable to pass a carbon tax during this year's regular and three special legislative sessions, is now taking the regulatory path to carbon caps while trying to dodge a "poison pill" that was inserted into the transportation package he recently signed into law.

Inslee, a Democrat, is ordering the state Department of Ecology to step up enforcement of current pollution laws and develop a regulatory cap on carbon emissions in an effort to meet limits set by the Legislature in 2008.

"Carbon pollution and the climate change it causes pose a very real and existential threat to our state," Inslee said. "Farmers in the Yakima Valley know this. Shellfish growers on the coast know this. Firefighters battling Eastern Washington blazes know this. And children suffering from asthma know this all too well and are right to question why Washington hasn’t acted to protect them."

The state Senate, when negotiating a transportation package that included a gas tax increase, had insisted that money allocated for mass transit and other projects would be spent on road projects if state agencies tried to impose a new carbon-reduction system.

In the Legislature's second overtime session, Inslee dropped his proposals for new carbon-reduction systems as part of the transportation package's overall deal.

"In talking about the terrible choice the Senate impost on the people of Washington -- clean air or buses and safe sidewalks -- I heard broad agreement that we need both clean transportation and clean air," Inslee said. "I appreciate the commitment I heard from many to work with me to ensure our state meets its statutory carbon reduction limits."

Some state governors, concerned about climate change but also worried about losing jobs, are trying to stake out a middle ground.

Colorado Gov. John Hickenlooper, for example, has been seen at times as supportive of environmental causes but still leads an energy-rich state. Recently the Democratic governor has fiercely defended his decision to oppose the closing of a coal mine.

Conservative state lawmakers and activists urge resistance to the Obama administration's Clean Power Plan even as the president seeks to build international momentum leading up to the Paris conference.

Critics of the federal program are offering strategies for opposition.

The Texas Public Policy Foundation is promoting an Interstate Power Compact which would bind states in an alliance of resistance; the approach would promote "an agreement between participating states to prevent the federal overreach of the Clean Power Plan."

On July 21 the 15-state Southern Legislative Conference adopted a resolution urging legal action against imposition of EPA’s final plan. The resolution states that "EPA’s Clean Power Plan interferes with the sovereign powers of the states to regulate electricity within their borders and to ensure a reliable and affordable supply of electricity for their citizens."

The resolution follows signals from a number of governors that they oppose the Clean Power Plan.

Most prominent among them is Republican presidential candidate Scott Walker, the governor of Wisconsin.

He wrote a letter to President Obama in May stating his concerns: "The proposed rule is riddled with inaccuracies, questionable assumptions and deficiencies that make the development of a responsible state plan unworkable for Wisconsin."


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