Cover photo from The Huffington Post
In a move that HotAir’s Ed Morrissey calls “falling back on federalism,” Senate Majority Leader Mitch McConnell (R-KY) is appealing to the states, their governors, legislatures and courts to refuse to cooperate with the Environmental Protection Agency (EPA) when they come asking for individual states’ plans to reduce carbon emissions from coal fired electrical plants.
From the New York Times:
On Thursday, Mr. McConnell sent a detailed letter to every governor in the United States laying out a carefully researched legal argument as to why states should not comply with Mr. Obamaâ€™s regulations. In the letter, Mr. McConnell wrote that the president was â€œallowing the E.P.A. to wrest control of a stateâ€™s energy policy.â€
To make his case, Mr. McConnell is … relying on a network of powerful allies with national influence and roots in Kentucky or the coal industry. Within that network is Laurence H. Tribe, a highly regarded scholar of constitutional law at Harvard Law School and a former mentor of Mr. Obamaâ€™s. Mr. Tribe caught Mr. McConnellâ€™s attention last winter when he was retained to write a legal brief for Peabody Energy, the nationâ€™s largest coal producer, in a lawsuit against the climate rules.
In the brief, Mr. Tribe argued that Mr. Obamaâ€™s use of the existing Clean Air Act to put forth the climate change regulations was unconstitutional. He then echoed that position in an op-ed article in The Wall Street Journal. He argued that in requiring states to cut carbon emissions, and thus to change their energy supply from fossil fuels to renewable sources, the agency is asserting executive power far beyond its lawful authority.
Full disclosure: Peabody Energy’s headquarters is about eight miles due east of this writer’s home. Â I have worked with them regarding philanthropic causes in the past.
Basically, McConnell is asking the states to exercise their rights and authority as outlined in law since he does not have the votes in the Senate to pass any sort of legislation that will defund, or undercut the EPA with any sort of meaning. Â McConnell is requesting that the states tell the EPA to get lost, and he’s giving them the legal ammunition to do so. Â The EPA has no real authority to tell any state how to conduct their operations. Â Congress has not granted that jurisdiction. Â (Yes, this falls under the category of “Why the States Matter.”) Â What is the EPA up to?
Using its existing authority, the E.P.A. will require each state to submit an individual plan for cutting emissions from power plants. Ultimately, the success or failure of the plan will depend on how â€” and if â€” states comply with the rules. It will also depend on the courts. Coal-dependent states and coal mining companies are already planning legal challenges to the regulations.
Except that legally, the EPA does not have the power to do that. Â That is the point. Â The EPA was created by executive order in 1970 to bring together a bunch of separate agencies in order to clean up the actual environmental mess left behind from the industrial boom. Â At the time, that clean up was necessary. Â Now that the job is more done than not, the EPA is looking for other ways to meddle in our lives. Â By yet more executive orders. Â As Mr. Tribe pointed out in his arguments in court, in his testimony this week before Congress, and in the op-ed pages of the Wall Street Journal, that is not legal, and is a plain old power grab.
EPA lacks the statutory and constitutional authority to adopt its plan. The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do. Even if the Act could be stretched to usurp state sovereignty and confiscate business investments the EPA had previously encouraged and in some cases mandated, as this plan does, the duty to avoid clashing with the Tenth and Fifth Amendments would prohibit such stretching.
EPA possesses only the authority granted to it by Congress. It lacks â€œimpliedâ€ or â€œinherentâ€ powers. Its gambit here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts. The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a â€œpower grab.â€
EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts â€” all at once. Burning the Constitution should not become part of our national energy policy.
Quote courtesy of HotAir.
Mitch McConnell agrees. Â That is why he wrote to the elected officials in the states themselves. Â No, McConnell has no authority per se over state operations, but he can, as a leader at the federal level, give state government the tools they need to fight a power hungry executive branch and their illegal moves. Â Until Republicans, or conservatives, have super majorities in both houses of Congress and/or the White House, the states may well have to serve as the foil for this sort of thing. Â (Just like they did with Obamacare.)
â€œThe majority leader is a master tactician,â€ said Scott Segal, a lobbyist with the law firm Bracewell & Giuliani and the director of the Electric Reliability Coordinating Council, which represents power companies. â€œHe understands the legal vulnerabilities, and heâ€™s acutely aware that not all solutions go through traditional legislative channels.â€