Legislative Tantrums Over EPA’s Proposed Carbon Rule

Politico reports that eight state legislatures have passed bills protesting EPA’s proposed power plant regulation,  in at least one case refusing to comply with any eventual regulations.  This was a childish tantrum rather than an adult response.  

The ultimate hope, according to Politico, is that many states will refuse to submit compliance plans, and that this will give EPA the impossible task of issuing detailed plans for each state. The model is the refusal of many states to expand Medicare or create their own state exchanges under Medicare.  That actually wasn’t a terribly successful strategy in the case of Obamacare, which seems to be working anyway. It’s a much stupider strategy here. In fact, it would help EPA move toward a national cap-and-trade system.

The state actions, fomented by the rightwing American Legislative Exchange Council (a/k/a ALEC), aren’t based on any evaluation of how the proposals would affect individual states.  There simply hasn’t been enough time for individual states to work out how the proposal would affect them.  And of course, the proposal is just a proposal, and no one can be sure how it might be changed along the way.  But knee jerk reactions seem to be the norm in today’s political atmosphere.

What about the strategy of refusing to submit a plan down the road? It’s true that EPA can’t possibly take over air pollution planning for each state — that would be a massive undertaking.  But EPA would have a much easier job here.  The regulation itself is complicated because it’s designed to give states a lot of leeway. But EPA could adopt much simpler solutions if it imposed its own plan.

The major point is that there are a very limited number of fossil-fuel electricity generators in each state.  The basic requirement of the proposal is that they reduce their combined carbon emissions to a certain figure based on the state’s total electricity generation. The easiest thing to do would simply be to impose this reduction on each power plant in the state, and just leave it to the state’s utilities to figure out how to get there.  Almost as easy, EPA could clone California’s cap-and-trade system and apply it to each non-complying state, moving toward nationwide cap-and-trade by linking these systems with each other.  As an added bonus, EPA might be able to augment its budget by auctioning carbon allowances.

In short, states could be playing right into EPA’s hands by refusing to comply — that could actually be a win for EPA in some ways. EPA’s response to threats of noncompliance should be: “Make my day!”

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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