Opponents' big scary plans to defy the EPA are actually pretty pathetic

The Clean Power Plan is expected any day now. Cue the attacks

Published July 31, 2015 3:53PM (EDT)

Senate Majority Leader Mitch McConnell of Kentucky (AP Photo/Carolyn Kaster, File)  (AP)
Senate Majority Leader Mitch McConnell of Kentucky (AP Photo/Carolyn Kaster, File) (AP)

As early as Monday, the EPA could be dropping the big one: the finalized version of its emissions rules for coal-fired power plants. The Obama administration is psyched -- the rules form the cornerstone of President Obama's plan to fight climate change, and White House Chief of Staff Denis McDonough hinted that the final rule will be "stronger in many ways than the proposed rule."

Opponents of the rule, meanwhile, are gearing up for a fight, and are expected to throw everything they've got, and then some, at the EPA. Even as the rule is only in its draft stage, it's been hit with lawsuits from coal-heavy states and energy companies -- lawsuits which were ultimately dismissed for coming too early -- while House Republicans made a desperate, unsuccessful attempt to block the rule. It will be argued that the rule causes “irreparable harm,” and that it's unconstitutional. Senate Majority Leader Mitch McConnell is trying to convince states to just go ahead and ignore the rule, assuring them that's sure to be defeated, in the end.

It's all meant to sound terribly intimidating. What we're really seeing, however, is more like desperation.

As a perfect example of just how far opponents will go, InsideClimate News reports on the Texas Public Policy Foundation, a conservative think-tank with ties to the Koch brothers that came up with a "bold" plan to fight the rules by giving states the constitutional right to ignore them, through the use of an interstate compact. Here's Naveena Sadasivam on how that would work, if they actually managed to pull it off:

TPPF's proposal would prohibit member states from submitting compliance plans for the Clean Power Plan to the Environmental Protection Agency. It also prevents the EPA from enforcing a federal plan in states that refuse to submit a plan.

To come into force, state legislatures would have to sign the proposed language into law. Then the compact would need to be passed by Congress and signed by the president—an impossibility, suggested David Doniger, a senior attorney at the Natural Resources Defense Council.

Doniger also noted a legal problem: The Compact Clause of the U.S. Constitution does not apply to pacts that seek to defy federal law, he said.

According to environmental attorneys, most of the attacks being leveled at the EPA are similarly destined to fail. The EPA, after all, has known this was all coming, and feels pretty confident that it's acting entirely within its authority.

“EPA has a long history of creating regulations that are firmly rooted in science and the law, and the courts have recognized that,” Tomas Carbonell, director of regulatory policy at the Enviromental Defense Fund, explained to reporters. “The proposed clean power plan addresses a problem -- carbon pollution -- that the Supreme Court has already said EPA has authority to mitigate, and it does it with common-sense measures and an unprecedented level of flexibility for states."

“You’ll hear lots of noise, gnashing of teeth, rending of garments,” warned Donniger. However, he said, “our assessment is they don’t have a winning issue.”

A point that repeatedly comes up? States that somehow manage to defy the EPA would be acting against their own interest. The final rule, Reuters reports, is expected to push back the start date, so that everyone more time to comply, while at the same time rewarding states that got an early start. It also may feature a brand-new "federal implementation plan" for states that, under McConnell's leadership, refuse to come up with proposals of their own. One way or another, they're going to have to cut down on their carbon emissions -- if they haven't already.

On Friday, governors in 29 states received letters, signed by 365 companies and investors, urging them to support the Clean Power Plan and embrace its environmental and, yes, economic benefits. "Evidence shows that emissions reductions can be achieved without long-term economic harm or damage to the reliability of our electricity system," it read.

"Clean and consistent policies can send market signals that help businesses and investors plan for the future," it continued. "We are seeking long-term policies that provide businesses the certainty needed to transition to a clean energy economy."

By Lindsay Abrams

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Clean Power Plan Epa Mitch Mcconnell Power Plant Rules