House panel hears from experts on legality, practicality of Clean Power Plan

March 17, 2015

WASHINGTON, DC – The Energy and Power Subcommittee, chaired by Rep. Ed Whitfield (R-KY) today continued its oversight of EPA’s Proposed 111(d) rule for existing power plants, referred to by the agency as the “Clean Power Plan.” Today’s hearing examined the legal and cost issues of the rule and featured testimony from leading legal scholars and state regulators.

“Given the constitutional, statutory, and other legal issues surrounding the Clean Power Plan, I don’t believe it will withstand judicial scrutiny. Given the tight deadlines under the proposed rule, states will be facing a decision about whether to submit their plans and initiate costly steps toward compliance before judicial review is complete. This would be unfortunate, because whether or not the Clean Power Plan is bad law, it certainly is bad policy,” said Chairman Whitfield.

Noted legal scholar Laurence Tribe, President Obama’s constitutional law professor at Harvard Law School, described the constitutional violations of EPA’s rule. He asserted, “EPA lacks the statutory and constitutional authority to adopt its plan” and described EPA’s plan as a “power grab” from the states, Congress, and the judicial branch. “EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Much is up for grabs in this complex area. But burning the Constitution of the United States – about which I care deeply – cannot be part of our national energy policy,” expressed Tribe. Click HERE to watch Tribe’s testimony.

Legal expert Allison Wood, Partner at Hunton & Williams LLP, explained the many “legal deficiencies” with EPA’s proposed rule, including whether EPA has the authority under section 111(d) to regulate sources that are already regulated under another section of the Clean Air Act as well as EPA’s attempt to redefine regulated sources under the law. “EPA’s proposed section 111(d) rule suffers from many legal infirmities and violates the Clean Air Act,” said Wood. “The rule essentially requires a complete overhaul of each state’s energy portfolio. In addition, many states are going to have to enact laws and regulations to enable them to do the things contemplated by the proposed rule. All of this will be completed before litigation over the rule is complete. If the rule is ultimately held to be unlawful, the states will have already expended enormous amounts of resources to develop the plan, and any laws or regulations that have been enacted cannot be easily reversed.”

Secretary of the North Carolina Department of Environment and Natural Resources Donald van der Vaart warned of repercussions for states due to the rule’s “legal frailty.” He said, “The potential for the 111(d) rule to have this whipsaw effect on states is particularly dangerous because of the scope of the proposed 111(d) rule. There is one tenet on which nearly all stakeholders agree – the 111(d) rule will fundamentally restructure both how energy is generated and consumed in America. I would argue that the EPA’s section 111(d) is to energy what the Affordable Care Act is to healthcare. Like the ACA, the proposed 111(d) rule is an attempt to impose a one size fits all solution that will transform the nation’s energy system. This fundamental change to America’s electricity model will come at the hands of a rule that few consider legally firm. Even the EPA has acknowledged the rule is not likely to survive a judicial challenge intact.”

Art Graham, Chairman of the Florida Public Service Commission, expressed concern over the assumptions in EPA’s proposal, noting that the rule “unfairly penalizes Florida for having taken actions that reduced CO2 emissions prior to EPA’s 2012 baseline year.” He said, “The proposal does not recognize the Florida specific circumstances, such as prior actions and difficulties in complying with the proposal, that create large cost impacts on the ratepayers in our state.”

Craig Butler, Director of the Ohio Environmental Protection Agency, added, “As Ohioans discuss this issue, we hear one overriding concern; that maintaining affordable, reliable power is critical to both the pocket books of Ohioans and the continued economic development within the state. Ohio has been a manufacturing hub in the heart of the country since the industrial revolution. Fueled by electricity, which remains 9 percent below the national average, Ohio is home to a broad range of energy-intensive industries and is competitive in the national and global marketplace. The Clean Power Plan, with all its legal and technical flaws, presents a direct threat to these benefits to Ohio consumers.”

“Under the Clean Power Plan, states would be forced to redesign their electricity generation, transmission, and distribution systems and related laws and policies, and to do so over a short timeframe. Longstanding policies would be essentially ‘wiped clean,’ and jobs and family budgets could suffer as a result,” concluded Full Committee Chairman Fred Upton (R-MI). “Jobs and the economy. That remains our focus. We will continue working to keep the lights on and the electric bills affordable.”