Senate Majority Leader Mitch McConnell said he plans to use a little-known, little-studied, little-used Clean Air Act clause to undercut a key element of the Environmental Protection Agency’s attempt to cut carbon emissions from power plants.
The Kentucky Republican cited language in the Clean Air Act, the federal law under which the EPA is crafting its climate change regulation, that he said requires Congress to approve regional cap-and-trade plans and other compacts. That’s key because the EPA has touted multi-state plans as the best, most cost-efficient way to meet its proposed rule’s goals, and some states are planning to use that strategy.
The section of the Clean Air Act that McConnell highlighted, 102c, permits two or more states to enter into compacts for reducing air pollution. McConnell, however, quoted language that said, “No such agreement or compact shall be binding or obligatory upon any state a party thereto unless and until it has been approved by Congress.”
“That doesn’t seem ambivalent to me,” McConnell told EPA Administrator Gina McCarthy during the Senate Interior and Environment Appropriations Subcommittee hearing. “As long as I’m majority leader, this body is not going to be signing off on any backdoor energy tax.”
Experts are less convinced. Even those willing to talk about McConnell’s plan couched their comments in disclaimers that they were unfamiliar with the section McConnell proposed using. They said there’s no case law behind it and weren’t very high on the chances of McConnell’s gambit succeeding.
“We are certainly in uncharted territory here,” Brian Potts, a partner with Foley & Lardner LLP, told the Washington Examiner.
The poster child for multi-state plans is the Regional Greenhouse Gas Initiative, a cap-and-trade plan comprised of nine Northeast and Mid-Atlantic states. The emissions cap for those states this year is a combined 88.7 million short tons (80.5 million metric tons), and it will decline 2.5 percent annually until 2020.
But experts contend the system doesn’t qualify as an interstate compact because states can exit without penalty, as New Jersey did in 2011. And Congress likely couldn’t wield the clause against states that willingly enter into a multi-state plan, a former EPA official said.
“It might give Congress a role if a state seeks to resist such a compact, but does not prohibit a state from voluntarily entering into a compact,” the source said in an email. “The provision raises interesting issues regarding the extent of Congress power [given McConnell’s gloss] — it appears to me to be invasive of an executive branch function.”
McCarthy, for her part, said the agency is abiding with the law in issuing the rule, which is due for finalization this summer and aims to slash power plant emissions 30 percent below 2005 levels by 2030.
“I believe we are acting under the authority Congress gave us in the Clean Air Act,” she said in response to McConnell, who has vowed to do “everything I can” to block the rule because he says it would kill coal-mining jobs and raise electricity rates in his state.
Eliminating multi-state emissions programs would deal a blow to the agency’s plan. Several states outside of the Regional Greenhouse Gas Initiative are banking on regional compliance measures that the EPA has hinted would satisfy the requirements of the rule, which is known as the Clean Power Plan. California, Oregon and Washington have long discussed a West Coast carbon market in which British Columbia also would participate. States that belong to the Western Governors Association are also rumored to be weighing multi-state opportunities.
Potts said McConnell’s case is “plausible,” but he wasn’t convinced it could stop multi-state plans.
“If Congress did refuse to approve a multi-state compact, the states could still likely cooperate on a voluntary basis,” Potts said. “They just may not be able to use the Clean Air Act to sue each other to enforce the terms of the compact.”
William Yeatman, a senior fellow with the conservative Competitive Enterprise Institute, said it appeared McConnell was trying to conflate section 102c with the Compact Clause, which was designed to prevent states from linking up to challenge the primacy of the United States. But Yeatman didn’t think that was a viable argument and said it didn’t pose a threat to the Regional Greenhouse Gas Initiative or similar plans.
“I don’t know why he’s stressing that this would ‘allow’ Congress to stop multi-state plans because Congress could do that whenever it wants to, by any number of means,” he told the Examiner in an email. “However, with respect to the provision, again I don’t see what tree he’s barking up.”
