The Obama administration has vowed to override states that refuse to accept its new climate goals by mandating how they should achieve emissions cuts, a further incitement to state governments that say their rights are being trampled.
President Barack Obama unveiled a bold initiative this week to set state-specific targets for cuts in greenhouse gas emissions from the power sector, triggering fierce opposition and a spate of legal challenges from states and industry.
Among more than a dozen states opposed to the plan, six Republican governors and one Democrat have said they will or may refuse to submit a compliance plan, including Scott Walker of Wisconsin and Bobby Jindal of Louisiana, who are both seeking the Republican presidential candidacy.
The Environmental Protection Agency (EPA), the regulator behind the climate initiative, this week unveiled its own federal compliance plan, which it is ready to impose on states that refuse to devise their own versions.
Scott Pruitt, the attorney general of Oklahoma, which has indicated it will not comply, said: "That to me is coercion . . . The EPA doesn't have authority to adopt a uniform one-size-fits-all federal implementation plan and put it on the shelf and say unless the states act in a particular way they get the [plan] on the shelf.
“That is inconsistent with the statutory framework and also inconsistent with the constitution.”
Challenges
A central argument of the Obama administration’s opponents is that it is infringing on states’ rights by ordering them to reshape their power sectors.
Mr Pruitt was one of 15 attorneys general who filed an unsuccessful lawsuit against the president’s draft plan. He said Oklahoma would be involved in more challenges, starting with an attempt to secure a stay order, or injunction, to stop the plan from coming into force.
Mr Obama said critics would tell scare stories about the costs and damage his plan would cause but they would be proved wrong, as they had been in past fights over successful efforts to regulate smog and acid rain.
“We can figure this stuff out as long as we’re not lazy about it; as long as we don’t take the path of least resistance,” the president said.
In anticipation of multiple lawsuits, the EPA has published hundreds of pages of documents on the climate plan that are filled with legal bulwarks.
Janet McCabe, of the EPA, said that, under the 1970 Clean Air Act, the law the regulator is using to control carbon emissions, “we have an obligation to put a federal plan in place in the event that a state chooses not to do that”.
“We would not put a federal plan in place until a state has not turned in a plan, or has turned in a plan that’s not approvable, so we’re quite a long time away from that event,” she said.
The EPA said states can use various tools to meet emissions targets, including closing down carbon-spewing coal plants, investing in wind and solar energy and reducing electricity demand by improving energy efficiency.
Compliance plans
In addition, the EPA’s federal plan for recalcitrant states relies heavily on a “cap-and- trade” programme to let power companies trade emissions permits to cover their pollution, a mechanism deeply unpopular with Republicans.
Mitch McConnell, the Senate Republican leader from the coal-producing state of Kentucky, has urged states to refuse to devise compliance plans. The other Republican governors that will or may defy the White House are from Texas, Indiana and Mississippi. The Democratic governor of West Virginia, another coal state, said it had not decided whether to submit a plan.
Patrick Morrisey, West Virginia's attorney general, said: "This final rule adopts a radical, unprecedented regime, transforming EPA from an environmental regulator into a central planning authority for electricity generation."
He said it was “drawn up by radical bureaucrats and based on an obscure, rarely used provision of the Clean Air Act. We intend to challenge it in court vigorously.”
Murray Energy, a coal company, has already filed five separate lawsuits against the White House plan this week.
But Gina McCarthy, the EPA’s head, said: “It actually isn’t that easy to undo. It has a solid legal foundation, a strong record, and it will stay in place.”
During a visit to the White House yesterday, UN secretary general Ban Ki-moon applauded the Obama administration’s power plant rule. - Copyright The Financial Times Limited 2015