States Should Think Twice Before Refusing Any Response to EPA’s Clean Power Rules

By Professor Dan Selmi

The complete article was originally published by Columbia Law School's Sabin Center for Climate Change Law, where Prof. Selmi is a Visiting Scholar.

Excerpt:

The Environmental Protection Agency’s (EPA’s) proposed rules for existing power plants play a central role in the Obama Administration’s plans for regulating greenhouse gas emissions to prevent climate change. The rules, technically known as the “Existing Source Performance Standards,” will require a major effort from many states to change their methods of producing electricity, disrupting the status quo in an area long the province of state public service commissions. Not surprisingly, the proposed rules generated an avalanche of comments to EPA ranging from full support to vehement opposition, with the commenters also staking out positions on various technical issues. Law firms are raising questions about the rules' validity and gearing up to take part in the inevitable litigation over them.

The high-profile debate has led some critics of the rules to argue that states should oppose them by simply opting out of the entire regulatory process and refusing any response to the rules. The movement has even acquired a slogan: “Just Say No.” While the slogan is borrowed from Nancy Reagan’s anti-drug message in the 1980s, it still has the same forceful ring to it. And “saying no” would give states the satisfaction of telling Washington off for its intrusive regulations.

Some states have begun to embrace the "Just Say No" idea by considering legislation that, to varying degrees, would hobble the adoption of state plans complying with the upcoming regulations. For example, Kentucky enacted a law requiring its environmental regulators to adopt separate state standards of performance for controlling carbon dioxide emissions from existing power plants that burn both coal and natural gas. The legislation might prohibit the state from adopting an approvable plan under the upcoming power plant regulations. South Carolina is considering a resolution that would “urge” the state’s environmental department not to prepare or submit a plan to EPA until the legality of the new rules is decided, while a similar bill proposed in Kansas would prohibit state agencies from drafting a response until all litigation is resolved.  The Colorado Senate passed a bill that would cut the state’s renewable energy requirement in half. Various other states are considering action.

The “Just Say No” slogan is pithy, and as an immediate political response, states may be tempted to follow its advice by taking legislative or executive action that prevents or hinders the state from responding to the upcoming rules. Before taking that step, however, states should carefully consider the consequences. If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages.

Read the full article.