By Timothy Cama - 07/12/15 08:00 AM EDT
Governors of some conservative states are threatening to disregard President Obama’s signature climate rule for power plants, potentially creating a showdown with the federal government.
Opponents of the Environmental Protection Agency’s regulation hope that the decisions by the six governors could lead to a significant or complete destruction of the rule, thwarting one of Obama’s top legacy policies.
If states don’t comply, the EPA has asserted that it has authority under the Clean Air Act to come in and write its own compliance plans for states.
Senate Majority Leader Mitch McConnellMitch McConnellPelosi urges end to Pentagon's clawback of soldier overpayments Coffman’s stance on climate change disingenuous, irresponsible Bill Murray honored with Mark Twain Prize MORE (R-Ky.), one of the most vocal congressional opponents of the climate rule, told governors earlier this year to defy it, lest they help the Obama administration implement a costly set of regulations that he says will be struck down in court.
Some states are taking that gamble.
Indiana Gov. Mike Pence (R) declared in June that his state would ignore the rule unless it is “demonstrably and significantly improved.”
“This rule represents an effort by the administration to continue to advance a climate change agenda through the regulatory state and does not give due regard to the impact that that will have on electricity rates coming from coal-burning power plants,” Pence told reporters Thursday in a call organized by the conservative American Energy Alliance.
“I do believe this rule is on a very shaky legal foundation,” Pence said.
Oklahoma Gov. Mary Fallin (R) went further, signing an executive order in April instructing state agencies not to comply with the rule.
“While the environmental benefits of these regulations will be minimal, the economic devastation of these overreaching and unrealistic regulations will be very real,” Fallin said, saying the order “makes it clear the state of Oklahoma has no intention of implementing new regulations that run directly contrary to the interests of our citizens and our state.”
Rep. Frank Lucas, an Oklahoma Republican, said Fallin did the right thing.
“We are a state that traditionally has had reasonably priced energy,” Lucas said. “To have these mandates that many of my neighbors, constituents and industry at home think are not reasonable, I think the governor’s just a reflection of the state, which is why she’s governor.”
Wisconsin Gov. Scott Walker (R), like Pence, has pledged to defy the rule unless major changes are made. Texas Gov. Greg Abbott (R) and Louisiana Gov. Bobby Jindal (R) have identified resisting the rule as a distinct possibility, while West Virginia Gov. Earl Ray Tomblin (D) signed a bill requiring legislative approval of any compliance plan.
And both major candidates to be governor of Kentucky — a major coal-producing state — have pledged not to comply.
Defiance from the states is emerging as one of the most promising strategies for opponents of the climate rule. If enough states don’t comply, they hope that it would bolster court cases against the rule, make it more difficult for the EPA to impose compliance or at least force the Obama administration to write expensive, onerous state plans.
The rule’s opponents say that last month’s Supreme Court ruling against the EPA’s limits on emissions of mercury and other air pollutants from power plants reinforces that states should not write compliance plans.
The Supreme Court did not overturn the mercury rule, but the justice’s finding that the EPA did not consider industry costs early enough in the regulatory process came too late for power plants that have already shut down.
“While much of the damage of this regulation has already been done, the ruling serves as a critical reminder to every governor contemplating the administration’s demands to impose more regressive — and likely illegal — regulations that promise even more middle-class pain,” McConnell said after the ruling.
“Clearly, there is no reason to subject their states to such unnecessary pain before the courts have even had a chance to weigh in, especially if the Supreme Court simply ends up tossing the regulation out as we saw today.”
Supporters of the power plant regulations say that the “just say no” approach is harmful and argue the lack of a full endorsement from any state other than Oklahoma shows that it’s not catching on.
“It hasn’t gotten much pickup,” said David Doniger, the air and climate director at the Natural Resources Defense Council.
Governors are likely realizing that ignoring the rule will not actually help their state, Doniger said.
“What’s really on all of the governor’s minds is that they have an opportunity to tailor a plan to meet local conditions. But they don’t really have an opportunity to shield the power companies in their state, because if the states don’t regulate the power plants, it’s a federal responsibility to do it,” he said.
Jamie Van Nostrand, a West Virginia University environmental law professor, said that even in the states with governors bashing the rule, other agencies might be working on complying.
“The governors and political leaders are going to be out front with ‘just say no.’ But the question is, are they actually following through?”
“It’s hard to say if that work is not going on behind the scenes, versus the politically popular statements by the governors and elected officials.”
Rep. Gene GreenGene GreenHouse Dems call for NHL to reduce head injuries Top Dem: Cures bill funding cut to B Lawmakers pledge push for cures bill in lame-duck MORE (D-Texas) said Texas Gov. Greg Abbott (R) should work with the EPA to make the rule palpable for the state, like Green has been doing with some colleagues.
“I wish we could sit down with EPA instead of just saying ‘we’re ignoring it.’ That’s what I’ve been trying to do,” he said. “Ultimately it will be good, but we need to sit down with them.”