States Fighting Obama EPA’s Global Warming Decrees

Print Friendly, PDF & Email

July 5, 2014

When the Oba­ma admin­is­tra­tion failed in its bid five years ago to have the Demo­c­rat-con­trolled Con­gress cre­ate an uncon­sti­tu­tion­al cap-and-trade regime tar­get­ing car­bon diox­ide to fight “glob­al warm­ing,” it wait­ed a few years, then imposed the rad­i­cal scheme by exec­u­tive decree. Rather than foist­ing it direct­ly on busi­ness­es and indi­vid­u­als, Obama’s new pres­i­den­tial edicts pur­port to com­man­deer state gov­ern­ments for the pur­pose. The “reg­u­la­tions” even “gra­cious­ly” offer states what the anti-CO2 zealots in the admin­is­tra­tion and its EPA describe as a “menu” of “pol­i­cy options” they can “choose” from to com­ply with the decrees. The bat­tle to stop the abuse, though, is now under­way.

The “cli­mate” reg­u­la­to­ry regime unveiled by the EPA last month calls for mas­sive reduc­tions in emis­sions from pow­er plants. Under the scheme, described as “Oba­maCare for the atmos­phere,” emis­sions of what sci­en­tists refer to as the “gas of life” — exhaled by humans and required for plants — must be slashed by 30 per­cent from 2005 lev­els by 2030. Oba­ma explained the eco­nom­ic effects of his plot in a 2008 inter­view: “Under my plan of a cap-and-trade sys­tem, elec­tric­i­ty rates would nec­es­sar­i­ly sky­rock­et.” At least in that instance, he was telling the truth. The U.S. Cham­ber of Com­merce esti­mat­ed that the scheme could cost $50 bil­lion per year in lost GDP and over 200,000 jobs annu­al­ly, in addi­tion to a plunge in house­hold dis­pos­able income of over half a tril­lion dol­lars a year.

If states refuse to sub­mit to the administration’s wide­ly ridiculed edicts, the EPA claims it has the pow­er to step in and cre­ate its own “plan.” More than a few state gov­ern­ments, how­ev­er, are already fight­ing back — or at least pre­tend­ing to in an effort to appease the groundswell of oppo­si­tion — against what elect­ed offi­cials say is brazen anti-con­sti­tu­tion­al fed­er­al and exec­u­tive over­reach. Mul­ti­ple avenues to stop the plot are being pur­sued, rang­ing from con­gres­sion­al action and fed­er­al law­suits to state nul­li­fi­ca­tion efforts. Some ana­lysts also sug­gest­ed forc­ing the agency to pre­pare a legal­ly required “impact state­ment” out­lin­ing and jus­ti­fy­ing the human dev­as­ta­tion set to be wrought on Amer­i­ca under the scheme.

With the GOP-con­trolled House of Rep­re­sen­ta­tives com­plic­it in the administration’s schem­ing — the House has the con­sti­tu­tion­al pow­er to cut off all fund­ing for Obama’s “cli­mate” antics, yet has refused to do so for rea­sons that remain unclear — atten­tion is increas­ing­ly shift­ing to state capi­tols. Short­ly after the lat­est EPA plot was unveiled, Indi­ana Gov. Mike Pence, cit­ing high­er ener­gy costs, lost jobs, and lost busi­ness, promised to “oppose these reg­u­la­tions using every means pos­si­ble.” Penn­syl­va­nia Gov­er­nor Tom Cor­bett vowed to “fight these reg­u­la­tions every step of the way.” Oth­er gov­er­nors and state law­mak­ers offered sim­i­lar rhetoric, but many of those same states are already work­ing on their own plots to need­less­ly reduce emis­sions of the essen­tial-to-life gas.

Under grow­ing pub­lic pres­sure, though, law­mak­ers and some gov­er­nors, espe­cial­ly from coal states, are actu­al­ly turn­ing up the heat. On July 1, for exam­ple, The Hill report­ed that nine state gov­ern­ments joined a law­suit against the EPA cli­mate regime by Mur­ray Ener­gy that seeks to over­turn the “ille­gal, irra­tional, and destruc­tive cap-and-tax” plot. The states include West Vir­ginia, Alaba­ma, Alas­ka, Ken­tucky, Nebras­ka, Ohio, Okla­homa, South Car­oli­na, and Wyoming. The suit, filed on June 18 in the U.S. Dis­trict Court of Appeals for the Dis­trict of Colum­bia, aims to have the courts restrain Obama’s EPA and stop it from issu­ing and enforc­ing unlaw­ful decrees.

EPA’s asser­tion of author­i­ty denied it by Con­gress impos­es real harms on the States now: States have to under­take huge amounts of bur­den­some work now to devel­op plans to meet the antic­i­pat­ed rule and can­not wait for the final rule and still have any chance of meet­ing the indi­cat­ed dead­lines,” explains a brief filed by the nine state gov­ern­ments, blast­ing as “extra­or­di­nary” the EPA’s claims of author­i­ty. “The ‘spe­cif­ic pro­hi­bi­tion’ against the EPA’s pro­posed rule is in the very statu­to­ry pro­vi­sion the agency cites as its author­i­ty.”

Accord­ing to the states’ court fil­ing, Sec­tion 111(d) of the Clean Air Act — the same statute the EPA cites as its sup­posed author­i­ty for issu­ing the decrees — actu­al­ly pro­hibits the admin­is­tra­tion from reg­u­lat­ing “any air pol­lu­tant emit­ted from a source cat­e­go­ry that EPA already reg­u­lates” under a dif­fer­ent sec­tion of the statute. In oth­er words, as The Hill explained, that means the EPA can­not reg­u­late those pow­er plants under Sec­tion 111(d) if they are already reg­u­lat­ed under anoth­er sec­tion of the Clean Air Act. Of course, Con­gress itself nev­er had the con­sti­tu­tion­al author­i­ty to pass a “Clean Air Act” to begin with — much less del­e­gate such anti-con­sti­tu­tion­al pow­ers to an uncon­sti­tu­tion­al agency cre­at­ed by an exec­u­tive order.

Still, in a bizarre rul­ing hand­ed down last month that makes a mock­ery of sci­ence and the U.S. Con­sti­tu­tion, the Supreme Court gave back­ing to much of the EPA’s rad­i­cal anti-CO2 schem­ing. As such, efforts to hold the fed­er­al gov­ern­ment account­able to the Con­sti­tu­tion via fed­er­al courts are wide­ly viewed as unlike­ly to suc­ceed. The rul­ing did say, how­ev­er, that fed­er­al agen­cies have “no pow­er to ‘tai­lor’ leg­is­la­tion to bureau­crat­ic pol­i­cy goals.” That could bol­ster the posi­tion of some state offi­cials who were demand­ing that the admin­is­tra­tion with­draw its uncon­sti­tu­tion­al and unlaw­ful plot before being forced to squan­der even more tax­pay­er funds defend­ing it in court.

As the chief legal offi­cer for the State of West Vir­ginia, I respect­ful­ly request that you with­draw the Pro­posed Rule imme­di­ate­ly because EPA lacks the legal author­i­ty to adopt that Rule,” West Vir­ginia Attor­ney Gen­er­al Patrick Mor­risey wrote in a let­ter to EPA boss Admin­is­tra­tor Gina McCarthy, say­ing the plot should be nixed to “avoid need­less lit­i­ga­tion.” The EPA is not allowed to “bla­tant­ly vio­late the law in order to achieve its pol­i­cy goals,” Mor­risey added in a state­ment. The let­ter also cit­ed the argu­ments made by the nine states in their recent court fil­ing.

In Con­gress, law­mak­ers are also con­sid­er­ing their options. One plan, pro­posed by Sen­ate Minor­i­ty Leader Mitch McConnell (R-Ky.), would invoke the Con­gres­sion­al Review Act. Once the EPA reg­u­la­tions are final­ized, Con­gress could use the law to sim­ply over­turn the CO2 reg­u­la­to­ry regime. Sen. McConnell, an estab­lish­ment Repub­li­can up for re-elec­tion wide­ly viewed by con­ser­v­a­tives as an enabler of the out-of-con­trol exec­u­tive branch, called Obama’s car­bon plot “a dag­ger in the heart of the Amer­i­can mid­dle class” and vowed to fight it. Indeed, among Repub­li­cans of all vari­eties, pub­lic sup­port for the scheme is vir­tu­al­ly non-exis­tent. It remains to be seen, though, how ded­i­cat­ed the GOP tru­ly is to using the tools it has to stop Obama’s EPA.

Even some Democ­rats, includ­ing McConnell’s oppo­nent, have pub­licly turned against the administration’s attack on Amer­i­cans and their econ­o­my. “Last week, the EPA unleashed its lat­est assault on the jobs and liveli­hoods of our coal min­ers,” Rep. Nick Rahall (D-W.Va.) said after the lat­est EPA decrees were unveiled. “The EPA needs to get their head out of the clouds and come back down to Earth where the rest of us must live and work. We don’t need more reg­u­la­tion to solve our ener­gy chal­lenges — we need more inno­va­tion.”

How­ev­er, Rep. Rahall and the dozens of co-spon­sors for his leg­is­la­tion to block the new decrees, dubbed the “Pro­tec­tion and Account­abil­i­ty Reg­u­la­to­ry Act of 2014,” know full well that even if the Sen­ate were to pass the bill as well, Oba­ma would veto it. The only real option for Con­gress, aside from using the Con­gres­sion­al Review Act to kill the edicts, is to defund the EPA, or at least its abil­i­ty to impose the uncon­sti­tu­tion­al and unlaw­ful car­bon decrees on Amer­i­ca.

At the state lev­el, nul­li­fi­ca­tion of uncon­sti­tu­tion­al fed­er­al statutes and edicts has been spread­ing like wild­fire. Under heavy pres­sure from strug­gling con­stituents, law­mak­ers in both Ari­zona and Ida­ho have been work­ing hard this year to nul­li­fy all EPA decrees in their states. Nul­li­fi­ca­tion was a favorite solu­tion tout­ed by some of America’s most promi­nent Found­ing Fathers such as Thomas Jef­fer­son and James Madi­son. Still today, lib­er­al- and con­ser­v­a­tive-lean­ing states are nul­li­fy­ing uncon­sti­tu­tion­al fed­er­al acts rang­ing from attacks on gun rights to mar­i­jua­na pro­hi­bi­tion. Even dis­graced Attor­ney Gen­er­al Eric Hold­er has been forced to acknowl­edge the via­bil­i­ty of the tac­tic.

A sol­id major­i­ty of Amer­i­cans reject the man-made glob­al-warm­ing the­o­ries cit­ed by the Oba­ma admin­is­tra­tion and the Unit­ed Nations to jus­ti­fy their rad­i­cal plans. Accord­ing to a recent Pew sur­vey, 53 per­cent of respon­dents reject­ed the the­o­ry, while 40 per­cent believe human activ­i­ties are respon­si­ble for “warm­ing” — despite the fact that there has been no glob­al warm­ing in almost two decades and count­ing. Oba­ma and his fel­low alarmists sim­ply dou­bled down, with the pres­i­dent out­landish­ly using a com­mence­ment speech to ridicule the major­i­ty of Amer­i­cans who refuse to believe his dis­cred­it­ed the­o­ry. The EPA has also been law­less­ly hid­ing the “sci­ence” pur­port­ed­ly jus­ti­fy­ing its pow­er grabs.

It has become clear that what more than a few U.S. law­mak­ers have referred to as “the impe­r­i­al pres­i­den­cy” will not stop abus­ing reg­u­la­to­ry agen­cies such as the EPA until forced to do so. As such, the best strat­e­gy would be for House Repub­li­cans to cut off all fund­ing to the EPA and oth­er uncon­sti­tu­tion­al agen­cies enforc­ing uncon­sti­tu­tion­al exec­u­tive decrees. In addi­tion, state gov­ern­ments ought to use nul­li­fi­ca­tion to pro­tect cit­i­zens from fed­er­al abuse and tyran­ny. The cli­mate, which has always changed and always will, should be the least of Amer­i­cans’ wor­ries. With­out seri­ous action, the administration’s accel­er­at­ing wars on coal, guns, the Con­sti­tu­tion, state sov­er­eign­ty, the econ­o­my, jobs, and more will con­tin­ue to wreak real hav­oc on Amer­i­cans and the world.