·  Legal News, Analysis, & Commentary

News & Politics

EPA Becomes new Ground-Zero in the Federal-State Power Struggle

— July 14, 2015


Photo courtesy of Inhabitat
Photo courtesy of Inhabitat

Following a month of monumental Supreme Court decisions regarding Obamacare and gay marriage, both battles which saw federal authority win out over state sovereignty, the ceaseless tug-of-war between the two levels of government has increasingly focused on the Environmental Protection Agency’s (EPA) authority over state regulators. On Tuesday, representatives for state-level enforcement, as well as energy industry leaders flocked to Washington to argue for last-minute changes to President Obama’s new EPA rules calling for widespread power plant emissions restrictions. The administration is calling its new standards the Clean Power Plan. Among other tougher regulations, a major goal of the ambitious policy is to reduce carbon-dioxide emissions from power plants by 30 percent of 2005 levels by 2030. The new rules may drastically affect the direction of future energy investment. The rule changes will ultimately require hundreds of coal-burning power plants to switch to natural gas or other cleaner forms of energy generation. Barring any last-minute changes or delays caused by litigation, the rules will go into effect in August.

In addition to the 2030 deadline, the rules push states to meet half of the reduction goal by 2020. Although many industry executives have indicated their willingness to meet the 2030 goals, several stakeholders argue that converting the plants in time to meet the 2020 goals is nearly impossible. Nick Atkins, CEO of Columbus, Ohio-based American Electric Power, described a meeting between power plant representatives and regulators last month, “It was such a dramatic shift in such a short period of time that they threw up their hands and said, ‘We can’t do it.’” Some states like Tennessee, Ohio, and Nevada have sent surrogates to Washington to argue that the costs involved in complying with the new rules will eventually be reflected in their state’s consumers’ energy costs, providing a large degree of financial hardship for residents.

The governors of Texas, Louisiana, Oklahoma, and Wisconsin, among others have all threatened to defy the EPA mandate, and experts believe that lengthy legal challenges are eminent. Kirk Johnson, who leads the Rural Electric Cooperative Association, said that many plants will have to be retired early despite carrying as much as $4 billion in debt. Building a new power plant run by natural gas generally takes between three and four years to construct. Some states, however, embrace the Clean Power Plan. California regulator Mary Nichols, along with representatives from several East Coast states who regularly enforce tough emissions standards have pushed the administration to remain firm in spite of the pleas from other states. “We want a strong rule,” said Nichols before admitting, “There are not quite as many viewpoints as states, but it’s pretty close.” Although carbon emission rates have flatlined in the past two years, environmental group Ceres recently reported that they declined by 12 percent between 2008 and 2013.

The most recent squabble between Obama’s EPA and state authorities follows last month’s announcements that at least 27 states are suing the EPA over additional rule changes that will give the EPA more control over streams, marshes, and other small bodies of water that flow into larger lakes and rivers that are already under EPA authority. While EPA officials have argued that these smaller bodies of water need to be protected in order to ensure quality drinking water since they feed the larger bodies, several state level attorneys general have argued that the rule changes clearly defy provisions in the Clean Water Act that delegate constitutional authority of smaller water bodies to the state level. Their representatives claim that the rule changes are a “federal land grab,” attempting to wrestle territory from state control, putting it under the authority of the Army Corps of Engineers instead.

The states have initiated four separate lawsuits in North Dakota, Ohio, Georgia, and Texas federal courts. South Carolina Attorney General Alan Wilson said upon announcing his state’s joining the Georgia suit, “The results of this rule will carry a tremendous cost to our state, our economy, and our families.” Nevada’s attorney general called the rule changes, “unreasonable federal overreach,” and the American Farm Bureau has been a major supporter of the states’ challenges to the law. The organization’s Ohio branch advanced the overreach assertion while backing Ohio’s involvement in the challenge writing that, “It is clear that states, not the federal government, have the lead for advancing water quality through the Clean Water Act. Yet, the rule would give new, expansive authority to the U.S. EPA over drains, ditches and even lands that only contain water when it rains — all under the premise of being ‘navigable waters.’”

Despite the two looming battles, the Obama administration has antagonized many overreach critics further last Friday by announcing three new federally-protected national monuments using the authority under the 1906 Antiquities Act. The announcement establishes monuments in Texas, California, and Nevada, with the latter state’s new Basin and Range monument being nearly as large as the state of Rhode Island. U.S. Representative Cresent Hardy (R-NV), whose district includes much of the Basin and Range region, opposed the measure citing constituent concerns over the restrictions on grazing and ranching. Hardy launched an amendment on a failed Interior Department spending bill last week that would have prevented the president from granting federal land authority in specific locations in Nevada, Arizona, New Mexico, Oregon, and Utah, due to local opposition. Republicans in Congress have denounced similar Antiquities Act designations by the administration, who with 19 monuments involving over 260 million acres of land has bested Teddy Roosevelt in total land additions under federal oversight. However, Obama trails Presidents Carter, Clinton, and Franklin D. Roosevelt in total protected area overall.





Stars and Stripes/Washington Post – Juliet Eilperin

The Hill – Timothy Cama

The Hill – Devin Henry

Wall Street Journal – Rebecca Smith and Amy Harder

Washington Post – Steven Overly







Join the conversation!