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Obama’s Coal Power Edict: Scott Walker, John Kasich, and Bobby Jindal Join Legal Challenge

On the eve of the first Republican Presidential primary debate, three sitting governors who are vying for the GOP nomination–Scott Walker of Wisconsin, John Kasich of Ohio, and Bobby Jindal of Louisiana–have enlisted their states in a legal challenge to the Obama administration’s coal power plant carbon dioxide emission regulation issued as a final rule on Monday.

A fourth sitting governor in the hunt for the GOP nomination, Chris Christie of New Jersey, has not added his state to the challenge.

On Wednesday, West Virginia’s Attorney General Patrick Morrisey “led a 16-state coalition in a request to the EPA that they grant a stay in implementing their Clean Power Plan, pending the outcome of impending legal challenges to the rule.”

According to the statement released by his office, “Attorney General Morrisey was joined in this request by the states of Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, and the Commonwealth of Kentucky.”

The Obama administration’s new coal power plant carbon dioxide emission regulation has no statutory authority, despite claims to the contrary by the Environmental Protection Agency. Instead, bureaucrats at the EPA have invented a new law — one that Congress never passed — upon which the regulation is based.

The 1,500 page rule, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” established “final emission guidelines for states to follow in developing plans to reduce greenhouse gas (GHG) emissions from existing fossil fuel-fired electric generating units (EGUs),” and calls for three specific standards:

1) Carbon dioxide (CO2) emission performance rates representing the best system of emission reduction (BSER) for two subcategories of existing fossil fuel-fired EGUs – fossil fuel-fired electric utility steam generating units and stationary combustion turbines

2) State-specific CO2 goals reflecting the CO2 emission performance rates

3) Guidelines for the development, submittal and implementation of state plans that establish the state goals.

The standards are so draconian they are quite likely, if implemented, to put the nation’s entire coal industry out of business. “The sweeping new regulations set a goal of reducing carbon emissions nationwide by 32 percent by 2030 as compared to 2005 levels,” as press reports note.

Currently, coal is the source for 39% of the electrical power in the United States.

Nowhere in the Clean Air Act, the Clean Air Act Amendments of 1990, or the United States Code of Statutes can one find the language the EPA uses to claim it has statutory authority to regulate carbon dioxide emissions in general, or carbon dioxide emissions from existing power plants specifically.

That invention of law was engineered with the help of a 5-to-4 Supreme Court decision in the 2007 case of Massachusetts v. EPA, burnished by the Obama administration’s 2009 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202 (a) of the Clean Air Act” that “six greenhouse gases [of which carbon dioxide is one] taken in combination endanger both the public health and the public welfare of current and future generations. The Administrator also finds that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).”

The Obama administration is simply stealing and usurping the power of Congress and the States, emboldened by lack of much in the way of resistance from the Republican establishment.

Law in the United States now is apparently made covertly in secret emails between the Natural Resources Defense Council and friendly left-wing EPA bureaucrats and the White House, as Breitbart News reported on Tuesday.

The Obama administration is not really making a claim that it has the statutory authority to promulgate this regulation. Instead, it is betting it can get away with inventing statutory authority that does not exist and that federal courts will ignore the law when coal-producing states challenge the new rule in court.

As the law firm Skadden Arps wrote in a January 2015 legal analysis:

Whatever one may think of the policy, EPA’s ability to promulgate and defend these regulations will depend on whether the D.C. Circuit Court of Appeals and, ultimately, the Supreme Court, believe that EPA is exercising its authority consistent with the terms of a statute, last amended in 1990, that is widely acknowledged not to contemplate the problem of climate change caused by the emission of greenhouse gases (GHGs).

As the EPA’s own website admits, “The Clean Air Act requires EPA to set National Ambient Air Quality Standards for six common air pollutants… ozone, particulate matter, carbon monoxide, nitrogen oxides, sulfur dioxide, [and] lead.”

Carbon dioxide, which every human on the planet exhales, was not on that list.

Bureaucrats in nine of the liberal dirty dozen states (California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, Rhode Island, Vermont ) along with Oregon, Washington, and New Mexico, three liberal cities (New York, Baltimore, and Washington, D.C.), and far-left interest groups including Environmental Defense, Friends of the Earth, Greenpeace,International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club) however, decided they knew better than Congress and bet they could persuade federal courts to legislate the control of carbon dioxide emissions into the Clean Air Act.

In 2007, in its 5-to-4 Massachusetts v. EPA ruling, the Supreme Court decided the EPA could be forced to regulate CO2 emissions from moving vehicles. (That ruling notably did not apply to electric power plants.)

Not surprisingly, Justice Scalia issued a scathing dissent, in which he clearly demonstrates carbon dioxide and other “greenhouse gases” do not meet the definition of “air pollutant” in the Clean Air Act:

[T]he Court makes another significant error when it concludes that “§202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a ‘judgment’ that such emissions contribute to climate change.” For such authorization, the Court relies onwhat it calls “the Clean Air Act’s capacious definition of ‘air pollutant.’ …

“Air pollutant” is defined by the [Clean Air] Act as “any air pollution agent or combination of such agents, including any physical, chemical, … substance or matter which is emitted into or otherwise enters the ambient air.”

The Court is correct that “[c]arbon dioxide,methane, nitrous oxide, and hydrofluorocarbons,” fit within the second half of that definition: They are “physical, chemical, … substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air.”

But the Court mistakenly believes this to be the end of the analysis.

In order to be an “air pollutant” under the Act’s definition, the “substance or matter [being] emitted into … the ambient air” must also meet the first half of the definition, namely, it must be an “air pollution agent or combination of such agents.” The Court simply pretends this half of the definition does not exist.

Gina McCarthy, the current Administrator of the EPA, was the Commissioner of the Connecticut Department of Environmental Protection when it joined the other liberal blue states as plaintiffs in Massachusetts v. EPA in 2007, and was an Assistant Administrator at the EPA’s Office of Air and Radiation in 2009 when the agency issued the finding that carbon dioxide was a pollutant.

“The final rule announced Monday blatantly disregards the rule of law and will severely harm West Virginia and the U.S. economy,” West Virginia Attorney General Patrick Morrisey said in a statement on Monday. West Virginia, the 2nd leading coal-producing state, was one of the 14 coal-producing states that challenged the draft rule in 2014. (One non-coal producing state joined the challenge as well.)

On June 9, as the New York Times reported, “[a] federal court… dismissed a lawsuit by the nation’s largest coal companies and 14 coal-producing states that sought to block one of President Obama’s signature climate change policies,” calling the suit “premature.”

The lawsuit, Murray Energy v. E.P.A., challenged the Environmental Protection Agency’s proposed rule to reduce planet-warming greenhouse gas emissions from power plants. If enacted, the rule could shutter hundreds of such plants, freeze construction of future plants and slow demand for coal production in the United States.

The lawsuit was the first in a wave of expected legal challenges to the E.P.A. climate change rules. Legal experts say they expect some of those challenges to make it to the Supreme Court.

Among the lawyers arguing on behalf of the coal companies was Laurence H. Tribe, a renowned Harvard scholar of constitutional law and Mr. Obama’s former law school mentor.

All three circuit court judges agreed that the challenge was premature.

Now that the rule has been finalized, West Virginia’s Morrisey has declared his state will challenge the final rule in federal court. (The other plaintiff states that unsuccessfully challenged the draft rule were Alabama, Alaska, Indiana, Kansas, Kentucky, Ohio, Oklahoma, South Carolina, Wyoming, Louisiana, South Dakota, Arkansas, Wisconsin, and Nebraska.)

“This rule represents the most far-reaching energy regulation in this nation’s history, drawn up by radical bureaucrats and based upon an obscure, rarely used provision of the Clean Air Act. We intend to challenge it in court vigorously.” Morrisey said on Monday.

The final rule is illegal for two reasons, Morrisey argues:

(1) [The] rule is illegal because it is not limited to merely requiring power plants to install pollution technologies, which is all the Clean Air Act permits. Rather, the vast majority of the rule’s emissions reductions come from mandating that the States fundamentally alter their energy economies to consume less coal-fired energy.

(2) The rule is also illegal because it seeks to require states to regulate coal-fired power plants under Section 111(d) of the Clean Air Act, even though the EPA already regulates those same plants under the hazardous air pollutant program, or Section 112 of the Act.

According to Morissey, “Amendments to the Clean Air Act in 1990 expressly prohibited such double regulation. The administration is relying on a drafting error in a portion of the 1990 amendments to claim it has the authority to follow through with these onerous regulations.

State officials from many of the top coal-producing states have vowed to challenge the unlawful rule in court.

In Wyoming, the country’s number one coal-producing state, the office of Governor Matt Mead “said it was planning to challenge the rules in court.”

Indiana, the 8th leading coal-producing state, is likely to challenge the rule as well.

“If the final rule is not significantly improved, then Hoosiers can be assured that on behalf of families, businesses and other ratepayers, Indiana will not comply,” Indiana Governor Mike Pence said on Monday.

State officials in Ohio, Oklahama, and Kentucky will also challenge the rule:

Ohio’s EPA director, Craig Butler, said the proposal is being implemented “without a direct mandate from Congress and raises profound legal questions.” Oklahoma Republican Gov. Mary Fallin said her April executive order resisting the rule change remains in effect… Kentucky Attorney General Jack Conway said in a written statement Monday he will join other state regulators to ask a federal court to stay the rules.

“Nebraska will challenge the final rule and EPA’s legal authority to adopt the regulations,” the state’s attorney general, Doug Peterson, said on Monday.

“Left unchecked, this inappropriate jurisdictional overreach of the federal government will have serious consequences by driving electrical costs up for all Nebraskans across our state,” Peterson added.

Though most scholars believe the Obama administration’s new coal power plant carbon dioxide emission rule is on shaky legal ground at best, given the Supreme Court’s recent history of legislating from the bench, the ultimate outcome of yet another usurpation of Congressional authority by the Obama administration remains highly uncertain.

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