The Supreme Court put a stay on EPA’s so-called Clean Power Plan (CPP) last month partly because five Justices thought there was a reasonable prospect the rule would be overturned on the merits. The motion that won the stay made a strong case that the CPP is an egregious overreach of EPA’s authority under the Clean Air Act.
So should anyone be surprised when EPA, an agency bent on circumventing Congress in climate policy, uses lawyer tricks to bypass the Court and evade the stay?
As noted previously in this newsletter, EPA Administrator Gina McCarthy intimated her intent to flout the stay on the very day the Court granted it. Declaring that EPA “of course” would “respect” the Court’s decision, she also said the stay “doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”
That does not compute. EPA “support” for state efforts to implement the rule, whether via technical assistance, coordination, or cheerleading, is itself part of what is meant by “implementation.”
Acting EPA air chief Janet McCabe yesterday resorted to the same equivocation. As reported in Climatewire ($), McCabe told a conference of renewable energy lobbyists in Washington, D.C.: “While fully respecting the existence of the stay, we have said that we will continue to behave in this manner for any state that is seeking assistance or support from us while they continue to take these sorts of actions, we stand ready to provide that assistance to them.”
McCabe also said it was “a little premature” to speculate on whether the stay would postpone the start of the CPP compliance period, originally scheduled to begin in 2022. Implication: All states should start implementing the CPP now because if EPA wins in court, opponents who delayed may find themselves in a mad scramble to comply.
McCabe might protest that “assistance or support” isn’t implementation because EPA is providing it only to states that “voluntarily want to move forward.” Irrelevant. EPA is not some consulting firm states are free to hire or fire depending on the quality of services rendered. No state action to implement a rule is, strictly speaking, “voluntary.” When EPA offers advice on regulatory implementation, states feel pressure to take it, whether out of fear of being excluded from deliberations on the devilish details, or fear of falling behind other states if courts uphold the rule.
McCabe hinted at those inducements, stating: “Two key pieces that remain to be worked on are CEIP [Clean Energy Incentive Program] and proposed model rules.” She referred to EPA’s still-evolving program to provide regulatory credits for “early” (pre-2022) investment in renewable energy and the agency’s proposed framework for state and regional carbon trading. “We are continuing to work on those programs in a way that I want to emphasize is consistent with the stay, but will help provide tools to states in the extent they are looking for them.”
Stunning. Congress has never authorized EPA to administer a carbon trading program and the Clean Air Act provides no authority to award greenhouse gas reduction credits for “early” investment in renewable electricity.
Congressional watchdogs should have a field day with McCarthy and McCabe’s doublespeak. Some simple questions they should ask: (1) What CPP-related actions was EPA taking or planning to take before the stay that the agency has since discontinued? (2) If the stay suspends implementation of the rule, why does it not suspend all EPA work on the rule? (3) Where does Section 111(d) of the Clean Air Act, the putative statutory basis for the CPP, authorize EPA to award greenhouse gas reduction credits for “early” investment in renewable energy?