Harvard professor: Clean Power Plan is unconstitutional

The Environmental Protection Agency’s (EPA) intent to use the Clean Power Plan to regulate carbon dioxide emissions is unconstitutional, says Laurence Tribe, professor of constitutional law at Harvard University. Tribe recently filed comments with the EPA saying that the Clean Power Plan is “a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority.”

Under the Clean Power Plan, the EPA will set targets for each state by identifying the “best system of emission reductions,” according to the White House. The White House release says it will be up to the states to decide how best to meet lower emission expectations, but Tribe says that the agency simply does not have the authority to enact the Clean Power Plan.

According to an article Tribe wrote for The Wall Street Journal, the EPA would use the Clean Power Plan to dictate the energy mix used in each state and leave the state with no choice in implementing its plan to lower carbon emissions. In a precedent set more than 20 years ago in New York v. United States (1992) and reaffirmed by a 7-2 vote as recently as 2012 in NFIB v. Sebelius, (the ObamaCare decision), holds that such federal commandeering of state governments defeats political accountability and violates basic principles of federalism.

The legal justification for this rule is Section 111 of the 1970 Clean Air Act, but Tribe says the EPA’s interpretation of Section 111 is flawed. In reality, “this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112,” says Tribe.

Tribe accuses the Clean Power Plan of taking power not given to it by Congress, and that despite frustration felt from congressional inaction, the EPA should not be allowed to use the Clean Power Plan to decide the energy mix used in each state.

The American Petroleum Institute (API) agrees, saying that current regulations work, and that adding more regulations would severely damage the economy. “The EPA’s regulations are working,” said Howard Feldman, API senior director of regulatory and scientific affairs. The EPA’s own data shows that under current regulations, ozone levels in the U.S. declined by 18% between 2000 and 2013, an API report claims. “New standards could significantly damage the economy by imposing unachievable emission targets on almost every part of our country,” said Feldman.

According to the API lowering the standards for emissions from 75 parts per billion (ppb) to 60 ppb would put 46 of the lower 48 states out of compliance. The regulations would also cost $270 billion per year and risk millions of jobs, according to estimates from NERA Economic Consulting.

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