Newspaper column: Clean Power Plan challenge is based on federalism

Shortly after Nevada Attorney General Adam Laxalt filed a friend-of-the-court brief in support of the 29 states suing in federal court to block the Environmental Protection Agency’s Clean Power Plan to reduce carbon emissions from electric power plants, the attorney for an environmental group fired off a criticism.

“Attorney General Laxalt’s opposition to the Clean Power Plan is out of step with Nevada’s commitment to advancing clean energy that protects public health, the environment and our clean energy economy. …” wrote Robert Johnston, an attorney with the Western Resource Advocates. “Our state has been proactive in developing and enacting clean energy policies for more than a decade … As a result, Nevada is in a strong position to comply with the goal of a 35% reduction from 2005 levels by 2030 contemplated in the final rule.”

He said there is “no logical reason” for Laxalt to oppose the EPA fiat.

Reid-Gardner coal-fired power plant is being shut down under a state law. (Las Vegas Sun photo)

Whether the state is capable of complying with the plan — in fact, it may already be meeting the requirements — is neither here nor there. The question is whether any federal agency has the power to order the sovereign states to do its bidding, which would be contrary to the constitutional concept of federalism under which powers not assigned to the federal government are retained by the states and the people — the 10th Amendment.

In fact, Laxalt’s brief, which was filed in conjunction with Consumers’ Research, a national consumer advocacy organization, states in its opening pages that the “elementary principles of federalism would preclude giving credence or deference to any state-authority-invading regulation …” (Nevada brief on Clean Power Plan)

The state is well within its prerogatives to reduce its carbon emissions, but the EPA has no power to require it to do so under the Clean Air Act. The EPA proposal essentially seeks to divert energy generation from plants fueled by coal and other fossil fuels to plants powered by wind or solar, which the EPA claims will benefit the environment and prevent global warming by sharply reducing emissions of carbon dioxide.

The Supreme Court, shortly before the death of strict constitutionalist and states’ rights advocate Antonin Scalia, voted 5-4 to suspend enactment of Clean Power Plan rules until the U.S. Court of Appeals for the District of Columbia can hear and rule on the suit filed by the states. The action was deemed unprecedented by legal observers. The lower court had declined to block the rules but has expedited the case and is expected to hear arguments in June. The Laxalt brief is being entered into the record of that case.

In their appeal to the Supreme Court seeking to delay the rules, the 29 suing states also cited federalism.

Adam Laxalt 2014 file photo from R-J

The Clean Power Plan “raises serious federalism concerns. It is a ‘well-established principle that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers. …” the states argue. “The Power Plan cannot be squared with that principle. The States’ authority over the intrastate generation and consumption of energy is ‘one of the most important functions traditionally associated with the police powers of the States.’”

While rooted in this principle of states’ rights, the Nevada friend-of-the-court brief does not ignore the real consequences of the EPA’s meddling, noting, “EPA’s expensive economic experiment, imposed by fiat, will increase electricity prices for consumers and may well compromise the reliability of electric power service. The best estimates of how much prices will rise, performed by the NERA (National Economic Research Associates) economic consulting group, projects increases of as much as 14 percent per year costing Americans as much as $79 billion in present dollars. These excessive costs underscore the fundamentally legislative character of EPA’s final rule.”

Back when he was first running for office, Obama told a San Francisco newspaper editorial board, “Under my plan of a cap-and-trade system, electricity rates would necessarily skyrocket. Coal-powered plants, you know, natural gas, you name it, whatever the plants were, whatever the industry was, they would have to retrofit their operations. That will cost money. They will pass that money on to consumers.”

Of course, there is also the unambiguous wording of the Clean Air Act itself, which says the states, not the EPA, are to “establish” and “apply” performance standards, while the EPA merely outlines “procedures.”

It is not just about power plants, but about fundamental powers and principles.

(AG press release)

 A version of this column appears this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.



10 comments on “Newspaper column: Clean Power Plan challenge is based on federalism

  1. nyp says:

    the federal government has no authority to try to control air pollution??

  2. Not under the law as written.

  3. nyp says:

    Really?? I always thought that the Clean Air Act empowered the federal government to set rules to make sure that the air we were breathing didn’t contain toxic pollutants like lead and mercury.

    Guess I was misinformed.

  4. Patrick says:

    Adam Laxalt? Is he related to Paul in any way?

    But seriously folks; why on earth is the attorney general of Nevada wasting Nevada’s limited taxpayer dollars by having underpaid deputies write briefs on a case where 29 other states deputy attorneys general have written briefs?

    Especially just to make the point that he is so dumb he doesn’t understand the law?

  5. nyp says:

    Wow. So the Clean Air Act and the Clean Water Act are unconstitutional. The federal government has no authority to keep toxic chemicals out of the water we drink and the air we breathe.

    Who knew?

  6. No, the Clean Air Act doesn’t say that the EPA sets the performance standards. The states do.

  7. nyp says:

    Not really. The Clean Air Act sets “national ambient air quality standards.” States can set up pollution control plans that are equal to or more stringent than the national standards.
    Similarly, under the Clean Water Act, the federal government sets wastewater standards for industry and water quality standards for all contaminants in surface waters.

  8. Steve says:

    On this I have to disagree.
    Air and water are most certainly interstate items.
    Would it be OK for Utah to send polluted water down the Colorado into Lake Meade?
    Would it be OK for Nevada to send polluted air to Utah?

    Was it OK for the feds to explode nukes, sending radiation well into Utah (and the rest of the world)?
    Oops…point is the feds stopped that and it is not OK to pollute other states air and water any more than it is OK to pollute our own air and water.
    And this has been the case under perfectly fine and fully effective regulations and agreements since the 1960’s and 1970’s.
    Unfortunately, it’s not enough that current oversight is working, for today’s liberals they feel a need to exercise supreme control freakism.
    The air and water are clean….and it’s not enough for the power hungry uber lib.

  9. That’s not what the Clean Air Act says, though.

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