With EPA’s Clean Power Plan scheduled for its first day in court on April 16, opposition to the rule has heated up on the Hill—or, more accurately, off the Hill. Sen. Majority Leader Mitch McConnell (R-Ky.) issued a call for states to “just say no” to EPA’s Clean Power Plan (CPP) with an op-ed in the Lexington Herald-Ledger, then sent a letter to the governors of all 50 states advising them not to comply with the rule.
In the letter, McConnell argues that the CPP is beyond EPA’s regulatory authority under the Clean Air Act, and that the Agency would need the express permission of Congress to enact such a rule. He advises states against submitting compliance plans, saying that doing so would forfeit control of their electricity system to the federal government. Not submitting a plan, according to McConnell, would not subject states to any lawsuits or funding cuts, and would give Congress more time to fight the CPP and protect states from being locked in before the courts have time to consider the CPP.
While the ultimate impact of McConnell’s “just say no” campaign is unclear, his actions have certainly gotten attention. Christine Todd Whitman, former governor of New Jersey and head of EPA under President George W. Bush, said that McConnell’s campaign “undermines our government as a whole, as well as our deeply held conviction that the rule of law is the foundation of any stable society.”
Meanwhile, with McConnell’s letter on their desks, governors across the country are considering their next move. Some have come out in clear opposition to the idea of CPP resistance, including California Gov. Jerry Brown, who said that McConnell’s letter “borders on the immoral,” and New Hampshire Gov. Maggie Hassan, who told McConnell, “I respectfully disagree with your letter.” While not all states are supportive of EPA’s rule, EPA Administrator Gina McCarthy said that McConnell’s letter has not stalled states’ engagement on CPP planning. “We’re not having the contention in closed-door meetings that you would expect to see if you thought that Mitch McConnell’s effort was going to be successful,” McCarthy said.
Even in McConnell’s home state, the “just say no” message has not gained traction. Kentucky Gov. Steve Beshear is moving ahead with CPP planning, according to Energy and Environment Cabinet spokesman Dick Brown. In a written statement following McConnell’s op-ed, Brown said of EPA’s rule, “It is important that we plan for that eventuality by working with energy stakeholders to craft a road map from which to navigate.” Brown added, “the overwhelming majority of our stakeholders are telling us to make preparations to submit a plan. Failing to follow through with creation of that plan means Kentucky would most likely have to abide by a federal implementation plan.”
This reaction echoes the opposition to ALEC bills from regulators and utilities, who are wary of forfeiting their influence over state compliance strategies. While the roster of states taking legal action against EPA has climbed to 15, many of these states are actively moving ahead with compliance plans. In Utah, for example, executive director of the Governor’s Office of Energy Laura Nelson explained, "...as much as we disagree with the proposed rule, we believe it is important for the state to be prepared for a changing regulatory landscape." Similarly, in Wyoming, where regulators have been vocally opposed to EPA’s proposal, Cathy Woollums, chief environmental counsel at Berkshire Hathaway Energy, said prior to McConnell’s letter, “If the state wants to push back against the plan, that’s okay, but we really do have to have a backup plan because if not, we will be caught in a situation where we don’t have any options, and that’s the worst of all positions to be in.”
Indiana is among the few states that have publicly said they are weighing McConnell’s suggestion. Testifying at a Senate Environment and Public Works Committee hearing, Department of Environmental Management Commissioner Thomas Easterly said the "just say no” option is on the table. However, so is everything else. “Indiana is evaluating all available responses,” he said.
The real impact of McConnell’s letter will not be clear until EPA releases the final CPP in mid-summer, but so far all indicators suggest that states will be rolling up their sleeves rather than digging in their heels.
Earlier this year, in order to gain insight into whether or not the CPP would impact reliability, the Advanced Energy Economy Institute commissioned The Brattle Group, a leading consulting firm to utilities and grid operators, to conduct a critical review of the NERC study. The Brattle Group’s conclusion: “Following a review of the reliability concerns raised and the options for mitigating them, we find that compliance with the CPP is unlikely to materially affect reliability.” Click below to download the full report.