In a recent column in Politico, former EPA Administrator Christine Todd Whitman scolds Senate Majority Leader Mitch McConnell (R-Ky.) for an op-ed urging states to ‘just say no’ to EPA’s Clean Power Plan (CPP) — the agency’s proposal to cap carbon dioxide (CO2) emissions from state electric power sectors.
In a nutshell, Whitman accuses McConnell of urging States to break the law. Nonsense. Declining to submit a plan to implement EPA’s regulation is a lawful option under the Clean Air Act. Indeed, the right of States to keep their fingerprints off regulations they regard as unlawful or simply as misguided is basic to the “cooperative federalism” concept on which the Clean Air Act is based. Whether or not states should be complicit in the Clean Power Plan is a prudential question. McConnell argues (correctly, IMO) that the most prudent course for States is to let EPA bear sole responsibility for implementing an unlawful rule.
Although Whitman quotes two sentences from McConnell’s essay, she never engages any of his arguments. Instead, she tut-tuts about the rule of law without apparently understanding what it means.
I reproduce Whitman’s column below and offer commentary on each part. Her text is indented in blue, my comments are standard width in black.
Whitman: Sen. Mitch McConnell earlier this month encouraged states to defy federal environmental regulations by simply ignoring them. This was not some quote taken out of context by a pesky reporter; it was an op-ed he wrote in the Lexington Herald-Leader. The Republican Senate majority leader is protesting the Environmental Protection Agency’s proposal to cut greenhouse gas emissions from coal plants. The agency plans to finalize the rule this summer, after which states will have a chance to submit their own plans to meet the EPA’s specific goal for the state. He writes:
“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able to demonstrate the capacity to carry out such political extremism. Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”
None of this is surprising from the senator who said shortly after his reelection that his top priority was “to try to do whatever I can to get the EPA reined in,” but it is extremely disappointing and has the possibility to undermine our nation’s entire rule of law.
ML Comment: It’s also not surprising that a prominent EPA alumna sides with her alma mater. Just as the value of your diploma is affected by your school’s subsequent academic standing, so the prestige of a former Administrator is affected by the public perception, regulatory reach, and economic importance of the agency she once ran.
Whitman: I was brought up to believe that following the law isn’t optional. If you do not like one of those laws, you work to change it. This is why public service is so important — we have to trust our leaders to make the right laws, and if we feel they are not meeting that goal, we have to be willing to engage in the civic process. To have one of our country’s leaders call on states to flout EPA’s appropriate regulation is in direct contradiction to the oath of office that he took.
ML Comment: One would hope Whitman was also brought up to believe that an unconstitutional, unlawful, or unjust policy is not valid law, and that refusing to heed unlawful policies is an honorable way to bring controversies before courts and shape the opinion climate in which cases are decided. The civil rights struggle springs to mind.
Note: McConnell is not urging states to ‘nullify’ the Clean Air Act, the supposed authority for the CPP. Rather, he asks only that States not take ownership of EPA’s unlawful scheme. EPA would still have the power under the Act to adopt a federal implementation plan if states refuse to play ball. Of course, courts and Congress could still overturn or repeal the CPP at a later date. McConnell is betting, quite sensibly, that widespread rejection of the CPP by a multitude of States will boost the chances for successful legal and legislative challenges.
Whitman says: “We have to trust our leaders to make the right laws.” Nope. Skepticism about the self-advertised wisdom, benevolence, and authority of “our leaders” is a prerequisite for maintaining liberty and a republican form of government.
Whitman’s claim that McConnell’s advice to the states directly contradicts his oath of office is silly. Here’s the text of the oath:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
The oath obliges McConnell to support and defend the U.S. Constitution — not EPA or its self-serving interpretation about the scope of its own powers.
Whitman: Far more significant than the senator’s ongoing battle with the EPA, this has the potential to open Pandora’s box when it comes to legislation and our rule of law. This recommendation on behalf of a sitting senator and Senate leader crosses a line that could easily lead to people or states simply choosing which laws they follow. In such a culture, how do you teach children right from wrong, ensuring the next generation doesn’t view all laws as discretionary? This behavior 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. After all, the rule of law is the standard we use when determining foreign aid, among other things; it cannot and should not be taken lightly.
ML Comment: This homily fails on three counts. First, Whitman glosses over the fundamental distinction between “rule of law” and bureaucratic fiat. As discussed in previous posts, the CPP is unlawful on at least 10 separate counts, even flouting the very provision of the Clean Air Act that allegedly authorizes it. The issue is not whether people or states may choose which laws to follow. Rather, it is whether agencies may demand fealty to novel statutory interpretations that “would bring about an enormous and transformative expansion” of their “regulatory authority without clear congressional authorization” (UARG v. EPA, 2014, slip op. p. 19).
Second, as my colleague William Yeatman points out, the CPP is an illegitimate bait-and-switch. In a constitutional republic, policies derive from statutes, which in turn derive from elections. When Obama sought re-election in 2012, he did not run on the CPP or any program of CO2 regulation, for that matter. Rather, on energy, candidate Obama ran to the right of Mitt Romney, accusing his opponent of being anti-coal.
Third, “rule of law” is an empty phrase masking bureaucratic usurpation absent a constitutional structure under which agencies wield only those powers delegated to them by politically-accountable elected officials. Congress never authorized EPA to implement anything remotely like the CPP. Even during 2009-2010, when Democrats controlled both chambers of Congress, legislation authorizing EPA to do exactly what it is doing now — impose CO2 caps on state electric power sectors — would have been dead on arrival.
Through the CPP, EPA seeks to empower itself to control electricity production, consumption, and distribution within each State. Those are “matters that have always been deemed to be wholly within a State’s powers,” Harvard Law Professor Lawrence Tribe stated in testimony last week.
There is no title, section, or subsection of the Clean Air Act authorizing EPA to control State renewable energy quota, electricity dispatch rules, or electricity conservation incentives — yet the CPP chiefly relies on such measures to achieve States’ EPA-determined CO2 caps. The Federal Power Act (FPA) does authorize another agency — the Federal Energy Regulatory Commission (FERC) — to regulate inter-state electricity sales in wholesale power markets. But, as Tribe’s testimony notes, the FPA gives States “exclusive jurisdiction over intrastate electricity matters.”
Whitman: As a prominent elected official representing the Republican Party to the country, Sen. McConnell has an obligation to hold himself to the highest standards. He can rail against EPA, cut its budget, do all that he has the power to do within the law if he must, but he cannot and should not call on others to ignore a law. He may regret the consequences, as will we all.
ML Comment: Again, McConnell is not calling on anyone to “ignore a law.” The Clean Air Act authorizes EPA to implement its regulations through a federal plan if states decline to submit their own implementation plans. In other words, States have the option under the law to force the Obama administration to take sole proprietorship of the regulation. That should help build political resistance to the CPP at the same time States and industry challenge the regulation in court. Following McConnell’s advice should increase the odds courts or Congress will overturn the rule and rein in EPA.
That’s the real reason Whitman is upset. She does not want EPA reined in. She does not want her alma mater constrained by the rule of law. Her critique of McConnell is Orwellian.