Will EPA abide by the stay placed on the agency’s so-called Clean Power Plan last week by the Supreme Court? Or will EPA continue to implement the rule–albeit in the guise of providing assistance to states?
The question is legitimate because the Power Plan itself exposes EPA as a rogue agency. As attorneys David Rivkin and Andrew Grossman explain in the Wall Street Journal:
It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it.
EPA administrator Gina McCarthy equivocated when explaining the agency’s policy regarding the stay. As my colleague Myron Ebell noted in the Cooler Heads Digest:
She told the House Agriculture Committee during a three-hour grilling that “Nothing is going to be implemented while the stay is in place. It is clearly on hold until it resolves itself through the courts.” But when McCarthy addressed state air regulators, she said that the EPA would work with any State that wanted to keep working on implementing the rule. Several reporters described her attitude in the speech as defiant.
Here are McCarthy’s exact words, as reported in The Hill:
“Are we going to respect the decision of the Supreme Court? You bet, of course we are,” she said.
“But it doesn’t mean it’s the only thing we’re working on and it doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”
That doesn’t cut it. The stay requires EPA to cease implementing the Power Plan until the D.C. Circuit Court of Appeals, or the Supreme Court, renders a final decision on litigation to overturn the rule. That process may take years to complete. If, in the interim, EPA supports state efforts to implement the rule, whether by providing advice, technical assistance, coordination, or mere cheer leading, it will itself participate in implementation. Exactly what the stay prohibits.
Let’s also dispense with the fiction that EPA’s “support” isn’t implementation because only states that ask for help will receive it. EPA is not some consulting firm that 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 will feel pressure to take it, whether out of reluctance to antagonize their regulatory overseer, or out of fear of being excluded from deliberations on the rule’s devilish details.
The Power Plan is EPA’s most brazen attempt yet to bypass Congress, anoint itself a Super Legislature, and enact climate policy. The Court told EPA to cease and desist. McCarthy’s equivocation indicates an intent to bypass the Court. Congress should conduct oversight and demand that any EPA “support” for state implementation efforts immediately cease.