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. [click to continue…]