Barack Obama swept into the Presidency promising a new political order, one characterized by “transparency” and “openness.” Three years later, the President’s lofty campaign promises are belied by the Environmental Protection Agency’s record of suppression.
Federal agencies cannot issue regulations willy-nilly; rather, they are bound to rules stipulating administrative procedure, in order to ensure the voice of affected parties is heard. Obama’s EPA, however, evinces a troubling tendency to circumvent these procedural rules. Regulated entities are being subjected to controversial, onerous regimes, before they even have the opportunity to read the rules, much less voice an objection. The wayward Agency is exercising an unanswerable power, straight out of a Kafka novella.
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In a recent blog, I explained how the Environmental Protection Agency is hybridizing disparate provisions of the Clean Air Act in order to engineer greater regulatory authority for itself. EPA is using these “Franken-regs” to trump the states’ rightful authority on visibility improvement policy and impose billions of dollars of emissions controls for benefits that are literally invisible.
Yesterday, for example, EPA relied on this hybrid authority to impose a federal regulatory plan on Oklahoma over the Sooner State’s objection. (A copy of the federal register notice is available here). In February, Oklahoma submitted a visibility improvement plan that would require fuel switching from coal to natural gas at six power plants by 2022, but EPA rejected this approach in March. In its stead, EPA proposed a federal plan that would require almost $2 billion in emissions controls, in addition to fuel switching. EPA’s proposed plan was finalized yesterday.
Although the Clean Air Act clearly gives states primacy over EPA in decision-making for visibility improvement, Oklahoma is one of three states subject to a federal plan. In August, EPA imposed a plan on New Mexico that costs $740 million more than the state’s plan. In September, EPA proposed a federal plan for North Dakota. All three states are challenging EPA in federal court.
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This blog has kept a close eye on the Environmental Protection Agency’s aggressive expansion of its own authority (see here and here). The latest such power grab is taking place in the western United States, where the EPA is hybridizing disparate provisions of the Clean Air Act in order to engineer greater regulatory authority for itself. These Franken-regs are being used to trump the states’ rightful authority on visibility-improvement policy and impose billions of dollars of emissions controls for benefits that are literally invisible.
In 1977 and 1990, Congress passed amendments to the Clean Air Act providing that states work together to improve visibility at federal National Parks and Wilderness Areas. Together, these amendments are known as the Regional Haze provision. Notably, this provision accords states a uniquely high degree of control relative to the EPA. According to the EPA’s 2005 Regional Haze implementation guidelines, “[T]he [Clean Air] Act and legislative history indicate that Congress evinced a special concern with insuring that States would be the decision-makers” on visibility-improvement policy making. The courts, too, have interpreted the Clean Air Act such that states have primacy on Regional Haze decision making. In the seminal case American Corn Growers v. EPA (2001), which set boundaries between the states and the EPA on Regional Haze policy, the D.C. Circuit Court remanded the EPA’s 1999 Regional Haze implementation guidelines for encroaching on states’ authority.
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I travelled to Denver twice in the last 7 days to testify before the Senate State Affairs Committee on HB 1291, Colorado’s State Implementation Plan to meet the Regional Haze provision of the federal Clean Air Act.
I told the Committee that HB 1291 is illegal. And I rebutted the distortions peddled by its proponents, who also testified. Illegality and disingenuousness are huge accusations, and I made them twice, in testimonies a week apart, so the bill’s proponents had time to conjure a response. But no one disputed my assertions. Because they were true.
Nonetheless, the Plan passed out of Committee, due to the fact that it enjoys the support of two of Colorado’s richest special interests, for which billions of dollars were at stake. Today, HB 1291 was enacted by the full Senate, by a 25-10 vote. Two weeks ago, by a 58-7 vote, it was passed by the House of Representatives. If there’s one thing a bipartisan, bicameral majority can agree on these days, it’s the importance of currying favor with the deepest pockets.
This is a long blog about the who, what, why, and when of Colorado’s Regional Haze State Implementation Plan, the most outrageous rip-off you’ve never heard of.
The Back Story
Colorado’s Regional Haze State Implementation Plan originated not in the Centennial State, but in Oklahoma. It owes its form to Aubrey McClendon, CEO of Chesapeake Energy, a natural gas company headquartered in Oklahoma City.
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The Environmental Protection Agency is using an obscure aesthetic regulation in the Clean Air Act to run roughshod over western states.
East of the Mississippi, President Barack Obama’s regulatory crackdown on coal threatens to shutter up to 40 gigawatts of electricity generation. Yet due to a variety of factors (the low sulfur content of western coal, low population density, and newer plant stock), coal-fired plants west of the Mississippi are in a much better position to withstand the regulatory onslaught .
In order to target western coal, the Environmental Protection Agency is leveraging a long ignored provision of the Clean Air Act designed to improve visibility, known as the Regional Haze rule. Notably, this is an aesthetic regulation, not a health-based regulation. In practice, eastern states are exempt from Regional Haze requirements, because the EPA allows states to meet this aesthetic regulation in the course of complying with health-based regulations.
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