The House Energy and Power Subcommittee, led by Rep. Ed Whitfield (R-KY), is continuing its review of the Environmental Protection Agency’s (EPA's) Clean Power Plan to determine its legality and resulting expenses for existing power plants.
The committee will rely on the expertise of state regulators and leading legal scholars to evaluate the proposed Section 111(d) rule.
Laurence Tribe, a noted legal scholar and President Barack Obama’s constitutional law professor at Harvard Law School, said that the EPA’s rule is unconstitutional. He said the organization lacks the authority to enforce its proposed plan, calling it a “power grab” that will diminish the authority of the judicial branch, the states and Congress.
“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress and the federal courts – all at once,” Tribe said. “Much is up for grabs in this complex area. But burning the constitution of the United States – about which I care deeply – cannot be part of our national energy policy.”
Whitfield said he doesn't expect the Clean Power Plan to withstand judicial scrutiny.
“Given the tight deadlines under the proposed rule, states will be facing a decision about whether to submit their plans and initiate costly steps toward compliance before judicial review is complete," Whitfield said. "This would be unfortunate, because whether or not the Clean Power Plan is bad law, it certainly is bad policy.”
Allison Wood, legal expert and partner at Hunton & Williams LLP, said the EPA’s proposed rule suffers from many legal infirmities and violates the Clean Air Act.”
“The rule essentially requires a complete overhaul of each state’s energy portfolio," Wood said. "In addition, many states are going to have to enact laws and regulations to enable them to do the things contemplated by the proposed rule. All of this will be completed before litigation over the rule is complete. If the rule is ultimately held to be unlawful, the states will have already expended enormous amounts of resources to develop the plan, and any laws or regulations that have been enacted cannot be easily reversed.”
Other experts question the legality of the EPA’s proposal, comparing its changes to how the Affordable Care Act changed health care. Still others fear the impact of the proposal on the economy.
“Under the Clean Power Plan, states would be forced to redesign their electricity generation, transmission, and distribution systems and related laws and policies, and to do so over a short timeframe,” Rep. Fred Upton (R-MI) said. “Longstanding policies would be essentially ‘wiped clean,’ and jobs and family budgets could suffer as a result. Jobs and the economy. That remains our focus. We will continue working to keep the lights on and the electric bills affordable.”