States clear path for Clean Power Plan; Coal industry and ALEC floundering

More and more states are putting politics aside and preparing themselves to work with the U.S. Environmental Protection Agency (EPA) to cut carbon pollution and tackle climate change. Attacks on the Clean Power Plan have already failed in several state legislatures, including Mississippi, South Dakota, and Virginia, while governors in key states are gearing up to make their state's electricity cleaner. This is all despite the strident opposition from the coal industry's allies, including the climate-denying American Legislative Exchange Council (ALEC). And to date, no governor has embraced Senate Majority Leader Mitch McConnell's "just say no" call to inaction last month.

Power plants are the nation's largest source of carbon pollution and, when finalized this summer, the Clean Power Plan will put limits on that pollution for the first time. The proposed standards will cut power sector carbon pollution 30% by 2030 nationwide, while setting state-by-state targets for and allowing states flexibility to meet them in whatever way they choose. Each state has the opportunity to design its own carbon-cutting plan. If a state does not act, then EPA steps in as a backstop to regulate its power plants directly. This "cooperative federalism" process has been time-tested over the 45-year history of the Clean Air Act, as explained by my colleague David Doniger here.

This is the peak season for state legislatures, most of which convene in January and adjourn sometime in the spring. ALEC and the coal industry have been pushing state bills to gridlock the successful Clean Air Act process. These ALEC efforts have been largely unsuccessful so far:

  • In seven states, ALEC-inspired bills to obstruct the Clean Power Plan have already died: Those states include Colorado, Iowa, Mississippi, Montana, Nevada, South Dakota and Virginia.
  • In Ohio, regulators advised legislators to back off, saying "we do not want the Legislature to essentially do something that would tie our hands." The Ohio Public Utility Commission and environmental agency agree on this, even though Ohio's Attorney General has joined a premature lawsuit against the Clean Power Plan. Thus far, no ALEC attacks have surfaced in the Ohio legislature.
  • Arizona passed a bill that actually improves the state's ability to participate in the Clean Power Plan, overriding an old, misguided law that had prohibited the state from reducing greenhouse gases under the Clean Air Act.
  • Bills passed in Arkansas and North Dakota do not include provisions that would allow the legislature to block the state from working with EPA on the Clean Power Plan. Both states can still write their own carbon reduction plans and submit them to EPA under these new state laws. In a similar vein, last fall Pennsylvania passed a bill that ultimately does not allow the legislature to block a state plan, although the bill adds red tape to the state planning process.

So far in 2015, only the West Virginia legislature has followed ALEC's strategy, granting itself the power to block the state from writing and submitting its own carbon pollution plan to EPA. Ironically, if the legislature exercises that power, it will actually hand control over to the federal government. The Clean Air Act obligates EPA to issue a federal plan when a state does not submit its own, meaning West Virginia's utilities may have to cut pollution according to EPA's direction instead of following a plan designed by the state's own agencies.

While we expect EPA's federal plan to be smart and cost-effective, it makes more sense for states like West Virginia to design their own plans, since states have the deepest understanding of their own electric sectors and other stakeholders. Most governors realize this, so they are already exploring the best ways to cut carbon pollution in their states.

For example, Republican governors Rick Snyder (MI) and Gary Herbert (UT) are joining Democratic governors Tom Wolfe (PA) and Jay Nixon (MO) in a National Governors Association's "policy academy" to find cost-effective strategies to meet the Clean Power Plan standards. Fourteen states in the Midwest and Great Plains, with governors from both parties, are in conversations about regional frameworks to find the most cost-effective ways to reduce carbon pollution, convening as the Midcontinent States Environmental and Energy Regulators. Even Mitch McConnell's own state of Kentucky is working to find ways to comply with the Clean Power Plan, despite a misguided state law enacted in 2014 that heavily restricts the state's options.

It is encouraging to see pragmatic governors and sensible legislators doing what is best for their states - cutting pollution, curbing climate change and protecting public health. Ultimately they will find themselves on the right side of history.