32 States What? Senator Inhofe's Fuzzy Math on States and EPA

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Sen. Jim Inhofe opened an Environment and Public Works Committee hearing today with chart that paints 32 states (in green no less!) as though they have lined up solidly in opposition to EPA's Clean Power Plan.

Inhofe's chart is intended to give the impression that states are in open revolt against EPA's first-ever limits on power plant carbon pollution, as though they are answering Senate Majority Leader Mitch McConnell's call (echoed this morning by Sen. John Barrasso) to "just say no."

But Inhofe's chart radically overstates state opposition. It includes any state where some state official or some state body has said something raising concerns - even where that state is actively engaged in examining how it can make the Clean Power Plan's proposed carbon pollution reductions. The chart doesn't back the claim that "32 states" are ready to say no.

(And, of course, Inhofe doesn't mention the states - at least 14 - that are calling for strengthening the Clean Power Plan. See the 14-state statement here, and also the strong support voiced by leading state officials at a Capitol Hill forum yesterday.)

Inhofe's rebellion chart is taken directly from a table ginned up by an industry front group, the American Coalition for Clean Coal Electricity (ACCCE).

The ACCCE table lists 18 governors as having made critical comments. That's not 32. And while a handful (like Wisconsin's Scott Walker) have pledged to sue EPA when the standards are finalized this summer, none of the 18 has yet refused to prepare a state plan.

The ACCCE table lists 22 state attorneys general. Only 14 have joined the current premature lawsuits -cases brought even before EPA has acted, which almost certainly will be tossed out by the Court of Appeals in Washington. On the other side (and of course not on the ACCCE table), 12 state attorneys general have intervened in support of EPA (California, Connecticut, Delaware, Maine, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and District of Columbia, plus the City of New York).

The ACCCE table lists 18 state legislatures. Again, not 32. But there's even less here than meets the eye. Eleven of those state legislatures have passed merely non-binding resolutions, not state laws - resolutions that have less impact than a law designating the state flower. In this category are Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Nebraska, Oklahoma, South Dakota, Tennessee, and Wyoming.

The ACCEE table includes the Ohio legislature, but there a bill passed only the state House and failed in the Senate. So nothing was adopted in Ohio.

The ACCCE table fails to note that anti-EPA legislation has already failed this year in the legislatures of six states: Colorado, Iowa, Mississippi, Montana, South Dakota, and Virginia. In every instance, power companies have worked to keep their state from painting itself into a corner, and forcing EPA to set a federal plan.

Mostly the power companies' influence happens behind the scenes, but sometimes they speak out. In Wyoming, for example, Berkshire Hathaway Energy, owner of a dozen power companies, had this to say: "If the state wants to push back against the plan, that's okay, but we really do have to have a backup plan because if not, we will be caught in a situation where we don't have any options.... And that's the worst of all positions to be in."

Of the remaining states on the ACCCE table:

Kentucky enacted a law last year directing the state to write a plan that does not use three of the flexible building blocks EPA has proposed - no reliance on shifting from coal to gas, no reliance on renewables like wind and solar, and no reliance on energy efficiency. This could make things much more expensive for Kentucky consumers, and hurt Kentucky manufacturing industries. Kentucky Governor Beshear's administration is moving ahead with a state plan and, joined by the state's largest utility, pushing back on McConnell's call to "just say no." There's been lots of press coverage of the Kentucky's pushback against its senior senator: Kentucky officials wary of senator's EPA warning, Ky. regulators walk tightrope on Clean Power Plan, Ky. utility praises state's emerging Clean Power Plan strategy, Ky. officials contradict McConnell's Clean Power Plan advice. State officials are drafting a plan that they believe will meet EPA's proposed carbon reduction target while staying within the state's law, by accounting for planned retirements of coal plants. As those high-emitting plants retire, the average emission rate of the state's remaining power plants will fall, allowing the state to meet EPA's proposed target.

Kansas, Louisiana, Missouri, and West Virginia have enacted laws that on the surface appear to take the same confining approach as Kentucky, but their laws contain escape clauses that will allow the state flexibility to submit a plan that meets federal requirements. The Kansas law, for example, uses the term "may" in critical places, instead of "shall," leaving state authorities discretion to do what is needed. So these laws actually allow the state to move forward. The West Virginia law also contains language about flexibility that may allow the state to write a plan that meets federal requirements.

Pennsylvania passed a law last year permitting one house of the legislature to veto the state's plan, but unless the veto is exercised, that law does not forbid the state's environmental department from writing and submitting a plan that meets federal requirements. (The legislative veto provision likely violates the state constitution, and may fail on that basis.) West Virginia's new law requires the legislature's approval of the plan, but even that does yet lock the state into non-cooperation.

So McConnell, Barrasso, and Inhofe may rage against the Clean Power Plan. But there's not a lot of evidence that the bulk of states are heeding their call.

As EPA Administrator Gina McCarthy said today at the Council on Foreign Relations, "We have every reason to believe that state engagement that we're engaged in now is going to be productive, that we are going to have states continuing to work with us. And EPA has every ability, and we'll use it, to implement a federal plan for states that don't choose to use their own flexibility to develop their own."

That's the way the Clean Air Act has worked for 45 years, since the landmark law was signed by President Richard Nixon, with states in the lead and the federal government in reserve, to clean the air and protect the health of hundreds of millions of Americans, and protecting the natural world they use and enjoy.

That's the way it will work, successfully, to meet the challenge of climate change.