The nation's governors aren't rushing to heed Senate Majority Leader Mitch McConnell's call for states to "just say no" to the Clean Power Plan, which would put the first-ever Clean Air Act limits on the two billion tons of climate-changing carbon pollution coming from our power plants.
The number one goal of Sen. McConnell's big polluter agenda is blocking the Clean Power Plan, the centerpiece of President Obama's climate action initiatives. McConnell wants states to blow off the Clean Air Act by refusing to write a state plan.
McConnell's call has startled many observers. Former New Jersey Governor Christie Todd Whitman, who served as President George W. Bush's first EPA administrator, wrote in Politico yesterday that McConnell "cannot and should not call on others to ignore a law." And power company executives are afraid of being caught in a political squeeze without a back-up plan.
Not a single governor has stepped forward to take McConnell's pledge. And there are good reasons. More and more states are awakening to the attractive clean energy options that will curb carbon pollution while building their economies, creating new jobs, and saving consumers billions on their electric bills. For the latest example, read Michigan Gov. Rick Snyder's energy message last week, which sets ambitious clean energy goals for his state.
And governors know that if they don't write a plan to clean up their power plants, the law requires the Environmental Protection Agency to do it. So the irony is that in urging states to say no, McConnell is calling for a transfer of authority and control from the states to Washington. That's not what Republicans usually recommend.
Bear with me now for a quick explanation of how the Clean Air Act works. Since President Richard Nixon signed this landmark law in 1970, we've recognized that air pollution is a national problem. It doesn't stop at state borders. Both states and businesses need national minimum requirements that keep unscrupulous businesses from playing states off against one another and from undercutting responsible companies.
At the same time, for 45 years the Clean Air Act has recognized states' leading role in shaping clean air plans to meet those federal limits.
This sharing of federal and state responsibilities is called "cooperative federalism," and it has been widely used since the New Deal. The Clean Air Act charges EPA with setting national standards for reducing dangerous air pollutants. The Act then gives the states the first option to regulate the sources of that pollution by adopting a state plan - a package of state pollution limits - which EPA approves if it will meet the applicable standard. The law tells EPA to stand in reserve, ready to regulate those sources directly through a federal plan if a state fails to adopt an approvable state plan.
Cooperative federalism does not force the states to regulate. Rather, it respects states' important role by giving them the first opportunity to shape specific pollution control plans to meet national pollution targets in the way that best meet local circumstances. The federal role is as back-up, to regulate the pollution sources directly only if a state fails to do so.
For more than four decades, states have almost always taken the opportunity that the Clean Air Act offers them. Federal plans have been needed only rarely, and usually only briefly until the states take back the lead.
Congress does not have to proceed this way. Indeed, important parts of the Clean Air Act tell EPA to regulate power plants directly, with no state role - for example, to curb acid rain and cut toxic air pollutants. But cooperative federalism is the way Congress chose to go 45 years ago in the part of the Clean Air Act that covers pollutants like carbon dioxide from existing power plants, called Section 111(d). States get the first shot; the federal government steps in to regulate pollution sources - not to regulate the state - only if the state fails to act.
The Supreme Court recognized EPA's authority to curb power plants' carbon pollution through this cooperative model in 2011, in a case called American Electric Power v. Connecticut. EPA's Clean Power Plan follows the prescribed approach by setting carbon pollution targets tailored to the characteristics of the power sector in each state, and asking each state to develop its own plan.
Back to McConnell's call for inaction. Governors aren't saying no because they, their power companies, and many other state stakeholders recognize that when the state writes its own plan, it has opportunities to tailor those pollution limits to best fit local circumstances. If a state drops the ball, the federal government must develop a federal pollution plan for that state.
EPA will propose and take comment on a federal plan this summer, when it finalizes the state targets after considering nearly four million comments. Almost certainly, the proposed federal plan will establish pollution limits that apply directly to the carbon-emitting power plants in a given state. Far from an onerous bogeyman, the federal plan will be affordable and flexible. It will allow sources to comply by directly reducing their emissions or by obtaining credits from actions across the electricity system that reduce carbon pollution, from generating electricity at cleaner or zero-emitting plants to reducing electricity demand (and therefore generation and pollution) by making homes, factories, and other businesses more energy-efficient. This federal plan will regulate the power plants, not the state, and it will come into play only if a state doesn't adopt an approvable state plan of its own.
State leaders, power companies, and other stakeholders aren't rushing to get on McConnell's bandwagon because they know states have even more tools at their at their command than EPA - tools that can help do the job in the way that best fits their state. For example, states can adopt supplementary clean energy policies to promote renewables and efficiency, and they can help site transmission lines, etc. - steps that can further reduce costs and promote productive investments.
In short, federal plans will be flexible and affordable, but states can create individualized plans that will work even better. Federal plans good, state plans better.
That's why power companies in many states have been working to kill or defang state legislation that would block states from adopting their own plans, or box states into high-cost approaches. For instance, in the recent session of the Virginia General Assembly, Dominion Resources quietly helped kill bills that would have obstructed the state from writing its own plan. In Kentucky, one of the largest power companies is openly raising the need to revisit a restrictive law adopted there last year. And Berkshire Hathaway Energy is urging states to make sure power companies have a back-up plan that they can meet.
To be sure, some governors will join legal challenges when EPA finalizes the Clean Power Plan. But legal challenges are a long shot, so they are also very likely to hedge their bets by continuing to work on state plans, using all the clean energy options that the Clean Power Plan incorporates.
As for Sen. McConnell, he will try to pass legislation to block the plan. But he is unlikely to garner the 60 votes needed to pass such a bill in the Senate, and even less likely to get the 67 votes needed to override President Obama's veto. So he will continue to rage against EPA and urge governors to say no. Just don't expect too many to jump on the bandwagon.