The Fight Is On to Halt Obama’s Emissions Cleanup

The nuclear agreement with Iran, the Trans-Pacific trade pact, his "Clean
Power Plan" to reduce power plant emissions — Barack Obama is clearly on a tear to embellish his legacy in what he calls "the 4th quarter" of his presidency.

He's getting guarded cooperation on the first two, but a pitched battle is underway to subvert the last.

The power plan, announced a year ago, is the centerpiece of the president's ambitions to confront climate change. It calls for states to reduce their emissions 30% by 2030. The "rule" that will spell out what states must do and by when is due this summer and is expected to offer a menu of choices. Environmental Protection Agency (EPA) chief Gina McCarthy has signaled that each state will be free to develop its own plan employing a mix of solutions from power plant fixes to wind and solar renewables to efficiency measures and even state or regional markets for trading pollution permits commonly called “cap-and-trade”.

Twelve states quickly filed suit nevertheless. The courts may not be the most fruitful avenue for finding agreement, however. The Supreme Court ruled in 2007 that carbon dioxide (CO2) is a pollutant subject to EPA control under the Clean Air Act of 1970, which was strengthened in 1990, and has upheld the EPA’s authority to curb CO2 three times in the previous seven years. Just this year it ruled 6-2 that 28 Midwestern and Appalachian states are subject to EPA's cross-state air pollution rule that limits power plant emissions blown into downwind Northeastern states.

Lawyers for the dozen plaintiff states and the nation's two largest coal companies went before the D.C. Court of Appeals in April to try to block the EPA from issuing its summer rule. They got nowhere. Judge Thomas Griffith seemed incredulous: “Do you know of any case in which we’ve halted a proposed rule-making?”, he asked. “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing".

One eminence arguing for the plaintiffs was Harvard's constitutional scholar, Laurence Tribe, who has forsaken his liberal credentials to represent Peabody Energy, America's largest coal producer. He evidently wants to change to an F a passing grade that he once gave to a former law school student, last name Obama, who he says is now "burning the Constitution", as he put it in a House of Representatives hearing this March. The EPA is "coloring outside the lines…commandeering the states", says Tribe, with no right to force them to change their energy economies.

In March, Mitch McConnell colored well outside his own lines by sending letters to all 50 governors urging them to ignore the EPA program and its requirement to submit an emission reduction plan. It was not simply an unusual action — McConnell may represent a coal-producing state, but one would think that as Senate Majority Leader he would place greater emphasis on what is important for the nation than on his parochial concern for a dying industry in Kentucky.

It's not just a letter. McConnell "is coordinating with lawyers and lobbying firms to try to ensure that the state plans are tangled up in legal delays". It is an abuse of his position as Leader, which carries the implicit threat to states that if they don't march to his commands, there could be consequences.

McConnell wrote to the governors that the president is “allowing the EPA to wrest control of a state’s energy policy”. If that sounds like Tribe's "commandeering", it is because McConnell quotes Tribe in the letter. Colleagues at Harvard think the venerated Tribe has gone 'round the bend, but the weakness of his arguments may not be apparent or of concern to conservatives. Tribe has given them the imprimatur of a constitutional heavyweight to name drop — and from the opposition!.

Attacks are coming from Congress itself. Representative Ed Whitfield (R-Ky) has put forth a bill to stall implementation of the EPA rule until all legal challenges have been resolved and to permit states to opt out of compliance if following the rule would increase electricity rates or threaten the grid's reliability. Senator Shelley Moore Capito (R-WV) announced that she would follow suit by introducing a bill in that chamber.

But those, with vetoes assured, are harmless. More troublesome is the work of the American Legislative Exchange Council, an organization funded by corporate clients to press state legislatures to adopt model conservative laws written by ALEC that further the interests of its clients. We reported on them three years ago. ALEC's fondest wish is to abolish the EPA altogether and transfer health concerns and environmental protection to the states to do as they please, but for now it will settle for two model bills that it will propose to the roughly two-thirds of state legislatures now under Republican control.

State environmental agencies have for decades worked directly with the EPA on Clean Air Act matters, but ALEC's first bill would require that a state's agency must now seek the state legislature's approval of any emission reduction plan before submitting it to the EPA. The second bill requires that all legal challenges be resolved before submission as well, the intent clearly being to open the door to the delays of an endless series of fabricated challenges.

The Koch brothers are behind layers of groups with anodyne or patriotic names whose objectives are to perpetuate the hydrocarbon economy and disrupt any movement toward renewables (see this report on the Koch campaign against solar). So you likely wouldn't know if you received a report from an outfit named Beacon Hill Institute, connected to Boston's Suffolk University, is partly funded by the Koch Brothers. Its has issued reports tailored to each of seven states (with more presumably to come) showing how their economies will be damaged by the Clean Power Plan. The reports were actually written by a D.C. public relations firm named Berman and Company, which oil and gas companies hire to get their message out.

Owner Richard Berman's specialty is setting up front groups for the purpose of attacking advocacy groups that work to expose industrial malefaction. The website bermanexposed.org shows the logos and descriptions of no less than 47 of them. Have a look.

The reports against Clean Power Plan are contrived — they tally job losses from the hypothetical shutdown of coal-fired power plants with no mention of the new jobs created for converting to natural gas and renewables, nor mention of the ongoing health costs of failing to deal with pollution — but the typical reader may not know enough to be suspect.

The reports are sent to state legislatures and the media. Typically one of the state-level front groups affiliated with the conservative State Policy Network, also partly Koch Brothers funded, is assigned to follow up with a seemingly unaffiliated op-ed piece praising the report. Media Matters, a progressive watchdog group, cites at least sixteen newspapers that have recently published op-eds bearing titles such as "Arizona should fight useless coal regulations" and "Virginia state legislators should fight the EPA" that were written by state officials of Americans for Prosperity, the Koch brothers' political advocacy group. All but one paper failed to disclose the authors' oil industry ties.

In a Wall Street Journal op-ed, Tribe says that "to justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act". EPA ignores section 111's prohibition against further regulation of power plants is they are already being regulated under another section involving hazardous pollutants, which is the case for power plants.

In an editorial titled "Professor Tribe Takes Obama to School", the Journal goes all in for Tribe, calling the EPA's resorting to the actual text of the Clean Air Act "legal scavenging...characteristic of this administration". "In his Harvard days", the editorial continues, "Barack Obama studied under law professor Laurence Tribe" (whom the editors call a "titan"). "Perhaps the future President spent too much time at the law review and missed the part about limited powers". The Journal's edit writers can't seem to help being snide. The paper uncritically buys into Tribe's notion that the EPA is violating "the Constitution's Article I, Article II, the separation of powers, the Tenth and Fifth Amendments, and [is] in general displaying contempt for the law". Whew!

What actually happened was that, when the Clean Air Act was amended in 1990, conflicting House and Senate amendments to Section 111(d) were both adopted, presumably by accident, rather than conformed into a single amendment, and both are in the law signed by President Bush. The House version stands in the way of the Clean Power Plan by preventing EPA from regulating any industrial source that is already subject to toxic pollutant standards under Section 112, as are power plants. The Senate version does not.

Tribe chooses the more restrictive version and in that House hearing in March called the Senate's counterpart a "ghost" version, as if it doesn't exist. By the EPA choosing the more expansive version as the basis for the Clean Power Plan, it is usurping Congress' law-making authority, says Tribe.

"But any amendment passed by Congress and signed by the president is the law, plain and simple", rebut two of Tribe's Harvard colleagues, law professors Jody Freeman and Richard Lazarus. Complex laws often have inconsistencies — the future of the Affordable Care Act is about to be decided based on just such a contradiction — and it is the usual practice to allow discretion to the agency charged with enforcing a law, in this case the EPA.

Tribe's assertion that the EPA's "commandeering of state governments" will violate the Tenth Amendment, which reserves power to the states, says that all the government's past actions in the name of health — taking lead out gasoline and paint, banning asbestos insulations, eliminating ozone-depleting chloroflourocarbons, etc. — were also violations.

Tribe invokes the so-called "takings" clause of the Fifth Amendment as well. Among its prohibitions it says "nor shall private property be taken for public use, without just compensation". If a power utility elects to shut down a plant rather than retrofit pollution scrubbers, that's its election. The EPA will not have taken possession. And the notion that the utility should be compensated for not polluting (and after decades of polluting) makes one wonder about the professor. "This is ridiculous", say Freeman and Lazarus. "Were Professor Tribe’s name not attached to … sweeping assertions of unconstitutionality … no one would take them seriously".

The deference in the Constitution that the founders paid to the states — apprehensive that a central government might acquire the power of the monarchies they had left behind in Europe — was an understandable necessity of the times, essential to obtaining the agreement of the states to band together as the United States.

But almost two and a half centuries later, we are shackled by the mindless who think every move by the federal government is a power grab, with the result that progress toward desirable goals moves glacially if at all, while the rest of the world speeds past.

The forces arrayed against the EPA's plan to finally, after decades of permissiveness, control power plant pollution, are dismaying. The plants have had their way for decades, fighting every attempt to clean the air (51 lawsuits from the Clinton administration were erased when Bush/Cheney took office).

Of course we should cut pollution spewing into the thin atmosphere that we need to survive. Of course even the deniers should want steps to be taken against climate change as a hedge should they be wrong. How could there be any argument?

Instead we are beset with paranoid ideologues who want to fix nothing and preserve 50 of everything and plutocrats of towering avarice whose only concern is to preserve their private monarchies. What the two have in common is an inability to see much past the day after tomorrow and an indifference to what will to become of this country after they are gone.