Power Plant Emissions Lawsuit

September 6, 2019

By John McClaughry

Last month twenty-two Democratic state Attorneys General, including Vermont’s T.J. Donovan, asked the D.C. Circuit Court of Appeals to vacate the Trump EPA’s proposed carbon dioxide emission rules for coal burning power plants. But, editorializes the Wall Street Journal, the Democratic states challenging the Trump Administration’s rewrite of the Obama CO2 emissions regulations should be careful what they sue for. Their lawsuit could backfire and undermine the Environmental Protection Agency’s power to regulate carbon emissions altogether.

The Obama EPA required states to re-engineer their electric grids by replacing all coal and eventually natural gas with wind and solar. The Supreme Court in 2016 stopped the Obama power grab from being implemented as it likely exceeded the EPA’s legal authority and unconstitutionally commandeered the states.

The AGs may hope that the D.C. Circuit will force EPA to issue more aggressive standards under the Supreme Court’s 2007 Massachusetts v. EPA ruling, that required the agency to regulate CO2 as a pollutant, which it isn’t. But there are now five conservatives on the Court, including Chief Justice Roberts who dissented in the 2007 case. Back then, the Court’s four conservatives said states lacked standing to sue and courts could not impel EPA to regulate CO2. Even some liberals now warn that suing the Trump Administration could invite the Court’s new conservative majority to overturn Massachusetts v. EPA.

I wrote back than that the decision in that case was legally ridiculous, so I certainly hope they do.

John McClaughry is vice president of the Ethan Allen Institute.

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