10:00am: Talkline with Hoppy Kercheval

West Virginia and other opponents of the Clean Power Plan get their day in court

Today the news cycle is dominated by last night’s debate.  At issue is who will be the next leader of our country and in what direction America will head with a new occupant in the White House.

However, a few blocks east of the White House, at the U.S. Court of Appeals for the District of Columbia Circuit, there will be a less well publicized debate today that will have lasting impact on our nation. The case is West Virginia v. EPA, and it’s the challenge by West Virginia and 28 other states to the EPA’s Clean Power Plan (CPP).

President Obama failed to get congressional approval for limits on carbon emissions, so the administration acted unilaterally through the EPA forcing states to significantly alter their power generation sources. The EPA contends this is just the latest example of cooperative federalism, but it’s hardly cooperative.

“So this is how the plan works: The EPA pushes coal-fired plants off the grid, and then counts on the states to ensure that the resulting reductions in capacity are matched by increases in EPA preferred forms of power generation,” according to attorneys David Rivkin and Andrew Grossman, who are representing Oklahoma in the suit.

Regardless of one’s position on coal or climate change, there are legitimate constitutional questions as to whether the EPA has the authority for such sweeping action.  Historically the EPA has exercised control over specific sources of pollution, but the CPP is a forced remake state-by-state of the country’s energy portfolio.

“At the heart of cooperative federalism is the right of refusal—states must retain the power to opt out of any federal scheme,” opined the Wall Street Journal.  “If that scheme is grounded in a law passed by Congress, the feds can take over and regulate themselves. In this case the EPA has no authority to do anything of the kind.”

The EPA will likely argue today that it is empowered—no, make that required—by the Clean Air Act to regulate carbon emissions, as though it has no choice in the matter.  But that disingenuous concept is rooted in the questionable interpretation of a tiny provision of the Act passed 46 years ago when none of the bill’s supporters could have imagined that a federal law to stop pollution would be used to try to control the weather.

West Virginia Attorney General Patrick Morrisey’s team has right on its side, but it faces a tough audience today.  The Journal says the D.C. Circuit is “stocked with more liberals than conservatives.” However, the Journal also points out that many of those justices, regardless of their political lean, may be truly disturbed by how the CPP ignores the separation of powers and turns federalism on its ear.

West Virginia v. EPA is not just about getting the EPA off coal’s back; it’s also about checking the ability of this and future administrations, Democrat and Republican, from behaving dictatorially when they fail to achieve their ends through democratic methods.

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