In an order issued today, the D.C. Circuit agreed with our argument that Dalton Trucking v. EPA should be argued in the 9th Circuit and not in the D.C. Circuit. The case involves our challenge to EPA’s grant of waiver from … Continue reading
Ever since the Supreme Court’s 1984 decision in Chevron v. NRDC, federal administrative agencies tasked with implementing statutes have been given broad discretion to determine the scope of ambiguous statutory terms. As a result, agencies have sought to maximize their powers whenever Congress uses an even arguably … Continue reading
As the holidays approach, California is siphoning billions of dollars in auction revenue proceeds generated under CARB’s cap-and-trade program governing greenhouse gas emissions for purposes that are unrelated to greenhouse gas emissions. Fast speed rail, disadvantaged communities (identified by zip codes), natural … Continue reading
If you thought 23,000 pages would be sufficient to document a federal government action closing roads and trails in a national forest, you’d be wrong. That’s the number of pages it took the Forest Service to “summarize” its action to close routes in California’s Plumas National Forest to off-roaders. Most … Continue reading
So far, twenty-five states and political subdivisions have challenged EPA’s Clean Power Plan, which requires existing and new power plants nationwide to favor wind and solar resources over coal and natural gas when generating electricity. In addition, dozens of private companies, … Continue reading
Monday of this week, I argued that EPA’s decision allowing California to enforce its statewide controls over emissions of particulate matter and nitrogen oxides from tractors and other nonroad diesel vehicles should be vacated by the D.C. Circuit. The federal … Continue reading
The briefing in our lawsuit challenging the auction component of CARB’s cap-and-trade regulation has been completed for many months, but the California Court of Appeal, Third District, has yet to set a date for oral argument. Although the panel was … Continue reading
Last week, the California Legislature resoundingly rejected Governor’s Brown’s efforts to cut carbon dioxide emissions beyond the levels required by AB 32, which requires California to reduce emissions in the state to 1990 levels by 2020. The proposed new law, … Continue reading
What else can one say about the authors of the so-called Clean Power Plan? On August 3, 2015, EPA promulgated a sweeping new regulatory scheme to control virtually all aspects of energy generation, distribution, and use in the United States. The rules require power plants to curtail carbon dioxide emissions by approximately 30% over the next fifteen years. The Plan was promulgated in violation of the structure, plain language, and historical context of the Clean Air Act, as well as in violation of the 10th Amendment of the United States Constitution.
Among other things, EPA’s Clean Power Plan seeks to drastically change the mix of fuels available in energy markets from fossil fuels, such as coal and natural gas, to renewables, such as wind and solar. The rules establish a system in which the grid will not be able to support electricity demand. The most benign expected results are blackouts and spiking energy costs.
Legal challenges to the Plan are being mobilized by broad coalitions of individuals, businesses, and states that will suffer the adverse consequences of such a drastic change in the energy sector of the nation’s economy. But it’s not only the economy that is being threatened. So is liberty.
Those are EPA’s gifts to the nation under the so-called Clean Power Plan. On August 3rd, EPA unveiled the Plan as a set of Clean Air Act regulations. Among other things, the Clean Power Plan dictates the mix of fuels that may be used to generate electricity throughout the nation, heavily favoring solar and wind over coal and natural gas, thereby furthering EPA’s goal of saving the planet from carbon dioxide. The power grid will come under enormous pressure if and when the Clean Power Plan is implemented. Power outages and substantial increases in electricity costs are virtually guaranteed. Moreover, the Clean Power Plan is unconstitutional.
For decades, there has been a “bright line” divide between federal authority over wholesale sales of electricity in interstate commerce and state authority over planning, siting, and providing generation resources to local customers. According to the Supreme Court, the 10th Amendment of the United States Constitution prohibits the federal government from disrupting that traditional constitutional balance between state and federal authority unless it is “abundantly clear” that a federal statute “compels” the intrusion into state sovereignty. Here, just the reverse is true, It is “abundantly clear” that the Clean Air Act does not give EPA the authority to dictate to the states the specific way in which electricity must be generated within their borders. Federalism is a central component of our constitutional system of government, and the Clean Power Plan ignores it. Look for legal challenges from states (and others) against this federal attack on the 10th Amendment.