Shortly after Nevada Attorney?General Adam Laxalt filed a?friend-of-the-court brief in?support of the 29 states suing in?federal court to block the Environmental?Protection Agency?s Clean Power?Plan to reduce carbon emissions from?electric power plants, the attorney for?an environmental group fired off a?criticism.
?Attorney General Laxalt?s opposition?to the Clean Power Plan is out?of step with Nevada?s commitment to?advancing clean energy that protects?public health, the environment and our?clean energy economy. ?? wrote Robert?Johnston, an attorney with the Western?Resource Advocates. ?Our state has?been proactive in developing and enacting?clean energy policies for more than?a decade ? As a result, Nevada is in a?strong position to comply with the goal?of a 35% reduction from 2005 levels by?2030 contemplated in the final rule.?
He said there is ?no logical reason? for?Laxalt to oppose the EPA fiat.
Whether the state is capable of complying?with the plan is neither here nor?there. The question is whether any federal?agency has the power to order the?sovereign states to do its bidding, which?would be contrary to the constitutional?concept of federalism under which?powers not assigned to the federal government?are retained by the states and?the people ? the 10th Amendment.
In fact, Laxalt?s brief, which was filed?in conjunction with Consumers? Research,?a national consumer advocacy?organization, states in its opening pages?that the ?elementary principles of federalism?would preclude giving credence?or deference to any state-authority-invading?regulation ??
The state is well within its prerogatives?to reduce its carbon emissions,?but the EPA has no power to require?it to do so under the Clean Air Act.?The EPA proposal essentially seeks to?divert energy generation from plants?fueled by coal and other fossil fuels?to plants powered by wind or solar,?which the EPA claims will benefit?the environment and prevent global?warming by sharply reducing emissions?of carbon dioxide.
The Supreme Court, shortly before?the death of strict constitutionalist and?states? rights advocate Antonin Scalia,?voted 5-4 to suspend enactment of Clean?Power Plan rules until the U.S. Court?of Appeals for the District of Columbia?can hear and rule on the suit filed?by the states. The action was deemed?unprecedented by legal observers. The?lower court had declined to block the?rules but has expedited the case and?is expected to hear arguments in June.?The Laxalt brief is being entered into?the record of that case.
In their appeal to the Supreme Court?seeking to delay the rules, the 29 suing?states also cited federalism.
The Clean Power Plan ?raises serious?federalism concerns. It is a??well-established principle that it is?incumbent upon the federal courts to?be certain of Congress? intent before?finding that federal law overrides the?usual constitutional balance of federal?and state powers. ?? the states argue.??The Power Plan cannot be squared?with that principle. The States? authority?over the intrastate generation and?consumption of energy is ?one of the?most important functions traditionally?associated with the police powers of?the States.??
While rooted in this principle of?states? rights, the Nevada friend-of-the-court brief does not ignore the real?consequences of the EPA?s meddling,?noting, ?EPA?s expensive economic experiment,?imposed by fiat, will increase?electricity prices for consumers and?may well compromise the reliability of?electric power service. The best estimates?of how much prices will rise,?performed by the NERA (National Economic?Research Associates) economic?consulting group, projects increases of?as much as 14 percent per year costing?Americans as much as $79 billion in?present dollars. These excessive costs?underscore the fundamentally legislative?character of EPA?s final rule.?
Back when he was first running for?office, Obama told a San Francisco?newspaper editorial board, ?Under?my plan of a cap-and-trade system,?electricity rates would necessarily?skyrocket. Coal-powered plants,?you know, natural gas, you name it,?whatever the plants were, whatever?the industry was, they would have to?retrofit their operations. That will cost?money. They will pass that money on?to consumers.?
Of course, there is also the unambiguous?wording of the Clean Air Act itself,?which says the states, not the EPA, are?to ?establish? and ?apply? performance?standards, while the EPA merely outlines??procedures.?
It is not just about power plants, but?about fundamental powers and principles.