Guest Column by Wisconsin Attorney General Brad D. Schimel
There is an expectation that when we plug in our smart phone or put laundry in the dryer, electricity will flow to those devices on demand. And we allot a small portion of our monthly expenses to pay the energy bill without much thought. But the EPA’s onerous Clean Power Plan (CPP) will change all of that by forcing Wisconsin utilities to shutter cheap, clean coal-fired energy plants and switch to costly and unreliable energy sources.
With strict oversight by state regulators, the current power grid provides reliable, inexpensive energy to every user as needed. States, including Wisconsin, have spent billions of dollars building a complicated, integrated grid that generates and transmits electricity to those who need it exactly when they need it, at an affordable price. Each state has a unique set of resources and needs, and no one knows the intricacies of each state’s system better than each individual state. The EPA, through the CPP, is reversing this and is taking over regulation of the power grid.
As a result of the EPA’s unlawful power grab, Wisconsin, along with 15 other states, has mounted a legal challenge against the CPP. While there are several parts to the 1560-page regulation, the current legal battle focuses on section 111(d) of the Clean Air Act, the portion of the CPP that applies to existing generators. There are two main arguments against 111(d).
The first is EPA’s inability to regulate outside of the physical location of the plant. For example, in the past the EPA has mandated that certain technology be added to the actual physical plant to reduce emissions. In this case, the EPA is going outside the “fence line” by forcing states to change the entire electric system to reduce emissions, including installing more renewable generation and shifting to natural gas. Most troubling, the EPA did not evaluate how these changes affect the reliability of the electric system, nor did it undertake a full and fair analysis of the cost to consumers. Regardless, the EPA does not have the authority to regulate the entire electric system, and must stick to control measures that can be done at the source of the emissions, i.e., at the generator’s physical location, or inside the “fence line.”
The second argument relates to the tension between regulations on those same plants under section 112 and newly enacted regulations under 111(d). That argument revolves around two different versions of a Clean Air Act amendment that were both inadvertently signed into law – one that encompassed a substantive change meant to prevent particular plants from being overly regulated by different sections of the Clean Air Act, and one that contained a clerical error.
The substantive version prevents additional 111(d) regulation of plants that have already made considerable upgrade investments to comply with regulations mercury and air toxics standards recently passed under section 112. This version clearly prohibits EPA from invoking 111(d) “for any air pollutant…emitted from a source category which is regulated under [Section 112].” 42 U.S.C. § 7411(d)(1). Though Congress’s intent to limit regulation is clear, the EPA argues that it has the discretion to rely on the version containing a clerical error to support their new regulation, which will result in closing plants in which utilities, and consumers, have invested millions of dollars to meet other EPA regulations.
These arguments have been presented in both the Murray Energy and West Virginia cases brought against 111(d) before its finalization, and will be further addressed in the new challenges. The importance of the nuanced arguments that support our position should not be ignored, but it’s equally important to address the big picture problem with the EPA’s unilaterally expanding authority: The EPA is ignoring the foundation of cooperative federalism upon which this country was built.
To say that the CPP is agency overreach is an understatement. The CPP would allow the federal government, through the EPA, to control energy policy in each state. It allows EPA to force a federal plan on states if they choose not ruin their economies with overly-burdensome regulations. It gives EPA the power to mandate what energy type a state must rely on regardless of resources available in that state. In short, the EPA will have full power over our power.
And for what? A very minimal reduction, if any, in global carbon emissions.
The good news is that Wisconsin is joining the state of West Virginia and other states in challenging the EPA’s regulatory overreach, and we have the law on our side.
Schimel is the Attorney General of the State of Wisconsin.