EPA’s Energy Power Grab

Published September 10, 2015

There is an expectation when we plug in our smart phones or put laundry in the dryer electricity will flow to those devices on-demand.

We allot a portion of our monthly expenses to pay the energy bill without much thought, but the Environmental Protection Agency’s (EPA) 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, relatively 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. 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. EPA, through the CPP, is ignoring this and usurping states’ regulatory authority over the power grid. 

Legal Challenges

As a result of EPA’s unlawful power grab, Wisconsin and 14 other states have mounted two forms of legal challenges against CPP’s Section 111(d) of the Clean Air Act (CAA).

The first is CAA empowers EPA to regulate emissions from specific physical locations, such as a power plant. EPA has the power to specify fixes “within the fence.” Under CPP, EPA is going outside the “fence line” imposing power standards on the states, forcing states to change the entire electric system to reduce emissions, including installing more renewable generation.

CAA does not authorize EPA to regulate states, which has led many experts to conclude EPA has gone too far. EPA also neither evaluated the impact these changes will have on the reliability of the electric system, nor undertook a full and fair analysis of the costs that will be applied to consumers. EPA must stick to control measures at an emission’s source or inside the “fence line.”

The second argument concerns a conflict between the regulation of existing power plants under different sections of Section 112 in the CAA, and newly enacted regulations under 111(d).

Two different versions of a Clean Air Act amendment were inadvertently signed into law. One encompasses a substantive change meant to prevent particular power plants from being overly regulated by different sections of CAA and one contains a drafting error in the U.S. Senate version.

The version passed by the U.S. House of Representatives prohibits additional 111(d) regulation of power plants that have already made considerable upgrade investments to comply with regulations of mercury and air toxics standards recently passed under Section 112. This version prohibits EPA from invoking 111(d) “for any air pollutant … emitted from a source category which is regulated under [Section 112].”

The version passed by the Senate contained a clerical error resulting in two different versions of the law with regards to the Section 112 exclusion. Though Congress’s intent to limit regulation is clear, EPA argues the differing versions provide an ambiguity that grants to EPA discretion to ignore the limits placed on its powers in the House version of the bill and allowing new prohibitively costly restrictions on power plants that had already invested millions of dollars to meet other EPA regulations.

These nuanced arguments are important, but it’s just as important to address the big picture problem with EPA’s unilateral expanding authority: The EPA is ignoring the foundation of cooperative federalism upon which this country was built.

Federal ‘Overreach’

To say CPP is agency overreach is an understatement. 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, and it gives EPA the power to mandate what energy type a state must rely on, regardless of a state’s available resources.

And for what? A very minimal reduction, if any, in global carbon dioxide emissions.

The good news is Wisconsin is joining the West Virginia and other states in challenging EPA’s regulatory overreach, and we have the law on our side.

Brad D. Schimel was elected first elected Waukesha County district attorney in 2006 and Wisconsin attorney general on November 4, 2014.