Death, Taxes & Bureaucratic Overreach: The EPA’s Relentless, Unconstitutional War On Coal – Guest Essayist: Congressman Morgan Griffith

Using a phrase attributed to Benjamin Franklin, “…In this world nothing can be said to be certain except death and taxes.”  I would submit that in modern times, nothing is certain except death, taxes, and bureaucratic overreach.

This is especially so when it comes to this Administration’s Environmental Protection Agency (EPA).

There are countless examples of EPA’s bureaucratic overreach.  Consider, for example, unreasonable guidance issued (and subsequently revised) by the EPA in 2013 which would have required that fire hydrants be subject to drinking water regulations that exempt shower valves and bathtub faucets.  More recently, the Waters of the United States (WOTUS) rule proposed by the EPA and the U.S. Army Corps of Engineers would redefine protected waters, now subjecting to EPA regulation and control even a dry branch that only gets water during a gully washer, etc.  This rule is set to take effect in August.

However, the EPA actions that I believe most acutely impact our way of life involve this EPA’s ongoing war on coal, which is contributing to plant shutdowns and mine closures in the coal-producing district I represent in Virginia and throughout the United States.

EPA last June proposed new regulations requiring our nation’s existing power plants to cut carbon dioxide emissions by 30 percent from 2005 levels by 2030.  In issuing these “Clean Power Plan” regulations where Congress has refused to legislate, the President and his EPA are seeking to fulfill his promise made in a 2008 interview with the San Francisco Chronicle Editorial Board that, “…under my plan of a cap and trade system, electricity rates would necessarily skyrocket.”

I argue that with its so-called Clean Power Plan, this EPA is acting outside its authority in seeking to regulate existing power plants under Section 111(d) of the Clean Air Act because EPA already regulates existing power plants under Section 112 of that law.  I believe EPA’s arguments in favor of their actions are weak, particularly given their concession on this point in New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) as well as EPA’s own interpretation during the Clinton Administration that they could not regulate electric generating units under both Sections 112 and 111(d).

Laurence Tribe, who once was President Obama’s professor and is known as a liberal environmental law expert, argues that the Clean Power Plan scheme is unconstitutional.

Though they wish it weren’t so, EPA’s power is not unlimited.  The Supreme Court reminded us of this when it on June 29 told the EPA they must consider costs of regulations of the Clean Air Act before deciding to adopt them.  The Supreme Court’s ruling requires the EPA to consider costs as the agency continues implementing the rules requiring power plants to cut emissions of mercury, etc.

The bad news, however, is that this ruling will not bring back the jobs lost as a result of previous plant shutdowns and mine closures, nor will it provide us with the electricity once produced by these facilities.

Where I come from, this means that – despite the Supreme Court invalidating this regulation – the Glen Lyn electric plant in Giles County, Virginia will remain closed.  One of three electric generation units at the Clinch River facility in Russell County will stay closed forever.  Further, one coal producer’s affiliates have idled more than 70 mines, reduced their workforce by more than 3,200 people, and have taken tens of millions of tons of coal offline.  It is unlikely most of these jobs will return.

This is, I believe, calculated strategy by the EPA: create regulations and pretend you have authority, knowing that, by the time the Supreme Court finds you don’t have authority, the damage to American manufacturers and American families’ pocketbooks will have already been done.  The EPA gets their way, even if unlawful.

Our fight against EPA overreach continues.  The House of Representatives recently passed the Ratepayer Protection Act (H.R. 2042), legislation I worked on that would allow for complete judicial review of any final rule in the Clean Power Plan before states are required to comply.  Additionally, states would not be forced to implement a state or federal plan if its governor has determined it would significantly harm energy reliability or affordability.

I strongly encourage those serving in our nation’s Senate to consider this practical bill, and join us in protecting states and ratepayers from EPA overreach.

Congressman Morgan Griffith was first elected to represent the 9th Congressional District of Virginia in the U.S. House of Representatives on November 2, 2010, and is currently serving his third term.  He is a member of the House Energy and Commerce Committee, serving on its Subcommittee on Energy and Power, Subcommittee on Health, and Subcommittee on Oversight and Investigations.

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