Clean Power Plan Faces A Constitutional Showdown Tuesday
On Tuesday lawyers representing everybody from the State of Texas to the International Brotherhood of Boilermakers to Google will file into a Washington courtroom to argue over whether President Obama overstepped his authority by ordering a sweeping restructuring of the U.S. electricity grid.
The stakes run to tens of billions of dollars, since if the president’s Clean Power Plan is upheld, states will have to shut down hundreds of coal-fired power plants and replace the lost generation with natural gas and renewables like wind and solar. The conservative justices on the U.S. Supreme Court have already signaled the extraordinary nature of this case, staying the Clean Power Plan back in February until the U.S. Court of Appeals for the D.C. Circuit issues its opinion. The case will almost certainly make its way back to the Supreme Court after that.
What’s the big issue here? Federalism, or the 18th-century idea that states and the federal government share sovereignty derived from their citizens. The President and his supporters in the environmental community and Democratic-leaning states say the federal government, whose powers under the Constitution include regulating interstate commerce, must have the authority to regulate CO2 emissions that float across borders and threaten the entire globe with human-induced atmospheric warming. Tech giants including Google, Microsoft and Amazon have filed briefs supporting the government, saying renewable electricity from sources like wind and solar provide better long-term supplies with lower price volatility.
Opponents, including 28 mostly Republican states, the coal industry and a number of labor unions, say the Tenth Amendment of the Constitution doesn’t allow the federal government to commandeer such a large portion of their economies, especially when the plan requires state officials to carry out the President’s politically unpopular dirty work. Under the CPP, states would be given strict – and according to the utility industry, unachievable – CO2 limits that would leave them no choice but to shut coal-fired plants down and find electricity from other sources.
This so-called “outside the fence” regulation exceeds the Environmental Protection Agency’s authority to regulate individual power plants, opponents say.