MORGANTOWN – State Attorney General Patrick Morrisey and Indiana Attorney General Todd Rokita appeared before the National Press Club in Washington, D.C., on Thursday to talk about the potentially landmark 19-state coalition challenge of the authority of the EPA that is before the U.S. Supreme Court.
Oral arguments in that case are set for Feb. 28. Morrisey quoted national press articles that called it a “monster of a case that could shrink the power of federal agencies to set rules” and “one of most significant environmental law cases of all time.”
The case is called West Virginia v EPA. It stems from a 27-state case led by Morrisey against the Obama-era Clean Power Plan, which resulted in a stay of the plan by the Supreme Court in 2016. In 2019, the Trump EPA replaced it with the Affordable Clean Energy Rule, which established emissions guidelines for states to use when developing plans to limit carbon dioxide at their coal-fired power plants. States would have three years to submit plans, in line with other planning timelines under the Clean Air Act.
But in January of 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated the 2019 ACE Rule. Morrisey and the other states say that the D.C. court wrongly used a portion of the Clean Air Act to grant the EPA even more sweeping powers.
They ask if, in an ancillary provision of the Clean Air Act, “did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements?”
Morrisey told the Press Club members that the case is not about climate change, but about who decides the major issues of the day. “Should it be unelected bureaucrats or should it be the people’s representatives in Congress?”
Agencies need congressional direction, he said. “I think we have optimism about the decision were going to get.”
Rokita also said the case is about more than coal mining and fossil fuel power. The EPA’s overstep in this situation – attempting to reshape the nation’s electric grid – could easily lead to other agencies intruding into areas they don’t belong simply because they don’t agree with something,
Rokita is a former Congressman and said perhaps the court’s ruling in this case could stimulate Congress to start doing its job and stop ceding its authority to the executive branch.
Both men agreed that the EPA can regulate pollution sources, but not completely reorder the power grid.
They fielded some questions from the press members. One was why presidents Trump and Biden – who were duly elected – shouldn’t have the power to address climate change. They said there should be a robust debate on both sides of the climate change issue but congress must decide on what powers it wants to delegate to agencies.
Congress is supposed to move slowly and be deliberative, Rokita said, but its failure to do anything at all – to move in regular order – has led to this situation of executive overreach.
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