Environmental Protection Agency Administrator Gina McCarthy told lawmakers earlier this week that 25 states are still working on Clean Power Plan (CPP) compliance plans. This may come as a surprise to those who recall that, in a highly unusual move, the Supreme Court last month stopped the rule from going into effect.


The CPP is the administration’s bid to limit greenhouse-gas emissions from the existing power sector. Through a remarkably creative reading of the Clean Air Act, the EPA devised a regulatory scheme likely to force states to do what Congress rejected in 2009: to implement a cap-and-trade system. By 2030, the rule will diminish emissions from existing power plants to 32 percent below 2005 levels.

It’s no surprise that the plan has met with powerful resistance. More than 200 senators and House members filed an amicus brief with the courts articulating that the CPP goes well beyond the law and congressional intent. Twenty-eight states and state agencies have filed suit against the regulation, along with a number of industry groups, coal interests, utilities and the U.S. Chamber of Commerce. In all, there are 39 lawsuits from 157 petitioners looking to strike down the rule or change it dramatically.

So why are these states still working on compliance plans? Doesn’t the stay grant them the opportunity to avoid the high costs of compliance and an expensive, unreliable power supply? Isn’t this the exact kind of respite that the states have been seeking?

The fate of the CPP and the power sector are now in the hands of the Supreme Court. While the stay prompted a glimmer of hope that the EPA’s power grab might be checked, the death of Associate Justice Antonin Scalia, who was a clear and resounding voice against the EPA’s imaginative interpretation of its authority, complicates the matter. The court is now presumably locked at an evenly split vote on whether the CPP will be rolled back or go into effect. The next justice will tip the scales.

There are a few ways forward here. If President Barack Obama is successful in pushing through a nominee, we can be pretty certain that the new justice will be deferential to the White House’s established agenda. If left to the next president, Hillary Clinton might nominate the next justice and is sure to put forward a safe vote on these left-leaning issues. A Republican president might help get the rule tossed out, but the EPA will just go back to the drawing board. This leaves us with an odds-on chance that the CPP has staying power.

These 25 states don’t want to be left holding the bag if the CPP stands.

It doesn’t take a mathematician to note that some of the 28 states that have filed suit against the rule are still planning their pathway to compliance. This is not a vote of approval for the EPA’s regulatory overreach, but resignation to the risk associated with leaving to the executive and judicial branches important decisions about how to regulate the U.S. energy economy. Judicial precedent mandates that, even if this particular greenhouse gas rule fails, the EPA will just have to come up with some other way to limit those emissions.

Congress, especially its conservatives, has not been gun shy about its dissatisfaction with the EPA and its regulatory proposals. Senate Majority Leader Mitch McConnell, R-Ky., has been encouraging states to flout any planning or compliance obligations. In a letter to governors this week, he wrote that “declining to go along with the administration’s legal dubious plan will help provide the other two branches of government time to address many of the unanswered questions about this plan without putting your state at risk in the interim.”

And there’s the challenge. In our three-branch system of governance, Congress repeatedly has ceded power to the other branches. In the case of greenhouse-gas regulation, the Supreme Court tasked the EPA to identify a regulatory paradigm to reduce pollutants that pose a threat to human health and welfare. The agency identified its solution in an obscure provision of the Clean Air Act, which Congress has not reevaluated since passing a set of amendments in 1990.

If the solution the EPA came up with is outside the bounds of its authority, the Supreme Court can and should put the agency in its place. But it’s ultimately up to Congress to legislate the country out of this mess.

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