A new tool to fight the EPA
The Texas Public Policy Foundation is drafting legislative language that it says would allow states to enter into a compact to opt out of the Environmental Protection Agency's proposed rules, expected to be finalized this summer.
But the group faces two significant hurdles: Congress would need to approve the multi-state plan and, on top of it, the constitutionality of such a pact is dubious.
The foundation's effort rests on the compact clause in the Constitution, which says, "No state shall, without the consent of Congress...enter into any agreement or compact with another state." The clause was designed so that two or more states could not band together to challenge the supremacy of the federal government, unless Congress gives such a compact its blessing.
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Given the current congressional calculus, a thumbs up from Capitol Hill to ignore the centerpiece of President Obama's climate agenda is unlikely. Even Democrats from coal-dependent states who loathe the regulation likely wouldn't dream of crossing the president to set such a precedent.
Regardless, Domenech said states have shown interest, though he declined to name which ones.
The effort won't start in earnest until early next year, as most state legislatures have concluded their annual sessions. For now, Domenech is working on the language each state would need to pass to join the compact. He is targeting about 30 states, chiefly the 14 that have sued the EPA over the regulation and states that have said they wouldn't comply with the entire regulation.
"The drumbeat is really starting on this particular rule. A lot of people conflate what the EPA rule is doing with ozone, but the Clean Power Plan is a different animal because it's trying to reorganize power markets beyond the authority of what they're allowed to do," said Domenech, who served at the Interior Department under former President George W. Bush and was most recently Virginia's secretary of natural resources under former Republican Gov. Bob McDonnell.
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The issue is that the EPA is implementing the power plant rule, which aims to slash electricity emissions 30 percent below 2005 levels by 2030 through the Clean Air Act. Administrative rules that are carried out as part of a federal law are interpreted as sharing in the supremacy clause, said Louis Seidman, a constitutional law expert at Georgetown University Law Center. The compact clause was created to prevent groups of states from subverting that supremacy.
"Even if the compact clause is read as an implicit endorsement of the states' ability to format compacts, there's nothing in the clause suggesting that the compacts are superior to statutes," Seidman said in an email.
There is, however, room for disagreement. Mark Tushnet, a constitutional law expert at Harvard Law School, said getting congressional approval for a compact is an explicit green light to circumvent laws passed by Congress or any regulations enabled by an underlying statute.
"In general, the inter-state compacts clause applies only to agreements that would otherwise undermine national law or policy (and so might be thought to be inconsistent with the idea that national law is supreme), and the point of getting congressional consent is to ensure that the national legislature agrees that the compact would not undermine national law," Tushnet said in an email.
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And he points out that the question of constitutionality didn't stop the EPA from issuing its proposed rule, which is likely to draw more lawsuits when finalized. Why should it stop him?
"At this point, I'm not the authority," he said.
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