Transcript Paul Seby Presentation - CWAG Conference of Western Attorneys

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STATE SOVEREIGNTY IS CRITICAL TO THE
FUTURE OF COOPERATIVE FEDERALISM
Conference of Western Attorneys General
Colorado Springs, Colorado
July 24, 2013
Paul M. Seby
The American Coalition for Clean Coal Electricity (ACCCE)
RESPONSIBLE NATURAL RESOURCE DEVELOPMENT
AND USE IS VITAL TO U.S. SOCIAL & ECONOMIC
WELFARE
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Affordable electricity creates and protects
America’s high standard of living.
Sustaining and improving American quality of life
depends upon having more disposable income for
food, education, health care, personal savings and
other goods and services.
Fostering both economic development and
environmental protection depend upon the future of
“cooperative” federalism.
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ENERGY COST IMPACTS ON AMERICAN
FAMILIES, 2001-2012
Energy Costs as Percentage of Annual Household After-Tax Income
Source: www.americaspower.org
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WHAT IS FEDERALISM?
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Federalism is not an antiquated abstraction – rather
it is a fundamental process for making critical legal
and policy decisions.
Federalism is the process by which two or more
governments share powers over the same subject
matter or geographic area.
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COOPERATIVE FEDERALISM AND NATURAL
RESOURCE DEVELOPMENT AND USE
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Congress has repeatedly intended for a
meaningful federal-state partnership
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Courts have enforced the partnership
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“The Clean Air Act is an experiment in federalism, and the
EPA may not run roughshod over the procedural
prerogatives that the Act has reserved to the states . . . .”
Bethlehem Steel Corp. v. Gorsuch (7th Cir.)
Politics challenge and erode the partnership.
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EPA IS INCREASINGLY USURPING
THE ROLE OF THE STATES
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EPA has allowed its regulatory agenda to largely be
defined by “Sue and Settle” Consent Decrees.
These Consent Decrees dictate how and when EPA must
develop stringent new or modified regulations.
States responsible for implementing these regulations
have little knowledge of or input in this process.
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EPA’S SUE AND SETTLE STRATEGY
PRIMARILY IMPACTS WESTERN STATES
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A prime example of EPA’s practice of usurping the role of the
States involves the Regional Haze program.
National Parks Conservation Assoc. et al. v. EPA
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NPCA sued to compel EPA to take action on 45 State Regional
Haze Plans.
“Settled” with a CD that grants EPA authority to promulgate a FIP
concurrent with vetoing a SIP.
18 States opposed the CD.
WildEarth Guardians & NPCA v. EPA Consent Decree
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Colorado, Montana, North Dakota, Utah & Wyoming.
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REGIONAL HAZE
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Congress established a “national goal” in 1977 for the
“prevention of any future, and the remedying of any
existing, impairment of visibility” in 156 Class I areas.
CAA §169A carefully prescribes roles for both EPA and
the states.
Congress clearly determined that states can best
determine for themselves the proper balance between
visibility improvement and the costs that the state and its
citizens should bear in relation.
EPA’s RH Regulations are in effect until 2064.
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LEGAL CONTEXT FOR REGIONAL
HAZE PLANS
American Corn Growers et al. v. EPA (2002)
D.C. Circuit invalidated significant portions of EPA’s original
Regional Haze Rules because it found that EPA’s actions were
“inconsistent with the Act’s provisions giving the states broad
authority over [regional haze] determinations.”
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D.C. Circuit recognized the CAA “calls for states to play the lead
role in designing and implementing regional haze programs.”
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Court also affirmed statutory visibility “goal” vs. a requirement.
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EPA’s RH FIP campaign is based on nothing more than
its substantive disagreement with the States’
discretionary judgments - EPA is actively vetoing SIPs.
Cost of EPA’s FIPs are routinely hundreds of millions of
dollars greater than SIPs.
Impact on visibility, is in almost all cases, is not even
humanly perceptible.
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REGIONAL HAZE CONT’D.
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EPA’s BART Guidelines
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They are just that - Guidelines.
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For power plants in excess of 750 MW - the Guidelines
must be used.
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For plants less than 750 MW - the Guidelines are not
mandatory.
The Guidelines provide the States with
recommendations, i.e. a State “may”, “should”, “can.”
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As Congress intended, the States are to take the lead in
designing and implementing their SIPs.
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The States have substantial authority and discretion!
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WHY INDIVIDUAL STATE DECISION-MAKING
MATTERS?
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States cannot “clean up” identified visibility impairment caused
by western federal land management activities (i.e. fire) or
international sources.
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States must be able to meaningfully use cost-benefit
considerations to weigh the feasibility of reducing emissions
(for non-health based regulations) towards a goal (vs. a
requirement) by 2064.
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States must be able to meaningfully use the “costs of
compliance” factor to focus on cost effectiveness in terms of
humanly-perceptible visibility improvement - not merely
mandates for “emissions reduced”.
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STATE OF OKLAHOMA ET AL. V. EPA –
JULY 19, 2013 (10TH CIRCUIT)
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OK developed and submitted a RH SIP – EPA
vetoed and imposed a FIP.
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EPA’s FIP forces installation of additional
equipment that will cost $1.2 billion to $1.5
billion.
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What does EPA’s FIP do for visibility
improvement?
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Nothing – the purported “visibility improvement” is
not even humanly perceptible.
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STATE OF OKLAHOMA ET AL. V. EPA
CONT’D.
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A 2-1 decision by the 10th Circuit recognizes the CAA is
based on “cooperative federalism” but effectively ignores
it, and instead approves EPA’s second guessing of OK’s SIP.
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The majority notes that this is “close case,” but then ignored
OK’s authority to implement the RH program.
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The majority opinion fails to address whether OK properly
weighed the BART factors – which it did - and instead
focuses on where there may have been a few isolated
instances of differences in cost data between a utility and
EPA to support finding EPA’s FIP was proper.
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STATE OF OKLAHOMA ET AL. V. EPA
CONT’D.
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The majority opinion applies the wrong legal standard of
review, giving deference to EPA’s BART determinations.
The State’s BART and RP determinations should have been
afforded deference.
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Unless it can be shown that the State acted arbitrarily or
capriciously, the State’s determinations must be respected by
EPA.
The dissent got it right.
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EPA’s FIP was arbitrary and capricious and usurped OK’s
authority.
“[It will] result in adverse changes to what Oklahoma
ratepayers will pay for electricity.”
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PENDING REGIONAL HAZE FIP
ACTIONS
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North Dakota – 8th Circuit Court of Appeals (Argued May 14,
2013)
 ND exercised its authority and discretion to develop a
refined visibility modeling program
 ND properly weighed BART factors and determined
appropriate technology
EPA rejected ND’s refined modeling program claiming it was
“not reasonable.”
EPA is merely seeking to impose its different (and more costly)
policy preferences.
This dispute is critical to the State’s regulatory authority.
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PENDING REGIONAL HAZE FIP
ACTIONS CONT’D.
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Wyoming – 10th Circuit
Utah – 10th Circuit
Arizona – 9th Circuit
New Mexico – 10th Circuit
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STATES TAKING A STAND AGAINST
EPA
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AL, AZ, GA, KS, NE, MI, ND, SC, TX, UT, & WY,
submitted a FOIA request to EPA for public records
related to EPA’s involvement in “sweetheart
settlements” with environmental groups that lead to
RH FIPs.
EPA denied the FOIA request saying it was ‘too
broad’ and not in the public interest.
The 12 State AGs, led by Oklahoma, filed a federal
suit against EPA for failure to comply with FOIA.
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THE ONLY SUSTAINABLE ENERGY POLICY
energy security
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