First, the final rule has major consequences for individuals, families, and businesses that should be decided by elected officials, not unelected bureaucrats. Since EPA’s emissions targets are so strict, any state plan will most likely have severe ramifications, including significant increases
in energy bills and grid reliability concerns
The rule will also limit a state’s energy choices. Traditionally, states have decided how to produce, generate, and distribute electricity. Most states decided that coal was an important energy source (it generated 39 percent of U.S. electricity in 2014), while renewables would play a small role (wind and solar generate 5 percent of U.S. power). Since EPA lacks the legal authority to simply force states to use more renewables, it imposed strict emissions reductions that effectively require states to use more wind and solar at the expense of coal. Unelected federal regulators should not make these decisions for a state’s citizens.
Second, most state legal and regulatory schemes do not currently permit state agencies to develop enforceable state plans that draw from all three building blocks. This means EPA’s approach will, in almost all states, require significant state regulatory and statutory changes. In its final rule, EPA acknowledged the concern of commenters that the changing state laws and regulations would be a result of the regulation. In fact, it was a primary reason for giving states more time to come up with enforceable state plans. Developing these plans outside the legislative branch circumvents the legislative process, undermines the separation of powers established by founding state documents, and exposes a state to increased litigation risk. To protect states and their constituents, elected representatives in the state legislatures should vote on any plan before it is sent to EPA.
Third, states that submit a plan expose themselves to “citizen suits” from litigious environmental groups. As seen in many other settings, these “sue and settle” agreements have become a pernicious tool of EPA to circumvent transparency and outsource regulatory authority to friendly special interest groups. Any state commitment could quickly come under federal control rather than be decided by state representatives. Flexibility to adjust renewable energy mandates or control enforcement actions will be subject to the whims of EPA, despite the initial goal of keeping control over implementation at the state level.
In short, these are not decisions that should be left to unelected regulators. Elected officials at the state-level, who can be held accountable for their actions, should make these choices. Due to EPA’s revised submission timeline, legislators should be a part of every step of the process and not just have a say on final SIPs. For states that want to retain their sovereignty, legislative approval of a regulatory plan is essential. Adding this layer of accountability can also help ensure that a state plan is not implemented before legal challenges are resolved.