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EPA Pleads All Is Well on its Sinking HMS Clean Power Plan


By Luke Popovich

The National Mining Association (NMA) won another legal victory this winter, arguably its biggest, when the Supreme Court voted to block the Environmental Protection Agency’s (EPA) Clean Power Plan (CPP). Threatened with “irreparable harm” to their economies, the court said states needn’t comply with the costly power plan until all litigation on the merits of this coal bashing regulation is settled.

In effect, this meant the rule no longer had the force of law — not for years, if ever. For all practical purposes, states suddenly didn’t have to spend another dime — Illinois doesn’t have a dime, but that’s another story — squandering taxpayer money on a rule that the court suggested may be unlawful anyway. So NMA’s message to the states since then has been to, “put pencils down” on the costly power plan. Waste money on something else.

The message had obvious appeal. After all, you wouldn’t want to be a governor of a cash-strapped state, debating whether to close orphanages in the face of falling revenue, who diverted tens of millions of dollars in staff time helping the EPA raise your citizens’ power bills and “transform” your state’s perfectly functioning energy grid, only to learn the CPP is — oops — unlawful, so just forget about it.

Many close observers were surprised by the ruling, and none more so than officials at the EPA. In a series of internal emails pried out of the agency by conservative lawyers, we see how news of the stay decision ranked among the loudest buzz killers in regulatory history. It was the sound of the iceberg crashing into the hull of their ill-fated ship. “The stay is difficult news,” said EPA’s general counsel. “There’s no sugar coating it.” Air chief Janet McCabe didn’t try. “This is very obviously disappointing and we are still absorbing it this evening,” she said on the day of the decision.

That, at least, was the EPA’s confidential, private reaction, the cold realization. The public reaction was much different. “We didn’t lose anything yet,” said agency Chief Gina McCarthy in the following days. The stay, she told supporters, “didn’t mean that anything on the ground had really changed.” Not satisfied to circumvent Congress with this crazy climate scheme, this administration tried to blow off the Supreme Court as well.

This was all political theater, an entertainment the EPA excels at. The point of the brave talk was to send a not-so-subtle message to governors and green non-governmental organizations that they should still prepare for their coal-free future and get on with implementing the CPP. The agency even issued interim planning guidelines to the states, claiming it was only honoring requests from liberal governors asking the EPA for planning assistance.

It’s as if the captain of the Titanic understood the gravity of the iceberg collision but decided to conceal the danger from the passengers and crew. “We will keep moving the Clean Power Plan forward,” said EPA’s skipper in the days following the decision, hoping to keep the states from realizing the true damage to her sinking ship.

A few weeks ago, a Senate hearing examined the impact of the stay decision on the EPA’s rule. Witnesses from states and industries said the cruise was over for them. The CEO of Tri-State, representing 44 energy co-ops in a vast area of the West and Midwest, said he is urging states to abandon ship. That’s good advice that more and more states are taking, despite the EPA’s insistent assurances that all’s well. So far, 29 states, suspecting the ship is sinking, are lowering the life boats and bailing out of the HMS Clean Power Plan.

Luke Popovich is a spokesperson for the National Mining Association, the industry’s trade group based in Washington, D.C.

In effect, this meant the rule no longer had the force of law — not for years, if ever.