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Texas savors court’s Clean Power Plan ruling

By   /   February 18, 2016  /   News  /   No Comments

With the Beltway speculation machine cranking air and print pollution to near toxic levels, a pair of Texas experts are counseling the public to pause to admire the beauty of last week’s Supreme Court stay of the Clean Power Plan.

Or as the lefty news blog ThinkProgress called it with its characteristic understatement, The Most Important Supreme Court Case in Human History.

Michael Nasi and Kathleen Hartnett-White would not go quite that far, but the 5-4 decision was stunning and important for the Environmental Protection Agency, Texas and the rest of the country.

The EPA's illegal push to impose its environmental worldview on the country has been blocked, Kathleen Hartnett-White says.

The EPA’s push to impose its environmental worldview on the country by “flouting the law” has been blocked, Kathleen Hartnett-White says.

For the first time in history the Supreme Court blocked an agency from imposing a set of regulations in advance of a lower federal court considering and ruling on those regulations.

There was a good bit of hand-wringing in the usual places that was less hyperbolic than ThinkProgress on climate change in Texas, the integrity of the EPA as a regulator and President Barack Obama’s standing with his friends in the international environmental community.

However, the true significance of the stay,  Hartnett-White, the former Commissioner of the Texas Commission on Environmental Quality said, was that the court put a stop to an illegal imposition of an environmental worldview by a federal agency.

“This EPA is of a different kind, flouting the law to see what it can get away with,” Hartnett-White, currently director of the Armstrong Center for Energy & the Environment with the Texas Public Policy Foundation, said. “I don’t come to these conclusions easily, but the broad, sweeping attempt to change history on energy issues recalls the failed movements of Marxism and socialism.”

Nasi has battled the Clean Power Plan from the trenches as general counsel for Balanced Energy Texas, a coalition of energy providers, particularly smaller electric cooperatives and consumers.

The coalition is part of the lawsuit brought against the plan by the states of West Virginia, Texas and two dozen others.

Nasi helped marshal declarations by officials for dozens of power providers in Texas and across the country, testifying to the damage to industry and the cost to consumers of implementing the Clean Power Plan.

Nasi has worked to shield Texas power coops from the brunt of the power plan.

Michael Nasi has worked to shield Texas power co-ops from the brunt of the Obama plan.

Balanced Energy Texas laid out the costs in stark terms after the Clean Power Plan was first introduced in June 2014: an estimated $284 billion annual increase in the cost of power and natural gas nationally beginning in 2020, and a $42 billion annual cost increase for electricity and gas in Texas.

Electricity and gas bills would increase by more than $1,000 a year, a 50 percent increase for the average Texan beginning in 2020.

The regulations would do most of their damage to the $7 billion coal mining and coal-fired power generation industry. According to the U.S. Energy Information Administration, Texas is the nation’s largest producer of lignite coal, the type Texas plants burn.

The devastation is detailed in estimates done by NERA Economic Consulting and covered by Watchdog; by Energy Ventures Analysis for Texas and the state’s own Electric Reliability Council of Texas. All were variations on the same theme, Nasi said.

“It is the unchecked authority of the EPA to define the power grid,” he said.

The Supreme Court’s stay translates to a pause for the case to return to the same District of Columbia Appeals Court — indeed, the same panel of two liberal and one moderate justices – rebuked by the stay, Nasi said.

While some have said the case could be reconsidered as early as June 2017, Nasi said it was more likely that nothing will be done until early 2018, likely rendering moot any concerns about the effect of the vacancy caused by Justice Antonin Scalia’s death this week.

Texas Attorney General Ken Paxton wasted no time telling everyone involved to stop what they were doing until the appeals court reviewed the case and decided whether it would go back to the Supreme Court.

“We’re not moving forward with anything until this case is resolved,” Paxton said.  “A major change like the power rule should not and cannot be left in the hands of unelected bureaucrats who have demonstrated more concern about placating the green lobby than keeping Americans working. This move was a blatant attempt to sidestep the legislative process and force through the will of one man — President Obama — who tried to redraw the powers of the EPA in unprecedented ways.”

On Monday, Wisconsin Gov. Scott Walker followed suit with an executive order he said would save the homeowners and businesses in Wisconsin $13 billion in unnecessary costs.

“Clearly, this rule exceeds the President’s authority and would place an undue burden on the Wisconsin ratepayers and manufacturers,” Walker wrote. “The stay granted last week by the Supreme Court validates our concerns about this rule.”

In retrospect, there were hints the conservative majority of the Supreme Court might move to check the weapon that is Obama’s EPA.

In 2014 the Supreme Court by a 9-0 vote repulsed an attempt by the agency to expand the definition of carbon dioxide as a pollutant and use it to go after power plants.

In a prescient opinion for the majority, Scalia wrote, “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”

Then last June the court by a 5-4 vote found illegitimate air standards for mercury the EPA imposed four years and a pitched court fight earlier. More acerbic still, Scalia wrote for the majority:

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

The damage had already been done with engineers retrofitting their power plants for a problem the high court found the EPA never properly defined.

“In short, EPA extracted nearly $10 billion a year in compliance from power plants before this Court could even review the rule,” Hartnett-White wrote earlier this month,  “and then successfully used that unlawfully mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.”

Until last week, the EPA was using the same tactic to compel states to retire coal plants. Environmental activists have taken credit for having closed more than 200 in the wake of the Clean Power Plan proposal.

None of the 18 coal-fired power plants currently operating in Texas has so far been shuttered, Nasi said. The EPA, however, has estimated as many as half of them would not meet Clean Power Plan standards.

Those closings will fall heaviest on Nasi’s clients, co-ops serving rural ratepayers whose electric bills could double to pay for the cost of retiring plants a decade or more before their engineered life.

Over the next year, politics will determine the arc of the Clean Power Plan. A Democratic successor to Obama is quite likely to continue to press for its imposition. A Republican president is just as likely to dismantle it.

Regardless of the president or the makeup of the court, Nasi said he thinks the stay stands as a warning to an agency that has in recent years taken extraordinary and illegal liberty with its authority.

“As long as Justice [Anthony] Kennedy remains with the majority, I’m pretty confident we will prevail, even in a Clinton administration,” Nasi said. “If I had to pick a side, I’m glad I’m not one of the EPA’s lawyers right now.”


Mark Lisheron was a former Austin-based reporter for Watchdog.org.