The Environmental Protection Agency published the final version of its latest rule, called the Clean Power Plan, this past August. The CPP’s stated aim is to reduce America’s dependency on fossil fuels in order to arrest climate change. On presenting the finalized version, the agency declared that the revisions contained therein should assuage states’ concerns over an earlier version of the rule. Were the states thus mollified? In fact, state resistance to the rule appears to be only beginning.
In late October, immediately after the EPA published the final plan in the Federal Register, 26 states filed suits to block it. One more filed suit late last week. In addition, private industry and labor groups filed at least 17 petitions for review in the D.C. Circuit on the first day the court had jurisdiction. It appears that additional suits will be filed before the late-December deadline for filing is reached.
Among those that have filed petitions already are West Virginia et al., a 24-state coalition. Oklahoma, North Dakota, and Mississippi have each filed separate suits, as have the International Brotherhood of Boilermakers, the United Mine Workers of America, various utility companies, and the United States Chamber of Commerce.
Why has the CPP provoked no less than a majority of states to challenge its legality? First and foremost, these states regard the rule to be unabashedly unconstitutional. The means that the CPP looks to adopt to reduce carbon dioxide emissions, argues Harvard law professor Laurence Tribe, are “constitutionally reckless … usurp[ing] the prerogatives of the States, Congress, and the Federal Courts — all at once.”
Consider what the CPP would do and how it proposes to go about doing it. Under the rule, each state is “allowed” to compose its own carbon-dioxide-reduction plan. EPA found itself forced to take this tack because the agency itself admits that, under current law, it lacks the authority to impose the regimen that it is asking states to adopt. But if a state refuses to submit a plan (as Oklahoma’s governor, Mary Fallin, announced her state would do) — or if the EPA should find a state’s plan to be inadequate — EPA will impose its own plan.
Critics find this approach to be in violation of the Tenth Amendment. EPA’s claimed power to impose a federal plan on any state refusing to submit its own plan smacks of a practice already declared unconstitutional by the Supreme Court. In the 1992 case New York v. United States, the Court ruled that when the federal government offers states “a ‘choice’ between two unconstitutionally coercive regulatory techniques,” the states in reality have “no choice at all, which is “inconsistent with the Tenth Amendment.”
Writing for the Court in the New York case, Justice O’Connor declared that “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’s instructions.” Still worse, argue the CPP’s critics, Congress has not provided the authority for the CPP claimed by the EPA.
Relying on the New York case’s reasoning, the Court, in Printz v. United States (1997), struck down as unconstitutional a provision of the Brady gun law requiring county sheriffs to administer background checks. Writing for the Court, Justice Scalia declared that New York v. United States‘ prohibition on federal compulsion of states “to enact or enforce a federal regulatory program” may not be “circumvent[ed]. … The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
Because New York v. U.S. addresses state executive and legislative action, whereas Printz addresses the commandeering of state agents, the former case is more directly relevant than is the latter to the question of the CPP’s constitutionality. Nevertheless, the two cases together, argue the CPP’s critics, should form a constitutional firewall against what they perceive as the rule’s attack on the Tenth Amendment.
Additional support for the prohibition on federal commandeering of states comes from NFIB v. Sebelius. Although this 2012 Supreme Court case upheld the bulk of the Affordable Care Act, it struck down a provision threatening to withhold all federal Medicaid funds from states that didn’t expand their programs.
Writing for the Court in Sebelius, Chief Justice Roberts found it unconstitutional for the federal government to claim such control over the states. “Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer,” he wrote.
Although it could take years, it is hard to imagine that the issue of the CPP’s constitutionality will not eventually reach the Supreme Court. If and when that occurs, will at least five of the nine justices agree with these 27 states that the CPP is an unconstitutional violation of the anti-commandeering doctrine?
If they do not, warns Tribe, the justices risk saving the EPA’s plan at the expense of “burning the Constitution.”
Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of SeeThruEdu.com. He was deputy chairman of the National Endowment for the Humanities under George W. Bush.