I was fortunate enough to be asked to participate in a radio interview with Jeff St. Clair, WKSU Radio, regarding the Clean Power Plan. It was an interesting discussion of the legal questions surrounding the plan as well as a broader discussion of the state of environmental regulation in the United States.
Here is an excerpt from the story:
Energy policy through the courts, instead of Congress
“The courts are not the ideal place to be sorting out your environmental policy or your energy policies,” says Koncelik.
Koncelik has the admittedly utopian view that Congress should decide these environmental issues. But he acknowledges that in today’s dysfunctional political system a reasonable compromise from happening.
“So,” he says, “the EPA is forced to act and when they act they do things that are questionable and vague because you’re dealing with laws that are outdated and technology that is radically different than the 80’s.”
“That’s what we’re left with as a country,” says Koncelik, “and until we have real compromise and real discussion, what we’re going to end-up with is regulatory uncertainty which is not good for the economy.”
Congress Fails to Pass Significant Environmental Legislation in Twenty Five Years
One of the points we discussed in the interview is that Congress has not passed new environmental legislation nor significantly amended an existing statute since the 1990 amendments to the Clean Air Act. Despite Congressional failure to act, EPA has moved forward with thousands of pages of new regulations.
EPA’s new regulations are based upon authority granted to it by Congress. However, those regulations often rely on vague terminology or ambiguity in underlying environmental statutes. What results is constant litigation regarding the extent of EPA’s authority or legality of the new regulations.
For example, I am certain that in 1990, Congress never envisioned that the Clean Air Act would be used as the basis to address climate change. The Clean Air Act principally deals with local or regional air pollution issues, not a complex international issue like climate change. Remember, even EPA said that the Clean Air Act was "ill suited" to address the issue of climate change prior to embarking on its massive new regulations.
Most recently, the Obama Administration decided to move forward with its Clean Power Plan to address climate change relying upon questionable EPA legal authority under the Clean Air Act. As a result, the are multiple legal challenges pending to this very significant new rule.
Due to the inability of Congress to enact significant changes to existing environmental laws or pass new ones, EPA fills the void. EPA constantly develops new regulations which are almost always challenged in the Courts. This results in uncertainty for businesses and, at best, inconsistent environmental policy in the U.S.