Foundation floats interstate compact to fight Clean Power Plan

By Edward Klump | 07/22/2015 08:31 AM EDT

The Texas Public Policy Foundation (TPPF) yesterday unveiled a potential interstate compact aimed at U.S. EPA’s proposed Clean Power Plan, which seeks to reduce carbon dioxide emissions from existing power plants.

The Texas Public Policy Foundation (TPPF) yesterday unveiled a potential interstate compact aimed at U.S. EPA’s proposed Clean Power Plan, which seeks to reduce carbon dioxide emissions from existing power plants.

The Interstate Power Compact could be used to protect states from "EPA’s unconstitutional and overreaching" carbon proposal, Doug Domenech, director of TPPF’s Fueling Freedom Project, said in a news release.

The concept, he said, would let states work together to prevent a takeover of "affordable and reliable electricity production capacity" and would help avoid a "plan managed by bureaucrats" in Washington, D.C.


"The interstate compact is a powerful Constitutional device that permits states to maintain their sovereignty by allowing them to act collectively outside the confines of federal legislation or regulation," Domenech said, adding that this compact would let "states develop a dynamic, self-regulatory system that remains flexible enough to address changing needs."

EPA’s proposed Clean Power Plan seeks to cut carbon emissions from power plants 30 percent by 2030 compared with 2005 levels. Targets vary by state, and some interim goals could start in 2020. The proposal, which is expected to be finalized soon, envisions a state’s involvement in developing a plan, or a federal plan could be put in place.

The potential interstate compact begins with a discussion of a separation of powers among branches of the U.S. government as well as between federal and state authority.

It mentions EPA’s proposed use of Section 111(d) of the Clean Air Act to limit carbon dioxide emissions from power generation, but the compact says the proposed rule wouldn’t have an effect on global climate. The document says the plan infringes on states’ powers and would reduce the efficient operation of power markets and hurt reliability while boosting the cost of electricity to consumers.

The compact envisions states working to formulate plans to restore the "primary responsibility" of states and local governments in preventing air pollution and controlling it at its source.

A pledge section states that no state agency or official would submit a filing to fulfill some or all of state plan requirements under a 111(d) rule, unless it uses "emission limits or budgets derived only from assumptions of what is technically achievable inside the physical boundaries of the electrical generating units using the same fuel and boiler design that is currently in place at those units consistent with" certain provisions of the Clean Air Act.

The pledge suggests that, upon "Congressional assent" to the compact, EPA wouldn’t be able to impose a federal plan’s measures if a member state didn’t file a state plan for approval.

The compact suggests it would be effective once two or more member states adopt it, although some parts might require consent from Congress.

Domenech, in an interview, said he thinks the prospects for the compact are good because a number of states have shown opposition to the Clean Power Plan. Some states, including Texas, have indicated litigation over a carbon rule is likely.

A state legislature would need to act on a compact, Domenech said, noting that Texas could be a challenge because of timing. The Lone Star State doesn’t have another regular legislative session scheduled until 2017.

While states can agree not to make filings beyond certain limits, Domenech said Congress would need to agree to a compact that seeks refusal of a federal plan. He suggested compact law could be unclear on whether a presidential signature would be needed, although any resolution on that could come later.

Tom "Smitty" Smith, director of the Texas office of Public Citizen, a consumer advocacy group, called the TPPF compact idea "another desperate ploy." He said TPPF doesn’t necessarily represent average citizens but instead can be a mouthpiece for industries such as coal and oil.

"They’re living in fantasyland again," Smith said in an interview yesterday, adding that the Supreme Court has backed EPA regulation of gases tied to climate change.

Smith said Texas’ "leadership isn’t smart enough to realize that they could reduce energy costs for everybody by replacing old, clunker coal with new, cheaper renewables and put more people to work."