Okla. AG: ‘We must have another Justice Scalia’ to fight EPA

By Emily Holden | 03/04/2016 08:48 AM EST

One of the most vocal attorneys general opposing the Clean Power Plan told conservatives yesterday that the 27 states suing to stop the federal climate change rule are not confident they will succeed.

One of the most vocal attorneys general opposing the Clean Power Plan told conservatives yesterday that the 27 states suing to stop the federal climate change rule are not confident they will succeed.

Addressing a ballroom of attendees at the Conservative Political Action Conference, Oklahoma Attorney General Scott Pruitt (R) said the uncertainty makes the 2016 presidential election critical.

"We are not terribly optimistic that at the [U.S. Court of Appeals for the District of Columbia Circuit] that we are going to win as a collection of states," Pruitt said.


He said the court is "packed" with liberal judges appointed by President Obama, meaning the panel will likely uphold the rule after hearing oral arguments this summer. The panel hearing the challenge includes an Obama appointee, a Clinton appointee and a George H.W. Bush appointee.

Pruitt’s comments come as states are grappling over how — or whether — to move forward under the Clean Power Plan. The rule mandates that states cut carbon emissions from existing power plants 32 percent from 2005 levels by 2030. The Supreme Court decision last month to stay the rule, followed by the death of Justice Antonin Scalia, has injected new uncertainty into state plans.

With eight justices currently on the bench, Pruitt noted there’s a possibility of a tied decision, which could affirm a lower court ruling backing the regulation. But he said the Supreme Court could rehear the case once a new justice replaces Scalia.

The vacancy could also be filled before the challenge even reaches the Supreme Court.

"This election in November is consequential for many reasons, but the most consequential reason, from my estimation, is the control of the U.S. Supreme Court going forward," Pruitt said, adding, "We must have another Justice Scalia on the Supreme Court" to control federal government overreach.

Koch brothers group distributes fliers

Speaking on the same panel, Sen. Ron Johnson (R-Wis.) vowed that Republicans in the Senate would block any Supreme Court nomination by Obama.

"With our Republican majority, we will not allow that to flip," he said. "We want to confirm a Justice Scalia replacement who is like Justice Scalia in 2017," Johnson said.

Pruitt said the Supreme Court’s decision to stay the rule, which Scalia voted for just days before he died, is unprecedented and a big relief for states.

He argued that states and industry bore the cost of shutting down coal plants under the Mercury and Air Toxics Standards, only to see the rule declared flawed by the Supreme Court after years of fighting.

Despite the stay, many states continue to plan for carbon cuts in case the rule survives legal scrutiny.

The American Energy Alliance, which has been arguing for states to halt those talks, distributed fliers during energy-related sessions at CPAC with "10 Reasons to Stop Work on EPA’s Carbon Rule." The group argues that the rule offers no observable benefits and violates states’ rights.

AEA says officials will have plenty of time to plan if the rule is upheld. The U.S. Chamber of Commerce this week released a paper contending that EPA will have to push all of its deadlines back to match the length of the stay.

‘An out-of-control federal government’

EPA spokeswoman Melissa Harrison said in an email yesterday that "at this stage, it is too soon to say what adjustments to timelines might need to be made once the litigation is resolved."

"Likewise, it is too soon to speculate about the mechanics of how a deadline might be adjusted," she said.

She added that compliance and enforcement of the rule are on hold, but states that want to work to cut carbon pollution will have EPA’s support.

Nick Loris, an economist with the Heritage Foundation, said during another CPAC panel that even during the stay, states might feel pressure to actually implement some of the carbon cuts they have been weighing. That, he said, includes "businesses and cronyists that have probably been working with these state agencies to create some sort of agreement that is friendly toward them."

Speaking before hundreds on CPAC’s main stage yesterday, Pruitt invoked two other sweeping policies that have been political targets for the right.

"What the Affordable Care Act was to health care, what Dodd-Frank was to the banking and finance system, the Clean Power Plan is to our power grid and energy," Pruitt said.

Arkansas Attorney General Leslie Rutledge (R), during the same discussion, cited states’ 10th Amendment rights, saying, "We have an out-of-control federal government overreaching at every step."

Do the means justify the end?

Rutledge noted that she has sued EPA six times, but called the accusations that she doesn’t want clean air and water "just nonsense."

She also claimed that the Clean Power Plan would raise electricity rates in Arkansas by 20 percent each year over 12 years, "disproportionally affecting minorities and senior citizens in their budgets."

Those figures are in line with predictions from the coal industry’s American Coalition for Clean Coal Electricity.

Cost estimates, most of which have been calculated by either supporters or critics of the regulation, have ranged wildly. Some advocates of the Clean Power Plan say prices could even decline with investments in power savings through energy efficiency (ClimateWire, Nov. 30, 2015).

In a much smaller discussion at CPAC yesterday, speakers argued that the costs of the Clean Power Plan would not justify the benefits to curbing climate change or improving public health, both of which critics believe to be overstated by EPA.

"I don’t think there’s justification to implement a rule when the costs are a multibillion-dollar price tag and the direct benefits are very meager in the grand scheme of what the EPA projects to be multibillion-dollar benefits," Loris said, adding that much of the rule’s professed benefits would come from reducing coal plant co-pollutants, not carbon.

EPA pegs the climate and health benefits of the rule at $55 billion to $93 billion per year in 2030, compared to costs of $7.3 billion to $8.8 billion.

‘Spitting in the wind’

Daniel Garza, executive director of the LIBRE Initiative, a conservative group that works with the Hispanic community, argued that the rule would disproportionately affect Latinos, who would feel the brunt of higher electricity costs in power bills and with higher product costs.

"The benefits are questionable and hazy," Garza said. "We know what the pain is going to be, what the cost is going to be."

He cited figures from the National Black Chamber of Commerce stating that the regulation could put 12 million Latinos out of work.

Environmental advocates have refuted that study, calling it misleading and an intentional campaign of misinformation.

Garza noted in an interview after the discussion that he couldn’t vouch for the numbers. He explained that he would love to see a transition to cleaner electricity, but he wants it to happen within a free market rather than because of federal regulations.

Critics of the rule also argued that the United States will bear the costs of reducing emissions while the rest of the world continues to pollute.

Oren Cass, a senior fellow at the Manhattan Institute, said leaders of developing countries, "no matter how seriously they take the science of climate change, are focused on economic [growth]. As long as that’s the case, we in the United States are just spitting into the wind."