As members of Congress consider whether to block U.S. EPA regulation of greenhouse gases, many state legislators across the country are cheering them on.
Eight states ranging from Michigan to Virginia have adopted formal resolutions this year pressing Capitol Hill lawmakers to block what they term the agency's regulatory "train wreck." Some 14 other state legislatures have parallel measures that are working their way through committees in state chambers.
The action comes at a time when Republicans have made historic gains in state chambers in November elections. It also represents the growing influence of a free-market group of industries and state legislators, the American Legislative Exchange Council, that recently touted model legislation condemning EPA, analysts say.
That model legislative language offered by the council via its "train wreck" website and companion documents has popped up in nearly identical form in most of the states passing and considering the measures.
The resulting legislative text has little practical effect, but instead lists multiple grievances against EPA, such as "concern is growing that, with cap-and-trade legislation having failed in Congress, EPA is attempting to obtain the same result through the adoption of regulations." The text then calls for Congress to adopt legislation prohibiting "EPA by any means necessary from regulating greenhouse gas emissions." It also advocates for a moratorium on new agency regulations and an Obama administration study on the economic effect of curbing emissions.
Both the U.S. Senate and House are expected to consider measures in coming days handcuffing EPA's ability to regulate heat-trapping gases. Unlike the state measures, which are protest votes, so to speak, the congressional bills could stymie the agency's plans.
Messages to Washington delegations
For state legislators offering the resolutions, the goal is to gain the attention of lawmakers from their same state in Congress before they cast a vote on Capitol Hill. "State legislators are closer to the people than members of Congress," said Michigan state Rep. Aric Nesbitt (R), the primary sponsor of an anti-EPA resolution that passed the state House in March.
"All of our industries are scared to death," added Indiana state Rep. David Wolkins (R), chairman of the Indiana House Environmental Affairs Committee and the sponsor of a resolution that passed the chamber this year. The coal industry, in particular, is worried about shutdowns because of directives from Washington, D.C., he said.
Like several other state representatives sponsoring the resolutions, he said the language in his bill came from the American Legislative Exchange Council, or ALEC.
In addition to Indiana and Michigan, Kansas, Kentucky, North Dakota, Utah, Virginia and Wyoming have adopted parallel measures this year. Other states considering resolutions include Missouri, Montana, Minnesota, Alaska and West Virginia.
Even though the state bills have no direct impact, there is concern about a "ripple effect" of these bills in states strapped for money, said Bill Becker, executive director of the National Association of Clean Air Agencies. On Jan. 2, new EPA rules kicked in requiring constructors of new or modified facilities with high greenhouse gas output to install "best available control technology" to control the gases.
Twenty-five million dollars requested by Obama to help states develop the infrastructure for greenhouse gas permitting is likely to not come through, leaving cash-strapped state governments to pay the employees and fund the permitting that must come with EPA's new greenhouse gas rules. These bills protesting the agency signal that money may not be forthcoming at a time of high deficits across the country, said Becker.
"If there's a conservative state legislature that is opposing environmental protection, they are not going to want to fund robustly these state or local regulatory agencies," he said.
'Ready, fire, aim approach'?
While there are some permitting challenges with greenhouse gas rules in the southeast of the country in particular, he said, "ALEC is this reactionary legislative group that espouses this ready, fire, aim approach," he said. Most states are adapting well and need appropriated dollars, he said.
The Obama administration, along with organizations such as the Small Business Majority, has said consistently that ongoing implementation of the Clean Air Act will save lives and money
Several green groups went further and slammed ALEC for allowing industry to provide the majority of its funding. Member legislators pay $50 annual fees, but corporations, including oil, coal and gas interests, constitute 81.7 percent of contributors to the group's coffers, according to a May 2010 report from the American Association for Justice.
Kert Davies, a research director at Greenpeace, said that the energy members on the group's private enterprise board include fossil-fuel interests such as coal giant Peabody Energy and Mike Morgan of Koch Industries Inc.
"They have been the biggest Chicken Little scared-of-climate-change-legislation organization in the country," he said of the organization.
The energy blogosphere has been critical of ALEC, as well, noting that bills in New Hampshire and New Mexico calling for departures from planned regional cap-and-trade programs contained identical language, just as the EPA resolutions do. There are frequent mentions of February comments from Virginia Delegate Will Morefield, who said a bill opposing EPA was "presented to him by the coal industry" working with ALEC, according to The Virginian-Pilot.
Coaches working from same playbook
"Can we look forward to an open airing of the ALEC text that's being surreptitiously slipped into state-level bills and resolutions around the country?" wrote one blogger at Grist.org.
But Wolkins said he went to ALEC after businesses in his state already had complained about EPA. The organization helped provide legislative text for something he would have introduced anyway, he said.
Similarly, Nesbitt said the bill was his idea after multiple coffee hours and conversations with angry manufacturers in Michigan worried about jobs headed overseas because of what they called burdensome EPA regulations.
"It's a full-out assault on manufacturing," he said, noting that he had spoken to House Energy and Commerce Chairman Fred Upton (R-Mich.) about the state resolution. Upton is sponsoring a bill in the House to revoke EPA's ability to regulate greenhouse gases.
And the director of ALEC's Energy, Environment and Agriculture Task Force, Clinton Woods, said there is nothing unusual about a group offering model energy legislation. That happens all the time with other groups representing state legislators, he said. All of the bills on EPA are "legislator-driven," he said.
The group has issued press releases this year responding to national criticism by pointing out that its more than 2,000 members include Democrats and Republicans. Other supporters have noted that the group's private board includes companies supportive of climate controls, in addition to businesses opposed.
Some of the "train wreck" language actually came from state bills that existed before ALEC released something, said Woods. The participation of industry in the group is an asset, he said.
"We take the best ideas from the public and private sector," he said. "The folks who are going to be regulated should be part of the conversation," he said.
Want to read more stories like this?
E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.
Click here to start a free trial to E&E -- the best way to track policy and markets.