The attorneys general of two states leading the legal charge against President Obama’s Clean Power Plan want him to tell the world at the Paris climate talks that he doesn’t have support at home for a deal.
In a letter sent to Secretary of State John Kerry, Patrick Morrisey, attorney general of West Virginia, and Ken Paxton, attorney general of Texas, told him they believe the American delegation to the United Nations Conference on Climate Change needs to inform other countries the Clean Power Plan is being challenged by most of the states.
They also want the agreement that comes from Paris to be submitted to the Senate, where it would need to be approved with a two-thirds majority to be legally binding. That approval is unlikely, so the Obama administration plans to pursue any agreement as an executive agreement.
“We hope this is a candid recognition that the president’s agenda lacks support at home, and is not intended to suggest that the president will instead attempt to ratify a Paris 2015 accord through an executive agreement, as we believe that would be clearly unlawful,” the letter says.
The Clean Power Plan is the centerpiece of Obama’s carbon reduction plans for the Paris talks. The regulation, seen as the administration’s signature environmental rule, sets carbon emissions reduction goals for states on power plants. Most climate scientists blame carbon dioxide emitted from burning fossil fuels for driving manmade global warming.
Twenty-seven states are suing the federal government to block the regulation, along with many interest groups.
The attorneys general tell Kerry they doubt the Clean Power Plan will be law for very long.
“The Power Plan — which was never voted on by Congress — has been under withering scrutiny from both Republicans and Democrats since it was proposed, and the chorus calling for its overturning grows by the day,” they wrote.
The attorneys general believe the section of the Clean Air Act justifying the regulation doesn’t assign the Environmental Protection Agency the authority to issue the rule. They also argue the Clean Air Act prohibits the EPA from regulating power plants under two different sections of the law. There are also constitutional concerns about federal overreach.
The EPA maintains the Clean Power Plan is “grounded firmly in science and the law and is fair, flexible and affordable.” EPA Administrator Gina McCarthy has sought to ease fears ahead of Paris by telling French media the regulation will outlast Obama’s time in office and stand up to legal challenges.
Many of the states that are suing to stop the plan are also beginning to work on their plans to comply with the regulation, according to EPA officials. That’s because they don’t want the EPA dictating their compliance plans.
The Sierra Club released polling earlier this month showing strong support for the Clean Power Plan in six states. West Virginia and Texas were not included in that polling.
