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EPA claims its Clean Power Plan gives states flexibility—Administrator Gina McCarthy used that word eight times when announcing the plan—and is a “collaboration between the state and federal government.”
Recently Senate Majority Leader Mitch McConnell (R-Ky.) advised states to “think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits.”
While activists backing EPA’s carbon regulations howled, Dan Byers, Senior Director of Policy, US Chamber’s Institute for 21st Century Energy, explains that Senator McConnell has a point. States who submit plans to EPA open themselves up to lawsuits from environmental groups using the nefarious “sue-and-settle” tactic:
Sue-and-settle agreements are increasingly understood to be one of EPA’s favorite regulatory tools. Typically, these environmentalist “citizen suits” brought against EPA based on any number of grounds (such as missed deadlines or enforcement disputes) are met with a lackluster defense and ultimate agreement by EPA. The system allows EPA to circumvent key transparency and accountability protocols and promulgate more regulations on pro-EPA terms. As the Chamber noted in a recent report on sue-and-settle agreements, EPA chose not to defend itself in lawsuits brought by environmental groups at least 60 times between 2009 and 2012, and those settlements led to EPA publishing more than 100 regulations costing tens of billions of dollars.
[A]nything a state commits to as part of its compliance plan effectively comes under federal control, and enforcement and compliance actions on state energy efficiency or renewable energy programs can be imposed at the whim of an -EPA agreement. Even states acting in good faith could be subject to the sue-and-settle hammer as a result of factors entirely beyond their control. For example, in states that encounter unique circumstances or unexpected challenges that force deviation from their state plan—be it unexpected demand increases, renewable project delays, or something as minor as a modified monitoring and verification procedures—environmentalists will have a shiny new vehicle with which to drive states to Federal court (either directly or indirectly through a suit against EPA).
Byers notes that environmental groups took notice of a mention of “citizen suits” in a footnote of EPA’s carbon regulations. The “dirty” secret of EPA’s proposed carbon regulations is environmental groups using sue-and-settle “will have open season to file lawsuits on any aspect of a state plan.”
States will be wary of cooperating with EPA under that kind of threat and having to endure that legal headache.