Shortly after the new year begins, state legislatures throughout the country will swear in a new crop of politicians who will be decidedly more Republican than their predecessors.
The Republican sweep that handed control of the U.S. Senate to the GOP touched most every state in the country as the nation’s statehouses are even more firmly in Republican hands than they were before. Even in Pennsylvania, where voters booted out a Republican incumbent governor in favor of a Democrat, the GOP strengthened its grip on the House and Senate.
Many Republican-controlled legislatures have taken aim at the Environmental Protection Agency’s Clean Power Plan, which requires 49 states to reduce carbon pollution from power plants. The plan, which closed its open comment period earlier this month, requires each state to craft an implementation plan to meet the EPA’s reduction targets.
That process does not require legislative approval, but several legislative bodies are asking to be a part of the process. And many are turning to the Pennsylvania General Assembly — which pushed through a law earlier this year that gives the legislature a role in the process — as a model for how to craft their bills.
Pennsylvania as a model
The EPA’s Clean Power Plan requires each state that is home to a power plant that runs on fossil fuels — every state but Vermont — to meet pollution reduction targets by 2030. The EPA has until June to release its final version of the plan, and states have one year to craft a state implementation plan. If states do not create an implementation plan, the federal government will impose its own plan.
The plan assigns responsibility to the environmental regulatory agencies in each state. For Pennsylvania, that’s the Department of Environmental Protection.
But in June, shortly after the EPA announced its plan, state Rep. Pam Snyder, a Democrat who represents parts of Fayette, Greene and Washington counties, introduced legislation in the Pennsylvania House of Representatives that requires the DEP to seek legislative approval for any plan it puts together.
House Bill 2354 was passed by the House and Senate in June and approved by Gov. Tom Corbett in October, weeks before the Republican incumbent lost his reelection bid to Tom Wolf.
If the General Assembly disapproves of the DEP plan, the law prohibits the DEP from submitting it to the EPA without addressing those concerns.
The American Legislative Exchange Council, an Arlington, Va.-based nonprofit conservative organization that drafts model legislation for state legislatures, is using the Pennsylvania law as an outline for its sample legislation. The organization could adopt that bill as official Exchange Council policy at a meeting next month.
“Like any other policy measure, it does require a compromise and common ground,” said John Eick, the director of the organization’s Task Force on Energy, Environment and Agriculture.
“However, I believe that the Pennsylvania model is very reasonable. It does not give the legislature the power themselves to put together a state implementation plan. It’s merely a check on what the state environmental regulators decide to put together.”
State Rep. Greg Vitali, a Delaware County Democrat, said the law — known as Act No. 175 of 2014 — has the ability to impede the DEP in crafting a plan.
“The bill that was passed, it gives the legislature some ability to slow it down and politicize it a little bit,” Mr. Vitali said. “But at the end of the day, if you have people committed in the Wolf administration to get a good plan done, they’re going to do it.”
Aliya Haq, climate change special projects director for the New York-based Natural Resources Defense Council, said their interpretation of the Pennsylvania law allows the DEP to submit a state implementation plan without legislative approval. Ms. Haq said the DEP has to address the concerns of the legislature, but it ultimately can submit the plan without legislative approval.
Others in Pennsylvania disagree with this interpretation, notably Patrick Henderson, Gov. Corbett’s energy executive, who told E&E Publishing in an email that “in the absence of successfully winning approval from the General Assembly, there is no authority to submit a state plan to EPA.”
The Exchange Council model requires legislative approval before submission.
“The [Exchange Council] model is written in a way that the legislature could disapprove the plan forever,” Ms. Haq said. “That could create a real obstruction to the state agency working with the EPA. That’s problematic.”
The Exchange Council says elected officials from 32 states publicly opposed the EPA’s Clean Power Plan during the agency’s open comment period. But it is unlikely the EPA would reverse course before June.
That leaves states in a strange position — to enact regulations that they publicly oppose or do nothing and let the EPA impose its own rules on the state. It is a similar dilemma to what states faced when the Affordable Care Act came in effect and conservative state politicians let the federal government set up health exchanges in each state instead of crafting their own.
Mr. Eick doesn’t see it that way. He disagrees with the notion that the EPA plan gives states a lot of flexibility to craft regulations, but he said there is more flexibility than states would have if the EPA imposed specific regulations on a state-by-state basis.
“A state plan would be preferable to a federal plan,” he said.
But Ms. Haq said other organizations are trying to encourage states to ignore the EPA and force the federal government to do the work for them. That’s a concern for the NRDC.
Individual states have the best ideas for ways to reduce carbon emissions in their own backyard, she said. And she worries the EPA could become overburdened if it is required to craft implementation plans for numerous states.
“If enough states don’t submit plans, they might need to overhaul the proposal,” Ms. Haq said. “We want to see as many states as possible submit plans. We know some states will not, just based on politics. They won’t want to cooperate with EPA.”
It’s not just legislators who will be involved with the plan. Both Ms. Haq and Mr. Eick expect the courts to get involved as the EPA plan takes shape.
“This is a regulation where there’s going to be a great deal of litigation,” Mr. Eick said.
Michael Sanserino: firstname.lastname@example.org, 412-263-1969 and Twitter @msanserino.
An earlier version of this article misidentified state Rep. Pam Snyder’s party affiliation. She is a Democrat.