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Republicans Push Back Against States Seen as Too Pro-Regulation

GOP favors independence by state governments unless they don’t like a state’s decision

Chairman John Barrasso of Wyoming and ranking Democrat Tom Carper of Delaware talk before the Senate Committee on Environment and Public Works hears from acting EPA Administrator Andrew Wheeler in August. (Bill Clark/CQ Roll Call file photo)
Chairman John Barrasso of Wyoming and ranking Democrat Tom Carper of Delaware talk before the Senate Committee on Environment and Public Works hears from acting EPA Administrator Andrew Wheeler in August. (Bill Clark/CQ Roll Call file photo)

When acting EPA Administrator Andrew Wheeler appeared before the Senate Environment and Public Works Committee in early August, the energy and environment community was watching.

It was Wheeler’s first appearance since his predecessor, Scott Pruitt, resigned after months of ethical, spending and personnel scandals. Washington was eager to see how Wheeler would right the agency.

But when it came time for questions, Chairman John Barrasso, a Wyoming Republican, led off asking not about the Pruitt scandals or pending rules, but about Washington state’s use of Clean Water Act powers to block a coal export terminal construction permit.

“We can’t allow states to block the export of American energy,” Barrasso said.

His question underscored the incongruity between the GOP push for “cooperative federalism,” which favors more independence by state governments in applying federal rules, and how willingly Republicans have turned that idea upside down when they don’t like a state’s decision. Cooperative federalism is at the heart of how the Trump administration claims to approach its deregulatory agenda.

While it has helped state governments on some environmental fronts, such as giving them increased oversight of coal ash disposal sites or permits for fill and dredge materials, Barrasso and other Western coal-state lawmakers believe it should be used selectively to overcome what they see as “abuses” of the authorities granted to states by the Clean Water Act.

Environmental civil war

The GOP’s inconsistencies are exacerbating red state/blue state policy fights. In the case of Washington’s denial of the coal export terminal — a project that would help move Wyoming, Montana and Utah coal exports to developing Asian markets — Republicans argue that some states are going beyond their responsibilities under section 401 of the Clean Water Act to limit reviews of such projects to their effects on the local water supply.

They say some blue states, such as Washington, are using the review as a roundabout way to address climate-warming greenhouse gas emissions from major fossil fuel infrastructure projects.

New York has invoked similar water quality and greenhouse gas emission concerns to prevent the build out of natural gas pipelines as industry looks to move fuel from the Marcellus Shale formation in Pennsylvania to natural gas-hungry New England. A bottleneck of infrastructure has resulted in dramatic price spikes during especially cold winters.

The nation needs to decide, said Energy Secretary Rick Perry at a June 28 World Gas Conference panel, “is that a national security issue that outweighs the political concerns in Albany, New York?”

Barrasso, along with Republican Sens. Shelley Moore Capito of West Virginia, James M. Inhofe of Oklahoma and Steve Daines of Montana, introduced legislation that would limit state Clean Water Act discharge review authority. Those same senators also have advanced legislation to overhaul the Endangered Species Act with more state control — a cooperative federalism whiplash for some observers.

“We find it so very easy to suggest that states know best how to manage the resources in their states — whether it’s public lands or the critters that live there,” says Sen. Thomas R. Carper of Delaware, the top Democrat on the Environment and Public Works Committee. “Why is it, then, appropriate and acceptable for us to basically say to states in this context, ‘You really don’t know best. We do. And this is what you’re going to do.’”

Those same sentiments were echoed by the Western Governors Association and other state environmental regulation groups like the Association of Clean Water Administrators and the Association of Fish and Wildlife Agencies, among others. In an Aug. 9 letter to House and Senate leaders, they warned that a rollback of those Clean Water Act responsibilities would upset the cooperative federalism balance outlined in the law.

“Curtailing or reducing state authority or the vital role of states in maintaining water quality within their boundaries would inflict serious harm to the division of state and federal authorities established under the Constitution and recognized by Congress in the CWA,” the groups warned.

A 50-state solution

Those type of pressures also extend to the administration’s efforts to take away California’s authority to impose fuel efficiency requirements for light-duty vehicles, with standards higher than those imposed by the federal government.

California has historically been granted the authority under the Clean Air Act because of extraordinary circumstances that uniquely plague the state — chief among them a smog problem that made it the poster child for poor air quality in the 1960s and 1970s.

But as the Trump administration looks to freeze the fuel efficiency requirements and nullify more ambitious standards set in the final days of the Obama administration, the EPA and Department of Transportation have proposed revoking state authority to ensure a nationwide standard.

“It’s my goal, it’s the administration’s goal to come up with the 50-state solution,” Wheeler told the Environment and Public Works Committee. “And we want to have a 50-state solution that does not necessitate pre-empting California.”

Asked if the Trump administration’s stance on the California waiver represented an inconsistency with the rest of the EPA agenda, Rhode Island Democratic Sen. Sheldon Whitehouse offered a sarcastic laugh.

“I don’t know what else there is to say beyond that visceral body reaction to that question,” Whitehouse said.

Republicans have argued that California’s more stringent fuel economy requirements became a de facto national regulation for the country because so many vehicles are sold there. That has consequences for the rest of the country, Inhofe argues.

“The last administration handed over car emissions standards to California, but other states didn’t get to weigh in,” says Inhofe, criticizing the Obama administration for granting an emissions waiver that past administrations also issued to California. “Because of this, Oklahomans are paying more for their SUVs and trucks to subsidize electric cars of California drivers who can afford them, which I find personally offensive.”

Energy intervention

The GOP’s two-sided cooperative federalism coin also turned up in the Trump administration’s effort to alter electric markets to prop up financially struggling coal power plants.

In August, the EPA proposed a sweeping rollback of the Obama administration’s signature climate change regulation, the Clean Power Plan, which aimed to curb carbon emissions from the power sector. The 2015 regulation directed states to devise plans to cut carbon emissions from existing coal-powered electricity plants and other high carbon-emitting energy sources.

Republicans argued the change was needed to rectify overreach by the EPA into how states manage and produce their electricity. In its place, the agency proposed a new plan that prioritized increasing coal efficiency and gave the states more say over how much — or how little — carbon emissions would be reduced in their borders.

Rep. John Shimkus, an Illinois Republican who chairs the Energy and Commerce Environment Subcommittee, deemed the new carbon strategy a “return to the principles of cooperative federalism that have successfully and impressively reduced air pollution for decades” and move away from “burdensome, top-down mandates on the states.”

At the same time, the Department of Energy is readying a proposal to prop up coal and nuclear power plants that are struggling in the face of competition from lower-cost natural gas and renewable energy sources. Citing national security concerns, the measure would mark one of the largest intrusions into electric markets in the 21st century.

Those markets have traditionally been left up to states and regional grid operators to oversee, as different parts of the country have different energy resources and needs. That setup has largely worked, with electric prices decreasing over time to the point where coal and nuclear are struggling to compete with cheap natural gas and renewables.

“This is nonsensical policy,” says Sen. Maria Cantwell of Washington, the top Democrat on the Energy and Natural Resources Committee.

“Obviously, coal is being challenged by natural gas and other sources of energy, so the fact that they are trying to prop it up by charging consumers more for it is just a bad idea and hurts the economy,” Cantwell says.

“Trust me, coming from a state where cheap electricity has built our economy over and over again, making Midwest economies pay more for this is just the wrong idea,” she adds.

Watch: Markey Challenges New EPA Chief on Pollution Rules

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