EPA lacks authority on Clean Power Plan

By Adam Paul Laxalt

Sunday, March 20, 2016 | 2 a.m.

On March 10, Democratic state Sen. Pat Spearman wrote in the Sun that the Office of the Attorney General, where I serve, defied “bipartisan” hopes for Nevada’s clean-energy future by filing a friend-of-the-court brief in the Clean Power Plan lawsuit. This lawsuit challenges the U.S. Environmental Protection Agency’s ambition to permanently displace Nevada as primary regulator of its energy policy. I would have thought my action served the most essential bipartisan position of all: that Nevadans, under the principles of federalism, should control their own destiny.

Dozens of states sued the EPA for fear that its rule could spike electricity rates by double-digit percentages and foist on consumers more than

$79 billion in new costs. But my brief on Nevada’s behalf addressed a different issue: the constitutional one. The EPA simply has no legal authority to do what it schemes to do. The EPA’s administrator even admitted to Congress that the rule is less about “pollution control” than a federal-driven “investment opportunity” in renewables and clean energy.

Spearman may welcome this partisan and hostile takeover of Nevada environmental policy, but a majority of both the House and the Senate, as well as two-thirds of Nevada’s federal delegation, disagree with the EPA’s approach and policy.

Spearman seems to believe this unprecedented approach by a federal agency is in our best interests. But I say it is never in Nevada’s interest for a representative of the people to willingly hand over his or her representation, perhaps for good, to a federal agency. The EPA’s position may align with ours today, but what about tomorrow, when it’s too late to get back the authority we so shortsightedly gave up? And don’t we have a duty to guard that power for future legislators?

She also incorrectly asserts that Nevada’s friend-of-the-court brief could “slow down our transition to a clean-energy future.” Nothing could be further from the truth; in fact, my friend-of-the-court brief argues that Nevada, not the federal government, should decide what its clean-energy future should look like. Spearman would have unelected bureaucrats decide energy policy by fiat and let Nevada serve at the whim of whatever administration, Democratic or Republican, is in power. The brief filed by my office is designed to reserve, for Nevada, power to do what our people direct, guided by our interests. We will always have our prosperity closer to heart than a bureaucrat 2,500 miles away. Spearman misses this point.

Two other things are particularly disconcerting about Spearman’s op-ed. The first is that the U.S. Supreme Court already froze the EPA rule — two weeks ago. This was the first time the court ever intervened to stop a regulation so early in litigation. Obviously I’m not the only one to suspect the illegality of the EPA’s actions. It is equally obvious that Spearman, not me, is the one playing politics. Two weeks after the high court acts, she accuses me of offering my opinion for “ideological” purposes. No, the state is fighting to preserve Nevada’s authority — and that decision has been vindicated so far; in fact, it’s way ahead of schedule.

Ironically, Spearman all but concedes that Nevada can act effectively without the blessing of the federal government. She says clean energy is “already paying off for Nevada” and that our initiatives here, begun five years ago, have yielded billions in investments and great jobs. Then don’t we know for fact that a new EPA rule, that has not yet taken effect, had nothing to do with these successes? The answer is manifestly clear.

My job is to enforce the law. My friend-of-the-court brief filed in this case was crucial to resist a dangerous power grab by an unelected federal agency in Washington, D.C. — an assault on the separation of powers and on federalism. Whether the EPA’s rule is a good idea or not is irrelevant to my legal argument; to me, what matters is safeguarding Nevada’s sovereignty over our energy policy. If “clean energy” benefits Nevada, as Spearman suggests, Nevada can embrace clean energy. But no Nevadan should ever sacrifice the rule of law, and our state’s constitutional power, to the latest policy initiative by unelected and distant bureaucrats.

Adam Paul Laxalt is Nevada’s attorney general.