U.S. Chamber Official on Obama Clean Power Plan: 'There Will Be Lawsuits'

Some new federal environmental regulations in the works, including those covering energy and water, could have significant implications for the relationship between the states and the federal government, as well as the executive and legislative branches of the federal government. That's the view of William L. Kovacs, the senior vice president for environment and regulatory affairs with the U.S. Chamber of Commerce. In an interview conducted on Sept. 10, Kovacs provided Michigan Capitol Confidential his perspective on these matters. The following are excerpts from that interview.

CapCon: What is the Chamber’s position regarding President Barack Obama’s Clean Energy Plan?

Kovacs: We will be litigating it. The issue before the courts will be whether or not the EPA has the authority under the Clean Air Act to go beyond the fence line and determine the fuel mix for individual states. It hasn’t had that authority in the past. In essence, what the EPA enacted is a cap-and-trade system with a renewable portfolio standard (which is a mandate).

CapCon: Would you say that we should expect to see a lot of lawsuits filed in regard to this issue and the various aspects of it?

Kovacs: There are going to be many lawsuits; there already have been some, and there will be a number of groups and entities joining the suits. This could include about 13 to 15 states. The lawsuits will still be going on after the current president has left office. Deciding the scope of the EPA’s authority is a very fundamental issue. It is not just the Clean Energy Plan; there are also the EPA ozone standards and the Waters of the U.S. plan, which would give the EPA authority over all water and all the land within 4,000 feet of it. In addition to the issue of the overreach involved, none of this would be cheap. The EPA would be allowed to dictate regulations while only paying 17 percent of the costs."

CapCon: What’s the U.S. Chamber’s position regarding renewable energy?

Kovacs: Generally we support renewable energy but believe the market should be the determining factor, not mandates. But what is really behind all of this are much, much bigger questions. These are questions that go back to the beginning of the republic. They pertain to federalism, the states and the federal government. It is about the relationship between two sovereigns: the states and the federal government. What happens when a federal agency begins saying it can determine what states do in a way that radically changes that relationship? If the EPA is allowed to cross the fence lines, take control of the water and land mass, it can really do anything. What it wants to do represents an incredible change.

CapCon: How did we get to this point?

Kovacs: I’ve just given a presentation on that, which was titled "Legislating without Congress." About 45 years ago Congress delegated enormous power to the EPA, and since then the courts have given deference to the agency’s increasingly aggressive rules even when the rules were being based on selected data and unreasonable assumptions. With Congress divided, it has continually failed to put a stop to what’s been happening. And what’s really happening is a shift in who really legislates in the United States. Article I of the Constitution states that all legislative power resides with the Congress, but what happens when Congress delegates its authority to an agency and then — because of being divided —can’t reclaim legislative control?

CapCon: Is the problem that Congress is divided or that Congress just refuses to do what’s needed?

Kovacs: It’s due to the divided state of our government and without Congress acting, absolutely nothing ever gets repealed. We still have environmental regulations that are based on what the situation was 45 years ago. Actually our air and water are a lot cleaner now than they were back in the 1960s and 1970s but there have been no adjustments that reflect those improvements.

CapCon: What (in addition to the lawsuits) ought to be done to get things back to the way it should be?

Kovacs: We have some recommendations. First, we need an accountability act to place at least some restraints on the EPA. Second, we need to streamline the permit process. It shouldn’t be allowed to go on and on for multiple years of complex and costly studies and reports. Also, the EPA shouldn’t be able to change the rules in the middle of the process. We should require that decisions on permitting be made within three years. Third, we need to address what are called "sue and settle" agreements. These occur when the agency accepts lawsuits from outside groups and ends up serving the demands of those groups instead of the public.