Republican gubernatorial candidate Matt Bevin says Kentucky will ignore federal carbon dioxide regulations if he wins this fall’s election, citing the federal government’s lack of authority to impose the rules.
But legal experts say that legal argument is baseless.
Bevin made the comments during a WFPL News Special Tuesday afternoon.
The Environmental Protection Agency’s Clean Power Plan was released this year and sets the nation’s first restrictions on carbon dioxide emissions from existing power plants.
Each state has an emissions reduction goal it will have to meet by 2030 (Kentucky’s rate-based goal is a 41 percent reduction from 2012 levels), and the EPA wants states to craft individual plans for meeting those goals. Carbon dioxide emissions could be reduced by retiring coal-fired power plants, increasing electricity generation by renewable sources, or increasing energy efficiency, among other ways.
Bevin has said in the past that if he’s governor, Kentucky won’t submit a state plan to comply with the regulations.
But on Tuesday, he elaborated, telling WFPL that the state would ignore the Clean Power Plan -- and any potential stricter plan the EPA might attempt to impose on the state.
“The EPA has no binding authority over the states. None whatsoever,” Bevin said. “There is no legal recourse they have over us.
“The 10th amendment is very clear; the responsibility of the federal government is spelled out in very specific form. And those powers not given to the federal government are the responsibility of the states and of the people. There is a sovereignty and autonomy to each state that if the governors of those states stood on, they would serve as the last line of defense against overreaching regulation.”
But Bevin’s position is one that experts say doesn’t hold legal water.
“Under the Clean Air Act, the federal government does have the authority to decide whether a state’s plan is adequate, and if it’s not adequate or they don’t submit one, the feds can act and that will become effective in the state,” said attorney Carolyn M. Brown.
Brown, a partner in the law firm Dinsmore & Shohl’s Lexington office, often represents industries and utility companies in environmental litigation.
Brown said the EPA regulating existing emissions sources under section 111(d) of the Clean Air Act isn’t new, and neither is giving states the option of crafting state plans to comply with federal regulations.
“So, I’m not sure what he meant exactly by ‘binding authority,’ but the federal government does have clear powers under section 111(d) to take action if the state does not act,” she said.
James Van Nostrand agrees. He’s an associate professor of law at West Virginia University.
“That’s a fundamental structure of the Clean Air Act is this cooperative federalism,” he said. “The feds set the standards and we give the states a chance to demonstrate how they’re going to achieve the standards within each state. And if you don’t, then the feds are going to step in.
"Because at the end of the day, a lot of these pollution issues cross state boundaries, so you can’t have one state saying ‘we’re not going to do it,’ because the downwind states bear the consequences.”
Both Brown and Van Nostrand say unless legal challenges to the rule are successful, Kentucky will have to cut carbon dioxide emissions. And ignoring the rule isn’t an option.
The other two gubernatorial candidates will be featured on upcoming WFPL News Specials; independent Drew Curtis this Thursday and Democrat Jack Conway on Oct. 9.
