States Should Think Twice Before Refusing Any Response to EPA's Clean Power Rules
The Environmental Protection Agency’s (EPA’s) proposed rules for existing power plants play a central role in the Obama Administration’s plans for regulating greenhouse gas emissions to prevent climate change. The rules, technically known as the “Existing Source Performance Standards,” will require a major effort from many states to change their methods of producing electricity, disrupting the status quo in an area long the province of state public service commissions. Not surprisingly, the proposed rules generated an avalanche of comments to EPA ranging from full support to vehement opposition, with the commenters also staking out positions on various technical issues. Law firms are raising questions about the rules' validity and gearing up to take part in the inevitable litigation over them. The high-profile debate has led some critics of the rules to argue that states should oppose them by simply opting out of the entire regulatory process and refusing any response to the rules. The movement has even acquired a slogan: “Just Say No.” Some states have begun to embrace the "Just Say No" idea by considering legislation that, to varying degrees, would hobble the adoption of state plans complying with the upcoming regulations. The “Just Say No” slogan is pithy, and as an immediate political response, states may be tempted to follow its advice by taking legislative or executive action that prevents or hinders the state from responding to the upcoming rules. Before taking that step, however, states should carefully consider the consequences. If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages.
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