Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation's electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means…
The Clean Power Plan would set a carbon dioxide emission target for every state, and the EPA would command each state, within roughly a year, to come up with a package of laws to meet that target. If the agency approves the package, the state would then have to impose those laws on electric utilities and the public.
The agency would effectively dictate the energy mix used in each state and leave the state with essentially no choice in implementing its plan. But Supreme Court precedent settled over two decades ago in New York v. United States (1992) and reaffirmed by a 7-2 vote as recently as 2012 in NFIB v. Sebelius, the ObamaCare decision, holds that such federal commandeering of state governments defeats political accountability and violates principles of federalism that are basic to our constitutional order.
Even more fundamentally, the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation's electric generating system and power grid. It does not.