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Detroit News op-ed: New EPA power plant rules may fail legal test

The following guest column was printed by the Detroit News on Feb. 14, 2016. The piece can also be read online at the Detroit News.


Shirkey: New EPA power plant rules may fail legal test

Last year the federal Environmental Protection Agency announced President Barack Obama’s Clean Power Plan, an administrative end-around that bypasses Congress and requires power plants across the nation to comply with unprecedented reductions in carbon emissions.

I’m among those who do not believe the EPA has the power to require the states to do this. For many reasons it would be unwise for Michigan to bow to the federal government and submit a plan that would rubber-stamp and validate such overreach.

In response, state legislation was introduced that would allow Michigan to review any state carbon plan before it was submitted to the EPA. Senate Bill 465 would also require the Michigan Department of Environmental Quality to first provide the Legislature with a report on the impact of complying with the new federal rules, and to look fully at plan costs, benefits and impacts on residents’ electric rates. Under some scenarios, the state would simply not comply with the federal rules.

Fast forward to the present: Last week, the U.S. Supreme Court indirectly signaled it agrees with the position of the states, putting the president’s plan on hold while litigation challenging the plan is ongoing.

I applaud the Supreme Court’s decision. We need to ensure we carefully examine all potential energy options before we head down a path dictated to us by the federal government.

It is also important to note that when the framers of the Michigan Constitution met as delegates at the 1962 Constitutional Convention, they laid out a series of definitive steps to provide express authority to the legislative branch to be responsible for regulating forms of energy and to address these types of emission-related issues. This fully recognizes that Michigan legislation should not simply mirror federal law nor allow for administrative agencies to unilaterally take such actions.

The Supreme Court’s stay is in agreement with these principles in Michigan’s Constitution. There are both legal and procedural flaws in the proposed Clean Power Plan that the court saw through. This reaffirms one of the principal roles of our judicial branch, to halt an overreach by bureaucratic rules that attempt to sidestep the law.

Michigan must also learn from its past. We’ve gone partway down this path before, when going along with an overly aggressive EPA mercury rule that failed to factor in the extent to which such an edict would raise electric bills. While we ultimately did win that court case, it was unfortunately a false victory won too late, as plants had already been closed prematurely and jobs were lost while the lawsuit was ongoing.

We should not repeat the same mistake. Shuttering power plants, increasing utility bills and laying people off: This is what happens when we act prematurely, before a final determination on an unreasonable federal dictate has been made.

By granting the stay, the Supreme Court is sending a strong signal that the president’s plan may not withstand scrutiny. At this point, radically changing Michigan’s energy policy is not a prudent move considering the court’s decision. SB 465 is a reasonable measure that protects Michigan’s ratepayers.

State Sen. Mike Shirkey is a Clarklake Republican and on the Senate Energy and Technology Committee.