No coal for you this Christmas

Don’t expect any coal in your stocking this Christmas. Not because you’ve been good this year, but because President Biden’s Environmental Protection Agency (EPA) wants to bankrupt coal companies and increase energy costs for everyone.

Americans are facing increased costs this holiday season. Gas, meat, shipping, automobiles — seemingly everything is more expensive today than this time last year. Economists report that the inflation rate is the highest in 40 years with no end in sight. Despite this, Biden’s EPA is backing a ruling that, if left standing, will increase the cost of energy by hundreds of billions of dollars.

A case is currently before the Supreme Court that will determine how far the EPA can go in dictating how the nation generates electricity. If the EPA gets its way, it will have unfettered authority to impose massive new compliance costs on fossil-fuel burning power plants (such as coal) to the point where most of these plants will have no choice but to shut down. The EPA tried to do this under the Obama administration, but the Supreme Court temporarily put a stop to it. Now, after a long legal battle, the case is back before the justices for a final decision.

In 2015, the Obama EPA issued a far-reaching environmental regulation that would radically transform the American power grid. The regulation, called the “Clean Power Plan,” places limits on the amount of greenhouse gases power plants can emit. Its implementation would have imposed hundreds of billions of dollars in energy costs on the public, driven coal generating power plants out of business and given the EPA unfettered authority to control almost anything that emits a greenhouse gas.

In an unprecedented action, the Supreme Court halted implementation of the plan before any lower court had ruled on its constitutionality. The likely reason is that EPA had gone far beyond its authority as Congress had not specifically directed the EPA to issue such a far-reaching rule. Recognizing these problems, President Trump’s EPA scrapped the plan and replaced it with a new regulation that better complied with the law.

The new Trump-era rule, however, was short lived. It was deemed improper by a federal appeals court earlier this year. In a wide-ranging decision, the appeals court ruled that the original rule (the Clean Power Plan) was valid and that Biden’s EPA could go forward remaking the electricity power grid. Curiously, the appeals court did not mention that the Supreme Court had previously halted implementation of the Clean Power Plan, nor was the appeals court swayed by claims that Congress never delegated authority to the EPA to unilaterally remake how the nation generates electricity.

Energy groups and conservatives argue that the Clean Power Plan amounts to what is known as a “major rule.” Regulations of this type are valid only when Congress – the body vested with law-making authority under the Constitution – specifically directs an administrative agency like the EPA to issue such a rule. As taught in high school civics class, Congress makes laws and the president – acting through his administrative agencies – enforces the law. If an agency wants to force a rule with enormous political and economic implications upon the American economy, it must have a clear directive and authorization from Congress.

And there can’t be any doubt that the Clean Power Plan amounts to a major rule. Experts predict the plan would impose costs of between $41 billion and $73 billion a year. Thousands of jobs in coal power generation would be lost and the EPA would have carte blanche to force coal-burning power plants to “generation shift” to non-fossil fuel sources for power.

Congress hasn’t given the EPA the authority to issue the Clean Power Plan. And under the all-important separation of powers doctrine, an administrative agency can only exercise that authority which is granted to it by Congress.

If the popular will exists to drive coal out of business, increase energy costs by hundreds of billions of dollars and cause thousands of workers to lose their jobs – all in the name of alleviating climate change – let that sentiment be expressed through Congress. Biden’s EPA cannot be allowed to trample the Constitution by imposing major regulations without any authority from Congress. Unfortunately, it’s left to the Supreme Court to clean up the mess.

Michael O’Neill is the assistant general counsel at Landmark Legal Foundation