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Obama's climate change goals face uphill legal battles
A Cleveland lawyer says the legal battles over the EPA's Clean Power Plan is symptomatic of the country's dysfunctional approach to environmental policy

Reporter / Host
Jeff St. Clair
Joe Koncelik is a Cleveland attorney and former head of the Ohio EPA under Republican Gov. Bob Taft. He says sweeping new EPA regulations may be on shaky legal ground.
Courtesy of Jeff St.Clair
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President Obama spent this week pointing out the realities of climate change in Alaska. 

This summer his administration issued a slew of sweeping new environmental regulations.

Ohio immediately joined a lawsuit fighting carbon reduction rules known as the Clean Power Plan.  And more lawsuits are likely.

Joe Koncelik is a Cleveland attorney and former head of the Ohio EPA under Republican Gov. Bob Taft.

He says the new environmental policies will take years to litigate.

LISTEN: Jeff St.Clair talks with attorney Joe Kocelik

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New EPA rules will have tremendous impact
“There’s no doubt that in the last year we’ve seen significant rules come out,” says Koncelik, “whether its new rules regulating wetlands, the clean power plan on climate change, new ozone standard, mercury emissions from power plants.”

“All of those have been through rule making efforts based on statutes that have not been changed in at least 25 years,” he says, “and there’s a lot of very broad and vague language that the US EPA hinges its authority upon.”

“And immediately when the regulation comes out,” says Koncelik, “the lawsuits ensue and drag on for years.”

And that creates tremendous uncertainty for the business community.

“Businesses don’t know whether a rule is going to survive a legal challenge or the extent of EPA’s authority,” and more importantly says Koncelik, “Congress has not truly weighed-in in terms of what we think as a country we should be doing to address these very significant issues.”

Clean Power Plan's shaky legal ground
What is the legal basis for the rules, and the legal basis for the challenge Ohio and other states have mounted to them?

“The legal authority that the EPA is relying upon is one section of the Clean Air Act, says Koncelik.

The legal debate is whether section 111d allows the EPA to only establish technology and control requirements within the fence line of a plant, or whether it gives much broader authority.

The EPA argues that under the Clean Power Plan, it has the authority to set sweeping standards for overall performance of utilities in all the states.

And that’s why Ohio and other states have sued, ”because they’ve said this is far beyond what Congress ever envisioned the Clean Air Act to encompass.”

Massive changes ... if it survives
Koncelik says the President’s Clean Power Plan forces states to switch power sources from coal to natural gas and renewable energy in order the meet greenhouse gas reduction goals.

He says, “it’s a massive change for these states to do in a relatively short time.”

The Clean Power Plan seeks to cut carbon dioxide output by 32 percent by 2030, which seems way off, says Koncelik.

“Fifteen years to make a massive change to your portfolio in terms of what power you’re relying on is hugely significant for these states,” he says, “and it’s going to be a massive challenge for them to meet.”

Koncelik says Congress has not made a significant change to any environmental regulation for 25 years, “so you have an EPA that tries to shoe-horn an issue like climate change into a statute that was not created or envisioned to deal with that issue.”

He acknowledges that the Supreme Court has twice ruled that the Clean Air Act is written broadly enough to regulate greenhouse gases and deal with climate change.  But, he says, “just because the authority is there that in 1990 when this issue was in its infancy that Congress envisioned and created the structure to deal with it.”

Energy policy through the courts, instead of Congress
“The courts are not the ideal place to be sorting out your environmental policy or your energy policies,” says Koncelik.

Koncelik has the admittedly utopian view that Congress should decide these environmental issues.  But he acknowledges that in today’s dysfunctional political system a reasonable compromise from happening.

“So,” he says, “the EPA is forced to act and when they act they do things that are questionable and vague because you’re dealing with laws that are outdated and technology that is radically different than the 80’s.”

“That’s what we’re left with as a country,” says Koncelik, “and until we have real compromise and real discussion, what we’re going to end-up with is regulatory uncertainty which is not good for the economy.”
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