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Will new clean power regulations stand up to challenges?

President Obama laid out new regulations that reset emissions standards for power plants and call for 28 percent of U.S. power to be generated from renewable energy. States, industry groups and politicians pushed back, setting the stage for legal challenges. Gwen Ifill gets views from Environmental Protection Agency Administrator Gina McCarthy and West Virginia Attorney General Patrick Morrisey.

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    The president has made his climate change plans a major part of his second-term, legacy-making agenda. Today, he laid out new details about a key component of his strategy: regulating power plant emissions.

    But within moments of his speech, opponents within some industries and in many states were resisting the stricter standards.


    Today, after working with states and cities and power companies, the EPA is setting the first ever nationwide standards to end the limitless dumping of carbon pollution from power plants.



    With that, the president formally announced an even tougher clean power plan than expected.


    So, the idea of setting standards and cutting carbon pollution is not new. It's not radical. What is new is that starting today, Washington is starting to catch up with the vision of the rest of the country.


    The rule, to be implemented by the EPA, means power plants must cut carbon dioxide emissions 32 percent by 2030. That's from 2005 levels. Such a reduction would be up from a 30 percent cut in the original draft. The revised rule also calls for generating 28 percent of U.S. power from renewable energy, up from 22 percent.

    At the same time, it gives states extra time to begin reducing emissions. Industry groups and a number of states pushed back today, saying the rule will cost jobs and cause spikes in energy prices. And Senate Majority Leader Mitch McConnell, representing the coal state of Kentucky, promised to block the plan.

    SEN. MITCH MCCONNELL (R-KY), Majority Leader: It represents a triumph of blind ideology over sound policy and honest compassion. And in Kentucky, these regulations will likely mean fewer jobs, shuttered power plants, higher electricity costs for families and businesses. So, I'm not going to sit by while the White House takes aim at the lifeblood of our state's economy.


    Republican presidential candidates, including Jeb Bush, also rejected the EPA plan.

  • JEB BUSH, Republican Presidential Candidate:

    It's typical of the Obama administration, taking executive power he doesn't have. And I believe it's unconstitutional, and I think in a relatively short period of time, the courts will determine that as well.


    Democrats, including White House hopeful Hillary Clinton, generally support the plan. In a statement, she called it "a significant step forward in meeting the urgent threat of climate change." And she added: "It's a good plan. And, as president, I would defend it."

    Before the day was out, a major coal mining firm, Murray Energy Corporation, filed what's expected to be the first of many suits over the rule.

    For a closer look at the new rules, and how the administration plans to defend them, we turn first to EPA Administrator Gina McCarthy. I spoke with her a short time ago.

    Administrator McCarthy, welcome.

  • GINA MCCARTHY, Administrator, Environmental Protection Agency:

    Thank you, Gwen.


    The president said today this announcement, this plan is part of a longer, bigger, more sweeping global climate plan.

    But just talking about the U.S. portion of it, for some people, that sounds like their worst nightmare, that it's part of a bigger plan. And for some people, they say this is just the beginning. Why is it not too much overreaching?


    Well, I think you know, Gwen, we did tremendous outreach on this plan, and this clean power plan is really the biggest step forward we're taking to combat climate change, but also to protect our kids' future and the planet.

    It sets the first ever carbon pollution standards for our power sector, because they're the biggest generator of carbon pollution. And it's also going to make sure that we drive down other traditional air pollutants.

    But what we learned during that comment period was how we could do this smarter and smarter, how we could make it legally solid, how we can actually do this in a way that will keep our energy reliable and affordable, provide billions of dollars in benefits over the course of this rule. And it actually, in the end, will mean lower energy bills for families.

    So we think we hit the mark here. We did a lot of outreach. We think we did it right. And we know that states and utilities are going to be able to work with us to get their plans in and get the reductions that we really need to protect public health and get that big action you need globally.


    I want to circle back to you on several of the points you just made, but, first of all, you mentioned how many comments there were. There were four million public comments.




    And yet this president could promulgate this rule and the next president could never implement it.


    Actually, it doesn't quite work that way under the Clean Air Act. Congress gave the president the authority and EPA the responsibility to move forward with rules like this.

    But it actually isn't that easy to undo. It has a solid legal foundation, a strong record, and it will stay in place. And we're confident that because of all the work we did with the states that we are going to see them respond. We didn't just take comments. We listened to it. We made changes. They will see that.

    And I think everybody across the U.S. is beginning to realize that the worst thing we can do is the take no action on climate change.


    The president said today if we don't do it, nobody will, speaking of the world, the global impact here.

    We know China has taken some steps, but how do you know that the U.S. making this step will have any effect on other nations?


    Well, the one thing we know for sure is if the U.S. doesn't act and we don't lead, then we will not get action.

    So, we already saw when we put the proposal out that we had countries coming in, likely really whether the U.S. was finally going to provide the leadership that we always provide. And what the president recognized is that we could make a big leap forward. It would be good for us domestically. It will help grow the economy and jobs.

    These industries that we're supporting here are actually the industries where growth is happening, like solar and wind. So we are not taking away the benefits. We're actually adding benefits to the American public.

    But, immediately, there was response by other world economies and the largest to be able to meet and see how they could join. They know that the winner in this market globally that actually takes action on climate will have tremendous opportunities to actually have the technologies and the services that the rest of the world will want to see.

    So this isn't about a problem. This is about turning a problem into a tremendous economic opportunity for the U.S. domestically and internationally. Other countries will want to be part of that action.


    Domestically, is it also part of your intention to let the utilities ultimately take the lead on this, rather than government?


    Well, I think what happens in this particular part of the Clean Air Act is that we set a standard, the states do their plans.

    But we know that the states are sensitive to the needs of their utilities, and the utilities are going to have a part at the table. But this has broader stakeholder engagement that we started. And when they develop the plans, we expect states to have a robust table, because we don't want them to just reduce pollution. We want them to do it in a way that benefits their economy and in a way that keeps their lights on and keeps it affordable.

    They all can do it, every state. This is legally solid. This is sticking around. We think states will take it seriously, as will utilities.


    You keep mentioning affordability.

    If I'm a regular consumer of coal-fired electricity, I would be a little nervous about the fact that what you're proposing is actually going to cost in the short and the long term a little bit more.


    Well, we can show you how this works, but, in the interim between proposal and final, we got great comments.

    And we are turning this into real opportunities for trading across states. We know that, as a result of this rule, every single fuel will have a place at the table. Will there be as much coal as there used to be? No, there won't, because we're not driving coal up, we're driving carbon pollution down. But they will still be part of the energy mix, as will natural gas. That's still as valuable as it has been before.

    And we are going to drive more renewables into the market because frankly the market is actually rewarding renewables now. We see tremendous growth. And we're following that wave. My job is to reduce carbon pollution, not dictate the energy mix. And you will see everybody has a place at the table in 2030, just like they do today.


    Well, and, finally, how can you be so confident that this will withstand legal scrutiny? It's already in the courts.


    Well, one of the values of having all these comments is, I think everybody and their brother already told us what they thought was legally vulnerable.

    But we spent a lot of time talking to people. We have looked at this. We are very confident that it is legally solid. We did listen to comments. If people had a question about legal authority or whether we were technically correct, we have resolved those issues during that period.

    And we are confident that this is going to stand the test of time, but even more confident that people in this country are sick and tired of being worried about climate change and they want leadership. This president has provided that leadership. And now it's time to embrace it and to act together.


    EPA Administrator Gina McCarthy, thank you very much.


    Thank you, Gwen.


    Picking up on that last point, more than 20 states, mostly led by Republicans, are expected soon to file suit against the new rules.

    West Virginia is among those leading the group. The state is part of the heart of coal country and it still ranks coal among its largest employers, even as the number of jobs dwindle.

    Patrick Morrisey is the state's attorney general, and I spoke with him this afternoon.

    Welcome, Mr. Attorney General. We appreciate your joining us.

    The president says these tougher environmental standards are necessary not just to protect the next generation, but this one. How do you see them?

  • PATRICK MORRISEY, West Virginia Attorney General:

    Well, I think everyone supports policies that would promote clean air and clean water.

    But when you put something forth of this magnitude, it has to be legal, and this administration has probably gone further than any we have ever seen in terms of pushing forth a radical, illegal proposal, which we don't think ultimately will withstand scrutiny in the court.

    We really have to make sure that you do this the right way. And they're taking the Clean Air Act and EPA, which are environmental regulators, and they're turning them into central energy planners. That's not allowed under the statute and the Constitution, which is why we plan to challenge it.


    Well, all the reporting we have been reading this morning says that the administration has gone the extra mile in the last month or two to try to make sure that these new rules do comply with the law.


    Right. I think you are going to hear a lot of arguments about some of the changes they have made, but there are a couple unassailable facts.

    First, the Clean Air Act really prohibits double regulation of coal-fired power plants. They're already doing that in one context, which means they can't come back and do it in another. The second part which is really critical is that the EPA and the Clean Air Act, they're designed to regulate the coal-fired power plants. They can't force or try to incentivize states in order to put forth other forms of energy and to force states to no longer manage their energy portfolios.

    This is a real problem. They're on very thin legal ice. And I think that the statute is very clear. The federal government has a role to regulate power plants. The states typically manage their energy portfolios.


    Well, let me ask you about some of the substance of this. As of two years ago, it's my understanding that power plants around the country were responsible for 30 percent of all greenhouse gas emissions. That being the case, shouldn't they be targeted for significant cuts?


    Well, I think any time you talk about whether there is a policy goal to target a particular power plant, that's a debate that is really best left to Congress.

    I think that if Congress got together and decided what they wanted to regulate, they may be perfectly appropriate. That's not what's happened here. Right now, you have unelected bureaucrats that are reaching out to some really radical legal interpretations in order to have a sweeping transformation of the American economy.

    I think the American people deserve better than to just have a few bureaucrats try to come up with a creative new legal mechanism in order to do so much fundamental change. Let's have a real debate in Congress. Keep in mind, this has not been done through congressional action. This is done through the EPA.


    Well, let me — again, let me ask you about some of the substance here, Mr. Attorney General.

    You talked about it being drawn up, in your words, by radical bureaucrats. But, again, in looking at it, we know that it was — according to this plan, states can work in conjunction with others, in compliance, and, second of all, we know that power plant emissions have already dropped more than 15 percent over the last 10 years, which is, what, half of where they would have to be by — under this plan.

    So, you're already more than halfway there. Is this really as radical as what you're saying?


    I think it is for a number of reasons.

    First of all, I know, in my home state of West Virginia, there are so many jobs that have been lost. And, in addition, we're starting to see electricity prices go — and that's — go up. That's common sense because if you retire coal-fired power plants before baseline and build other non-coal-fired power plants, consumers, rate payers are going to have to pay the difference.

    But the other real problem with this is that, even if you agree with the policy goals of this president, what they're trying to do legally by taking the EPA, which has historically regulated environmental regulation and coal-fired power plants, and now they are innovating the state space.

    States traditionally manage their own energy portfolios. That's not what's happening here because the targets are so severe, it's going to be difficult for anyone to meet it. And the EPA lacks that authority in the first place.


    Are you saying though that if these same rules had been promulgated by Congress, that they would be acceptable to you and the state of West Virginia?


    No, I'm not saying that.

    What I'm saying is that, at a minimum, the American public deserves to have a robust debate and have Congress engage in this back and forth, as opposed to EPA, when it really lacks legal authority to do so. The American public insists that public officials adhere to the rule of law, and when you start going off and using really unprecedented legal arguments in order to justify your proposal, I think you start to lose some people.

    But let's have a debate in Congress.


    Well, didn't — just quickly to interrupt here at the end, didn't the Supreme Court, though, say that the EPA does have the authority to issue these kind of regulations?


    Well, in 2007, there was a case, Massachusetts v. EPA, where the Supreme Court arguably said that there is some availability with respect to carbon dioxide.

    However, you have to point to a specific provision in the statute. You can't just make it up. And what the administration has done here is not tethered to the statute. So, we think what they're doing here is clearly illegal. It's not appropriately tied back in to that Supreme Court decision.

    And that's why I think we feel good about our legal arguments and we have a growing coalition of states on a bipartisan basis, along with miners, and consumers, businesses, who know just how significant this rule is and how damaging it would be to our country.


    Patrick Morrisey, attorney general for the state of West Virginia, we thank you.


    Thank you very much.

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