Last week, during testimony by EPA Administrator Gina McCarthy, Senate Majority Leader Mitch McConnell raised a new argument against EPA's Clean Power Plan (CPP), claiming §102(c) of the Clean Air Act gives Congress the authority to veto EPA’s planned regulation. Since EPA’s authority comes from Congress, this provision—if the Senator is reading it correctly—would claw back some of that authority. However, §102(c) appears to do no such thing.
Specifically, §102(c) says:
“(c) Consent of Congress to compacts
The consent of the Congress is hereby given to two or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of the United States, for
(1) cooperative effort and mutual assistance for the prevention and control of air pollution and the enforcement of their respective laws relating thereto, and
(2) the establishment of such agencies, joint or otherwise, as they may deem desirable for making effective such agreements or compacts. No such agreement or compact shall be binding or obligatory upon any State a party thereto unless and until it has been approved by Congress.”
The basic role of this section is to avoid a constitutional problem. The Compacts Clause of the constitution prevents states from “enter[ing] into any agreement or compact with another state” without consent of Congress. In other words, the power to make treaties or other formal agreements with other sovereign governments (along with the power to keep peacetime armies and navies, or collect customs duties) is reserved to the federal government. But in the air pollution context, among many others, it can be helpful or even necessary for states to cooperate.
Air pollution does not respect state borders. §102(c)(1) therefore gives blanket Congressional consent for interstate agreements aimed at reducing air pollution and enforcing air pollution laws. Since the Clean Air Act grants states a great deal of implementation and enforcement authority, this consent is important. Without it, states making deals to reduce interstate pollution or harmonize regulations might be open to lawsuits. The Clean Power Plan is no exception—under the plan, EPA encourages states to write multistate plans for cutting CO2 emissions from their power plants, likely creating regional emissions trading markets. §102(c)(1) shields these agreements from constitutional challenge. In this sense, the provision McConnell points to helps the CPP, rather than hurts it, and gives away a power (congressional consent to compacts) that Congress would otherwise retain.
McConnell also looks to §102(c)(2), which says that no compacts “shall be binding” on states until approved by Congress. McConnell seems to think this undermines the CPP, saying that the language “"[d]oesn't seem ambivalent to me." However, it does no such thing. To be fair, the provision is a bit of a puzzle. What it seems to do is to require specific Congressional consent for any binding agreements among states. But if an agreement isn’t binding in the first place, it’s hard to see how it could be characterized as a “compact” that could run afoul of the Constitution. Maybe all §102(c)(2) does is require specific congressional consent for agreements that lack exit provisions. Alternatively, it might prevent EPA (without congressional consent) from requiring states to enter into compacts.
However, the CPP does not require states to cooperate—it merely allows and encourages it. States are free to submit individual plans, and the CPP will work fine, albeit somewhat less efficiently. The ability to create single-state plans is real, not a Hobson’s choice. In modeling the plan’s expected costs and benefits, EPA considered both single-state and regional approaches, indicating that it expects states to consider both options. The plan repeatedly emphasizes that the decision is up to states.
At most, §102(c) might give Congress the right to reject multistate plans under the CPP if those plans are “binding”. But that wouldn’t kill the CPP. In fact it would only make it more expensive, and anger states that had put work into developing regional approaches. Nothing in §102(c) gives Congress the power to review EPA’s rule before it takes effect. Of course, Congress doesn’t need §102(c) to have that power. The Congressional Review Act gives Congress 90 days to review any major rulemaking, and Congress could also simply pass new legislation removing or altering EPA’s authority under the Clean Air Act. Either action, however, would require Congress to overcome a presumed presidential veto. McConnell seems to read §102(c) as giving Congress a vote on the CPP, independent of the executive. It does not.
A side note on §102(c), which I confess I had not been familiar with until recently—legal scholars and a few political opponents have long wondered whether interstate climate programs like the Regional Greenhouse Gas Initiative (RGGI) in the northeast are violating the Compact Clause. RGGI was carefully crafted to avoid the issue, and it’s never been seriously litigated, but neither has it been resolved. California might face similar problems if it tries to link up with other states. §102(c)(1), however, seems to give blanket congressional consent for any such interstate agreement, eliminating the Compact Clause problem. It doesn’t matter that RGGI is enacted under state authority completely separate from the CAA—§102(c) applies to any agreements “for the prevention and control of air pollution”.
