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Constitution Check: Does the “Clean Power Plan” violate the Tenth Amendment?

January 28, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a debate over states’ rights and Obama administration’s ambitious efforts to protect the environment from carbon pollution.

A power plant


“The Clean Power plan raises serious federalism concerns.  It is well-established that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers….The states’ authority over the intrastate generation and consumption of energy is one of the most important functions traditionally associated with the police powers of the states….EPA’s interpretation of [the Clean Air Act] intrudes on that traditional state authority.  By arrogating to itself the authority to choose favored and disfavored industries in the domestic energy field, EPA undermines the states’ authority to independently assess the intrastate need for new power facilities, their economic feasability, and rates and services.”

 – Excerpt from a legal filing in the Supreme Court on January 26 by 29 states urging the Justices to block the Obama administration’s new Clean Power Plan that seeks to divert energy generation from plants fueled by coal and oil to plants powered by wind or solar, which EPA believes will benefit the environment by sharply reducing emissions of carbon dioxide.


It is a dominant theme of America’s modern history, at least since the New Deal days in the 1930s, that more and more government power continually shifts to the national government from the state governments.   In recent years, that has been true especially in the energy field, with the growth of a closely interconnected electric grid managed by very large regional operators under the eye of the Federal Energy Regulatory Commission.

The Supreme Court newly validated that trend in a decision just this week, upholding a federal plan to pay big factories and large retail stores – who normally get their power from state-regulated sources – for reducing their use of energy during peak demand periods.  That approach ties them much more closely to the federally regulated national electric grid and the wholesale energy market.

At the same that this shift has been occurring, however, the Supreme Court has been giving strong support to a new “federalism revolution,” a rediscovery of the states’ sovereign authority to manage their own affairs without federal superintendence or interference.

The court is well aware that the states had sovereign authority before the Union was ever formed in the 1790s.  They assumed that status after the break with England in 1776, and they retained a good deal of that sovereignty under the Constitution – and, indeed, saw it explicitly safeguarded by the Tenth Amendment – usually thought of as the “states’ rights” amendment.

The Tenth Amendment got short shrift during President Franklin Roosevelt’s New Deal, with the robust growth of national authority in overcoming the Great Depression.  But that amendment has gained new respect in the Justices’ revived effort in recent years to protect the dignity and stature of state governments.

Now, in another development this week in the nation’s energy sector, more than half of the states – 29 of them – have turned to the Supreme Court to protect them against what they are calling a new “power grab” by the federal Environmental Protection Agency.   A plea for states’ rights, for federalism, is a key part of a new challenge they have mounted to one of the Obama administration’s most ambitious efforts to protect the environment from carbon pollution.

EPA’s new initiative, which it calls the “Clean Power Plan,” is a program to steadily reduce the energy industry’s dependence of power plants that burn coal or oil as fuel, and to shift to the “cleaner” process of generating electricity by the wind or the sun.

To bring about that switch, EPA’s plan would set specific limits on carbon dioxide emissions from power plants, and it would impose on states the initial duty to fashion plans to meet those reductions.  If the states fail to do so, EPA has made clear it will step in and perform the task.

The 29 protesting states filed a federal court challenge against the new Power Plan right after it was unveiled by EPA last October.   The federal appeals court in Washington, D.C., has set a speeded-up schedule for reviewing the plan’s legality under the Clean Air Act, but that court has refused to put the plan on hold while that review goes forward.  The review would proceed well into the summer, it now appears, even under an expedited court schedule.

Arguing that the energy industry is already forced to begin making plans to obey the new Power Plan, including sizeable investments in new modes of electricity generation, the challenging states have turned to the Supreme Court to seek immediate relief.

They have laid before the Justices a fervent claim that the Clean Air Act does not even come close to authorizing EPA to adopt such a plan, with its “commandeering” of state governments as part of the implementation of the plan.

But they have sought to buttress that Clean Air Act argument with a sweeping claim based upon the Tenth Amendment concept of federalism, in the sense of protecting state prerogatives in areas that have traditionally been governed by state law and state regulatory rules.  The states contended that they are being coerced into becoming a part of the new enforcement approach, and that this intrudes on their fundamental sovereign power to regulate electricity generation and transmission inside each state’s borders.

The two arguments are each aimed at a key figure on the Supreme Court.  Justice Antonin Scalia has become one of the EPA’s strongest critics on the court, and has a strict view of that agency’s duty to stay within the limits of what Congress has assigned it to do.  Justice Anthony M. Kennedy is the strongest champion on the court of state sovereignty, and the federalism argument obviously is designed to stir concern about the Power Plan.

This dispute will unfold over the next week or so, as the court ponders whether to get involved at this stage, or to take no action to interfere with the Power Plan as it gets reviewed by the federal appeals court in Washington.   Sooner or later, though, the Justices themselves almost certainly will have to weigh in on the plan’s legality – if, of course, the plan survives the inauguration of a new president next January.

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