TOPEKA, Kan. (May 25, 2016) – Earlier this month, Kansas Gov. Sam Brownback signed a bill into law that halts state efforts to comply with the EPA Clean Power Plan, at least temporarily.

Senate Bill 318 (SB318) passed both houses of the Kansas legislature comfortably. It prohibits any state agency from engaging in activities relating to implementing the clean power plan until the Supreme Court lifts the stay it issued while it decides on a lawsuit brought by 24 states to block the EPA plan.

The bill would suspend all state agency activities, studies, and investigations that are in furtherance of the preparation of an initial submittal, or the evaluation of any options for the submission, of a final state plan pursuant to the U.S. Environmental Protection Agency (EPA) docket EPA-HQ-OAR-2013-0602, codified as 40 CFR part 60 (Clean Power Plan). The suspension of state agency activities would continue until the stay on the implementation of the Clean Power Plan is lifted.

The AP emphatically states that the state “will suspend all activities in support of the Clean Power Plan until that stay is lifted.” While that is the effect of this particular legislation, it doesn’t follow that the state absolutely has to resume implementation if the SCOTUS lifts the stay. The bottom line is the state has stopped it, and it could very well chose to continue to refuse to implement the Clean Power Plan if it ultimately loses the lawsuit.

In fact, that is exactly the strategy James Madison suggested to deal with “unwarrantable” federal acts – or even simply unpopular acts. He said “a refusal to cooperate with officers of the Union,” would create impediments and obstructions for the feds, and serve to check federal power.

The EPA has no constitutional authority to exist, much less regulate emission within the borders of a state. Even if the federal government was empowered to regulate air quality, (It isn’t) only Congress has the power to pass laws and make rules – not executive agencies. If the Court refuses to rein in EPA overreach, state refusal to cooperate remains a viable option to stop the unconstitutional mandates in their tracks.

Without state cooperation, there will be no Clean Power Plan.

Mike Maharrey

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