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Cleaner air? Don't hold your breath

The Valley Falls Vindicator of Valley Falls, Kansas

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At The Rail by Martin Hawver

OK, we all want clean air for our family, friends, pets to breathe.

That's the bottom line... but getting there — at least as it relates to federal rules for electric generating plants — is pretty tricky, and at some point, well, the path doesn't sound like the way we do things in the United States.

The Kansas Attorney General's office probably wants to breathe clean air too, but is challenging just how the Environmental Protection Agency is going about forcing states to order that the coal-fired power plants in their states be cleaned up. Now, those were pretty cool power plants when they were built decades ago, when the real issue was probably more about smoke coming out of the stacks than carbon dioxide.

But we've learned more about what's in the smoke that comes out of those stacks. The EPA is about to publish rules on how much carbon dioxide is allowed, and those rules are going to require either massive upgrades to those plants or changes in fuels for them or that the plants just be shut down.

Now, most of us would figure that there's a federal law that sets those emissions, or at least specific authority for the EPA to come up with rules that, well, have the effect of law.

That's not the case now, and Kansas and about a dozen other states are challenging the specific authority for the EPA to order states to clean up their power plants, essentially to reorganize and rebuild a tremendous part of the state's power infrastructure.

Oh, and don't forget, that the guys who sell coal to those power plants don't want the EPA messing with their business. They obviously don't want to have to shift down to economy cars and "staycations" if their coal is virtually useless in the generation of electricity.

The simple solution, of course, is for Congress to pass a law that essentially gives the EPA the authority to demand cleaner power plant emissions and to eventually shift the U.S. electric industry to burning natural gas or using nuclear power or windmills or those solar energy plates.

Well, that's not going to happen anytime soon, so the EPA is relying for its authority on some settlement agreements that it has met with some utilities, figuring that if the utilities which were sued by the EPA caved in, that cave-in constitutes the new standards that the EPA can impose on the nation.

Not quite black-and-white law, but the concept is that if that EPA agreement is good enough for the folks that the agency settled with, it ought to be good enough for everyone else generating electricity or there would have been no settlement.

The Attorney General's office calls it "sue and settle. "That means, the state asserts, that those lawsuit settlements are being used as the basis for rules and regulations on emissions rather than actual law...or even specific authority for the EPA to make and enforce rules relating to power plant emissions.

A few Kansas legislators don't want the EPA messing with Kansas power production and have lined up behind the attorney general in opposing those rules. That appears to work as long as the electricity produced in Kansas by any means isn't moved across a state line and into interstate commerce.

Eventually, be assured, the generation of electricity is going to be cleaner, but the EPA rules would speed things up, and those coal power plants and the folks who sell coal for those power plants aren't ready for that to happen yet...maybe until they are out of coal to sell.

Lots of technical legal dueling going on, and it would be simpler if there was just a federal law that says what the EPA can do.

But we're not sure whether we can hold our breath until the issue plays out in the courts or Congress steps in, or the old coal plants just wear out.

Syndicated by Hawver News Company LLC of Topeka; Martin Hawver is publisher of Hawver's Capitol Report — to learn more about this statewide political news service, visit the website at

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Original Publication Date: October 8, 2015

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