Originally posted in Forbes/Opinion

23 Dec 2014 | By Stephen Heins

The world of energy (oil, pipelines, OPEC, fracking, gasoline prices, peak oil, tar sands and natural gas, to mention the most overly discussed) has entered a new phase, while reasserting its place in the world headlines. In the meantime, another very important American energy story—electricity for the present and future of America and its electrical grid—has been pushed to the back pages of the news. All but lost is the fact that the EPA will take direct control of U.S. energy and environmental policy in June 2015.

This is surely an historical mistake, especially now that we have two contradictory legal clocks ticking at the same time: The enforcement of the new EPA environmental rulings of 2014 called 111(d) which the EPA will begin implementing in June 2015; and the Supreme Court which will be deciding whether the EPA has the constitutional right to enforce the 111d ruling it has formulated without any state or national mandate by June 2015. This is particularly important now that Professor Laurence Tribe—professor of constitutional law at Harvard University—has filed a 36-page refutation of the EPA’s constitutional right to make new rules. As he puts it, “It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority.”

As a backdrop, here is the history of utility regulation in the U.S.:

    • For legal precedent, the states have been responsible for regulating their own reliable and environmentally safe electricity through Public Utility Commissions and have regulated power plants for the last 125 years. It remains the same to this day, without exception.
    • The 50 separate Public Utility Commissions (and their National Association of Regulatory Utility Commissioners) have been responsible for working with state governments, power plant operators, business community, state environmental groups, consumer groups and transmission companies to provide the electricity to power the largest economy in the world. For example, 47 states have demand-side energy efficiency projects, all with measurable results; 38 states have Renewable Portfolio Standards (RPS); 10 states have voluntary market-based Green House Gas (GHG) emission trading programs; and numerous large individual companies have been pursuing voluntary emission reduction strategies.

To further complicate matters, the media has become quite divided and partisan in its reporting of energy and environmental issues. While the new EPA ruling would shutter approximately 100 of the existing 500 coal burning power plants in 30 states, there are 1,200 500-Megawatt power plants under construction or planned in the rest of the world including China, India, Germany and Japan.

Impartial studies and reliable statistics are much harder to find and predicting the world’s future is impossible. This makes the most recent International Panel on Climate Change report (November 2014) worrisome because it is predicting 85 years into the future, while not even addressing the “pause” in global warming over the 15 last years.

On the national environmental front, the reduction of methane emission has been 16.9% since 1990, according to the EPA, and carbon emission levels have fallen to the lowest level per capita since 1961. Overall reductions have been 12.9% in the last 5 years. And as for global warming—there has been no measurable increase in temperature over the last 15 years or so.

Also, the updated November 26 EPA proposal of 626 pages, plus a 575 page appendix, now includes the EPA’s projected health benefits. It hypothesizes that the EPA’s plan will prevent 2,000 to 6,600 premature deaths, 140,000 to 150,000 asthma attacks in children, 2,700 to 2,000 hospital admissions and 470,000 to 490,000 missed school and work days. That is simply scientific conjecture.

It can easily be said that the current divisions of labor and legal responsibility in states, state legislatures and their Public Utility Commissions have created the most efficient mechanism for electricity in the world; the U.S. can continue to pursue economic development, energy independence and environmental safety. All without federal regulatory mandates.

If and only if the EPA’s 111d is ruled constitutional by the Supreme Court, may I make a modest proposal? The EPA should postpone their implementation of 111d  for another year until at least June 2016—or more properly until after the 2016 election—so that the reliable electricity communities including power plants, transmission companies, state regulators, investors, state and federal legislatures can properly do their duties.