Time to hand Wolf & his DEP their hats

Time to hand Wolf & his DEP their hats

The operative sentiment in the issuance of a temporary injunction halting the Wolf administration’s implementation of a rule requiring electric-generating plants powered by fossil fuels to pay for each ton of carbon dioxide released is as simple as it is jarring:

Commonwealth Court Judge Michael Wojcik reminded that implementation and enforcement of invalid rulemaking by the state Department of Environmental Protection (DEP) would cause greater harm if the rulemaking is determined to violate the Constitution or a statute.

“A violation of the law cannot benefit the public interest,” he found.


The commonwealth, which has done just that, has filed an appeal with the state Supreme Court.

Commonwealth Court will hear arguments in the case, brought by a consortium of coal- and gas-fired power plants, organized labor and Republican state legislators. They argue that the rule is an unauthorized tax. That is, a tax not enacted by the Legislature, as is required under the state Constitution, but by an executive branch agency.

And that, the judge found, raised a “substantial legal question.”

No kidding. In a quite clearly analogous case, the U.S. Supreme Court found that the federal EPA lacked any legislative warrant to essentially determine how electricity may or may not be generated.

What clearly is an unauthorized carbon tax – part of the dubious multi-state Regional Greenhouse Gas Initiative (RGGI) – would send electricity rates skyrocketing, force many power producers to go bankrupt and, by hook or by crook, force less-reliable “green” means of electricity production, further endangering the already fragile power grid.

State DEP projections that its carbon rules would lead to only a 2.4 percent and a 1.2 percent increase in wholesale and retail electricity rates, respectively, are considered laughable on their face and bureaucratic low-balling at its worst.

Sadly, there has been a very high, but hopefully short-lived, cost for the groups to challenge such lawlessness by “The State”:

Judge Wojcik is requiring the plaintiff power plants and labor unions to post a $100 million bond to compensate “The State” for any damages it might incur should the injunction be found unwarranted.

Of course, should “The State” be found to have acted unconstitutionally, it’s liability most likely will be a “you-can’t-do-that” slap on the wrist. Unless a court sanctions “The State” and orders it to pay damages. Of course, it would be taxpayers on the hook.

The growing “administrative state” thankfully now is being challenged at the state and national levels. The rule of law must be followed. And when the administrative state constantly violates the rule of law by free-lancing the legislative prerogative it does not have, it must be handed its hat.

Colin McNickle is communications and marketing director at the Allegheny Institute for Public Policy (cmcnickle@alleghenyinstitute.org).