The Obama administration is offering states a bait-and-switch with its “Clean Power Plan” for power plant carbon dioxide emissions. Fortunately, the Kasich administration appears to be refusing the bait and fighting back against this federal power grab.

The Buckeye Institute was a leading voice on this issue, submitting comments to EPA soon after the proposed rule was released, and has continued to update followers with commentary on the regulation’s impact on power markets, low-income families, and the state economy. 

This unprecedented regulation allows states to either submit a state compliance plan of their own design or accept a federal plan. The bait is that a state-crafted compliance plan will ostensibly be less costly and more flexible to implement than the federal plan. However, once a state submits a plan it becomes a binding and enforceable agreement with the federal government. Worse, state plans would actually give EPA far more authority than federal law delegates to the agency.

To their credit, the Kasich administration is questioning the legality of this regulation. In fact, Attorney General Mike DeWine joined 15 other states in a direct challenge to the Clean Power Plan. Further, Director Craig Butler of Ohio’s state environmental agency stated that it would be “irresponsible” to begin complying with the regulation before the courts decide whether it is legal. Governor Kasich likewise declared, “I am just not convinced that all this regulatory imposition that would wreck a state like Ohio…is going to be held up in courts.”

Refusing to take the bait is clearly the right strategy. If Ohio submits a state plan, EPA has broad discretion to change it anyways. And Ohio can submit a state plan even after receiving a federal plan. The smart play is to wait until the courts decide on the rule’s legality before undertaking costly and irreversible compliance measures.

Ohio should learn from the EPA’s recent Mercury and Air Toxics (MATS) regulation: The Supreme Court ultimately vacated the rule, but this good news came too late—AEP alone had already spent $3.3 billion and shuttered 9 power plants (including 2 in Ohio) by that time. It would be foolish to repeat the same mistake with the Clean Power Plan.