Abby L. Harvey
GHG Monitor
12/4/2015
The House this week approved two Congressional Review Act (CRA) resolutions disapproving of the Environmental Protection Agency’s carbon emissions standards for new and existing coal-fired power plants, sending the measures to President Barack Obama for an almost certain veto. The measures passed in the Senate on Nov. 17 and were met immediately with Statements of Administration Policy expressing that “if the President were presented with [the resolution], he would veto the bill.”
The regulations in question, drafted under Sections 111(b) and 111(d) of the Clean Air Act, were finalized Aug. 3 and have caused quite a bit of controversy. If these resolutions, one for each of the regulations, are voted into law and survive veto, they would nullify the EPA’s regulations.
Critics argued that the EPA exceeded its authority in promulgating the rules. The 111(b) regulation, the New Source Performance Standards (NSPS), requires the use of partial carbon capture and storage on all new-build coal-fired power plants. The 111(d) regulation for existing plants, the Clean Power Plan, sets state-specific carbon reduction targets and requires states to develop action plans to meet those goals.
The vote against the EPA regulations came as Obama met with other world leaders in Paris in hopes of striking a new global climate agreement at the 21st Conference of Parties (COP21) to the United Nations Framework Convention on Climate Change (UNFCCC). Several Republican lawmakers have suggested the resolutions will make clear to negotiators at COP21 the feelings of Congress on the climate issue.
“We decided explicitly to bring these resolutions to the floor as the climate change conference is taking place in Paris because we want the world to know that there are differences of opinion between the Congress and the president on this issue and on his clean energy plan,” Rep. Ed Whitfield (R-Ky.) said on the House floor during debate of the two resolutions.
Rep. Ted Yoho (R-Fla.) added that, “As we speak, nations across the world are meeting in Paris to discuss further restrictions on energy producers. As Americans, we do not bow to foreign pressure or influence. America needs to do what is best for America, especially when it is a foreign country that is putting out more than 50 percent of the carbon emitted into the atmosphere,” referencing China’s growing carbon emissions.
The CRA resolution disapproving of the 111(b) New Source Performance Standards passed by a vote of 235-188, with four Democrats – Reps. Brad Ashford (Neb.), Sanford Bishop (Ga.) Henry Cuellar (Texas), and Collin Peterson (Minn.) — breaking ranks to vote in favor of the resolution. Ten Republicans – Reps. Ryan Costello (Pa.), Carlos Curbelo (Fla.), Robert Dold (Ill.), Michael Fitzpatrick (Pa.), Chris Gibson (N.Y.), Richard Hanna (N.Y.), John Katko (N.Y.), Frank LoBiondo (N.J.), Patrick Meehan (Pa.), and Ileana Ros-Lehtinen (Fla.) — crossed the aisle to vote against the resolution.
The CRA resolution disapproving of the 111(d) Clean Power Plan regulation passed by a vote of 242-180. The same four Democrats – Ashford, Bishop, Cuellar, and Peterson – voted in favor of the resolution. Two Republicans – Dold and Hanna – voted against the resolution. “I voted against this Resolution because although this particular rule is deeply flawed, we should not tie our hands from promulgating responsible, market-based rules to reduce carbon emissions,” Hanna wrote in a statement explaining his vote.
Meanwhile, in Paris
At COP21, U.S. Special Envoy for Climate Change Todd Stern appeared unfazed by the news of the resolutions’ passage, telling reporters that “I don’t actually think that has much of an effect here, the congressional resolution. … I think it produces questions, so I have had countries ask me about it. But what I have said is that the Clean Power Plan rule is going to go forward. The Congress has passed resolutions under the law that allows Congress to disapprove of regs, but that will not ultimately prevail.”
Laurent Fabius, president of the COP, also gave the impression during a press briefing in Paris Wednesday that the votes against the EPA regulations didn’t carry much weight at the negotiations. “My sense is that that wasn’t a great surprise what happened,” he said. “We know the position that the Congress has, well at the least the position of many of the Republicans in Congress. … What matters is that that does not prevent things from moving forward because … this is a global cause.”
Resolutions Earn Nod of Approval From Interest Groups
Following the approval of the resolutions, a coalition of more than 180 interest groups and trade organizations voiced their support for congressional efforts to overturn the rules. “The rules finalized by the EPA are similar to the cap-and-trade scheme that failed to pass a Democratically controlled Congress in 2010 and are projected to raise electric prices for consumers and threaten grid reliability throughout the country. The resolutions are supported by organizations across the U.S. economy, including the Partnership for a Better Energy Future, a coalition representing numerous sectors,” according to a statement from the organizations, which included the American Coalition for Clean Coal Electricity, the U.S. Chamber of Commerce, and the Institute for 21st Century Energy.
North Dakota Begins Building Case Against NSPS
The EPA regulations are not just being challenged in Congress, but in the courts as well. Both regulations have been the subject of lawsuits since they were published in the Federal Register on Oct. 30.
North Dakota was the first entity to file suit against the EPA’s NSPS, and on Nov. 27 submitted its statement of issues to be raised to the U.S. Court of Appeals for the District of Columbia Circuit. The document presents a framework for the arguments the petitioners will make against the EPA regulations.
In the document, the state asserted that in mandating the use of CCS, EPA has based its regulation on technology that has not been adequately demonstrated, that the demonstration projects EPA used to conclude that the technology is demonstrated do not meet the necessary criteria under the Clean Air Act, that EPA abused its discretion by failing to create a separate subcategory for lignite coal in the final rule, that the rule creates an unconstitutional taking of property interests, and that the rule violates the Energy Policy Act of 2005.
The North Dakota suit has been merged with suits from 23 additional states, Murray Energy Corp., and the Energy & Environment Legal Institute.
West Virginia is leading a consolidated suit against the Clean Power Plan.The suit represents a group of 27 states, nearly 60 companies, and more than 25 trade organizations. A schedule has been approved requiring that initial submissions, such as a statement of issues and procedural motions, be submitted by Dec. 18.
