Karen Frantz
GHG Monitor
1/31/2014
An effort by Congressional Republicans, led by Senate Minority Leader Mitch McConnell (Ky.), to stop President Obama’s draft rule limiting greenhouse gas emissions from new power plants by using a novel application of an infrequently invoked legislative tool faces major hurdles, League of Conservation Voters President Gene Karpinski said late last week. McConnell announced earlier this month that he and about 40 other Republicans intend to file a resolution of disapproval of the draft rule under the Congressional Review Act, which allows Congress to overrule regulations by a simple majority vote, but Karpinski said in a call with reporters that the act is only intended to apply to finalized rules. “Every legal opinion I’ve seen suggests it’s not possible to do this preemptive vote,” Karpinski said. “The CRA was specifically designed … to allow a majority vote when a rule is final, and this is nowhere near that. The rule on existing plants is nowhere near final. So it’s an interesting political play on his part.”
McConnell acknowledged that resolutions filed under CRA have traditionally applied only to finalized rules in a Jan. 16 letter sent the Government Accountability Office, which asked Comptroller General Gene Dodaro to review and determine Congress’s authority to take up the resolution. But McConnell also argued in the letter that the EPA rule is a unique case in that it has an immediate impact. “EPA issued the proposed GHG rule under a very unusual provision of the Clean Air Act (CAA) that gives immediate legal effect to the notice of proposed rulemaking,” the letter said. “Ordinarily, the publication of a proposed rule by EPA (or any other agency) does not have any immediate legal impact and is only the first public step in a process that may or may not be finalized. However, the proposed GHG rule was issued under Section 111(b) of the CCA, which contains a highly unusual ‘applicability’ provision. Any power plant whose construction is commenced ‘after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance … which will be applicable to such source’ is considered to be a ‘new source’ subject to that standard. … Thus the proposed GHG rule immediately changes the legal landscape for anyone seeking to develop a fossil fuel power plant. Any company that commences construction on a new power plant after publication of the proposed GHG rule will have to comply with GHG limits that did not apply before that time.”
A GAO spokesperson told GHG Monitor that the agency had received the letter and no decisions had been made yet. But Karpinksi said that even if a resolution is allowed to proceed, it would be unlikely to get the votes necessary to pass Congress, where he said there is “an emerging block of senators and House members who consistently are elevating this climate conversation,” pointing to legislators such as Rep. Henry Waxman (D-Calif.), Sen. Sheldon Whitehouse (D-R.I.), and Sen. Barbara Boxer (D-Calif.) who often speak out about issues of climate change. “So we’re confident that the McConnell ploy will not see the light of day,” Karpinski said. “There will likely be a vote when these rules are final, whenever that happens, but that’s not anytime in the immediate near future.”
