Capitol Hill Republicans will use President Obama's flagship carbon dioxide rule for target practice this week, as the House considers two bills on the floor that would prevent U.S. EPA from implementing its Clean Power Plan while the Senate and House each holds a hearing to highlight its costs.

The House will vote this week on a bill by Rep. Ed Whitfield (R-Ky.) that would allow states to defer compliance with the existing power plant rule or opt out of it altogether. The measure, H.R. 2042, would give all states a reprieve from writing implementation plans -- which would be due to EPA beginning next year -- until judicial review has concluded. It is scheduled to hit the floor Wednesday.

Even after the courts weigh in, state governors can choose not to comply with the rule citing a variety of economic concerns under the Whitfield measure, with EPA prevented from stepping in with a state implementation plan in either case.

Still, Whitfield, who leads a key House Energy and Commerce subcommittee, said at a markup in April that his bill was not aimed at killing the EPA rule. Rather, it is an attempt to save states the trouble and expense of complying with it before it meets what critics predict will be its demise in the courts.


"We're simply saying it's so outside the bounds of expectations that we should allow the courts to render a decision before states are put in this position," the Energy and Power Subcommittee chairman said.

It is clear that the rule will not just have its day in court, but could be tied up in the legal system for years.

Energy companies and 12 states have already launched a pre-emptive strike against the draft, previewing many of the same arguments that will likely figure in subsequent challenges when the rule is final later this summer (Greenwire, June 9).

The crux of the challenge headed by Murray Energy Corp. and West Virginia -- which was dismissed by the courts as premature because the rule has not been finalized -- is whether EPA has the statutory authority to regulate power plant greenhouse gas emissions under one section of the Clean Air Act when it is already controlling mercury from the same sources under a different section of the law. A discrepancy in the statutory language casts doubt on the agency's authority to do both, and that argument is likely to resurface after the rule is final, along with questions about its architecture and scope.

Environmentalists note that it is already possible to petition the court for a judicial stay if plaintiffs can show they are likely to prevail and that complying with the rule in the meantime will cause them irreversible harm.

Whitfield's measure currently has 67 co-sponsors, including three Democrats -- Reps. Sanford Bishop of Georgia, Collin Peterson of Minnesota and Terri Sewell of Alabama.

It is expected to clear the chamber with little difficulty, but it is unclear how a similar but not identical Senate bill would fare. The measure, S. 1324, will be the subject of a hearing next week in the Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety headed by sponsor Sen. Shelley Moore Capito (R-W.Va.).

Senate Majority Leader Mitch McConnell (R-Ky.) seems to have pinned his hopes for scuttling EPA's rule on the annual appropriations process. McConnell used his perch on the Appropriations Committee to tack language onto the fiscal 2016 Interior Department and EPA spending bill last week that would bar EPA from using funds to implement the rule (Greenwire, June 18).

The measure that McConnell inserted into the Interior spending bill solidifies in legislative text that states have the option to refuse to comply with EPA's power plant rule. The language will give governors who follow McConnell's advice and "just say no" to the rule a reprieve from its provisions, he said in a statement last Thursday.

"If enacted, the measure I secured today will guarantee that governors who heeded my warning will be protected, while also prohibiting funding for the EPA to force states to submit an implementation plan," he said. He added that he had joined the Interior, Environment and Related Agencies Appropriations Subcommittee last year "specifically to be in a position to oversee the EPA's budget and to protect Kentucky jobs."

The spending bill the House will vote on this week also contains a policy rider providing a temporary stay on the Clean Power Plan (see related story). But Obama has already said he would veto the bill should it arrive on his desk. And the decision by all of the Senate Appropriations Committee Democrats to vote against the bill in committee last week to protest this and other policy riders highlights how contentious the measure is in a chamber that requires a 60-vote majority for passage.

Meanwhile, congressional committees continue their scrutiny of the rule, with Capito's subcommittee holding a hearing on its chairwoman's measure tomorrow with industry, state, labor and medical witnesses.

While Whitfield's bill deals solely with the Clean Power Plan, Capito's would scrap EPA proposals for new and modified power plants, as well. Witnesses Paul Cicio, president of the Industrial Energy Consumers of America, Eugene Trisko of the United Mine Workers of America and Harry Alford of the National Black Chamber of Commerce are likely to argue that staying all three of the rules is necessary to avoid runaway costs and reliability problems that could jeopardize economic growth. Democratic invitees James Martens, commissioner of the New York State Department of Environmental Conservation, and Mary Rice, a professor at the Harvard Medical School, are expected to counter that crippling EPA's ability to regulate heat-trapping emissions would undermine public health and allow atmospheric carbon to grow unchecked.

On the other side of the Capitol on Wednesday, another EPA critic, House Science, Space and Technology Chairman Lamar Smith (R-Texas), will hold a hearing on the existing power plant rule's economic costs.

The panel will consider the economic modeling of the rule the U.S. Energy Information Administration completed in May at the Science Committee's request, which showed that electricity prices would tick up modestly if it were enacted (E&ENews PM, May 22).

They would increase by between 3 and 7 percent between 2020 and 2025 compared with a no-rule scenario, according to EIA estimates. They would be 4 percent higher by 2030 and 2.6 percent higher by 2040.

Howard Gruenspecht, deputy administrator of EIA, will appear to explain the analysis.

Schedule: The Senate hearing is Tuesday, June 23, at 2 p.m. in 406 Dirksen.

Witnesses: Eugene Trisko, consultant for the American Coalition for Clean Coal Electricity; Harry Alford, president and CEO of the National Black Chamber of Commerce; Paul Cicio, president of the Industrial Energy Consumers of America; Joseph Martens, commissioner of the New York State Department of Environmental Conservation; and Mary Rice, instructor in medicine in the Harvard Medical School, Division of Pulmonary, Critical Care & Sleep Medicine.

Schedule: The House hearing is Wednesday, June 24, at 10 a.m. in 2318 Rayburn.

Witnesses: Kevin Dayaratna, senior statistician and research programmer for the Heritage Foundation; Stephen Eule, vice president for climate and technology at the U.S. Chamber of Commerce; Howard Gruenspecht, deputy administrator of the U.S. Energy Information Administration; and Susan Tierney, senior adviser for the Analysis Group Inc.