Senate Majority Leader says Congress could block Clean Power Plan

By Paul Cimapoli, News Director, American Public Power Association
From the May 7, 2015 issue of Public Power Daily

Senate Majority Leader Mitch McConnell, R-Ky., recently said that Congress could utilize a section of the Clean Air Act to block the Environmental Protection Agency’s Clean Power Plan, which aims to reduce carbon dioxide emissions from existing power plants.

McConnell made his remarks at an April 29 hearing to review the Fiscal Year 2016 funding request and budget justification for the EPA. The hearing was held by the Interior, Environment and Related Agencies Subcommittee of the Senate Appropriations Committee. EPA Administrator Gina McCarthy appeared before the subcommittee at the hearing.

The EPA’s Clean Power Plan was proposed by the agency in June 2014. It would require states to cut carbon dioxide emissions from existing power plants from 2005 levels by 30 percent by 2030. Under the EPA’s proposal, states would be required to submit state plans to the EPA in 2016 and to begin to meet interim goals in 2020.

McConnell said that one of McCarthy’s deputies recently told the Federal Energy Regulatory Commission “that multi-state plans are a significant part of your strategy.”

In comments to McCarthy, the Senate majority leader said, “I’d like to acquaint you” with Section 102(c) of the Clean Air Act, which he said requires Congressional consent for cooperative agreements. McConnell said that the law states that no such agreement “or compact shall be binding or obligatory” upon any state “unless and until” it has been approved by Congress. “Doesn’t seem ambivalent to me,” McConnell said.

“I can assure you that as long as I’m majority leader of the Senate, this body’s not going to be signing off on any backdoor energy tax,” McConnell said.

It remains unclear whether Section 102(c) of the Clean Air Act could be used to block multi-state agreements.

In March, McConnell wrote a letter to the nation’s governors in which he urged them to “carefully review the consequences before signing up for this deeply misguided plan. I believe you will find, as I have, that the EPA’s proposal goes far beyond its legal authority and that the courts are likely to strike it down. All of which raises the very important question of why the EPA is asking states at this time to propose their own compliance plans in the first place.”

Senate committee examines legal implications of EPA plan

Meanwhile, the Senate Environment and Public Works Committee’s Clean Air and Nuclear Safety Subcommittee on May 5 held a hearing to examine the legal implications of the Clean Power Plan.

In her opening remarks, Sen. Shelley Moore Capito, R-W. Va., who chairs the subcommittee, said that many states “have raised grave concerns about the legality of the rule and the implications for their citizens and ratepayers. In addition to significant Constitutional and other legal questions, states have expressed concerns about the feasibility of EPA’s proposed requirements and the likely impacts on electricity costs and reliability.”

Capito said that next week “I will be introducing greenhouse gas legislation with my colleagues that will preserve the proper balance of state and federal authority, help ensure reliable and affordable electricity, and protect jobs and our economy.”

Witnesses at the hearing included West Virginia Attorney General Patrick Morrisey. In his prepared testimony, Morrisey noted that West Virginia is one of 15 states involved in a lawsuit before the U.S. Court of Appeals for the D.C. Circuit. The legal action targets EPA’s authority to issue any rule regulating existing power plants under Section 111(d) of the Clean Air Act when EPA has already regulated the same source category under Section 112 of the act.

“If this administration elects to finalize this rule, West Virginia will challenge it in court and we expect that the coalition of 15 states that we’re currently working with will grow,” the West Virginia attorney general said.

Oklahoma Attorney General Scott Pruitt told the hearing that the EPA “does not possess the authority under the Clean Air Act to do what it is seeking to accomplish in the so-called Clean Power Plan.”

He said that the EPA, “under this administration, treats states like a vessel of federal will. The EPA believes states exist to implement the policies the Administration sees fit, regardless of whether laws like the Clean Air Act permit such action.”

Pruitt said that the Clean Air Act “hinges on ‘cooperative federalism’ by giving states the primary responsibility and role for regulation while providing a federal backstop if the states should fail to act.”

When the EPA “respects the role of the states, the cooperative relationship works well. When the EPA exceeds the constraints placed upon the agency by Congress, the relationship is thrown out of balance and the rule of law and state sovereignty is affected adversely,” the Oklahoma attorney general said.

The Clean Power Plan proposal “throws the cooperative relationship between the states and the federal government off balance,” he said.

Other witnesses at the hearing were Roger Martella, Jr., a partner at Sidley Austin LLP, Kelly Speakes-Backman, commissioner of the Maryland Public Service Commission and Chair of the Regional Greenhouse Gas Initiative, Inc. Board of Directors and Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center.

In her written testimony submitted for the hearing, Speakes-Backman argued that the basic structure of EPA’s proposed rule is sound, “although the RGGI states recommend that EPA adopt certain revisions to ensure that early action is recognized, and that the state targets are verifiable, transparent, equitable, and enforceable.”

She also said in the written testimony that the RGGI states “have demonstrated that it is possible to achieve cost-effective pollution reductions while maintaining grid reliability, and while having a positive impact on ratepayers and our overall economies.”

RGGI is a regional carbon dioxide emissions program launched in January 2009. It was the first market-based regulatory program in the United States to reduce greenhouse gas emissions. The cooperative effort is mandatory in the participating states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.

Speakes-Backman addressed some of the key lessons learned from the RGGI that can be applied to implementing EPA’s proposed Clean Power Plan in an exclusive interview published in Public Power Weekly in late 2014.

On the other side of Capitol Hill, the House Energy and Commerce Committee on April 29 approved legislation that would allow for judicial review of any final EPA rule to regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act before the rule could take effect.

FERC commissioner discusses Clean Power Plan

Colette Honorable, a FERC commissioner, on May 5 discussed the Clean Power Plan in remarks before an audience of energy attorneys in Washington, DC.

“I’d like to talk with you very briefly about a few of my priorities as I see them in my first” four months at FERC, she said at the Energy Bar Association’s annual meeting and conference. Honorable was sworn in on Jan. 5 as a commissioner with FERC.

“Clearly, job number one for me is reliability,” Honorable told the gathering of energy attorneys. During a Senate Energy and Natural Resources Committee hearing in December related to her nomination as a FERC commissioner, Honorable said that electric reliability would be a top priority for her at the federal agency.

In her remarks before the Energy Bar Association meeting, she noted that the EPA is in the final stages of issuing the final rule under the agency’s Clean Power Plan. “EPA has sought advice and counsel from the FERC and I am eager to give that,” she said.
With respect to the Clean Power Plan, there are a “few issues that really rise to the top for me,” she said.

“One, clearly, is the reliability safety valve issue and the notion of developing some sort of a reliability mechanism that could be employed,” Honorable said.

Honorable said that “another takeaway for me” involves the “importance of collaboration and cooperation.” She said, “We really won’t get very far if we don’t work well together.” Honorable noted that she has “often said, no matter what you think about this plan, we absolutely are going to get a plan this summer – mid to late summer.”

She said that it “behooves all of us to prepare and do the work we do so well day in and day out to contemplate the possibilities, the scenarios, the plans and what we will do” if the rule is upheld.

“If we wait and do nothing, in my opinion, we’ve lost an opportunity,” she said.

Honorable also highlighted the “importance of the regions and the regional efforts that are underway.”