Congress Continues Efforts to Thwart Climate Change Emissions Limits

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On Sept. 20, the U.S. Environmental Protection Agency announced a new proposal to limit carbon dioxide (CO2) emissions from new coal-fired power plants. The Center for Effective Government applauded the steady progress on the rule but warned of likely challenges from climate-change deniers, regulatory opponents, and their allies in Congress. Over the past month, these challenges have appeared in the form of draft legislation and appropriations riders that seek to repeal or severely limit EPA's authority to regulate greenhouse gas emissions from fossil-fueled power plants under the Clean Air Act.

Carbon Emissions Limits Are Central to President's Climate Action Plan

The limits on CO2 from new power plants are a critical component of President Obama's action plan to address climate change. Carbon dioxide is the primary greenhouse gas contributing to global warming and climate changes that have occurred over the past several decades; fossil fuel combustion for electricity generation "is the largest single source of CO2 emissions in the nation." By EPA's calculations, CO2 emissions accounted for roughly "38% of total U.S. CO2 emissions and 32% of total U.S. greenhouse gas emissions in 2011."

EPA first proposed emissions limits in April 2012 in response to a 2010 settlement agreement. But after receiving heavy criticism from the coal industry, the Obama administration decided to revise the rule. On Sept. 20 of this year, EPA announced a new proposal for new power plants. When finalized, the rule will require large gas-fired plants to limit carbon emissions to 1,000 pounds per megawatt-hour of electricity produced and require smaller gas-fired plants and all new coal-fired plants to meet a limit of 1,100 pounds of CO2 per megawatt-hour.

The rule has yet to be published in the Federal Register, presumably because of a backlog of publications caused by the government shutdown during the first weeks of October. Once published, a 60-day comment period will officially begin and the docket will be made available online. Meanwhile, EPA has already posted the proposal on its website, scheduled public hearings across the U.S., and started accepting public comments.

Legislative Efforts to Silence EPA Are Underway

Even before EPA's initial proposal in 2012, anti-regulatory forces in Congress were seeking to undermine efforts to reduce carbon pollution. According to a database compiled by the House Energy and Commerce Committee minority staff, during the 112th Congress (January 2011 to January 2012), the House voted 53 times to block actions to address climate change.

The 2011 Continuing Resolution (H.R. 1) prohibited EPA from using funds to issue or enforce any regulation on emissions of greenhouse gases due to climate change concerns. Rep. Ted Poe (R-TX) offered an amendment to the resolution that would have blocked EPA from regulating greenhouse gas emissions from stationary sources for any reason. Representatives also attached "riders" to both the FY 2012 and FY 2013 House Interior and Environment appropriations bills to prohibit or delay EPA from setting limits on carbon dioxide or other greenhouse gas emissions.

The 113th Congress has continued efforts to prevent EPA action to address CO2 emissions. Just days before EPA announced its proposal to limit CO2 emissions from new power plants, Senate Minority Leader Mitch McConnell (R-KY) introduced legislation to prevent EPA from finalizing the standards.

New Legislation: A Wolf in Sheep's Clothing

On Oct. 28, Rep. Ed Whitfield (R-KY), joined by Sen. Joe Manchin (D-WV), released a discussion draft bill with the same prohibitive language of past efforts to prevent regulation of greenhouse gas emissions. However, upon releasing the draft text, Manchin called it "a consensus, middle, doable procedure that we can abide by." This bill is not moderate. The three major components of the bill would:

Void EPA's Proposed Emissions Limits: The bill would repeal any proposed rule or guidance that EPA has issued to limit carbon emissions from new power plants. The bill says these "rules and guidelines shall be of no force or effect, and shall be treated as though such rules and guidelines had never been issued." Additionally, the bill prohibits EPA from proposing or finalizing a rule or guidance to limit emissions of any greenhouse gas from existing power plants. By requiring EPA to start again from scratch, the bill guarantees several more years of delay before EPA can move forward.

Require Congress to Reauthorize EPA to Limit Emissions from Existing Plants and Set Deadline: Under the bill, EPA cannot limit emissions of any greenhouse gas from an existing or modified power plant until Congress enacts a law specifying the effective date of the rule or guidance. Further, no rule or guidance will become effective until EPA submits a report to Congress regarding the economic impact of the rule. Notably, this report would not be required to include any of the many benefits of limiting emissions.

Impose an Unworkable Standard for Regulating Emissions of Any Greenhouse Gas: Before EPA can issue any emissions limits on new power plants, the agency would be required to establish a separate standard for gas-fired and coal-fired plants (as it has already done in its Sept. 20 proposal). Further, EPA must show that at least six commercial scale coal-fired power plants in different locations throughout the U.S. have achieved the proposed limits for a full year. For power plants fired with lignite coal, EPA must show that the standards were achieved for a full year by three units at different plants throughout the U.S.

To ensure that EPA can never satisfy this standard, the law prevents the agency from using the results of "any demonstration project" in setting the standard. A demonstration project is defined as "a project to test or demonstrate the feasibility of carbon capture and storage technologies that has received government funding or financial assistance." EPA based its current proposal on projects across the country where carbon capture and storage technology has been installed to demonstrate that the standard is achievable.

Under the new bill, these projects would not be valid evidence of the viability of the new standards. Instead, only efforts that industry undertakes voluntarily to use carbon capture and storage technology without any government assistance could be used to justify a new standard. Obviously, industry has no incentive to install this technology because doing so would subject it to regulation. Whitfield has even acknowledged this point. E&E News reports that when asked whether industry would invest in this technology without a mandate by EPA or financial assistance, Whitfield said "no." Rather, under this impossible standard, industry has a large incentive to continue emitting greenhouse gases so that EPA can never issue regulations to limit those emissions.

    The new legislation has not garnered the support of any prominent lawmakers or organizations that support stronger greenhouse gas emissions controls. Rep. Henry Waxman (D-CA) called it "scientific lunacy" in a statement opposing the bill. According to a recent poll, 74 percent of voters in swing Senate states support EPA's proposed emissions limits for coal-fired power plants, and 66 percent of all voters surveyed trusted EPA more than Congress to make decisions about issuing those regulations. If enacted, this bill would thwart efforts to reduce the nation's major source of climate change-causing carbon pollution.

    Conclusion

    When the president directed EPA to issue rules to cut carbon emissions from new and existing power plants, no one expected the task to be easy. Despite challenges from industry interests and climate-change deniers, EPA is moving forward; it needs to promptly finalize the limits it has proposed to cut CO2 emissions from new power plants. But the larger battle may be ahead. EPA is supposed to propose new emissions limits for existing power plants by the June 1, 2014 deadline set forth in Obama's Presidential Memorandum accompanying his climate action plan. Because the forthcoming rule will regulate the oldest and "dirtiest" facilities and will likely require new investments in carbon capture and storage technology, powerful interests will oppose tougher standards. But limits on both new and existing power plants are crucial if we are going to reduce the risks that carbon dioxide emissions pose to public health and to the environment. For the sake of future generations, this is a fight the EPA must win.

    UPDATE (01/08/2014): EPA’s proposed rule to limit carbon dioxide emissions from new power plants was officially published in today’s Federal Register. Although EPA made the text of the rule available to the public on its website on Sept. 20, 2013, today’s publication marks the beginning of a 60-day comment period during which interested stakeholders have an opportunity to submit comments to the agency by the March 10, 2014 deadline. EPA will also host a public hearing on the proposal on Jan. 28 in Washington, DC. 

    For more information on how to submit comments or participate in this (or any) rulemaking, visit our Regulatory Resource Center.

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