CLIMATE:

Congressional Review Act might not be an option to fight EPA regs

Asked last weekend in a televised interview how he planned to stop U.S. EPA regulation of carbon -- rules he says have the potential to inflict serious harm on the economy -- House Energy and Commerce Chairman Fred Upton mentioned only one specific strategy: using the Congressional Review Act.

What the Michigan Republican did not mention is that the core EPA findings and rules related to carbon mitigation were published more than 60 continuous legislative days ago, making it impossible to nullify them through a resolution of disapproval under that act.

The congressman told Fox News anchor Chris Wallace that a resolution of disapproval offers many advantages over standard legislation, especially because such a resolution can clear the Senate with a simple majority vote of 51.

"There's also something called the Congressional Review Act, that within 60 days of rules being published, Congress can take this up and with an up-or-down vote, it is filibuster-proof in the Senate," Upton said. "It has been used before."

A CRA resolution of disapproval has been used successfully once before, in 2001, to scrap a Department of Labor rule on ergonomics.

But the deadline for using such a resolution has come and gone for most of the EPA climate regulations.

"Certainly, the key rules are already beyond the Congressional Review Act deadline," said Jeff Holmstead of Bracewell & Giuliani, who served as an assistant administrator of EPA during the George W. Bush years.

EPA's finding that carbon dioxide and other GHGs endanger human health -- which forms the basis for their regulation under the Clean Air Act -- was published in December 2009. Sen. Lisa Murkowski (R-Alaska) targeted the endangerment finding with a resolution of disapproval in June, aided by a unanimous consent agreement that allowed her to bring the motion to the floor later than would usually be allowed. But the measure fell four votes short in the Senate and never had a serious chance of passing the House or of being signed into law by the president.

The resolution might have had a better chance this year, with Republicans taking control of the House and making major gains in the Senate. Upton even said in his Fox News appearance that he thought a resolution of disapproval could garner enough bipartisan support to overcome a presidential veto.

"Already we've seen a number of powerful Democrats indicate that they have real, real qualms about what the EPA is intending to do," he said.

But support for the resolution is no longer the issue. The endangerment rule was followed in May by the "tailpipe" rule, which adopts new standards for car and light-truck emissions. Those rules support regulation of GHGs from stationary sources such as power plants and manufacturing facilities, as laid out in the so-called tailoring rule published last June.

Upton told E&E Daily yesterday that he understood Congress could not turn back the clock.

"Some of the issues, we know, are beyond the 60 days already," he said. "For some of them, the horse is out of the barn. But we're going to be looking at every tool in the tool box."

There are in fact three EPA rules that were published fewer than 60 continuous legislative days ago that could still be challenged under the law. Two of the new rules are meant to ensure that all businesses will be able to get air pollution permits under the Prevention of Significant Deterioration program. When states do not already have the authority to issue those permits under their existing rules for carbon, they can choose to let EPA do the work or have state officials handle it using a federal implementation plan crafted by EPA.

Another rule, also released last month, prohibits states from regulating carbon from sources that emit less CO2 than provided for in EPA's tailoring rule.

Experts disagree on whether targeting any of those three rules with a resolution of disapproval would accomplish what Upton said he hoped to do -- that is, nullifying overly burdensome regulations.

Holmstead said the trio could prove to be effective targets for a resolution of disapproval, because striking them down could delay regulation of carbon emissions in states that have not yet incorporated greenhouse gas restrictions into the Clean Air Act implementation plans.

But David Doniger, policy director of NRDC's climate center, disagreed, saying that if Congress knocked down rules allowing the federal government to help with carbon permitting, developers of large new emissions sources like power plants would suffer because they would not have access to valid permits. That would make their projects vulnerable to court challenges from local opponents, he said.

"If I were a company wanting to build such a source, I wouldn't want to take that risk," Doniger said.

While the act may no longer allow Congress to challenge the endangerment finding directly, Holmstead said that a show of congressional disapproval could still be a check on the administration and an encouragement for it to work with Congress.

"The threat of the Congressional Review Act is likely to have some moderating impact on what EPA does on some of these things," said Holmstead, citing the New Source Performance Standards that EPA plans to finalize next year and which could still be a target for a resolution.

Other options

The Congressional Review Act is far from the only opportunity the incoming Republican-controlled House will have to challenge EPA regulation of carbon and other pollutants. Upton mentioned others in his brief interview with E&E Daily, including oversight hearings and the annual appropriations process.

The latter must happen twice in the next year, since Congress has yet to finalize fiscal 2011 spending levels and also must tackle 2012 spending. That affords the House at least two opportunities to add language prohibiting EPA from using funds to craft or implement greenhouse gas regulations.

Congress must pass legislation by March 4 to fund federal agencies including EPA through the end of this fiscal year, and another set of spending bills are due to be completed before the fiscal year ends after Sept. 30.

The March spending bill might be the first opportunity for House Republicans to go after EPA.

A GOP aide said that whatever form that bill takes, Republicans plan to return spending to 2008 levels, so it is unlikely simply to continue current spending policy. "There will be some tweaks already," the aide said.

House Republicans also could bring to the floor a bill introduced last year by Sen. Jay Rockefeller (D-W.Va.) that would place a two-year stay on EPA regulation of GHGs from stationary sources only. The senator yesterday said he plans to reintroduce the bill in the Senate later this month.

Rep. John Shimkus (R-Ill.), a senior member of the Energy and Commerce Committee, said it should be a relatively straightforward process.

"I think that the easiest thing to do is to take up Rockefeller and pass it and send it over to the Senate," he said, noting that the upper chamber will now have more Republican members than it did last year and that several moderate Democrats also support Rockefeller's bill.

But Robert Dillon, a spokesman for Murkowski, said he hoped the new Congress would pass a more sweeping repeal of EPA authority to regulate climate emissions.

"It's important to note that the Rockefeller bill, as it's currently written, will no longer work since the regulations are now in place," Dillon said, referring to the Prevention of Significant Deterioration rules that went into effect on Jan. 2. "It would have to be changed substantially to address those applications currently in the pipeline, among other things. Also there's a legitimate policy debate to be had on whether a delay is even appropriate now in comparison to a more permanent solution."

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