Dems, greens decry ‘backdoor’ bid to ’tilt’ litigation

By Robin Bravender | 11/03/2015 06:52 AM EST

The nonpartisan Office of the Law Revision Counsel tends to toil in obscurity, but it has been thrust into the spotlight as its work has become central to a political spat surrounding the Obama administration’s Clean Power Plan.

The nonpartisan Office of the Law Revision Counsel tends to toil in obscurity, but it has been thrust into the spotlight as its work has become central to a political spat surrounding the Obama administration’s Clean Power Plan.

The office’s small staff works out of the Ford House Office Building in Washington, D.C. The independent shop is charged with poring over and cleaning up existing laws through a process that includes recommending changes like correcting misspellings and clarifying ambiguities. One of its latest projects has been streamlining environmental laws that are on the books, which has brought some unwanted attention.

"We’re in an uncomfortable and very unusual place for us," said Ralph Seep, the House’s law revision counsel. "Normally we’re not in the middle of a political controversy." Seep said his office is "doing what’s been asked of us," but "got tied into a political reality here." Typically, the streamlining of laws "is not controversial stuff."


The House Judiciary Committee last week approved H.R. 2834, a bill prepared by the Office of the Law Revision Counsel as part of the office’s ongoing effort to compile and revise U.S. laws. House Republicans painted the bill as an innocuous effort to streamline existing law without changing its meaning, while Democrats and green groups are assailing the effort as a hurried backdoor attempt to hamper U.S. EPA’s legal defense of a landmark climate change rule. The bill cleared the committee along party lines.

Central to the partisan fight is a legislative glitch created by the House and Senate passing different versions of Section 111(d) in the 1990 Clean Air Act amendments. That section is critical to the Obama administration’s Clean Power Plan, which uses Section 111(d) to clamp down on existing power plants’ greenhouse gas emissions.

The Senate version prevents EPA from regulating a pollutant that is already covered by another section of the Clean Air Act. The House version, however, bars EPA from using Section 111(d) to regulate a source already covered by Section 112. EPA’s critics say that language bars EPA from using Section 111(d) to regulate source categories that are subject to hazardous air pollution regulations.

The language of the revised text that passed the Judiciary Committee, according to EPA and its supporters, omits language that could bolster the agency’s legal defense of the Clean Power Plan.

The language in the House bill "fails to include legislative language that is relevant to whether EPA has statutory authority to issue the Clean Power Plan and regulate greenhouse gas emissions from power plants and other stationary sources," EPA General Counsel Avi Garbow wrote in a July letter to Rep. Tom Marino (R-Pa.), who introduced the bill in the Judiciary Committee.

"There has been significant confusion concerning this provision, which was enacted as part of the Clean Air Act Amendments of 1990, as well as litigation over its proper interpretation in the U.S. Court of Appeals for the District of Columbia Circuit. By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion."

Democratic lawmakers accused their Republican colleagues last week of pushing through the legislation in order to hamper EPA’s efforts.

"Tellingly, this bill was noticed for markup on the very same day that the EPA issued a final rulemaking regarding the Clean Power Plan," said Judiciary ranking member John Conyers (D-Mich.). "As authority to issue the rulemaking, the EPA explicitly cited Section 111(d) of the Clean Air Act, and industry advocates have already cited this proposed restatement of current law in support of their challenges to the EPA’s authority to implement the Clean Power Plan." At worst, he added, consideration of the bill last week represented "an effort to push through a purely political agenda to change substantive environmental law."

Environmental groups Earthjustice, Environment America, the League of Conservation Voters, the Natural Resources Defense Council and the Sierra Club have written a letter urging members of Congress to oppose the House bill, which they called a "backdoor attack."

"Opponents of the Clean Power Plan hope that by deleting this provision from our laws, they will tilt current litigation against the Clean Power Plan their way," they wrote. "Congress should not attempt to change the Clean Air Act in this underhanded way."

Meanwhile, House Republicans are accusing the Obama administration of meddling in the process to ensure that the codified law favors its policies.

Republican leaders of the House Energy and Commerce Committee yesterday demanded documents from EPA, telling the agency’s boss, Gina McCarthy, they were concerned that the agency was blocking the process to codify the law and resolve the legislative glitch (Greenwire, Nov. 2).