Two Stop-EPA Bills Now in Play

Sen. James Inhofe (R-Okla.), ranking member of the Senate Environment and Public Works Committee, Rep. Fred Upton (R-Mich.), chairman of House Energy and Commerce Committee, and Rep. Ed Whitfield (R-Ky.), chairman of the energy subcommittee, have released a discussion draft of the “Energy Tax Prevention Act,” a bill to block EPA regulation of greenhouse gases via the Clean Air Act.  The full House Energy and Commerce Committee plans to hold a hearing next week.

Their draft bill is not as comprehensive as Sen. John Barrasso’s (R-Wy.) S. 228, the “Defending America’s Affordable Energy and Jobs Act,” introduced last Monday. Barrasso’s bill would preempt greenhouse gas regulation under all existing federal statutes. It would also preempt litigation under federal common law to restrict or otherwise penalize greenhouse gas emissions. The Inhofe-Upton-Whitfield draft legislation focuses just on the Clean Air Act to “avoid jurisdictional problems at the committee level in the House,” explains my colleague Myron Ebell.

Sen. Inhofe certainly wants to prevent any agency from ‘legislating’ climate policy under all existing statutes, none of which Congress designed or intended to be used for that purpose. Indeed, Inhofe is a co-sponsor of Sen. Barrasso’s bill. If, as expected, the Inhofe-Upton draft bill clears the Energy and Commerce Committee, House Members can amend it on the floor to provide more complete protection from regulatory excess. Myron adds: “This is now a fast-moving train in the House and is apparently a priority of Speaker John Boehner.”

Here’s a quick summary of what’s in these kindred legislative initiatives.

Inhofe-Upton-Whitfield Draft Energy Tax Prevention Act:

• Amends Title III of the Clean Air Act (CAA) to preclude regulation of greenhouse gases to address climate change.
• Amends  CAA Sec. 302(g) so that the term “air pollutant” does not include greenhouse gases based on their potential climate change effects.
• Allows EPA to implement its “tailpipe rule” establishing greenhouse gas emission standards for new motor vehicles covering model years 2011 to 2016.
• Stops the tailpipe rule from triggering greenhouse gas permitting requirements for stationary sources.
• Prohibits EPA from establishing motor vehicle greenhouse gas emission standards for model year 2017 and later, and prohibits EPA from granting California a waiver to do so.
• Overturns the legal force and effect of EPA’s endangerment rule, the tailoring rule, and other rules establishing greenhouse gas permitting requirements for stationary sources and/or State permitting agencies.
• Allows States to regulate greenhouse gas emissions within their borders but deems such policies not to be part of federal law and prohibits EPA from enforcing them.

Barrasso’s Defending America’s Affordable Energy and Jobs Act:

• Finds that regulation of greenhouse gases under current law “is divorced from any intent expressed by Congress during the enactment of the authorizing statutes governing those mechanisms.”
• Prohibits the President or any agency from regulating greenhouse gases under any statute unless necessary to protect the public from imminent harm via direct exposure at levels substantially greater than atmospheric concentrations.
• Allows the tailpipe rule to run its course.
• Overturns the force and effect of EPA’s endangerment rule, tailoring rule, and other rules establishing greenhouse gas permitting requirements for stationary sources and/or State permitting agencies.
• Prohibits EPA from establishing motor vehicle greenhouse gas emission standards for model year 2017 and later, and prohibits EPA from granting California a waiver to do so.
• Prohibits Federal Common Law or civil tort litigation to limit or penalize greenhouse gas emissions.
• Prohibits States from regulating emitters of greenhouse gases outside their borders.

The bills are quite similar. The main differences are that the Barrasso bill: (1) preempts greenhouse gas regulation under the Endangered Species Act, Clean Water Act, National Environmental Policy Act, and all other federal statutes, as well as the Clean Air Act; (2) prohibits Federal Common Law and civil tort litigation to limit or penalize greenhouse gas emissions; and (3) more pointedly prohibits States from regulating greenhouse gas emitters outside their borders.