House GOP: Last Laugh on “Carbon Pollution Rule”?

My colleague Will Yeatman reports some fantastic climate policy news in this week’s Cooler Heads Digest:

House GOP Outwits EPA on Carbon Pollution Standard

Leading members of the House Energy and Commerce Committee recently made the EPA look foolish by pointing out a glaring flaw in the agency’s proposed Carbon “Pollution” Standard.

The proposed regulation would require new coal-fired power plants to install carbon capture and sequestration (CCS). And yet, under the Clean Air Act, EPA cannot require a technology that isn’t commercially viable. On the one hand, industry claims that CCS isn’t market-ready, citing as proof the fact that there isn’t a single CCS system in operation. EPA, on the other hand, claims that CCS is adequately demonstrated. As evidence, the agency referenced three CCS pilot projects in the U.S. that are either in planning or under construction in Mississippi, California, and Texas.

Last week, leading members of the House Energy and Commerce Committee pulled the rug out from under EPA’s evidence. In a November 15th letter to EPA Administrator Gina McCarthy, Reps. Fred Upton (R-Michigan), Ed Whitfield (R-Kentucky), Joe Barton (R-Texas), and Steve Scalise (R-Louisiana) brought to her attention a little-known provision of the 2005 Energy Policy Act that prohibits the agency from basing an “adequately demonstrated” determination on CCS projects that received subsidies pursuant to the law. As they helpfully note, each of the CCS projects in Mississippi, California, and Texas were beneficiaries of such subsidies, and are, therefore, inappropriate foundations for the Carbon Pollution Standard. The letter is available here.

Until I read the letter, I had been ignorant of this obscure provision of the 2005 Energy Policy Act. So, evidently, was EPA, which is quite rich.

Frankly, I’m impressed with these lawmakers. There’s a saying that Republicans are the stupid party. Not on this score. EPA’s Carbon Pollution Standard is the centerpiece of the Obama Administration’s climate agenda. EPA Administrator McCarthy, in a July speech, said that the Carbon Pollution Standard was the agency’s top priority, necessitating an “all hands on deck” approach.  And yet, despite this sense of urgency and a funneling of resources into the regulation, the agency stumbled into a tripwire set 8 years ago by four smart House Republicans. Bravo.

An old joke springs to mind.

Comedian: Go ahead, ask me, ‘What is the secret of great comedy?’

Audience member: What is the secret of. . .

Comedian: Timing!

Putting the kibosh on the “carbon pollution rule” would not have been nearly as funny had Upton, Whitfield, Barton and Scalise nipped this mischief in the bud when the EPA was only rumored to be proposing CCS as an “adequately demonstrated” basis for setting “carbon pollution” standards. Instead, the congressmen waited until the agency — and the Obama administration — inserted foot firmly in mouth. Bravo indeed!

Here, as presented in the congressmen’s letter, are the statutory prohibitions Team Obama ignored:

See 42 U.S.C. 15962(i): (“No technology, or level of emission reduction solely by reason of the use of technology, or the achievement of the emission reduction by 1 or more facilities receiving assistance under this Act, shall be considered to be . . . adequately demonstrated for purposes of [section 111 of the Clean Air Act]. . .”); 26 U.S.C. 48A(g) (“No use of technology . . . at one or more facilities with respect to which a credit is allowed under this section, shall be considered to indicate that the technology . . . is adequately demonstrated for purpose of section 111 of the Clean Air Act”);  see also. Comm. on Energy and Commerce, Report on H.R. 1640, “Energy Policy Act of 2005,” H.R. Rept. No. 109-215 at 239-40 (July 29, 2005)(“the use of certain technology by any facility assisted under this subtitle. . .will not result in that technology. . .being considered achievable, achievable in practice, or ‘adequately demonstrated’ for purposes of [section 111 of the Clean Air Act]”).