House Panel Asks McCarthy: How Is EPA’s Continuing Implementation of the Clean Power Plan Legal under the Stay?

by Marlo Lewis on May 13, 2016

in Blog

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House Energy and Commerce Committee Chairman Fred Upton (R-Mich.), Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), and Oversight and Investigations Subcommittee Chairman Tim Murphy (R-Penn.) today sent an oversight letter to EPA Administrator Gina McCarthy questioning the legality of EPA’s ongoing implementation of the so-called Clean Power Plan despite the Supreme Court’s stay of the rule.

The congressmen note that the Court’s order “expressly and categorically stays the promulgated rule” and was intended to “save states and other stakeholders from taking actions, expending resources and incurring costs in response to a rule that may not be legal.” Yet in the ensuing weeks and months, “EPA has been taking steps to circumvent the Court’s stay and potentially undermine the relief provided by the stay in the first place.”

For example, on April 27, EPA sent a detailed proposal for the Clean Energy Incentive Program (CEIP), a component of the Power Plan, to the Office of Management and Budget for interagency review. “This new rulemaking proposal arises directly from the Clean Power Plan and, but for this rule, the new proposal would have no basis.”

“In addition,” the congressmen write, “the agency has confirmed it is moving forward with its proposed ‘Model Trading Rules’ and other regulatory guidance for implementing the Clean Power Plan. These rules and guidance similarly have no basis independent of the Clean Power Plan. To the extent EPA proceeds with any such actions to implement the stayed rule, it deprives states and other stakeholders the benefits of the stay by compelling participation in regulatory processes that inappropriately assume the validity of a rule that may ultimately be struck down.”*

Of particular concern, “EPA officials have also stated that certain compliance deadlines in the Clean Power Plan may not be tolled [delayed] should the stay be lifted—the thrust of which is that states and other stakeholders would be prudent to begin voluntarily preparing now for rule implementation in case its legality is upheld. This ‘take action or else’ messaging underscores indications that EPA, despite the stay, is seeking to coerce additional action to lock in compliance with the mandates of its rule—even if the rule is found to be unlawful.”

The oversight letter concludes by asking McCarthy to explain “the agency’s legal basis for proceeding with a regulatory proposal to implement the CEIP when the rule establishing this program has been stayed,” and to identify “all rulemakings, guidance, directives, or other regulatory actions the agency is currently pursuing that relate to the Clean Power Plan, and the statutory authority for proceeding with each such action.”

* ML Comment. EPA claims it is just providing “support” to states that “plan to move forward voluntarily.” However, as this testimony explains, in a credit program like the CEIP, early actors profit at the expense of those who don’t participate. Such programs incentivize ‘climate action’ by reallocating allowances under a future emissions budget or cap from those who don’t take early action to those who do. Although billed as ‘voluntary,’ early credit programs are actually coercive.

Besides, as noted in a previous post:

EPA is not some consulting firm that states are free to hire or fire depending on the quality of services rendered. No state action to implement a rule is strictly speaking “voluntary.” When EPA offers advice on regulatory implementation, states will feel pressure to take it, whether out of reluctance to antagonize their regulatory overseer, or out of fear of being excluded from deliberations on the rule’s devilish details. 

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