H.R. 910

Post image for Why Courts Should Repeal EPA’s ‘Carbon Pollution’ Standard (and why you should care)

Note: A nearly identical version of this column appeared last week in Forbes Online. I am reposting it here with many additional hyperlinks so that readers may more easily access the evidence supporting my conclusions.

The November 2012 elections ensure that President Obama’s war on coal will continue for at least two more years. The administration’s preferred M.O. has been for the EPA to ‘enact’ anti-coal policies that Congress would reject if such measures were introduced as legislation and put to a vote. Had Gov. Romney won the presidential race and the GOP gained control of the Senate, affordable energy advocates could now go on offense and pursue a legislative strategy to roll back various EPA global warming regulations, air pollution regulations, and restrictions on mountaintop mining. But Romney lost and Democrats gained two Senate seats.

Consequently, defenders of free-market energy are stuck playing defense and their main weapon now is litigation. This is a hard slog because courts usually defer to agency interpretations of the statutes they administer. But sometimes petitioners win. In August, the U.S. Court of Appeals struck down the EPA’s Cross State Air Pollution Rule (CSAPR), a regulation chiefly targeting coal-fired power plants. The Court found that the CSAPR exceeded the agency’s statutory authority. Similarly, in March, the Court ruled that the EPA exceeded its authority when it revoked a Clean Water Act permit for Arch Coal’s Spruce Mine No. 1 in Logan County, West Virginia.

A key litigation target in 2013 is EPA’s proposal to establish greenhouse gas (GHG) “new source performance standards” (NSPS) for power plants. This so-called carbon pollution standard is not based on policy-neutral health or scientific criteria. Rather, the EPA contrived the standard so that commercially-viable coal plants cannot meet it. The rule effectively bans investment in new coal generation.

We Can Win This One

Prospects for overturning the rule are good for three main reasons. [click to continue…]

On April 6, 2011, 50 Senators voted for S. 482, the Energy Tax Prevention Act, a bill to stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act. Supporters needed 60 votes to pass the bill. “Senate Definitively Beats Back Efforts to Restrict EPA Climate Rules,” declared the title of Inside EPA’s column (April 8, 2011) on the vote. That is spin masquerading as news.

Let’s review some not-so-ancient history. In 2003, Sens. John McCain (R-Ariz.) and Joe Lieberman (D-Conn.) introduced S. 139, the Climate Stewardship Act, a carbon cap-and-trade bill. It was defeated by a vote of 43-55. In 2005, McCain and Lieberman introduced a revised version, S. 1151, the Climate Stewardship and Innovation Act. It went down in flames by a bigger margin: 38-60. In 2007, McLieberman introduced yet another iteration (S. 280), which never even made it to the floor for a vote.

In three different Congresses, the McLieberman bill died in the Senate. After these continual defeats, did Inside EPA, the bill’s sponsors, or any environmental group declare that the Senate “definitively” rejected cap-and-trade?

Of course not. Yet S. 482 garnered more votes than any cap-and-trade bill the Senate has ever debated. Sponsors of S. 482 say they will press for other opportunities to hold additional votes. The day after the Senate vote, the House passed an identical measure (H.R. 910) by a vote of 255-172, a large victory margin that should improve prospects for eventual passage in the Senate. 

Another vote could occur as early as next month when Congress debates whether to raise the national debt ceiling. House Speaker John Boehner (R-Ohio) suggested last week that legislation to raise the debt ceiling — a key priority for Team Obama and Senate Majority Leader Harry Reed (D-Nev.) – might have to include curbs on EPA’s regulatory authority (The Hill, April 16, 2011). 

Since reports of S. 482′s demise are greatly exaggerated, it is useful to examine the tactics of leading Senate opponents. Previous posts review California Sen. Barbara Boxer’s tirade against S. 482 and Montana Sen. Max Baucus’s alternative legislation to codify EPA’s ever-growing ensemble of greenhouse gas (GHG) regulations. Today’s post offers a running commentary on New Jersey Sen. Frank Lautenberg’s floor statement opposing S. 482 (Congressional Record, April 6, 2011, pp. S2170-71). If Lautenberg’s rant is the best opponents can do, they have “definitively” lost the debate. [click to continue…]

The House today votes on H.R. 910, the Energy Tax Prevention Act, as amended. The bill would stop EPA from ’legislating’ climate policy under the guise of implementing the Clean Air Act (CAA), a statute enacted in 1970, years before global warming became a public policy issue.

Debate will last for one hour. The Rules Committee is allowing Democrats to offer twelve hostile amendments. Three Republican amendments to strengthen the bill (by, for example, prohibiting federal agencies from regulating greenhouse gases via the Endangered Species Act) were ruled out of order. As my colleague Myron Ebell notes, Democrats allowed Republicans to offer only one amendment on the Waxman-Markey cap-and-trade bill. The November 2010 elections notwithstanding, the House GOP still suffers from an acute case of  minority-itis.

The most mischievous of the Democratic amendments are: [click to continue…]

Post image for Congressional Update: Votes Likely for Energy Tax Prevention Act of 2011 [Updated 5:45 PM]

The House of Representatives is scheduled to debate and vote on final passage of H. R. 910, the Energy Tax Prevention Act.  The Rules Committee is allowing the Democrats to offer twelve amendments to weaken or gut the bill.  (It is worth recalling that on 26th June 2009, the Democrats allowed only one Republican amendment and couldn’t even provide an accurate copy of the bill, since 300 pages had been added in the middle of the night, but the new sections hadn’t been put in their proper places in the 1200 page bill that had been released four days before.)  No Republican amendments to strengthen to the bill will be allowed.  The rule can be found here.  It is quite possible that the vote on final passage will be delayed until tomorrow.

Senate Majority Leader Harry Reid (D-NV) has scheduled votes on amendments offered by Sens. Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Max Baucus (D-MT), and Debbie Stabenow (D-MI) amendments to S. 493, a re-authorization bill for small business subsidies, for some time after 4 PM today.  The McConnell amendment is the Senate version of the Energy Tax Prevention Act, S. 482.  The other amendments are attempts to give some ground without blocking EPA regulation of greenhouse gas emissions permanently (that is, until Congress authorizes such regulations).  This shows how far the debate has shifted.  It appears that the three straddling amendments may each get fifteen to thirty votes.  It appears that the McConnell amendment (#183) will get 51 or perhaps even 52 votes, but will not be adopted because it is not a germane amendment and therefore requires 60 votes to survive a point of order.  All 47 Republicans are expected to vote for it plus Sens. Joe Manchin (D-WV), Mary Landrieu (D-LA), Ben Nelson (D-NE), and Mark Pryor (D-AR).  Maybe one more Democrat, such as Sen. Claire McCaskill (D-MO).  Senate Majority Leader Harry Reid could of course still change his mind.

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Post image for This Week in the Congress

House Ready To Pass Upton Bill Next Week

The House has scheduled H. R. 910, the Energy Tax Prevention Act, for floor debate and passage on Wednesday, 6th April.  This could still slip given the wrangling that is going on between the House and the Senate over the Continuing  Resolution to fund the federal government for the rest of FY 2011 after the current CR runs out on 8th April.

Energy and Commerce Committee Chairman Fred Upton’s (R-Mich.) bill will pass easily with over 250 votes.  That most likely includes all 241 Republicans and 12 to 20 Democrats.

The Rules Committee has not yet met to decide which amendments will be in order.  Conservative Republicans in the Republican Study Committee are considering offering several amendments to strengthen the bill.

H. R. 910 as marked up by the Energy and Commerce Committee prohibits the EPA from using the Clean Air Act to regulate greenhouse gas emissions, but does not prohibit the Administration from using other existing statutes to regulate emissions.  Nor does it ban common law nuisance lawsuits against emitters of greenhouse gases, such as power plants, manufacturers, railroads, airlines, and cement producers.

Thus one obvious amendment would be to ban common law nuisance suits.  The Supreme Court is currently considering such a case.  It may find that such suits may proceed, but even if it does not it could do so for the wrong reason—namely, that the EPA is regulating emissions and has thereby pre-empted common law.

Democrats led by Rep. Henry Waxman (D-Beverly Hills) will undoubtedly offer some of the same silly, irrelevant grandstanding amendments that they offered in committee.  Waxman was reported this week as expressing confidence that the bill has no chance in the Senate.

That was certainly true of his Waxman-Markey cap-and-trade bill in the last Congress.  One significant difference is that Waxman-Markey barely passed the House, 219-212.  The Upton-Whitfield bill will pass by a much wider margin.

Moreover, cap-and-trade was swimming against strong public opposition, while blocking EPA’s attempt to achieve cap-and-trade through the regulatory backdoor is swimming with public opinion.  That’s why, for example, Senator Claire McCaskill (D-Mo.) is still undecided about voting for the McConnell amendment (which is identical to the Senate version of H. R. 910) in the Senate.  She doesn’t want to vote for it, but she’d like to be re-elected in 2012.

Will the Senate Ever Vote on the McConnell Amendment?

The Senate spent another week without voting on Senator Mitch McConnell’s (R-Ky.) amendment to block EPA from using the Clean Air Act to regulate greenhouse gas emissions or either of the two Democratic alternatives.  It is quite possible that there will be votes next week.  It is also quite possible that Majority Leader Harry Reid (D-Nev.) will work out a deal with McConnell to dispose of many of the amendments to the underlying bill without votes and proceed to passage of the Small Business Innovation Research Re-Authorization Act.  Or Reid may keep stalling.

McConnell originally introduced his amendment (#183 if you’re keeping track) to S. 493 on 15th March.  It is identical to Senator James M. Inhofe’s (R-Okla.) Energy Tax Prevention Act, S. 482, which is identical to the House bill of the same name, H. R. 910.

Senator Jay Rockefeller (D-WV) introduced an amendment to try to provide cover for fellow Democrats and thereby siphon support from McConnell’s amendment.  Rockefeller would delay EPA regulations for two years.

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Post image for Inside the Beltway: EPA Pre-Emption Bill Heads to House Floor

The House Energy and Commerce Committee on Tuesday marked up and passed H. R. 910, the Energy Tax Prevention Act, by a 34 to 19 vote.  All 31 Republicans on the committee supported Chairman Fred Upton’s (R-Mich.) bill.  They were joined by three Democrats—Representatives John Barrow (D-Ga.), Jim Matheson (D-Utah), and Mike Ross (D-Ark.).

The mark-up started on Monday afternoon with opening statements from members of the committee and then lasted most of Tuesday.  A number of amendments offered by Democrats were variations on the theme that the Congress accepts that global warming science is settled and that it’s a crisis.  All these amendments were defeated easily, but, as my CEI colleague Marlo Lewis points out, Republican supporters of the bill for the most part didn’t defend the bill very well against the Democrats’ attacks.

What the proponents should argue, but did not in committee mark-up, is that H. R. 910 is not about the science or what we should do about potential global warming.  The bill simply says that the EPA cannot use the Clean Air Act to regulate greenhouse gas emissions until the Congress authorizes it to do so.  Chairman Upton’s bill is designed to re-assert congressional authority to make laws (which the Constitution gives Congress the sole authority to do) and rein in an out-of-control executive branch.

Speaker John Boehner (R-Ohio) has said that passing the Upton bill is a priority.  It is now expected that the bill could be debated on the House floor as soon as the week of 27th March.  On 26th June 2009, the House Democratic leadership railroaded the mammoth Waxman-Markey cap-and-trade bill through the House in a single day of debate with only one Republican amendment allowed to be offered.  The Republican leadership under Boehner is doing things differently, so there will probably be several days of debate with numerous amendments considered.  The bill should pass easily, with almost unanimous Republican and significant Democratic support.

Post image for Does Sen. Jay Rockefeller Serve West Virginians or Harry Reid?

Late in the 111th Congress, Senator Lisa Murkowski (R-AK) was building bipartisan support for a Resolution of Disapproval under the Congressional Review Act that would strip the Environmental Protection Agency of its authority to regulate greenhouse gases under the Clean Air Act.

Due to a parliamentary quirk, the Resolution needed only a majority to pass (that is, it wouldn’t necessitate 60 votes to beat a filibuster) and it was entitled to a vote, so the Democratic leadership in the Senate could not sweep it under a rug. Moreover, there are 23 Senate Democrats up for re-election in 2012, and the political mood of the country in the summer of 2010 was shifting right. (This was evidenced by the GOP’s success in last November’s elections.) As such, an EPA reform bill was an attractive vote for many Senate Democrats from purple states, where the EPA is held is lower esteem than in, say, California or New York. As a result of these factors, Sen. Murkowski’s Resolution appeared to have good prospects.

Enter Sen. Jay Rockefeller (D-WV). Just as Sen. Murkowski’s Resolution was gaining steam, Sen. Rockefeller introduced legislation that would delay the EPA’s regulation of greenhouse gases for two years, rather than repeal its authority outright (as Sen. Murkowski’s Resolution would have done).

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Post image for H.R. 910: Seizing the Moral High Ground (How to Foil Opponents’ Rhetorical Tricks)

Yesterday, the House Energy and Commerce Committee approved H.R. 910, the Energy Tax Prevention Act, as amended, by 34-19. The bill would stop EPA from ’legislating’ climate policy through the Clean Air Act. All 31 Republicans and three Democrats (Mike Ross of Arkansas, Jim Matheson of Utah, and John Barrow of Georgia) voted for the bill.

Opponents introduced several amendments, all of which were defeated.

Ranking Member Henry Waxman (D-Calif.) offered an amendment stating that Congress accepts EPA’s finding that “climate change is unequivocal.” Rep. Diana DeGett (D-Colo.) offered an amendment stating that Congress accepts as “compelling” the scientific evidence that man-made greenhouse gas emissions are the “root cause” of climate change. Rep. Jay Inslee (D-Wash.) offered an amendment stating that Congress accepts EPA’s finding that greenhouse gas emissions endanger public health and welfare. Rep. Bobby Rush (D-Ill.) offered an amendment limiting H.R. 910′s applicability until the Secretary of Defense certifies that climate change does not threaten U.S. national security interests. Rep. Ed Markey (D-Mass.) offered an amendment allowing EPA to issue greenhouse gas regulations that reduce U.S. oil consumption. Rep. Lois Capps (D-Calif.) offered an amendment limiting H.R. 910′s applicability until the Centers for Disease Control certify that climate change is not a public health threat. Rep.  Inslee also offered an amendment limiting H.R. 910′s applicability until the National Academy of Sciences certifies the bill would not increase the incidence of asthma in children.

These amendments had no chance of passing, but that was not their purpose. The objective, rather, was to enable opponents to claim later, when the full House debates the bill, that a vote for H.R. 910 is a vote against science, public health, national security, energy security, and children with asthma. This is arrant nonsense, as I will explain below. [click to continue…]

Post image for Senate Update: McConnell Amendment Vote

The Senate may vote today on the McConnell Amendment to S. 493.  The amendment is identical to S. 482, the Energy Tax Prevention Act, which was passed out of the House Energy and Commerce Committee yesterday evening, with bipartisan support. The legislation would revoke the EPA’s authority to regulate greenhouse gases under the Clean Air Act.

Although this looked like a long shot when Senator Minority Leader Mitch McConnell (R-KY) surprised everyone by offering it yesterday, the Democratic leadership realized late yesterday afternoon that they might lose.  That’s when Senator Jay Rockefeller (D-WV) introduced his two-year delay bill as an amendment.  That has fallen flat.  The outcome appears to be in doubt this morning.  There could be a vote and McConnell’s amendment could pass narrowly.  There could be a vote and the amendment could fail narrowly.  There could be a deal on all the amendments pending and the amendment could be withdrawn as part of the deal.  McConnell could pull the amendment because it’s going to fail.  Senate Majority Leader Harry Reid (D-NV) could pull the bill from the floor because the amendment is going to pass.

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Last Thursday, the House Energy & Power Subcommittee, on a voice vote, approved H.R. 910, the “Energy Tax Prevention Act.” My colleague Myron Ebell blogged about it over the weekend in a post titled Inside the Beltway.

The present post offers additional commentary. The full House Energy and Commerce Committee marks up the legislation today and tomorrow.

Rep. Henry Waxman (D-Calif.) led the charge for the minority, claiming H.R. 910 “rolls back” the Clean Air Act. Wrong. H.R. 910 restores the Clean Air Act (CAA). Congress never intended the CAA to be a framework for greenhouse gas regulation, and never subsequently voted for it to be used as such a framework. The terms “greenhouse gas” and “greenhouse effect” never even occur in the Act, which was enacted in 1970, years before global warming was even a gleam in Al Gore’s eye.  [click to continue…]