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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.

Last week the New Mexico Supreme Court blocked Governor Susana Martinez’s attempt to stop a cap-and-trade energy rationing scheme from taking effect, on the grounds that the Governor failed to follow proper administrative procedure. In delivering the ruling, Chief Justice Charles Daniels admonished Governor Martinez, saying that “no one is above the law.” This is ridiculous. Governor Martinez was trying to block a cap-and-trade that had been imposed by her predecessor (ex-Governor Bill Richardson), during a lame-duck session, and after the state legislature had opposed it. When a state executive imposes an energy tax over the will of the legislature, isn’t he acting “above the law”? Fortunately, Governor Martinez still can block the regulation. She’ll have to wait until it’s published in the state register, and then her administration will have to perform a formal rulemaking through the Environmental Improvement Board. We hope she doesn’t abandon the effort.

Senator John Barrasso (R-Wyo.) plans to introduce a bill early next week to prohibit the regulation of greenhouse gas emissions using existing legal authority, such as the Clean Air Act.  It is my understanding that the bill will not overturn the deal on Corporate Average Fuel Economy standards for cars and light trucks that the Obama Administration negotiated in secret with the State of California and the automakers.  However, it will block any future Clean Air Act waivers for greenhouse gas emissions, so that California won’t be able to do the same trick again after the new CAFÉ standards go into effect in 2016.

It remains to be seen whether Senator Barrasso’s bill will have any Democratic co-sponsors.  It has been rumored that freshman Senator Joe Manchin (D-WV) has decided not to co-sponsor the bill.  If true, then Senator Manchin is already retreating from his tough talk in the campaign.  He certainly won’t be living up to the television commercial that got him elected in which he is seen shooting a bullet through the cap-and-trade bill.

This shouldn’t be too surprising.  The Senate Democratic leadership and the White House are probably leaning hard on Manchin.  Majority Leader Harry Reid (D-Nev.) on Thursday announced committee assignments for the 112th Congress.  Manchin was given a seat on the Energy and Natural Resources Committee.  It would be cynical to suggest that there is any connection between that and deciding not to co-sponsor the Barrasso bill.

By Myron Ebell and Brian McGraw

President Barack Obama’s choice of Jeffrey Immelt, chairman and CEO of General Electric, to head his new Council on Jobs and Competitiveness demonstrates once again how clueless the president is about the economy. Having not caused enough damage in the past few years, Obama is doubling down on policies that are slowing the still fragile economic recovery. If the president really wanted to help the economy and create jobs, he would do the opposite of what Jeffrey Immelt has done at General Electric and has advocated for national policy.

As head of General Electric since 2001, Immelt has spent a decade driving what was once one of the greatest companies in the world into the ground. Under legendary CEO Jack Welch, General Electric’s stock rose from $5 a share in 1991 to over $40 per share when Welch retired in 2001. As Welch’s successor, Immelt has halved the value of General Electric over the last ten years, whose stock value has not exceeded $20 per share since late 2008. Despite his unsuccessful tenure at General Electric, President Obama is now giving Immelt free-rein to do the same to the American economy.

On broader issues of economic policy, Immelt is the perfect model of a crony capitalist. Instead of building his company to succeed in a competitive free-market, he has devoted most of his efforts to securing handouts, special deals, and subsidies for various General Electric businesses in Washington D.C. This is clearly what attracts President Obama to Immelt, a savvy political operator despite being a bust as the head of General Electric

Even more, Immelt, along with James Rogers of Duke Energy, has been among the biggest business promoters of cap-and-trade legislation. Cap-and-trade is now dead, but had it been enacted it would have been the biggest hit on the U.S. economy and on working Americans ever perpetrated by the U.S. government. Cap-and-trade would benefit many of General Electric’s businesses at the expense of American workers and consumers. This was no secret. As then-candidate Obama said in 2008, “electricity rates would necessarily sky rocket” under the proposed legislation supported by both Immelt and Obama.

Though cap-and-trade is dead, the Obama administration has decided to ignore Congress and pursue harmful energy-rationing policies through regulatory fiat. The EPA’s regulation of greenhouse gas emissions will bring higher energy prices and less money in consumer’s pockets to spend, causing an immense strain on the fragile budgets of American families during a recession. Higher electric rates will also make American manufacturing even less competitive with its foreign rivals, leading to the mass export of America’s manufacturing jobs.

In short, Immelt has put into practice at General Electric policies that are hurting his company, his shareholders, and his workers. He has advocated national economic policies that would do the same for America. As a reward for all of this, President Obama has selected Immelt to head yet another PR effort that will do nothing to roll back any of the job-killing policies enacted by the Obama administration.

This piece will be featured in the print edition of  The Tea Party Review (teapartyreview.com).