Nearly Half of Senate Pledges to Fight EPA Carbon Rules

By Anthony Adragna and Andrew Childers

Oct. 27 — The Senate moved swiftly to push back against Environmental Protection Agency carbon pollution rules with nearly half the chamber backing separate resolutions to overturn the Clean Power Plan and carbon dioxide limits for new and modified power plants.

Sen. Shelley Moore Capito (R-W.Va.) and 48 other senators co-sponsored the resolution (S.J. Res. 24) to kill off the Clean Power Plan, while an effort (S.J. Res. 23) by Senate Majority Leader Mitch McConnell (R-Ky.) to overturn the future power plant rules had the backing of 47 members. Sen. Joe Manchin (D-W.Va.) was the lone Democrat to back both resolutions, while Sen. Heidi Heitkamp (D-N.D.) co-sponsored Capito's.

Both measures are expected to get votes in the Senate during the week of Nov. 16, according to a senior Senate Republican aide.

“The publication of these regulations does not represent an end, but a beginning,” McConnell said on the Senate floor. “That front is opening here in Congress, and it's opening across the country as states file lawsuits and governors stand up for their own middle class constituents. The battle may not be short or easy. But Kentuckians and hardworking Americans should know that I'm going to keep standing up for them throughout.”

McConnell and Capito introduced their resolutions late Oct. 26 as Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Energy and Power Subcommittee, introduced companion resolutions in the House (206 ECR 206, 10/26/15).

Unlikely to Become Law

Congress continues to forge ahead with the efforts to scuttle the newly finalized EPA rules, despite the fact they would need two-thirds of both chambers to override a certain veto by President Barack Obama of the resolutions to thwart the foundation of his plan to address climate change.

But the lawmakers say they must get Congress on the record about the EPA regulations, and some believe the votes will be timed to undermine ongoing international negotiations toward an international agreement on climate change in Paris.

First, they must get the resolutions to the Senate floor—a task significantly easier because “when a joint resolution of disapproval meets certain criteria, it cannot be filibustered in the Senate,” according to an April 2015 Congressional Research Service report.

Those conditions include allowing 20 calendar days to pass after a regulation's publication, filing a petition with the signatures of 30 senators and making a nondebatable motion to proceed with consideration of the resolution.

There has been just one successful challenge of a regulation—a final rule from former President Bill Clinton's Labor Department setting ergonomic standards—in the history of the Congressional Review Act.

Some Republicans Don't Join

Seven Republicans did not initially join their party in co-sponsoring the resolutions to overturn the EPA rules—Sens. Kelly Ayotte (N.H.), Mark Kirk (Ill.), Rob Portman (Ohio), Susan Collins (Maine), Dean Heller (Nev.), Cory Gardner (Colo.) and Richard Burr (N.C.).

Ayotte became the first Senate Republican to back the EPA's efforts Oct. 25, while Collins told Bloomberg BNA in August “in general, I support the ability of EPA to issue regulations in this area.” Environmental advocates continue to hope Portman and Kirk, both of whom face competitive re-elections in 2016, may ultimately buck their party on the rules.

Neither Kirk's office nor Portman's responded to requests for comment.

Other Republicans in competitive re-election races next year—Sens. Ron Johnson (Wis.) and Pat Toomey (Pa.)—supported the resolutions of disapproval.

Environmental advocates said they were not surprised by the latest efforts to undermine the EPA regulations, which they said were designed to undermine international negotiations toward an agreement on climate change.

“This is designed to score some political points in hopes of undermining the president's delegation in Paris,” Melinda Pierce, legislative director for the Sierra Club, told Bloomberg BNA Oct. 27. “It's going to hit the brick wall of a presidential veto.”

Environmental Groups Enter Legal Fray

As senators rallied to block the power plant rules, the EPA received some support Oct. 27 when nine environmental groups moved to intervene in a pair of lawsuits challenging the agency's standards (West Virginia v. EPA, D.C. Cir., No. 15-1363, motion to intervene 10/27/15; North Dakota v. EPA, D.C. Cir., No. 15-1381, motion to intervene 10/27/15).

The American Lung Association, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, Environmental Defense Fund, Clean Air Council, Clean Wisconsin, Conservation Law Foundation and Ohio Environmental Council asked the U.S. Court of Appeals for the District of Columbia Circuit to allow them to participate in two lawsuits that challenge the Clean Power Plan (RIN 2060-AR33) and new source performance standards for carbon dioxide emissions from new power plants (RIN 2060-AQ91).

The EPA published both rules in the Federal Register Oct. 23, sparking a rash of lawsuits from opponents of the regulations (205 ECR 205, 10/23/15).

“The Clean Power Plan will help to reduce the growth of atmospheric CO2 concentrations and thereby reduce the threats that climate change poses to the organizations’ members,” the groups said in their motion. “Delay, weakening, or invalidation of the Clean Power Plan would harm the organizations’ members by exacerbating the impacts of climate change.”

In addition to the environmental groups, the American Wind Energy Association and Advanced Energy Economy have also filed in support of the EPA.

Additional states led by New York are also expected to join the EPA in defending the rules.

To contact the reporter on this story: Anthony Adragna in Washington at

To contact the editor responsible for this story: Larry Pearl at