Power Plant Bill Would Be ‘Unprecedented Interference' in EPA Activity, McCabe Says

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By Anthony Adragna

April 13 — Legislation set for consideration by a House subpanel that would enable states to delay complying with the Environmental Protection Agency's Clean Power Plan marks “unprecedented interference” from Congress, the agency's top air official said in prepared testimony released April 13.

Janet McCabe, acting assistant administrator for air and radiation, called Rep. Ed Whitfield's (R-Ky.) draft Ratepayer Protection Act “premature,” given the agency has not finalized its carbon dioxide regulation for existing power plants and intends to incorporate changes to address cost and reliability concerns.

“EPA views the draft as premature, unnecessary and ultimately harmful,” McCabe said. “Although members of Congress have routinely expressed concern with EPA's rules and their legality over the years, we are not aware of any instance in the last 25 years when Congress has enacted legislation to stay implementation of an air rule during judicial review.”

McCabe will testify on the draft bill April 14 before Whitfield's Energy and Commerce Subcommittee on Energy and Power.

Whitfield's bill, unveiled March 23, would offer two avenues for allowing states to indefinitely delay complying with the EPA regulation.

One provision would allow states to postpone submitting their plans for complying with the emissions reduction goals until after all legal challenges are exhausted, and another would allow states to opt out of the rule if it would increase utility rates or jeopardize reliability.

“I would not recommend, and I am confident that the Administrator would not sign, a final rule that the EPA did not believe was on firm legal footing and worthy of being upheld by the federal courts,” McCabe said. “In light of that, the effect of the draft bill would be a wholly unnecessary postponement of reductions of harmful air pollution.”

As proposed under Section 111(d) of the Clean Air Act, the Clean Power Plan (RIN 2060-AR33) would establish unique carbon dioxide emissions rates for the power sector in each state. States would be required to meet interim targets between 2020 and 2029, with a final emissions rate to be achieved in 2030, but would have flexibility as to how best to meet their individual targets.

Whitfield's efforts come as Senate Majority Leader Mitch McConnell (R-Ky.) has urged states simply not to submit implementation plans for the proposal, forcing the EPA instead to issue federal plans. A White House aide slammed that strategy as “an inappropriate and unfounded attempt to dictate state decisions.” in a statement to Bloomberg BNA. 

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

McCabe's testimony for the April 14 hearing on the Ratepayer Protection Act is available at http://1.usa.gov/1zaEAzF.