Senate May Target EPA Cross-State Rule With Goal of Forcing Obama to Accept Delay

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By Dean Scott

With House approval of a bill in September to delay two key air pollution rules, Republicans and industry groups are now turning their attention to the Senate, where they hope to force an up-or-down vote on a proposal to nullify a rule to cut power plant emissions that contribute to pollution in other states.

Industry groups concede that the resolution (S.J. Res. 27) to overturn the Cross-State Air Pollution Rule, introduced Sept. 8 by Sen. Rand Paul (R-Ky.), will most likely fall short of the 60-votes needed for Senate passage, given Democratic control of the chamber.

The Environmental Protection Agency rule would curb power plant emissions of sulfur dioxide and nitrogen oxide that contribute to ozone and/or fine particle pollution in other states.

But if the Paul measure can get at least 50 votes, industry groups say, it would put both the Senate and the House on record opposing the Cross-State Air Pollution Rule and ultimately could convince President Obama to at least delay the regulation. The president could either rescind the rule on his own or be forced to accept a delay in a continuing resolution needed to keep federal funds flowing at least through the end of the year.

Thus far, the Obama administration has resisted efforts to delay the Cross-State Air Pollution Rule. The White House issued a veto threat against the House TRAIN Act, warning that the bill would delay and weaken important health protections.

The Congressional Review Act (Pub. L. 104-121), signed into law in 1996, gave Congress streamlined procedures to vote down economically significant federal regulations. Those expedited procedures, for example, allow Paul to bypass committee consideration by getting at least 30 senators to support a petition to bring his resolution directly to the floor.

A Paul aide said the senator already has more than 30 signatures, but he plans to use the next two months to build support rather than rushing it to the floor.

“We have over 30 [signatures] for the petition—we are definitely over that,” the aide said. Under the Congressional Review Act (CRA), the resolution to overturn the EPA regulation must be voted within 60 session days of the rule's publication Aug. 8.

Senate Vote Could Send Message

Jeffrey Holmstead, a former EPA assistant administrator for air and radiation and an attorney at Bracewell & Giuliani representing power companies, told BNA that Paul's effort is a long shot.

“I don't think anyone believes a resolution of disapproval would actually result in Congress overturning the rule, because under the CRA, it has to pass both Houses, you have to have a president sign it, and you have to override the president's veto,” Holmstead said.

“The bigger issue here is if Paul gets all 47 Republicans and even picks up a surprising number of Democrats” to get over the 50-vote mark, Holmstead said.

Republican Senate aides and industry groups say they are confident they will have the support of Sen. Joe Manchin (D-W.Va.) for the resolution. But they say there are more than a half-dozen Democrats up for re-election in 2012 that could be considered fence-sitters in a vote to block the cross-state rule. They include Sens. Bill Nelson (Fla.), Ben Nelson (Neb.), Sherrod Brown (Ohio), Debbie Stabenow (Mich.), Amy Klobuchar (Minn.), and Bob Casey (Pa.).

Getting some Democratic support could embolden Republicans to try to force Obama to accept a delay of the cross-state rule in the next short-term funding bill, Holmstead said. The next continuing resolution on the agenda would fund federal operations only through Nov. 18 (187 DEN A-14, 9/27/11).

“Everyone assumes there will likely have to be another [continuing resolution], and that will essentially be must-pass legislation,” Holmstead said. “And there is an expectation, I think, that the next one is not going to be a clean CR” that is silent on EPA regulations, he said. “My assumption is the White House is going to have to accept” a restriction in the next funding bill.

Action Needed Before December

In July, EPA announced its final Cross-State Air Pollution Rule—which requires power plants in 27 Eastern and Midwestern states to cut sulfur dioxide and nitrogen oxide—but it published it in an Aug. 8 notice (76 Fed. Reg. 48,002). Thus, the Paul aide said, the senator has roughly until Dec. 1 to get his resolution of disapproval to the Senate floor.

“Our thinking is we will see something by late November. It's not the first thing we're pushing for on the floor, but we can use that time to get even more support,” the Paul aide said.

EPA's cross-state rule is intended to help states downwind of power plant emissions conform with national ambient air quality standards for ozone and fine particulate matter (131 DEN A-6, 7/8/11).

The TRAIN Act (H.R. 2401) approved by the House Sept. 23 would nullify the cross-state rule and direct EPA to issue a new, less burdensome set of regulations several years from now. In the interim, the agency would enforce the Bush administration's less stringent Clean Air Interstate Rule (CAIR).

The House bill also would delay a second air pollutant rule known as the Utility MACT, which would require power plants to use maximum achievable control technology to cut air toxics emitted by power plants (186 DEN A-3, 9/26/11).

While the TRAIN Act would delay those rules, nullifying the cross-state rule under the Congressional Review Act would require the House to pass its own resolution of disapproval similar to the one Paul is advancing in the Senate.

Environmental Groups Reject Criticism

The Cross-State Air Pollution Rule angered many states when it was released in July, in part because EPA extended requirements to some states that were not included in the proposed version. Texas, for example, was required under the final rule to reduce annual sulfur dioxide and nitrogen oxide emissions, which was not in EPA's original proposal.

Other states received lower pollutant “budgets,” essentially limits, than originally were proposed by EPA. An industry chart comparing the pollutant budgets set in the proposal versus the final cross-state rule for sulfur dioxide, for example, concluded that 14 states face more stringent pollutant limits than were proposed: Georgia, Indiana, Kansas, Maryland, Michigan, Minnesota, Nebraska, New Jersey, New York, Ohio, Pennsylvania, South Carolina, West Virginia, and Wisconsin.

For ozone, the following states face more stringent pollutant budgets under the final rule: Florida, Georgia, Kansas, Louisiana, Michigan, Mississippi, New Jersey, New York, Oklahoma, South Carolina, and Texas.

But environmental groups say the congressional efforts to delay, and in some cases nullify, such rules is only part of a broader assault by House Majority Leader Eric Cantor (R-Va.) and other Republicans on important environmental and public health protections.

John Walke, clean air director for the Natural Resources Defense Council, noted in a Sept. 30 blog that the House is slated to take up two more bills the week of Oct. 2 to roll back two more EPA rules. The bills would target rules designed to curb mercury and other air pollutants from incinerators and boilers (H.R. 2250) and from cement plants (H.R. 2681).

“These bills continue the deadly trend of the Cantor Pollution Plan—rolling back clean air safeguards and putting millions of American lives at risk,” Walke wrote.