Whitfield Sees Quick Action on Bill Targeting EPA Clean Power Plan

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Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power, told Bloomberg BNA's Anthony Adragna in a sit-down interview April 15 that he plans quick action on his bill, the Ratepayer Protection Act, to let states to opt-out of the Environmental Protection Agency's proposed Clean Power Plan and delay implementation until judicial review is complete. He anticipates the full House will pass it before the regulations are finalized this summer. Whitfield said the EPA is “running down the road much farther than anyone ever anticipated” and is exceeding its authority under the Clean Air Act. He also said it is unclear whether the U.S. Supreme Court would strike down the power plant rules, which is why congressional action is important. The Kentucky Republican said human activity “absolutely” contributes to climate change, but he disagreed with President Barack Obama's administration on the urgency needed to respond to it. Whitfield also ruled out a push to reform the renewable fuel standard this Congress, saying there is no political will to repeal the standard. This interview has been edited for clarity and length.


BLOOMBERG BNA: Let’s talk about your draft Ratepayer Protection Act. Do you have a sense of timing for that bill and when the House might take it up?

Whitfield: We’re going to probably mark it up in our subcommittee next week [the week of April 20], and then I think the full committee will take it up soon after that, and I expect it’ll be on the floor of the House very soon.

BLOOMBERG BNA: Before the EPA tries to finalize these rules?

Whitfield: Yeah.

BLOOMBERG BNA: And have you been working with or had discussions with anyone in the Senate about companion legislation to your bill?

Whitfield: As you remember, we introduced legislation about this issue last Congress, and so we’ve worked with a number of Democratic senators—and their staffs—on that legislation and this legislation. We do expect we’ll have Democratic support, and we think it’s a very important issue, one where the American people are not even aware of the implications of what the rule would do. So we want to have a full, transparent process, regular order, debate and try to elevate the issue.   

BLOOMBERG BNA: What did you make of the comment from the EPA’s top air official, Janet McCabe, at the legislative hearing on this bill that it would be an “unprecedented interference” into the agency’s work?

Whitfield: The reason it’s unprecedented—if she views it like that—is that what they’re doing is really unprecedented. As you know, we never know what a court will decide, but legal scholars from all over the place have said they’ve never seen an extreme action—a power grab—like this out of EPA.

I don’t know why she would not expect that we would try to do everything possible to prevent them from taking this kind of extreme action. And our action, the action we’re taking, is really modest. We’re not even trying to repeal their regulation.   

BLOOMBERG BNA:  Why not wait until the rule’s final, though, which is what some have said?

Whitfield: First of all, we are a legislative body. We are not a court. No one ever anticipated carbon dioxide [CO2] would be regulated under the Clean Air Act. In fact, when the Clean Air Act was being considered and amended through the years, there were actual discussions about whether CO2 should be regulated, and it was affirmatively decided, no, it should not.

So we have a responsibility as a legislative body who passed the original Clean Air Act and all of its amendments that if we view EPA running down the road much farther than anyone ever anticipated—in fact, they’re rewriting the Clean Air Act, in our view—why would we wait for anything? And we’re not going to wait for anything. We’re going to try to move as aggressively as we possibly can.

BLOOMBERG BNA:  Senate Majority Leader Mitch McConnell (R-Ky.) has obviously been right out in front of this and has advocated for states simply to not comply by refusing to submit implementation plans for this rule. Some are calling this the “just say no” approach. What do you make of that strategy?

Whitfield: I support any effort to prevent EPA from being successful in finalizing and implementing this regulation. I support everything. And I guess that’s an option available to them. And each state is going to have to decide what they want to do if this plan becomes final because it's going to affect a lot of people—a lot of people who have nothing to do with emitting anything.

BLOOMBERG BNA:  Certainly one newspaper in your own state—the Lexington Herald-Leader—called McConnell’s approach “misguided.” Would it set a troubling precedent for the Clean Air Act, which is obviously built on this model of cooperative federalism?

Whitfield: I’d like to say that newspaper is one of the most liberal in the country. They have never agreed or supported Mitch McConnell on anything. The mere fact he’d come out with this proposal or suggestion, it does not surprise me they’d be opposed to it because that’s their history.

As far as a precedent, [the EPA is] violating precedence in my view. So we have a responsibility to the taxpayers, as a legislative body, to do everything possible to prevent a regulation that was never anticipated by the people who actually passed the Clean Air Act.

BLOOMBERG BNA:  What do you think the appropriations process is going to look like for EPA? That’s another area where Leader McConnell has said he’ll be active. Is that the best opportunity to stop these power plant regulations?

Whitfield: I don’t view it as better or not better, but it’s an option. And we’re going to try pass bills. We’re going to try and prevent them [the EPA] from doing it through the appropriations process. If there’s an omnibus bill, we may try to do it there, too. We’re going to do everything we have available to prevent them from doing it.

BLOOMBERG BNA:  What about a scenario where a conservative Democrat offers a compromise bill and says, “We’ll just delay these rules for five years.” So not try to block these regulations entirely but just delay them for five years? Would you ever be open to that?

Whitfield: Oh absolutely. Absolutely.

BLOOMBERG BNA:  Because something like that would have a better chance of being signed into law?

Whitfield: Well, not a better chance, but if they came to us and asked if I’d consider it, I would say, “absolutely.”

BLOOMBERG BNA:  In the past you’ve hosted several forums on the Clean Air Act. Is there room for a broader discussion about revisions to that statute, and should we be looking at ways to reform it?

Whitfield: Well, you’re right we had a number of forums on the Clean Air Act, and one thing that came through loud and clear was that state regulators believe there are a number of things that need to be done to improve the Clean Air Act.

One example being when EPA goes out and enters into consent decrees with traditionally environmental groups that have filed suits, even though the project or the impact may be in one particular state, those states are excluded from having any input. That’s just one example.

When the EPA takes actions like this, I think it provides additional incentive for people wanting to revisit the Clean Air Act. The Clean Air Act is the Holy Grail, but most people—regulators—think there definitely need to be changes to the Clean Air Act.

BLOOMBERG BNA:  Is there any momentum now because of the rules?

Whitfield: I do think there is momentum because of these rules, but realistically with Barack Obama in the White House, I don’t know that we would be successful in changing the Clean Air Act. Right now, it’s really not a priority for me because we’re reacting so much to the extreme actions of EPA that we’re really focused on that.

BLOOMBERG BNA:  Obviously, President Obama wants to get these rules done before leaving office. He has said he sees them as a legacy issue. Does that raise concerns about how EPA is going about the rulemaking process?

Whitfield: It does because it’s being reverse engineered—that’s pretty obvious. He’s gone into international agreements, [and] then he comes back and gives a speech at Georgetown in 2013 and says, “This is what I want to do.” And he tells the EPA to implement it, and that’s what they’re doing.

I don’t really think that was the way any federal agency, when it was established, thought it would be operating: to take a directive from the president because it’s a legacy issue for him and the international community.

BLOOMBERG BNA:  If Congress is not successful at blocking these rules in Congress, do you think they will be struck down by the Supreme Court, should they reach that level?

Whitfield: The Supreme Court has rendered some decisions that you could interpret to mean that [the EPA] is going too far, relating to this. So I would not at all be surprised if the Supreme Court struck it down. On the other hand, I don’t know if I’d be surprised if they upheld it because you know there are four votes over there that you know that are going to vote to uphold this no matter what it is.

BLOOMBERG BNA:  You mentioned international agreements: Is part of the incentive to get this done to boost the chances of the Obama administration being able to deliver an international agreement on climate change this December?

Whitfield: I think he wants to go to Paris, and he wants to be able to tell them what he’s done. And the real frustrating thing about this, and you know this as well, [is] everyone realizes the impact on climate change is going to be de minimis because the amount of CO2 we’re really talking about here is de minimis. And it’s coming in from all over the place.

It does bring up the issue again of transparency. This president talked about he wanted to be the most transparent, and yet he’s using every option available to make sure the public is not aware of the real impact of what he’s doing and what is the real reason he’s doing it. Gina McCarthy said it’s not about pollution control.

BLOOMBERG BNA:  If the climate is changing and this is wrong strategy, is there a right strategy to address climate change?

Whitfield: I don’t know of anyone in Congress that denies that the climate is changing. I was reading an article recently about growing grape vineyards in Northern England in the 14th Century, which means it was much warmer then than it is now, or they wouldn’t be growing those grape vineyards.

The difference that we have is the president wants to make it a legacy issue for himself. He views it as one of the most important issues facing mankind, and most polls show in America that certainly is not the case. We have very clean air; we’re way ahead of most countries of the world, and we just don’t think it’s an urgent issue.

There are health care issues facing mankind. There are many places of the Earth where they don’t have any electricity, jobs are needed, the economy needs to be stimulated. And this guy is running around talking about climate change.

They have this diatribe down where anything that happens [that is] adverse, anywhere in the world, [is due to] climate change. And we know, there are all sorts of scientists that say, “There are so many variables here. You cannot with a great deal of certainty say anything.” We know one eruption of a major volcano spews more CO2 and debris in the atmosphere than certainly any of these coal plants in the U.S. are doing.

BLOOMBERG BNA:  Does human activity play a role in climate change, you think?

Whitfield: Absolutely. It does. And articles that I’ve read indicate most of the human activity that contributes to it is deforestation.

BLOOMBERG BNA:  Are you planning to tackle reform of the renewable fuel standard (RFS) this year?

Whitfield: No. I don’t think there’s any unanimous agreement on what to do about RFS. We tried the last Congress, and we did everything that we possibly could do to try to address the RIN [renewable identification number] price issue and other issues. We worked with all the groups, and no one could come up an agreement. And as a result, we have EPA like three years behind in their numbers.

I don’t think the political will is there to repeal it. I guess it depends on what some of these numbers are that EPA comes out with. If they come out with really off-the-wall, extreme numbers, then there may be some will to set some parameters or something.

BLOOMBERG BNA:  And finally, what role do you see these power plant carbon rules playing in the 2016 presidential election?

Whitfield: We do want to raise the issue in the minds of the American people because the American people don’t have any idea of what’s going on here, of the unique and extreme position being taken here by the EPA becoming the leader in determining how energy is produced in America.

One of our objectives, in addition to postponing it or delaying it, is to educate the American people, so it can be an issue in 2016. Unfortunately, 2016 is going to be a long way down the road, but if we can be successful in 2016, maybe we can have a president so that we might be able revisit some of these issues.

BLOOMBERG BNA:  Anything else you’d like to add about your bill or otherwise?

Whitfield: I would just stress that I think it’s certainly reasonable. It’s not repealing [the rules]. It’s simply letting the courts make a decision on what everyone recognizes as a controversial regulation. And then it’s not an opt-out even for the governors unless they can find that it significantly and adversely affects the ratepayers and the economy.