Capito Readies Senate Legislation to Block Proposed Clean Power Plan Implementation

By Andrew Childers

May 5 — Sen. Shelley Moore Capito (R-W.Va.) plans to introduce a bill the week of May 11 to block implementation of the Environmental Protection Agency's proposed Clean Power Plan.

“Next week I will be introducing greenhouse gas legislation with my colleagues that will preserve the proper balance of state and federal authority, help ensure reliable and affordable electricity and protect jobs and our economy,” Capito said May 5 during a hearing by the Senate Environment and Public Works Subcommittee on Clean Air and Nuclear Safety on legal challenges to the EPA's proposed rule

Capito, who chairs the subcommittee, didn't offer any details about the pending legislation, but it's expected to resemble a bill offered by Rep. Ed Whitfield (R-Ky.,) that would delay implementation of the rule until all legal challenges have been resolved and provide the states with the ability to opt out of complying with the rule if it would increase electricity rates or jeopardize grid reliability. The House Energy and Commerce Committee sent Whitfield's bill to the House floor April 29. 

Capito told reporters after the hearing that she will be seeking bipartisan support for her bill. Sen. Joe Manchin (D-W.Va.), who has previously co-sponsored bills with Whitfield, couldn't be reached for comment.

The Clean Power Plan (RIN 2060-AR33), proposed under Section 111(d) of the Clean Air Act, would establish unique carbon dioxide emissions rates for the power sector in each state. Those standards would be implemented by the states, which would choose for themselves the best options for compliance.

Capito Cites Cooperative Federalism 

“We know from nearly five decades of experience that the Clean Air Act works best when implemented in the spirit of cooperative federalism,” Capito said. “When the federal government works with the states as partners, we can, and have, improved air quality and protected our economy and our electricity grid at the same time.”

Opponents of the Clean Power Plan argued that the EPA overstepped its statutory authority in designing the proposed rule, largely reiterating arguments they recently made to federal appellate judges.

“The EPA does not possess the authority under the Clean Air Act to do what it seeks to accomplish under the so-called Clean Power Plan,” Oklahoma Attorney General Scott Pruitt (R) said.

Oklahoma and West Virginia both joined in a pair of lawsuits that seek to block the EPA's proposed Clean Power Plan before it can be finalized. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard challenges to the Clean Power Plan April 16 but appeared wary of setting a precedent by striking down a proposed rule ( In re: Murray Energy Corp., D.C. Cir., No. 14-1112, oral arguments, 4/16/15; West Virginia v. EPA, D.C. Cir., No. 14-1146, oral arguments, 4/16/15).

Opponents Argue Use of Air Act Section 

Opponents of the proposed rule argue the EPA can't regulate carbon dioxide emissions from existing power plants under Section 111(d) of the Clean Air Act because those units are already subject to hazardous air pollutant limits issued under Section 112.

When the Clean Air Act was amended in 1990, conflicting amendments to Section 111(d) were both adopted.

An amendment offered by the House would prevent the EPA from regulating any industrial source under Section 111(d) that is already subject to toxic pollutant standards under Section 112, as are power plants. The Senate's amendment would bar the agency from regulating under Section 111(d) those pollutants that are subject to Section 112 standards.

While both amendments were included in the signed law, only the House amendment was added to the U.S. Code, while both amendments are included in the statutes at large.

West Virginia Attorney General Patrick Morrissey (R) argued the Senate's language is only a conforming amendment and therefore has no force. He argued the EPA is attempting to promulgate a “sweeping proposal on the basis of a typo.”

Professor Calls EPA Interpretation Reasonable 

Lisa Heinzerling, the Justice William J. Brennan Jr. Professor of Law at the Georgetown University Law Center, said the EPA has reasonably sought to craft an interpretation of Section 111(d)'s provisions that gives effect to both amendments, and the agency is due deference.

“EPA has long offered an interpretation of Section 111(d) that seeks to take something from each of these amendments,” she said.

To contact the reporter on this story: Andrew Childers in Washington at

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