House Committee Moves Bill Allowing States to Opt Out of Clean Power Plan Compliance

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By Andrew Childers

April 29 — The House Energy and Commerce Committee sent a bill to the House floor April 29 that would allow states to opt out or defer compliance with the Environmental Protection Agency's proposed Clean Power Plan.

The committee approved the Ratepayer Protection Act (H.R. 2042) on a 28-22 vote after defeating five attempts by Democrats to amend the bill.

Rep. Ed Whitfield (R-Ky.), the bill's sponsor, has said he would like to see the House vote on the measure before the EPA finalizes its Clean Power Plan, which is expected this summer.

The bill would allow states to defer compliance with the Clean Power Plan (RIN 2060-AR33) until after legal challenges to the rule are exhausted. The bill would also allow state governors to opt out of compliance with the rule if doing so would increase electricity rates or jeopardize reliability.

The Clean Power Plan, proposed under Section 111(d) of the Clean Air Act, 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 to determine how best to achieve that target.

Only 13 Months to Develop Strategies 

Whitfield said his bill is necessary because the EPA typically provides states with three years to develop compliance plans for other Clean Air Act regulations, but states would only have 13 months to develop strategies to comply with the Clean Power Plan.

“We’re not even trying to repeal this regulation,” Whitfield said. “We’re simply saying it’s so outside the bounds of expectations that we should allow the courts to render a decision before states are put in this position.”

Allowing states to decide for themselves when to comply with Clean Air Act requirements would set a dangerous precedent that could cripple efforts to reduce air pollution, 88 environmental groups said in an April 28 letter.

“This bill strikes at the heart of the federal Clean Air Act by letting each state simply walk away from national clean air requirements, giving polluters free rein to continue to dump unlimited amounts of carbon pollution into our air,” the letter said. “The legislation sets a dangerous precedent by allowing any state to decide that meeting national clean air standards is merely optional. It would destroy the national guarantee that makes the Clean Air Act work: the assurance that EPA will directly regulate the big polluters if a state cannot, or will not do so.”

Environmental groups signing the letter include the Center for Biological Diversity, Earthjustice, Natural Resources Defense Council and Sierra Club.

Democratic Amendments Defeated 

The Energy and Commerce Committee advanced the bill after voting down five amendments offered by Democrats.

Rep. Bobby Rush (D-Ill.), ranking member of the Energy and Commerce Subcommittee on Energy and Power, offered two amendments to the bill. The amendments would have required governors to show that the anticipated electricity rate increases from complying with the Clean Power Plan were greater than either the public health impacts of climate change or the cost of responding to extreme weather events caused by a warming atmosphere.

He offered similar measures that were defeated when the bill was marked up by the subcommittee April 22. 

Review of Decision to Opt Out 

Rep. Paul Tonko (D-N.Y.) offered an amendment that would have subjected a governor's decision to opt out of the Clean Power Plan to judicial review in a federal court.

An amendment offered by Rep. Frank Pallone (D-N.J.) would have required the decision to opt out be approved by the state legislature. A second amendment from Pallone would have established the sense of Congress that energy efficiency and clean energy investments are vital to improving the environment, economy and national security.

Though all of the amendments were defeated, Whitfield said he's open to revising his bill to provide additional relief to states such as additional time to develop their compliance plans.

“I do believe it is a major concern,” he said.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

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