Legal Basis for EPA Climate Rules at Issue in Air Act Tweak

By Anthony Adragna

Nov. 2 — Three senior Republicans on the House Energy and Commerce Committee accused the Environmental Protection Agency Nov. 2 of not cooperating on a technical fix to the Clean Air Act because the agency believed doing so would undermine its legal position on the Clean Power Plan.

At issue are a set of conflicting amendments passed as Section 111(d) in the 1990 Clean Air Act amendments. The Senate amendment bars the EPA from regulating pollutants under Section 111(d) that already are regulated as toxic pollutants under Section 112, while the House language says the EPA cannot regulate industrial sources under Section 111(d) if they are already subject to hazardous air pollutant standards under Section 112 (58 ECR, 3/26/15).

Both amendments are included in the statutes at large, but only the House amendment is reflected in current U.S. Code.

Now, a nonpartisan congressional authority—the Office of Law Revision Counsel—is attempting to resolve the discrepancy by updating the U.S. Code. But the EPA is not cooperating with those efforts, according to the Nov. 2 letter to Administrator Gina McCarthy because the agency thinks the revised statute would go with the House amendment and potentially endanger the legal footing of the Clean Power Plan.

“There is reason to believe that agency officials may have worked to inhibit the congressional Office of Law Revision Counsel as it sought to fulfill its responsibility to codify the language of the Clean Air Act and other statutory provisions,” the letter from Reps. Fred Upton (R-Mich.), Tim Murphy (R-Pa.) and Rep. Ed Whitfield (R-Ky.) said.

Upton, chairman of the full Energy and Commerce Committee, and Murphy and Whitfield, chairmen of two subcommittees, requested documents and communications related to the work to the “restatement” of the Clean Air Act.

In its August final Clean Power Plan (RIN 2060-AR33), the EPA argued the conflicting amendments could be read harmoniously in support of the regulation, which sets a unique carbon dioxide emissions rate for each state. More than half of all states and dozens of other entities already challenged the final rule in federal appeals court (205 ECR 205, 10/23/15).

Typically Non-Controversial Process

Codifying the provisions of statutes is a typically routine process involving formatting changes, new subtitles and occurs “without an intent to change the meaning of the law.”

But the EPA expressed concerns in July that current legislation (H.R. 2834) would “further complicate the already complex task of interpreting the Clean Air Act in regulatory proceedings and court cases.”

“The restatement fails to include legislative language that is relevant to whether EPA has statutory authority to use the Clean Power Plan,” the July 27 letter from Avi Garbow, general counsel at the EPA, wrote to a House Judiciary Committee subpanel. “By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion.”

When reached for comment on the Republicans' letter Nov. 2, the EPA responded with a statement that reiterated parts of the July letter.

Rep. Tom Marino's (R-Pa.) bill, which intends to codify environmental laws under a single new section of the U.S. Code, passed the House Judiciary Committee on a 20-13 party-line vote Oct. 27.

Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, said in an Oct. 27 letter that the legislation would make substantive revisions to the Clean Air Act by writing out the EPA's authority to regulate carbon dioxide emissions from power plants.

The letter slammed Republicans for attempting to re-write the Clean Air Act “disguised as noncontroversial, technical changes to established law in a matter that could mislead members of both parties” (207 ECR 207, 10/27/15).

EPA Declined to Meet

According to a September letter from Office of Law Revision Counsel, the EPA had declined to discuss relevant parts of the codification since the effort began in 2009. The congressional authority called the agency's concerns about the legislation “unfounded.”

“If EPA had chosen to cooperate with the codification project, EPA could have given the draft a complete review by examining about 1/3 of a page per day, hardly an ‘enormous undertaking,’ as EPA would have it,” Ralph Seep of the Office of Law Revision Counsel said. “We hope that EPA's reluctance notwithstanding, the Judiciary Committee will proceed with the bill, which has already been 8 years in the making, as expeditiously as possible.”

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