Senators Face Long Odds in Overturning EPA Rule

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By Dean Scott and Anthony Adragna

Aug. 4 — Senate opponents of President Barack Obama's power plant carbon pollution limits told Bloomberg BNA they will hold an up-or-down vote on the rules this fall but appear well shy of the two-thirds margin they will need to override a presidential veto.

Sen. John Thune (R-S.D.), the third-ranking member of the Senate Republican leadership, said he will push to have the chamber overturn the Environmental Protection Agency limits before negotiators from almost 200 nations arrive in Paris Nov. 30 for talks toward a global climate accord.

“I think the president wants to go to Paris and have this grand victory—but what we need to demonstrate is there is a lot of opposition in Congress to the direction that he's headed,” Thune said on Aug. 4.

Nearly all of 54 Republicans in the Senate would likely vote for a resolution to disapprove the carbon rules using expedited procedures under the Congressional Review Act. But there will likely be defections, including Susan Collins of Maine. “In general I support the ability of EPA to issue regulations in this area,” Collins told Bloomberg BNA.

Few Democratic Defections Likely 

Democratic defections to the Republican-led effort also are likely to be few, based on Bloomberg BNA interviews with 15 senators after Obama's unveiling of the final climate rules Aug. 3.

Four Democrats considered moderates on regulatory issues, including Mark Warner and Tim Kaine of Virginia, said they back the president's climate plan and won't seek to overturn the rules.

But Thune and several other Republican senators said they would proceed on a twin track in the months ahead, scheduling a floor vote to disapprove the rule while also moving a stand-alone bill (S. 1324) introduced by Sen. Shelley Moore Capito (R-W.Va.).

Capito's bill would scuttle carbon dioxide emissions limits for the nation's fleet of coal-fired power plants. 

The final EPA carbon rules (RIN 2060-AR33), issued Aug. 3 under Section 111(d) of the Clean Air Act, would reduce carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030 at a cost of $8.4 billion per year in 2030.

Capito Bill on the Move 

Capito's Affordable Reliable Electricity Now (ARENA) Act has 35 co-sponsors but only one is a Democrat: Sen. Joe Manchin of West Virginia. It is scheduled to be marked up Aug. 5 by the Senate Environment and Public Works Committee (149 DEN B-7, 8/4/15).

That bill is expected to win committee approval along party lines, which sets up the possibility of separate floor votes this fall both on the stand-alone bill and the resolution to disapprove the EPA carbon rules.

Two senior Republican aides told Bloomberg BNA there was no reason the chamber could not vote on both, even though the Senate's fall calendar includes a must-pass bill to keep the government funded, debate over Obama's Iran agreement and a long-term highway bill.

Capito agreed. “I think we're going to have a lot on our plate in September and October, but this is a top priority,” she said of the dual attack on the EPA rules.

Tough 2016 Races a Factor

Several Senate Republicans facing tough re-election campaigns in 2016 were hesitant to join those calling for disapproval of the EPA rules, although in some cases they worried the carbon limits could hurt their states' economies and drive up electricity costs. That group includes Republicans Ron Johnson of Wisconsin and Kelly Ayotte of New Hampshire, who said they needed more time to review the impact of the final regulations.

Pressed for a more detailed response, Ayotte's office released a statement saying she has long “worked across the aisle to protect New Hampshire's clean air and water,” adding that her state “has a long, bipartisan tradition of working to advance common sense, balanced environmental regulations.”

“I will continue that approach as I carefully review EPA's final rule to understand its impacts on our state's environment and our economy,” Ayotte said.

Sen. Rob Portman (R-Ohio), also facing a tough reelection campaign, worried the rules will hurt his state's economy and told reporters Aug. 4 he was looking for “more balance and more flexibility.”

But would he vote against the power plant rules? “We'll see,” Portman said.

Maine independent Angus King joined Collins, the Maine Republican, in backing the EPA's action to address climate change. King told Bloomberg BNA Aug. 3 he thought the agency deserved high marks for listening to concerns from his and other states and providing more flexibility in the final regulations to meet the power sector limits.

Moderate Democrats Leaning to Obama 

Virginia's two Senate seats might at first glance appear to hold swing votes—both Warner and since-retired Sen. Jim Webb (D) voted in favor of a 2012 motion to overturn EPA limits for mercury and air toxics emitted by power plants.

But a Warner spokeswoman said the Democrat would not support either the Capito bill or a resolution seeking to nullify the carbon pollution limits. Kaine gave the EPA high marks for responding to his state's concerns with the 2014 proposal, which he said failed to credit Virginia for actions it has already taken to cut emissions.

“I definitely looked at it carefully for Virginia, and I support the overall concept,” Kaine told Bloomberg BNA. “They made some [changes] that really made it better for us so we actually felt like they were really responsive to our concerns,” he said.

Ohio Democrat Sherrod Brown along with Democrats Bob Casey (Pa.) and Jon Tester (Mont.) told Bloomberg BNA they remain supportive of the president and his efforts to address greenhouse gas emissions linked to climate change.

“Look, what was first advertised [by EPA] we were fine with—and we might be fine with this,” Tester told Bloomberg BNA.

“Climate change is a big issue and it's real and we have got to figure out how to address it,” the Montana Democrat said. But he added that he needs time to see how the carbon reductions “will work for Montana.”

“I remain supportive of the effort but the rule has to work,” he said.

The offices of two other moderate Democrats, Sens. Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.), did not respond to requests for comment.

2012 Senate Battle Instructive?

The 2012 Senate vote to disapprove the EPA air toxics and mercury limits also may be instructive for how the handful of Senate Democrats and Republicans considered possible swing votes on environmental issues might vote going forward.

Collins, Ayotte, and Sen. Lamar Alexander (R-Tenn.) are the only Republicans still in office who voted with most Democrats that year to uphold the air pollution rule. They helped defeat a motion to proceed on the resolution by a vote of 46-53, in effect offsetting the votes of several Democrats who essentially voted to kill the EPA rules.

Among the Democrats who voted to overturn the EPA regulations in 2012 and is likely to do so again if the carbon limits come to the floor: West Virginia's Manchin, who has long viewed the power plant climate rules as a threat to the coal industry important to his state's economy.

But another coal-state Democrat, Pennsylvania's Bob Casey, said he largely backs Obama's approach of regulating greenhouse gases given Congress has not debated significant climate legislation since a cap-and-trade bill died in the Senate in 2010.

“Look, at some point Republicans have to face the fact that this is an issue we have to confront,” Casey told Bloomberg BNA. “You can't just separate yourself from climate deniers and pretend that you are acting reasonably if you're not going to come up with a strategy,” the Pennsylvania Democrat said.

“If they have an alternative to what the administration proposed and we'll be debating, well, let's hear it,” Casey said.

To contact the reporters on this story: Dean Scott and Anthony Adragna in Washington at dscott@bna.com and aadragna@bna.com

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