In the wake of elections, legal experts explore vulnerabilities in the EPA power plant rule

Source: Nathanael Massey, E&E reporter • Posted: Monday, November 10, 2014

A Republican sweep of the Senate this week has put President Obama’s climate agenda in the cross hairs, with EPA’s proposed rule on power plant carbon emissions as an obvious early target.

While control of the Senate may not give Republicans the ability to quash the rule outright, it does indicate that that U.S. EPA and the president will face pushback every step of the way between now and the rule’s completion, according to legal experts who spoke this week on the election’s outcome and its implications for the Clean Power Plan.

The most direct line of attack is a legislative broadside, advanced through the House and Senate to the president’s desk. Scott Segal, an energy lobbyist at Bracewell & Giuliani, said that he expects Republicans to challenge the rule through tailored legislation and also attempt to nullify it through the Congressional Review Act, which allows Congress to overrule federal regulations.

With Tuesday’s victories under their belt, it’s conceivable that Republicans could secure enough support from moderate Democrats and independents to override a filibuster from the Democratic minority, according to Nathan Richardson, an assistant professor at the South Carolina School of Law. But President Obama’s veto power would still stand as a backstop, requiring a full two-thirds majority — 66 votes — to be overridden.

Shannon Maher Bañaga, a senior manager of governmental affairs for Public Service Enterprise Group Inc., told attendees at an Energy Bar Association conference this week that while she doesn’t imagine that the Senate will ultimately come up with enough votes to override a veto, that doesn’t mean Republicans won’t look to the Congressional Review Act.

“It’s certainly something that we’ve seen used before,” she said. “I fully expect them to try to do it even before the rule is final.”

Pressure points for Congress

A more pressing concern within the environmental community is that Republicans in Congress or conservative state legislators will ask for concessions on the plan, and that Obama or EPA, seeking compromise, will accept.

In Congress, the more practical approach might be for the GOP to threaten to withhold funding from EPA through the appropriations process unless the proposal is changed.

“You might have a rider, not that sets aside the Clean Power Plan entirely, but that makes narrowly made changes to that plan,” Segal said. “Then the president would be confronted with a choice: Do I essentially shut down the EPA, or do I work with the Republicans in the House and the Senate to reform my proposal?”

Incoming Senate Majority Leader Mitch McConnell (R-Ky.) has already promised that Republicans will use their leverage over the government’s purse strings to push back at Obama’s agenda on multiple fronts.

States, meanwhile, are already weighing in on the rule, in many cases to ask for guarantees that its impacts won’t damage their employment or economies. Responding to requests from state agencies, EPA extended the comment period on its rule through Dec. 1 and expects to receive more than a million comments by that time.

While state agencies work out plans to meet the Clean Power Plan’s targets, a number of state governors have already made their outright opposition to the rule clear. Governors of 15 states sent a Sept. 9 letter to Obama expressing their objections. A coalition of opposed governors could constitute a major roadblock where state lawmakers must approve implementation plans.

Segal noted that the Clean Power Plan is “in the laps of the governors to implement,” and 31 of those governors are Republicans, some of whom are “recalcitrants” who have already spent several years obstinately opposing the Democratic administration’s health care overhaul.

Adding to the rule’s obstacles, experts at an Energy Bar Association conference this week noted, some state legislatures meet as infrequently as every other year and will be in a time crunch to sign off on proposals.

“That’s a timing issue, even though the rule included multiple years for states to put their plans together,” said Phil Assmus, senior staff associate for the National Association of Clean Air Agencies.

Can the grid handle the rule?

While the final form of the Clean Power Plan remains unknown, critics have already identified several structural issues they say could fundamentally undermine the rule’s viability. Now that Republicans head key Senate committees on energy and the environment, they will have wide leverage to bring these issues into the limelight, much as their counterparts in the Republican-controlled House did in hearings this summer (ClimateWire, Sept. 10).

One of those issues is grid reliability. In comments to EPA, a number of utilities and regional grid operators have expressed concern about the plan’s forecasts for renewables, fuel switching and energy efficiency gains.

In a report out this week, the North American Electric Reliability Corp., a nonprofit regulatory authority charged by the federal government with oversight of reliability in U.S. power systems, found that it still lacked adequate analysis to know whether the plan’s targets are achievable.

Those findings prompted a response from the office of Sen. Lisa Murkowski (R-Alaska), who will take the reins as the new chairwoman of the Senate Energy Committee, that the report “validates the concerns” Murkowski holds about the impact of the rule (Greenwire, Nov. 5).

Another aspect of the plan that is likely to see significant airing in future hearings is the rule’s “outside the fence line” approach, which allows states to look beyond power plant modifications to demand-side efficiency and the adoption of renewable energy when controlling greenhouse gas emissions.

While even supporters of the Clean Power Plan acknowledge the approach as novel, some legal experts see it as too broad an interpretation of EPA’s authority under the Clean Air Act.