Republican Senate vs. EPA rules — messaging or something more?

Source: By Jean Chemnick, E&E reporter • Posted: Wednesday, November 5, 2014

The Republican Senate majority elected last night places a bull’s-eye squarely on U.S. EPA’s power-sector greenhouse gas rules, but opinions vary on whether those efforts will hit their mark.Sen. Mitch McConnell (R-Ky.), who seems poised to become the new Senate majority leader in January, said on the campaign trail that if voters returned him to Washington, D.C., with a Republican majority, he would make rolling back EPA’s power plant rules a top priority.

“If the American people change the makeup of the Senate, give me a chance next year to set the agenda for the country and for Kentucky, we will at least be voting on efforts to rein in EPA,” he said in a stump speech last month (Greenwire, Oct. 14).

But now that a newly re-elected McConnell has his wish, it remains to be seen whether those voting efforts will limit President Obama’s climate change policies or just deliver a message — albeit a louder one than the Republican-controlled House has been able to deliver on its own over the past four years.

Some observers say that will depend on what tools the newly minted Republican majority uses and how it uses them.

Republicans would have three options for targeting EPA’s two power plant proposals, which are set to be made final in June.

The Senate could pass resolutions effectively vetoing the rules using the Congressional Review Act. McConnell showed a willingness to use the rarely employed maneuver earlier this year when he introduced a resolution to kill EPA’s new power plants draft.

The Government Accountability Office ruled in May that McConnell’s resolution was premature because the rule was not yet final. But McConnell or one of his GOP colleagues could try again after EPA finalizes rules for both new and existing power plants next spring.

Republicans could pass stand-alone legislation that would almost certainly die on the president’s desk — if it survived a likely Democratic filibuster in a closely divided Senate.

Or Republicans could attach language to appropriations bills that would block EPA from using funds to develop or implement the regulations. Spending bills might prove more difficult for Obama to veto, especially in the face of a possible shutdown of all or part of the federal government.

Scott Segal, who represents industry clients at Bracewell & Giuliani, said Republicans in the House and Senate might be able to curb EPA regulations as part of must-pass spending legislation — provided they don’t get too greedy.

“My question is this: If a narrowly tailored set of changes through the appropriations process were to be applied to the Clean Power Plan, would the president effectively shut down the EPA entirely to avoid contemplating those few changes?” he said.

Segal proposes that Republicans focus their efforts on parts of the existing power plant draft that have been criticized most widely — namely, EPA’s inclusion of ambitious interim state targets set to take effect after 2020.

EPA included an alternative option in its notice of data availability last week that would phase interim requirements in more gradually, but Segal said that wasn’t enough. The interim targets have to go, he said, perhaps to be replaced by some other means of showing early progress toward the rule’s 2030 final target.

And GOP lawmakers in both chambers might be able to accomplish that if they resist the temptation to overreach by attaching policy riders to spending bills that strike down EPA’s rules altogether.

But the increased likelihood that a limited rider could be enacted now that the GOP will control both chambers might encourage Republican lawmakers to write more tempered legislation than they have in the past, when the House passed measure after measure to strip EPA of its regulatory authorities, Segal said.

“If you’re going to message on these topics, you have to draw with bold lines,” he said. But if there is really a chance to affect administration policy, House and Senate leaders might take a more measured tone.

“When you have a more equitable distribution of political leverage, that is a recipe for actual negotiation and not for gridlock,” he said. And now the Obama administration will have to negotiate with Republicans.

Jim Manley, a former aide to Senate Majority Leader Harry Reid (D-Nev.), said the new Senate majority is likely to try its hand at policy riders on appropriations bills.

“They’re going to throw everything but the kitchen sink at this process by loading up all of these appropriations bills, one rider after another, trying to undermine all sorts of different regulations, and they’re going to see what sticks,” he said.

But “what sticks” is not likely to be top administration priorities like climate change, he said.

“It’s going to be small-bore stuff, because the big stuff is going to be left to the negotiations,” he said. “And the president can usually win those.”

Still, Manley said he expects Republicans to use every means available to them to hammer the administration on its regulatory policies.

For prominent climate skeptic Sen. James Inhofe (R-Okla.), that will likely mean using his return as chairman of the Senate Environment and Public Works Committee to exercise aggressive “oversight” of the administration and the science of man-made climate change (E&E Daily, Nov. 3).

“The good news is that he’s not going to be able to legislate, but he does have the microphone,” Manley said.

Paul Bledsoe, a senior fellow on energy and society at the German Marshall Fund, said spending riders would be unlikely to get far. The former Senate staffer said Republican majorities might attempt to “prune” energy tax breaks that support renewable energy as part of a larger tax-reform package — a move that could have substantial climate change implications.

But as the 2016 presidential election begins to loom on the horizon, some Republicans might also soften their tone on the climate change issue, he said.

“I expect a number of Republicans to begin to moderate their stances on climate science,” he said, pointing to polls that show that most American voters believe in man-made warming.

“And that would beg the question of what would be the policy responses at least by those members, and I think that bears looking at,” he said.

While they might not flock to sweeping emissions legislation, some GOP lawmakers might “dip their toe in the water on the periphery of climate policy” by supporting low-carbon energy research and development, carbon capture and storage for use on coal-fired power plants, and other efforts that a would-be presidential contender might mention in a swing state a few years from now, he said.

At the White House yesterday, before vote results came in, press secretary Josh Earnest said the administration would be focused for the next two years on implementing “so many of the important achievements that have been passed or carried out by the president using his executive authority over the last six years.”

Earnest said that strategy specifically “applies to the area of climate change.”

“There are still too many Republicans in Congress who even deny the basic scientific fact that climate change is occurring and something that policymakers should be concerned about,” Earnest said. “So the president will use his executive action to take some additional steps, but he’s also going to continue to talk about this issue in a way that lays the groundwork for action by future presidents and future Congresses.”