Whitfield blasts EPA’s air chief at hearing on ‘just say no’ bill 

Source: Jean Chemnick, E&E reporter • Posted: Wednesday, April 15, 2015

The House sponsor of a bill to declaw U.S. EPA’s Clean Power Plan today told the agency’s air chief that she should not be surprised that Congress is mulling an assault on the unprecedented rule.

“We think you’re overstepping your authority. We think you’re now legislating,” Rep. Ed Whitfield (R-Ky.) told acting Assistant Administrator Janet McCabe at the top of a hearing of the Energy and Commerce Subcommittee on Energy and Power, which he chairs.

Rather than sticking to its congressionally mandated function of limiting pollution, Whitfield said, EPA in its existing power plant carbon draft plots to overhaul the nation’s power grid, spurring investment in some technologies and demanding that others be taken offline.

“Whoever thought the EPA would be tempted to become the energy czar for America?” he said.

Whitfield has floated draft legislation that would allow states to opt out of the rule, citing cost or reliability concerns to refuse to submit a state implementation plan (SIP). The bill would also provide all states a blanket reprieve from complying until judicial review concludes on the rule — a process that could take years. EPA would be barred from stepping in with a federal implementation plan in the meantime.

Whitfield has said he plans to formally introduce his bill soon, and he expects it to move quickly through committee. Sen. Rob Portman (R-Ohio) floated a roughly similar measure as an amendment to the fiscal 2016 budget last month, and his office says he is mulling introducing it as a stand-alone measure, though he is not coordinating with Whitfield (E&ENews PM, March 24).

Whitfield presented his bill as a moderate alternative to killing the rule outright, arguing that states would find it onerous to write SIPs that would not be needed if the rule is overturned by the courts.

“When you consider the unique, radical approach that is being utilized with this rule, why would anyone object?” Whitfield queried.

He noted that several lawsuits have already been filed against the rule, even though it is still in draft form. Two consolidated cases led by West Virginia and Murray Energy Corp. will be heard Thursday by a panel of the U.S. Court of Appeals for the District of Columbia Circuit. More litigation is likely after the rule is finalized this summer.

McCabe asserted that EPA expects its rule to withstand judicial scrutiny. And she has said that plaintiffs already have recourse to ask the courts for a judicial stay if they can make the case that a rule will cause irreparable harm, and that they are likely to prevail. But she noted that the June 2014 draft is not final and devoted substantial time in her opening comments and responses to lawmaker questions to demonstrating that EPA is listening to stakeholder feedback.

In her opening remarks, she repeated many of the themes raised by industry representatives — including many cited by members of the National Rural Electric Cooperative Association during an interview yesterday with EPA Administrator Gina McCarthy and senior counsel Joe Goffman (E&E Daily, April 14).

“When a final rule comes out, you’ll see that we’ve been very responsive to these concerns,” she said.

Stakeholders have urged EPA to look at “initial compliance expectations and compliance flexibilities to provide states the latitude they need to establish workable glide paths that do not put reliability at risk,” McCabe said in opening remarks.

It’s a reference to the draft rule’s interim compliance period, which phases in emissions reduction requirements beginning in 2020 that would be very steep for some states. McCabe hinted very broadly — as other EPA leaders have done before — that interim targets will be different in the final rule that EPA releases this summer.

She also cited stakeholder concerns that the rule would lead to stranded assets, because it would require utilities to take power plants offline before they have retired the debt incurred to build or retrofit them. And she referred to proposals by industry stakeholders and others to introduce a reliability safety valve “as a backstop, in case a reliability issue does arise.”

At a later point in the hearing, Rep. Mike Doyle (D-Pa.) asked McCabe about the way the draft rule now treats nuclear power, and whether the final version might be changed to treat it as new zero-carbon capacity. The nuclear industry has said the draft does little to incentivize investment in nuclear, despite its status as a zero-carbon source of baseload power.

“We’re thinking very hard about that,” she told Doyle. “We don’t want the Clean Power Plan to interfere with the use of that power.”

The Federal Energy Regulatory Commission is weighing making a formal proposal to EPA for how it could structure a reliability safety valve provision for the rule, and McCabe said today that EPA is seeking the commission’s input.

The Edison Electric Institute last week submitted its own proposal to FERC for how the two federal entities could introduce backstop language to address unforeseen reliability issues (EnergyWire, April 10).

FERC Commissioner Philip Moeller has urged the commission to submit its input to EPA sooner rather than later, noting that EPA is rushing to complete its final rule by this summer. “I think we’ll get there,” he said on the sidelines of a Public Utilities Fortnightly event last week. But a busy winter and spring schedule has pushed that process back, he said.

While McCabe took a conciliatory tone at the hearing, she and the panel’s Democrats said the Whitfield bill would needlessly delay the rule and could undermine the Clean Air Act’s overarching purpose of providing a nationwide floor for pollution controls.

Energy and Commerce Committee ranking member Frank Pallone (D-N.J.) blasted the Whitfield measure as a stealth amendment to the landmark environmental law aimed at undermining federal environmental regulation.

“Bad states get a free ride to pollute without any consequences, while everybody else foots the bill,” said Pallone.

McCabe put it this way: “Air pollution doesn’t respect state boundaries.”