Whitfield sees easy passage for EPA bill, but next step’s uncertain 

Source: Jean Chemnick, E&E reporter • Posted: Thursday, June 25, 2015

Legislation that would let states opt out of U.S. EPA’s Clean Power Plan is expected to pass the House this evening “by a nice, healthy margin,” the bill’s sponsor said today.

Kentucky Republican Ed Whitfield’s measure, H.R. 2042, would let states decline to implement the existing power plant rule, which he deemed a moderate check to EPA’s “radical regulation.”

A group of states and Murray Energy Corp. have already launched a pre-emptive legal strike against the EPA proposal, Whitfield noted, and while the courts declined to hear the challenge to the EPA draft, plaintiffs are expected to try again when the rule is finalized this summer.

“So we’re simply, at the request of many states, trying to give them more time to respond, and then if they find that it significantly and adversely affects their electric rates and reliability, then they can opt out,” the chairman of the Energy and Power Subcommittee said in an afternoon news conference at the House Triangle.

Whitfield’s bill would bar EPA from implementing a federal plan to regulate power plant carbon dioxide in states that do not choose to comply with the rule. It also would grant all states a reprieve from requirements to submit implementation plans until judicial review has concluded.

In an op-ed this morning in The Hill, Whitfield wrote that the “Ratepayer Protection Act is a practical solution that ensures states have ultimate control over their electricity systems.”

“States have been, and will always be, better suited to identifying their needs, especially when it comes to electricity rates and reliability,” he wrote.

Co-sponsor Morgan Griffith (R-Va.) said the rule has little prospect of surviving court challenge, and EPA appears to be banking on its ability to pressure states to implement it before that becomes clear.

“They don’t care about the law, and they don’t care about the people of central Appalachia; they only care about putting coal out of business,” he said.

But the fate of Whitfield’s gambit is uncertain. The White House has already issued an unequivocal veto threat for the bill, and Sen. Shelley Moore Capito (R-W.Va.), who sponsored the Senate bill to stop the rule, said yesterday that while she expects her measure to clear the Senate Environment and Public Works Committee in the July legislative work period, she is unsure when it might come to the floor.

A bill Whitfield introduced in the last Congress in tandem with Sen. Joe Manchin (D-W.Va.) easily cleared the lower chamber but never saw a vote in the Senate. It is unclear how Republican control of the Senate changes that equation, but the Capito measure would need a 60-vote supermajority to clear the upper chamber.

Whitfield said after this afternoon’s news conference that today’s bid wouldn’t be the last GOP effort to scuttle the rule. When the rule becomes final, there will be more opportunity for its opponents to litigate and legislate against it, he noted.

Congress could move to veto the rule under the Congressional Review Act, which allows for easier passage in the Senate, he said.

“We’ll pass this bill and move it over to the Senate and see if they can do anything with it,” he said. “So we’re going to continue to be active and do anything we can do to let the executive branch know they’re not the only players in town.”

Senate Republicans led by Majority Leader Mitch McConnell (R-Ky.) have called upon states to “just say no” to implementing the EPA rule in order to give Congress and the courts a chance to roll it back. And today, Indiana Gov. Mike Pence (R) responded by informing President Obama in a letter that he would not submit a plan for implementation unless the final EPA rule is “demonstrably and significantly improved.”

“If your administration proceeds to finalize the Clean Power Plan, and the final rule has not demonstrably and significantly improved from the proposed rule, Indiana will not comply,” he wrote. “Our state will also reserve the right to use any legal means available to block the rule from being implemented.”

Call for carbon tax

The Citizens’ Climate Lobby, a grass-roots advocacy group that focuses on outreach to Republicans on a carbon tax, scheduled its annual two-day gathering in Washington, D.C., to coincide with the vote on Whitfield’s bill.

So Whitfield found himself fielding questions from the group about whether he might support some form of market-based response to climate change if it came attached to language pre-empting the EPA rule.

The Kentucky Republican said after the briefing he wouldn’t support cap and trade, but he’d “look at” any future bill that is released.

Zaurie Zimmerman and Callie Hancock, who quizzed Whitfield, said they were making a tour of congressional offices when they saw the gaggle. The group has 900 volunteers on Capitol Hill yesterday and today and hopes to visit every office to tout a revenue-neutral carbon tax that would provide refunds to consumers.

“We have gotten very positive feedback,” said Zimmerman, a businesswoman from Boston who said she had visited some lawmakers who participated in the Whitfield news conference. “We need to depoliticize it. It has become this left-versus-right thing, and that’s not helpful.”

“We understand that regulations are a blunt instrument, and we don’t want the president to have to select clean energy programs anywhere,” said Hancock, a New Jersey architect who said she missed her daughter’s high school graduation to participate in the fly-in. “We agreed that her future was more important than one day.”