By Devin Henry - 09/13/15 07:00 AM EDT
Republicans and industry groups are intensifying their search for a way to beat back President Obama’s new climate rule for power plants.
When the Environmental Protection Agency (EPA) released its finalized Clean Power Plan in early August, it added a new sense of urgency to opponents’ efforts to stop it.
On Capitol Hill, Republicans revived their complaints about the plan during a House hearing on Friday.
They deride the plan — designed to cut carbon emissions by 32 percent before 2030 — as a broad expansion of federal power destined to raise energy prices around the country, criticisms they’ve leveled since the EPA proposed the rule last year.
The House passed a bill to delay the plan this summer, and a Senate panel approved a similar measure in August.
But the bill’s sponsor, Sen. Shelley Moore CapitoShelley Moore CapitoSenate committee to consider miner pension bill GOP pressures Kerry on Russia's use of Iranian airbase GOP to Obama: Sanction Chinese entities to get to North Korea MORE (R-W.Va.) said this week that the Senate isn’t likely to consider the measure any time soon. Sen. Jim InhofeJames InhofeDems highlight more concerns with House waterways bill Democrats blast GOP for ‘sabotaging’ House waterways bill GOP pressures Kerry on Russia's use of Iranian airbase MORE (R-Okla.), the chairman of the Senate Environment and Public Works Committee, told Greenwire that an overhaul of chemical safety legislation is likely to hit the floor first.
“Well I think I saw where the chairman said — and we talked about this — how TSCA is the first thing up out of committee,” Capito said Thursday. “It definitely won’t be this month.”
Senate Majority Leader Mitch McConnellMitch McConnellConservative group presses GOP to vote against spending bill Top Armed Services Dem lobbies against 9/11 bill McConnell threatens shutdown to keep corporate political spending secret MORE (R-Ky.), an outspoken critic of the Clean Power Plan, told constituents last week that he’s still considering a legislative path forward on the rule.
In a newsletter, he reiterated that he’s considering a Congressional Review Act resolution of disapproval against the rule, something Capito said could come soon.
McConnell also plugged his work to block the rules through policy riders on appropriations bills.
“I’ll keep up the fight against this administration and this EPA through the many tools at Congress’s disposal to rein in out-of-control bureaucrats,” he said in his newsletter.
But even the rules’ biggest detractors acknowledge a legislative approach isn’t likely to undo the rule, since anything would have to win either a signature from President Obama or enough votes to override his veto
“You don’t think the president will ever sign a bill that will do anything, do you?” Rep. Ed WhitfieldEd WhitfieldKentucky Republican to resign from House House lawmakers urge Obama to forgo lame-duck TPP vote Ethics panel rebukes Kentucky Republican MORE (R-Ky.) the lead sponsor of the House’s Clean Power Plan bill, said.
“The reality is that, obviously, the appropriation process is a good way that you could go. But Congress is pretty non-functional right now for a lot of reasons, and appropriations bills are not being passed or signed, so you end up with a CR, then you get down to the government shutdown, and then politics overrides everything. Personally I don’t see the appropriations process as a very effective way of accomplishing any goals.”
That means the plan’s opponents are increasingly looking to the courts for relief.
In August, a slate of states asked for an emergency stay against the rule, but a federal judge rejected their request on Wednesday.
Jeff Holmstead, an environmental lawyer with Bracewell and Giuliani and the former head of the EPA’s air and radiation office during the George W. Bush administration, said the timing of that request made it especially unlikely that the states would win.
Would-be litigants are now left waiting for the administration to formally publish the rule in the Federal Register before filing suit, something that will likely come before the end of October.
When that happens, the floodgates will open: states, utilities, industry groups and trade associations are likely to file suit to stop the plan from going forward.
“I expect that there will be a line of people waiting to file their legal challenges the next morning,” Holmstead said.
Many of their complaints will center on arguments that the EPA overstepped its bounds by releasing such an extensive rule, Holmstead said, and that the agency doesn’t have the right to tell states to shut down certain types of power plants and replace them with others.
Holmstead said he expects litigants — from those suing against the rule to the EPA itself — will want a relatively quick decision on the rule before the appeals process begins (and potentially culminates at the U.S. Supreme Court).
“When it comes to this rule, really all the parties want an expedited decision,” he said.
Sean Donahue, counsel for the Environmental Defense Fund, said the EPA built the rule to withstand any major legal challenges, especially injunction requests.
“We think there's just no basis for staying the rule with an implementation schedule like this,” he said. “We think we're on very strong ground on opposing any future stay motions.”
Donahue is bullish on the administration’s case against the underlying lawsuits as well, saying its challengers will have to overcome EPA arguments about the rule’s implementation flexibility for states and the way the agency rewrote the rule to incorporate public comments on it.
“There will be challenges and people will raise a lot of issues,” he said. “The EPA has been able to craft this program in a way that makes sense. ... All that is going to be played out in court over the next year or so.”
Opponents are also working to convince states to refuse to comply with the plan, arguing they should opt out of the rule until its legality has been determined by judges.
Under the terms of the Clean Power Plan, the EPA will write implementation plans for states that decline not to do so on their own, something that might lead to federalism-based complaints in the courts.
Donahue, though, said that “there's a lot of political rhetoric, but not a lot of basis for that” argument. Even so, Republicans say it’s one of the few tools they have to bat back against the EPA.
“The only options we have are the states saying, we’re not going to cooperate and, number two, pursuing the legal remedies, at least until the next presidential election,” Whitfield said. “And I wouldn’t know what’s going to happen there.”