States Challenge EPA Plans to Regulate Carbon Emissions From Power Plants

House subcommittee on Energy and Power Chairman Rep. Ed Whitfield, R-Ky., presides over a hearing on the "Energy Tax Prevention Act of 2011, Wednesday, Feb. 9, 2011, on Capitol Hill in Washington. (AP Photo/Manuel Balce Ceneta)  
National Journal
Clare Foran
Sept. 16, 2013, 5 p.m.

At the end of this week, the En­vir­on­ment­al Pro­tec­tion Agency is ex­pec­ted to re­lease an up­dated draft rule to lim­it car­bon emis­sions from new power plants. En­vir­on­ment­al­ists call the reg­u­la­tion long over­due, but Re­pub­lic­an law­makers are push­ing back.

A white-pa­per re­port re­leased by House En­ergy and Power Sub­com­mit­tee Chair­man Ed Whit­field, R-Ky., on Fri­day says state reg­u­lat­ors should de­cide how to man­age green­house-gas emis­sions from power plants. In short, ac­cord­ing to Whit­field, EPA is over­reach­ing.

The pa­per sent to EPA Ad­min­is­trat­or Gina Mc­Carthy and au­thored by 17 state at­tor­neys gen­er­al and one state reg­u­lat­or at­tacks the agency’s ef­forts to cre­ate per­form­ance stand­ards for ex­ist­ing power plants and is just as crit­ic­al of its at­tempts to reg­u­late new plants.

“The way in which EPA has “˜pushed the en­vel­ope’ in in­ter­pret­ing its leg­al au­thor­ity … por­tends a sim­il­arly ag­gress­ive and un­law­ful ap­proach to the reg­u­la­tion of ex­ist­ing [power plants],” the white pa­per states.

It con­cludes that pro­pos­als to cap emis­sions from new and ex­ist­ing plants are symp­to­mat­ic of a lar­ger, un­der­ly­ing prob­lem — EPA’s ef­forts to wrest reg­u­lat­ory power away from the states.

“EPA, if un­checked, will con­tin­ue to im­ple­ment reg­u­la­tions which far ex­ceed its stat­utory au­thor­ity to the det­ri­ment of the states, in whom Con­gress has ves­ted au­thor­ity un­der the Clean Air Act, and whose cit­izenry and in­dus­tries will ul­ti­mately pay the price of these costly and in­ef­fect­ive reg­u­la­tions,” the pa­per con­tends.

State reg­u­lat­ors, the at­tor­neys gen­er­al ar­gue, are bet­ter po­si­tioned to cre­ate per­form­ance stand­ards for power plants, giv­en their fa­mili­ar­ity with loc­al con­di­tions and the feas­ib­il­ity of im­ple­ment­ing pro­posed changes.

An EPA spokes­man con­tested the ar­gu­ments laid out in the white pa­per, say­ing that the agency has clear au­thor­ity to reg­u­late air pol­lut­ants, in­clud­ing green­house gases emit­ted by power plants, un­der the Clean Air Act.

Whit­field’s re­lease of the re­port came just days be­fore his sched­uled hear­ing Wed­nes­day on Pres­id­ent Obama’s second-term cli­mate agenda. The hear­ing marks the first time that ad­min­is­tra­tion of­fi­cials will be in­vited to testi­fy on the pres­id­ent’s cli­mate ac­tion plan pro­posed in June and will fea­ture testi­mony from Mc­Carthy and En­ergy Sec­ret­ary Ern­est Mon­iz.

“Con­gress re­jec­ted cap-and-trade, but the ad­min­is­tra­tion is still mov­ing full-speed ahead with an ag­gress­ive cli­mate-change agenda that threatens to drive up en­ergy costs and un­der­mine Amer­ica’s glob­al com­pet­it­ive­ness,” Whit­field told Na­tion­al Journ­al Daily in an e-mail. “EPA’s power-plant reg­u­la­tions are a key part of this agenda, so I ex­pect mem­bers will ques­tion Mc­Carthy about these new stand­ards due to the po­ten­tial im­plic­a­tions of the reg­u­la­tions for states, busi­ness, and con­sumers.”

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