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H. Rept. 114-348 - PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF A RULE SUBMITTED BY THE ENVIRONMENTAL PROTECTION AGENCY RELATING TO ``STANDARDS OF PERFORMANCE FOR GREENHOUSE GAS EMISSIONS FROM NEW, MODIFIED, AND RECONSTRUCTED STATIONARY SOURCES: ELECTRIC UTILITY GENERATING UNITS''114th Congress (2015-2016)

Committee Report

Report Type:	House Report
Accompanies:	H.J.Res.71
Committees:	Energy and Commerce

H. Rept. 114-348 - 114th Congress (2015-2016)

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House Report 114-348 - PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF A RULE SUBMITTED BY THE ENVIRONMENTAL PROTECTION AGENCY RELATING TO ``STANDARDS OF PERFORMANCE FOR GREENHOUSE GAS EMISSIONS FROM NEW, MODIFIED, AND RECONSTRUCTED STATIONARY SOURCES: ELECTRIC UTILITY GENERATING UNITS''

[House Report 114-348]
[From the U.S. Government Publishing Office]

114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114 348

======================================================================

PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5,
UNITED STATES CODE, OF A RULE SUBMITTED BY THE ENVIRONMENTAL PROTECTION
AGENCY RELATING TO ``STANDARDS OF PERFORMANCE FOR GREENHOUSE GAS
EMISSIONS FROM NEW, MODIFIED, AND RECONSTRUCTED STATIONARY SOURCES:
ELECTRIC UTILITY GENERATING UNITS''

_______

November 19, 2015.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed

_______

Mr. Upton, from the Committee on Energy and Commerce, submitted the
following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.J. Res. 71]

[Including cost estimate of the Congressional Budget Office]

The Committee on Energy and Commerce, to whom was referred
the joint resolution (H.J. Res. 71) providing for congressional
disapproval under chapter 8 of title 5, United States Code, of
a rule submitted by the Environmental Protection Agency
relating to ``Standards of Performance for Greenhouse Gas
Emissions from New, Modified, and Reconstructed Stationary
Sources: Electric Utility Generating Units''', having
considered the same, report favorably thereon without amendment
and recommend that the joint resolution do pass.

CONTENTS

Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 7
Statement of General Performance Goals and Objectives............ 7
New Budget Authority, Entitlement Authority, and Tax Expenditures 7
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 7
Committee Cost Estimate.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 7
Duplication of Federal Programs.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 8
Dissenting Views................................................. 9

PURPOSE AND SUMMARY

H.J. Res. 71 was introduced by Rep. Ed Whitfield (R KY) on
October 26, 2015. The joint resolution provides for
congressional disapproval under chapter 8 of title 5, United
States Code, of a rule submitted by the Environmental
Protection Agency relating to ``Standards of Performance for
Greenhouse Gas Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units.''

BACKGROUND AND NEED FOR LEGISLATION

On October 26, 2015, Subcommittee on Energy and Power
Chairman Whitfield introduced H.J. Res. 71 pursuant to the
Congressional Review Act.\1\ This joint resolution would
disapprove the Environmental Protection Agency's (EPA) recently
published final rule setting carbon dioxide (CO2) emissions
standards for new fossil-fuel fired power plants.\2\
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\1\The Congressional Review Act is set forth in 5 U.S.C.
Sec. Sec. 801 808.
\2\This EPA's final rule for new power plants is entitled
``Standards of Performance for Greenhouse Gas Emissions from New,
Modified, and Reconstructed Stationary Sources: Electric Utility
Generating Units''' and was published in the Federal Register at 80
Fed. Reg. 64510 (October 23, 2015).
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This final rule, together with EPA's final rule for
existing fossil-fuel fired power plants, referred to by the
agency as its ``Clean Power Plan,'' was issued pursuant to the
President's ``Climate Action Plan'' and an accompanying
Presidential Memorandum.\3\ These two rules would put in place
an unprecedented regulatory structure throughout the U.S.
electricity sector, effectively imposing renewable energy and
cap-and-trade mandates similar to those in the Waxman-Markey
cap-and-trade legislation that failed in 2010.\4\
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\3\This EPA's final rule for existing power plants is entitled
``Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Generating Units''' and was published at 80 Fed. Reg. 64662
(Oct. 23, 2015). The Climate Action Plan is available at https://
www.whitehouse.gov/sites/default/files/image/
president27sclimateactionplan.pdf and the Presidential Memorandum dated
June 25, 2013 is available at https://www.whitehouse.gov/the-press-
office/2013/06/25/presidential-memorandum-power-sector-carbon-
pollution-standards.
\4\See H.R. 2454, the ``American Clean Energy and Security Act of
2009'' (111th Cong. 2009).
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H.J. Res. 71 would specifically disapprove of EPA's CO2
regulations for new power plants, referred to by the agency as
``New Source Performance Standards''' or its ``111(b) Rule.''
Under this rule, EPA interprets section 111(b) of the Clean Air
Act to allow the agency to set standards for new coal-fired
power plants premised on the installation of carbon capture and
storage (CCS) technologies that are not commercially viable for
electric power generation. While EPA maintains CCS is
adequately demonstrated, there are no commercial-scale coal-
fired power plants with CCS currently operating in the United
States that could meet the standards. As a result, the rule
imposes a de facto ban on construction in the United States of
any new coal-fired power plants, even the most state of the art
coal-fired electric generating units being built in Europe,
Japan, and other countries.
This rule is highly controversial and there are significant
questions regarding its legality.\5\ Issues include whether the
rule comports with the statutory requirements of section 111 of
the Clean Air Act, which requires that performance standards be
based on technologies that are ``adequately demonstrated,'' as
well as the Energy Policy Act of 2005, which prohibits the
agency from considering technology used at a facility receiving
assistance under the Department of Energy's Clean Coal Power
Initiative, or at a facility receiving an advanced coal project
tax credit, as being ``adequately demonstrated'' for purposes
of section 111 of the Clean Air Act.\6\
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\5\Legal issues surrounding EPA's 111(b) rulemaking were addressed
in the Committee's report on H.R. 3826, the Electricity Security and
Affordability Act, Feb. 28, 2014, available at https://
www.congress.gov/113/crpt/hrpt365/CRPT-113hrpt365.pdf.
\6\Id.
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There are also significant cost and energy policy issues
raised by the rule, including its potential impacts on the
diversity, affordability and reliability of the nation's
electricity supplies, as well as the precedential effect of the
regulation on other types of facilities subject to regulation
under section 111 of the Clean Air Act.\7\ At the same time,
the climate benefits of the rule according to EPA will be
negligible.\8\
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\7\Id.
\8\80 Fed. Reg. at 64515 (``EPA projects that this rule will result
in negligible CO2 emission changes . . . by 2022 as a result of the
performance standards for newly constructed EGUs''').
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The Attorneys General or state agencies of at least 23
states have challenged this regulation, including Alabama,
Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky,
Louisiana, Michigan, Missouri, Montana, Nebraska, North
Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Texas,
Utah, West Virginia, Wisconsin, and Wyoming.\9\
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\9\See State of West Virginia et al v. United States Environmental
Protection Agency, U.S. Court of Appeals for the District of Columbia,
Case No. 15 1399.
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What the resolution will do

The legislation provides that Congress disapproves the rule
submitted by the EPA relating to ``Standards of Performance for
Greenhouse Gas Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Utility Generating Units'''
(published at 80 Fed. Reg. 64510 (October 23, 2015)), and such
rule shall have no force or effect. Under the Congressional
Review Act, an agency may not issue a rule that is the same or
substantially similar to a rule that has been disapproved
through the statutorily prescribed process unless authorized by
subsequent legislation.\10\
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\10\See 5 U.S.C. 801(b)(2) (``A rule that does not take effect (or
does not continue) under paragraph (1) may not be reissued in
substantially the same form, and a new rule that is substantially the
same as such a rule may not be issued, unless the reissued or new rule
is specifically authorized by a law enacted after the date of the joint
resolution disapproving the original rule.''); see also ``The
Congressional Review Act (CRA),'' Congressional Research Service (Dec.
11, 2014) available at http://www.crs.gov/reports/pdf/IF10023; ``The
Congressional Review Act: Frequently Asked Questions,'' Congressional
Research Service (April 17, 2015) available at http://www.crs.gov/
Reports/pdf/R43992?source=search.
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HEARINGS

The Subcommittee on Energy and Power held three hearings
relating to EPA's regulation of new power plants under section
111(b) of the Clean Air Act. The hearings and witnesses
included the following:
On October 22, 2015, the Subcommittee held a
hearing entitled ``EPA's CO2 Regulations for New and
Existing Power Plants: Legal Perspectives'' and
received testimony from:
Elbert Lin, Solicitor General of West
Virginia;
Allison D. Wood, Partner, Hunton &
Williams, LLP;
Raymond L. Gifford, Partner, Wilkinson
Barker Knauer LLP;
Richard L. Revesz, Lawrence King Professor
of Law, Dean Emeritus, Director, Institute for
Policy Integrity, New York University School of
Law; and
Emily Hammond, Associate Dean for Public
Engagement, Professor of Law, George Washington
University School of Law.
On October 7, 2015, the Subcommittee held a
hearing entitled ``EPA's CO2 Regulations for New and
Existing Power Plants'' and received testimony from:
The Honorable Janet McCabe, Acting
Administrator, Air and Radiation, U.S.
Environmental Protection Agency.
On November 14, 2013, the Subcommittee held
a hearing entitled ``EPA's Proposed GHG Standards for
New Power Plants and H.R. _, Whitfield-Manchin
Legislation'' and received testimony from:
The Honorable Joe Manchin, Senator, West
Virginia;
The Honorable Janet McCabe, Acting
Assistant Administrator for Air and Radiation,
U.S. Environmental Protection Agency;
The Honorable E. Scott Pruitt, Oklahoma
Attorney General;
The Honorable Henry Hale, Mayor, Fulton,
Arkansas;
Tony Campbell, President and CEO, East
Kentucky Power Cooperative;
Dr. Donald R. van der Vaart, Chief,
Permitting Section, North Carolina Department
of Environment and Natural Resources-Division
of Air Quality;
J. Edward Cichanowicz, Engineering
Consultant;
Ross E. Eisenberg, Vice President, Energy
and Resources Policy, National Association of
Manufacturers;
David Hawkins, Director of Climate
Programs, Natural Resources Defense Council;
and
Susan F. Tierney, Managing Principal,
Analysis Group.

COMMITTEE CONSIDERATION

On November 3, 2015, the Subcommittee on Energy and Power
met in open markup session to consider H.J. Res. 71 and
forwarded the bill to the full Committee, without amendment, by
a record vote of 15 ayes and 12 nays.
On November 17 and 18, 2015, the Committee on Energy and
Commerce met in open markup session to consider H.J. Res. 71. A
motion by Mr. Upton to order H.J. Res. 71, reported to the
House, was agreed to by a record vote of 28 ayes and 20 nays.

COMMITTEE VOTES

Clause 3(b) of Rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. The
following reflects the record votes taken during the Committee
consideration:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

H.J. Res. 71 provides for congressional disapproval under
chapter 8 of title 5, United States Code, of a rule submitted
by the Environmental Protection Agency relating to ``Standards
of Performance for Greenhouse Gas Emissions from New, Modified,
and Reconstructed Stationary Sources: Electric Utility
Generating Units'''.

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.J.
Res. 71 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.

EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.J. Res. 71 contains no earmarks, limited tax
benefits, or limited tariff benefits.

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.

CONGRESSIONAL BUDGET OFFICE ESTIMATE

At the time this report was filed, the cost estimate
prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of 1974
was not available.

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.J. Res. 71 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111 139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.

DISCLOSURE OF DIRECTED RULEMAKINGS

The Committee estimates that enacting H.J. Res. 71
specifically directs to be completed no specific rulemakings
within the meaning of 5 U.S.C. 551 that would not otherwise be
issued by the agency.

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal
statute.

DISSENTING VIEWS

On August 3, 2015, the Environmental Protection Agency
(EPA) finalized a rule limiting carbon pollution from new,
modified, and reconstructed power plants under section 111(b)
of the Clean Air Act.\1\ That same day, EPA also finalized the
``Clean Power Plan'' rule establishing emission guidelines for
states to follow in developing plans to control carbon
pollution from existing coal-fired and natural gas-fired power
plants under section 111(d) of the Clean Air Act.\2\
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\1\U.S. Environmental Protection Agency, Standards of Performance
for Greenhouse Gas Emissions from New, Modified, and Reconstructed
Stationary Sources: Electric Generating Units, 80 Fed. Reg. 64510 (Oct.
23, 2015) (Final Rule) (online at www.gpo.gov/fdsys/pkg/FR-2015-10-23/
pdf/2015-22837.pdf) (hereinafter GHG Standards for New, Modified, and
Reconstructed Power Plants).
\2\U.S. Environmental Protection Agency, Carbon Pollution Emission
Guidelines for Existing Stationary Sources: Electric Utility Generating
Units, 80 Fed. Reg. 64662 (Oct. 23, 2015) (Final Rule) (online at
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf) (hereinafter
Clean Power Plan).
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H.J. Res. 71 is part of the Republicans' ongoing attack on
EPA's Clean Air Act authority to cut carbon pollution and
prevent dangerous climate change. If the resolution is enacted,
EPA's 111(b) rule would not be implemented. And, EPA would not
be able to reissue the 111(b) rule or any rule that is
substantially the same.\3\ This is particularly important since
it would block this administration, or any future
administration, from taking meaningful action to curb carbon
emissions from power plants.
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\3\5 U.S.C. Sec. 801(b).
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INACCURACIES IN THE MAJORITY'S REPORT

The majority's report includes a number of false
statements, inaccuracies, and exaggerations regarding EPA's
111(b) rule.
Ban on coal-fired power plants
First, their report says that EPA developed the rule,
``premised on the installation of carbon capture and storage
(CCS) technologies that are not commercially viable for
electric power generation . . . As a result, the rule imposes a
de facto ban on construction in the United States of any new
coal-fired power plants.''\4\
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\4\Majority Report at 2 3.
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The claim of a ``de facto ban'' is false. At a hearing
before the Committee on Energy and Commerce, Subcommittee on
Oversight and Investigations, Dr. Julio Friedmann, Deputy
Assistant Secretary for Clean Coal at the U.S. Department of
Energy, stated unambiguously: ``first generation CCS technology
is commercially available today. You can call up a number of
U.S. and international manufacturers, and they will sell you a
unit at a large scale for capture of more than a million tons
per year.''\5\ He added that a number of these companies also
offer performance guarantees.\6\
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\5\House Committee on Energy and Commerce, Subcommittee on
Oversight and Investigations, statement of Dr. Julio Friedmann, Deputy
Assistant Secretary for Clean Coal, U.S. Department of Energy, Hearing
on Department of Energy Oversight: Status of Clean Coal Programs, 113th
Cong. (Feb. 11, 2014).
\6\Id.
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Legality of the Rule Next, their report makes assertions
about the legality of the rule, specifically questioning
whether EPA fulfilled the Clean Air Act's requirement ``that
performance standards be based on technologies that are
`adequately demonstrated.'''\7\
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\7\Majority Report at 3.
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Section 111 of the Clean Air Act directs EPA to set
performance standards to control air pollution from new
stationary sources. Section 111(b) requires these standards to
``reflect the degree of emission limitation achievable through
the application of the best system of emission reduction which
the Administrator determines has been adequately
demonstrated.''\8\ Over the long history of this provision,
which has been part of the Clean Air Act in various forms since
1970, the D.C. Circuit has provided guidance to EPA on how to
interpret and implement this directive.\9\ The key
considerations for setting a section 111(b) standard are
technical feasibility, quantity of emissions reductions, costs
that are reasonable (i.e., not exorbitant), and advancing
pollution-control technology.\10\
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\8\Clean Air Act Sec. 111(b).
\9\U.S. Environmental Protection Agency, GHG Standards for New,
Modified, and Reconstructed Power Plants at 64540 (online at
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
\10\Id.
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EPA is required to consider technological advancement when
determining the standard because it is intended to force the
adoption of new, innovative, and more effective technologies,
and not simply those technologies that have already been widely
adopted. This intent is clearly stated both in the requirement
for ``best system of emission reduction'' and in the
legislative history. For example, the Senate Committee Reports
for the 1970 and 1977 Clean Air Act Amendments explain that new
source performance standards ``should provide an incentive for
industries to work toward constant improvement''\11\ and
``stimulate the development of new and better technology.''\12\
In interpreting this mandate, the D.C. Circuit has noted that
the statute ``embraces . . . technological innovation.''\13\
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\11\Senate Committee on Public Works, National Air Quality
Standards Act of 1970, at 17, 91st Cong. (Sept. 17, 1970) (S. Rept. 91
1196).
\12\Senate Committee on Environment and Public Works, Clean Air
Amendments of 1977, at 17, 95th Cong. (May 10, 1977) (S. Rept. 95 127).
\13\Sierra Club v. Costle, 657 F.2d 298, 346 (D.C. Cir. 1981).
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The majority's report also claims that the rule violates
provisions in the Energy Policy Act of 2005 (EPACT05) that bar
EPA from considering the use of technology at a facility that
received federal financial assistance under that Act to
determine whether the technology is ``adequately demonstrated''
for the purposes of Clean Air Act section 111.\14\ Some
commenters on the proposed rule--including Murray Energy--took
the position that the EPACT05 provisions bar all consideration
of a facility's existence if the facility received EPACT05
assistance.\15\
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\14\Majority Report at 3.
\15\U.S. Environmental Protection Agency, GHG Standards for New,
Modified, and Reconstructed Power Plants at 64542 (online at
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
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These claims are based on an erroneous interpretation of
the provisions, which prohibit EPA from making a section 111
determination based solely on the use of technology at a
federally funded demonstration project, but do not preclude all
use of such information as supporting evidence, as well as a
misreading of EPA's proposal, which cites extensive other
evidence supporting the proposed finding.\16\
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\16\See, e.g., Environmental Defense Fund, The Strong Legal
Foundation for the Carbon Pollution Standards for New Power Plants: A
Response to the House Energy and Commerce Committee's Letter on the
Energy Policy Act of 2005 and Carbon Capture and Storage Technology
(Dec. 5, 2013) (online at blogs.edf.org/climate411/files/2013/12/
Response-to-House-Committee-Letter-on-EPAct.pdf).
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In fact, EPA specifically solicited comment on its
interpretation of these provisions and in the final rule
``interprets these provisions to preclude EPA from relying
solely on the experience of facilities that received DOE
assistance, but not to preclude the EPA from relying on the
experience of such facilities in conjunction with other
information.''\17\
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\17\U.S. Environmental Protection Agency, GHG Standards for New,
Modified, and Reconstructed Power Plants at 64541 (online at
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
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CONCLUSION

The history of the Clean Air Act is a history of
exaggerated claims that have never come true. In reality, 45
years of clean air regulation have shown that a strong economy
and strong environmental and public health protection go hand-
in-hand.
EPA's power plant rules are a critical part of our national
strategy to reduce carbon pollution and protect the climate.
These rules outline a path to cleaner air, better health, a
safer climate, and a stronger economy. H.J. Res. 71 would
nullify that rule, and replace it with nothing.
For the reasons stated above, we oppose the resolution and
dissent from the views contained in the Committee's report.

Frank Pallone, Jr.,
Ranking Member.
Bobby L. Rush.
Anna G. Eshoo.
Eliot L. Engel.
Gene Green.
Diana DeGette.
Lois Capps.
Mike Doyle.
Jan Schakowsky.
G. K. Butterfield.
Doris O. Matsui.
Kathy Castor.
John Sarbanes.
Jerry McNerney.
Peter Welch.
Ben Ray Lujan.
Paul Tonko.
John Yarmuth.
Yvette D. Clarke.
David Loebsack.
Kurt Schrader.
Joseph P. Kennedy, III.
Tony Cardenas.

[all]

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Committee Report

H. Rept. 114-348 - 114th Congress (2015-2016)

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