49–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 114–171 

RATEPAYER PROTECTION ACT OF 2015 

JUNE 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.R. 2042] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2042) to allow for judicial review of any final rule addressing carbon dioxide emissions from existing fossil fuel-fired 

electric utility generating units before requiring compliance with 

such rule, and to allow States to protect households and businesses 

from significant adverse effects on electricity ratepayers or reliability, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 19 

Committee Consideration ........................................................................................ 21 

Committee Votes ...................................................................................................... 21 

Committee Oversight Findings ............................................................................... 26 

Statement of General Performance Goals and Objectives .................................... 26 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 26 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 26 

Committee Cost Estimate ....................................................................................... 26 

Congressional Budget Office Estimate ................................................................... 26 

Federal Mandates Statement ................................................................................. 27 

Duplication of Federal Programs ............................................................................ 27 

Disclosure of Directed Rule Makings ..................................................................... 28 

Advisory Committee Statement .............................................................................. 28 


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1The proposed rule, which is entitled ‘‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,’’ was published in the Federal Register on 

June 18, 2014. See 79 Fed. Reg. 34830 (June 18, 2014). The proposal does not apply to Vermont, 

the District of Columbia, tribal lands, or U.S. territories. Id. at 34895, n. 258. On October 8, 

2014, EPA announced a supplemental proposed rule for Indian Country and U.S. territories. See 

79 Fed. Reg. 65482 (Nov. 4, 2014). 2The President’s Climate Action Plan issued in June 2013 is available at https:// 

www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf. The Presidential Memorandum is available at https://www.whitehouse.gov/the-press-office/2013/06/25/ 

presidential-memorandum-power-sector-carbon-pollution-standards. 3The mandatory ‘‘goals’’ derived by EPA for each State are based on four ‘‘building block’’ 

measures including: (1) making heat rate improvements at coal-fired power plants, which EPA 

assumes for each State could result on average in a six percent CO2 emissions reduction from 

the affected units; (2) shifting away from coal-fired generation and operating the State’s natural 

gas combined cycle plants at a seventy percent capacity factor; (3) shifting away from coal-fired 

generation and expanding use of existing nuclear and renewable energy generation; and (4) reducing the use of electricity through energy efficiency programs that EPA assumes for each 

State could improve electricity savings by up to 1.5 percent annually. 79 Fed. Reg. 34830, 

34855–34892. 4 EPA describes these as ‘‘rate-based goals.’’ 79 Fed. Reg. at 34837. As an alternative, EPA 

also has proposed that a State could convert its assigned ‘‘rate-based goals’’ into an equivalent 

‘‘mass-based goal.’’ Id. at 34953; see also 79 Fed. Reg. 67406 (Nov. 13, 2014). 

Applicability to Legislative Branch ........................................................................ 28 

Section-by-Section Analysis of the Legislation ...................................................... 28 

Changes in Existing Law Made by the Bill, as Reported ..................................... 29 

Dissenting Views ..................................................................................................... 30 

PURPOSE AND SUMMARY

H.R. 2042, the ‘‘Ratepayer Protection Act,’’ was introduced by 

Rep. Ed Whitfield (R–KY) on April 28, 2015, together with Rep. 

Sanford Bishop (D–GA), Rep. Morgan Griffith (R–VA), and Rep. 

Collin Peterson (D–MN). The legislation addresses the Environmental Protection Agency’s (EPA) pending carbon dioxide regulations for existing fossil fuel-fired electric utility generating units 

under section 111(d) of the Clean Air Act (CAA). Key provisions of 

H.R. 2042 include the following: 

• The bill would extend the compliance dates for any final regulation to allow for completion of judicial review before States or 

other affected entities would be required to comply with the rule. 

• The bill also would provide that a State would not be required 

to implement a state or Federal plan under any final rule if the 

State’s Governor determined it would have a significant adverse effect on electricity ratepayers or reliability. 

BACKGROUND AND NEED FOR LEGISLATION

EPA’s proposed carbon dioxide (CO2) rule for existing fossil fuelfired power plants, also referred to by the agency as its ‘‘Clean 

Power Plan’’ or ‘‘111(d) Rule,’’ was announced in June 2014.1 The 

rule is being advanced pursuant to the President’s Climate Action 

Plan and a Presidential Memorandum issued on June 25, 2013.2

EPA plans to finalize the rule later this summer. 

The EPA’s proposal is unprecedented in the history of the agency. In the rule, EPA asserts authority under a rarely invoked provision of the CAA, known as section 111(d), to set mandatory CO2 

‘‘goals’’ for each State’s power sector.3 79 Fed. Reg. 34830. For each 

State, EPA specifically proposes a unique ‘‘interim goal’’ for the period 2020 to 2029, and a ‘‘final goal’’ beginning in 2030.4 Id. at 

34957–34958. While EPA describes the rule as ‘‘flexible,’’ the 

‘‘goals’’ would be fixed and could not be changed. Id. at 34835. 


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5See http://cleanpowerplanmaps.epa.gov/CleanPowerPlan/. EPA also encourages States to 

consider cap-and-trade programs. See e.g., 79 Fed. Reg. at 34834, 34848, 34880, 34900. 6See EPA Notice Regarding ‘‘SPAR Panel #47: Federal Plan for Regulating Greenhouse Gas 

Emissions from Electric Generating Units’’ available at http://www.epa.gov/rfa/cpp-federalplan.html (‘‘The affected EGUs in the [S]tates that do not develop a sufficient [S]tate plan as 

part of the emission guidelines are the entities that will be subject to this rulemaking’’). 7 In response to an Additional Question for the Record (QFR) following the June 19, 2014 

hearing, EPA Acting Assistant Administrator McCabe stated that EPA did not model the impacts of the proposed rule on global temperatures or sea rise levels. See QFR Response available 

at http://docs.house.gov/meetings/IF/IF03/20140619/102346/HHRG-113-IF03-WstateMcCabeJ-20140619-SD003.pdf. In the proposed 111(d) rule, EPA indicated that the CO2 reductions under this rule would be approximately half of the reductions under the 2012–2016 Light 

Duty Vehicle Rule and one-quarter of the reductions under the 2017–2025 Light Duty Vehicle 

rule for which EPA did model such impacts. In particular, EPA states in the proposed rule: 

Although the GHG emissions reductions projected for this proposal are large (the highest estimate is reductions of 555 MMT of CO2 in 2030—see Table 10 above), the EPA 

evaluated larger reductions in assessing this same issue in the context of the light duty 

vehicle GHG emission standards for model years 2012–2016 and 2017–2025. There the 

agency projected emission reductions roughly double and four times those projected 

here over the lifetimes of the model years in question. 

[citation omitted]. 

For the 2012–2016 vehicle rule, EPA projected global mean temperature will be reduced by 

0.006–0.015 °C and global mean sea level rise will be reduced by 0.06–0.14 cm by 2100 (see Regulatory Impact Analysis (RIA) at p. 7–124 available at http://epa.gov/otaq/climate/regulations/420r10009.pdf). For the 2017–2025 rule, EPA projected global mean temperature will be 

reduced by 0.0074—0.0176 °C and global mean sea level rise will be reduced by 0.071–0.159 

cm by 2100 (see RIA at p. 6–115 available at http://epa.gov/otaq/climate/documents/ 

420r12016.pdf). 

To comply, States would be required to submit plans to EPA for 

approval. 79 Fed. Reg. 34951–34954. EPA directs States to consider 

including in their plans a ‘‘mix of strategies’’ and programs such as: 

Demand-side energy efficiency programs; Renewable energy standards; Efficiency improvements at plants; Dispatch changes; Co-firing or switching to natural gas; Construction of new Natural Gas Combined-Cycle plants; 

Transmission efficiency improvements; Energy storage 

technology; Retirements; Expanding renewables like wind 

and solar; Expanding nuclear; Market-based trading programs; Energy conservation programs 5

Under the rule, State plans would be due within only thirteen 

months of a final rule, with a possible 1-year extension for individual State plans and 2-year extension for plans that include a 

multi-State approach. 79 Fed. Reg. at 34951–53. Once approved, 

the plan would become federally enforceable and could not be revised without approval from the EPA Administrator. Id. at 34844, 

34954. 

If a State fails to submit a plan, or EPA finds a submitted plan 

unsatisfactory, the agency would impose a Federal plan, a model 

of which EPA has announced it will propose this summer and finalize in the summer of 2016. 79 Fed. Reg. at 34954. EPA has indicated the Federal plan would apply directly to electric utility generating units in States that do not develop a sufficient State plan.6

While EPA projects that nationwide by 2030 this rule would 

achieve CO2 emission reductions from the power sector of approximately 30 percent from CO2 levels in 2005 (see 79 Fed. Reg. 

34832), the EPA used 2012 data to determine State goals. 79 Fed. 

Reg. at 34895–34896. The EPA does not project that these reductions would have any measurable impact on global temperatures, 

sea rise levels, or other climate indicators.7 Also, based on Energy 

Information Administration (EIA) estimates, the emissions reducVerDate Sep 11 2014 07:27 Jun 23, 2015 Jkt 049006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR171.XXX HR171

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8 In the coming decades, more than two-thirds (sixty-nine percent) of the World’s energy-related CO2 emissions will come from non-OECD countries according to EIA. See International 

Energy Outlook 2013 available at http://www.eia.gov/forecasts/ieo/pdf/0484(2013).pdf. According to the EIA, non-OECD countries’ CO2 emissions are expected to grow to 120 percent above 

2005 levels by 2040. See ‘‘EIA world carbon dioxide emissions by region, Reference case’’ available at http://www.eia.gov/oiaf/aeo/tablebrowser/#release=IEO2013&subject=3- 

IEO2013&table=10-IEO2013®ion=0-0&cases=Reference-d041117. 9See U.S. Chamber of Commerce, Institute For 21st Century Energy, January 2015 report, at p. 3. 10These comments are available at http://www.regulations.gov/#!docketDetail;D=EPA-HQOAR-2013-0602. 11Section 111(d) of the Clean Air Act authorizes the EPA Administrator to prescribe regulations establishing a procedure under which States submit to the Administrator a plan establishing standards of performance (also known as ‘‘Existing Source Performance Standards’’) for 

certain existing sources and certain air pollutants. See 42 U.S.C. § 7411(d). Over the past 40 

years, the agency has regulated pollutants under CAA section 111(d) from only five source categories: phosphate fertilizer plants (1977) (fluorides), sulfuric acid plants (1977) (acid mist), 

Kraft pulp mills (1979) (total reduced sulfur), primary aluminum plants (1980) (fluorides), and 

municipal solid waste landfills (1996) (landfill gas). See 79 Fed. Reg. at 34844, n. 43. EPA has 

also regulated sewage sludge incinerators under section 111(d) in conjunction with CAA section 

129. Id. at 34845, n. 44. 12See Presidential Memorandum dated June 25, 2013 available at http:// 

www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-power-sectorcarbon-pollution-standards. 13Section 111(d)(A)(1) provides: 

(d) Standards of performance for existing sources; remaining useful life of source (1) 

The Administrator shall prescribe regulations which shall establish a procedure similar 

to that provided by section 7410 of this title under which each State shall submit to 

the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant (i) for which air quality criteria have not been issued 

or which is not included on a list published under section 7408(a) of this title or emitted 

from a source category which is regulated under section 7412 of this title but (ii) to 

tions in the United States would be offset by increased CO2 emissions abroad.8

The agency has received over 4.3 million comments on the proposed rule. According to a summary of comments submitted by 

States: ‘‘32 states made legal objections, 28 raised significant concerns regarding compliance costs and economic impacts, 32 warned 

of electricity reliability problems, and 34 states objected to EPA’s 

rushed regulatory timelines.’’ 9 Electric utilities, as well as numerous national, regional, and State organizations or other entities 

have also raised broad concerns relating to the rulemaking.10

Potential legal challenges 

EPA’s rule is widely viewed as raising significant legal issues 

and any final rule is expected to be challenged. There are numerous legal issues that have been raised, including threshold issues 

about whether EPA has authority at all to proceed with the rulemaking under section 111(d) of the CAA. 

In particular, section 111(d) has had only limited application and 

scope and has been applied to only a few emissions sources, primarily in the 1970s and 1980s.11 President Obama, however, directed EPA to regulate greenhouse gas emissions from existing 

power plants under this provision.12 EPA Acting Assistant Administrator Janet McCabe testified at a June 19, 2014 hearing before 

the Subcommittee on Energy and Power that the proposed rule ‘‘is 

completely within the four corners of 111(d).’’ 

Despite this assertion, the express language of the CAA, as set 

forth in the U.S. Code, provides that EPA does not have the legal 

authority to regulate CO2 emissions from existing power plants 

under section 111(d). Specifically, section 111(d) excludes the regulation of any pollutant emitted from a source category that is being 

regulated under section 112 of the CAA. See 42 U.S.C. 

§ 7411(d)(A).13 Because EPA now regulates electric utility generVerDate Sep 11 2014 07:27 Jun 23, 2015 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 5601 E:\HR\OC\HR171.XXX HR171

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which a standard of performance under this section would apply if such existing source 

were a new source, and (B) provides for the implementation and enforcement of such 

standards of performance. Regulations of the Administrator under this paragraph shall 

permit the State in applying a standard of performance to any particular source under 

a plan submitted under this paragraph to take into consideration, among other factors, 

the remaining useful life of the existing source to which such standard applies. 

See § 42 U.S.C. 7411(d)(A). 14See National Emissions Standards for Hazardous Air Pollutants From Coal- and Oil-Fired 

Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired 

Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16, 2012). 15See 79 Fed. Reg. at 34853. Nevertheless, EPA notes that ‘‘the pertinent language [in the 

U.S. Code] in CAA section 111(d) would exclude the regulation of any pollutant which is ‘emitted 

from a source category which is regulated under section 112.’ ’’ Id. 16 Id. See also 70 Fed. Reg. 15994, 16031 (Mar. 29, 2005) (‘‘While it appears that the Senate 

amendment to section 111(d) is a drafting error and therefore should not be considered, we must 

attempt to give effect to both the House and Senate Amendments as they are both part of the 

current law.’’). 17 Although the provisions at issue occur some 100 pages apart in the Statutes at Large, they 

have been presented as bracketed text in statutory compilations used by EPA to show the apparent conflict, with CAA Section 111 (d)(1)(A) reading: ‘‘. . . establishes standards of performance 

for any existing source for any air pollutant (i) for which air quality criteria have not been 

issued or which is not included on a list published under section 108(a) [or emitted from a 

source category which is regulated under section 112] [or 112(b)]. . . .’’ An accompanying footnote on the brackets states ‘‘The amendments, made by section 108(g) and 302(a) of P.L. 101– 

549, appear to be duplicative or conflicting; both, in different language, change the reference 

to section 112.’’ See http://legcounsel.house.gov/Comps/Clean%20Air%20Act.pdf. 18See 79 Fed. Reg. at 334853. 19See Proposed Legislation ‘‘Clean Air Act Amendments of 1989,’’ Message from the President 

and accompanying papers referred to the Committee on Energy and Commerce, at p. 112 of 

Committee print available at http://docs.house.gov/meetings/IF/IF03/20140619/102346/ 

HHRG-113-IF03-20140619-SD012.pdf. 

ating units as sources under CAA section 112 pursuant to the 

agency’s 2012 ‘‘Mercury and Air Toxics’’ rule,14 this language prohibits EPA from setting standards for these sources of emissions 

under section 111(d). 

EPA maintains that, notwithstanding the express language set 

forth in the U.S. Code, the agency ‘‘may reasonably construe the 

provision to authorize regulation of [greenhouse gases] under CAA 

section 111(d).’’ 15 EPA asserts its interpretation is permissible due 

to ambiguities that stem from ‘‘apparent drafting errors that occurred during enactment of the 1990 Clean Air Act Amendments, 

which revised section 111(d).’’ 16 Specifically, EPA contends that a 

conflicting Senate provision that remained in the legislation enacted by Congress creates ambiguities that allow for the current 

proposed regulation because the language appears to exclude only 

section 112 pollutants from regulation under section 111(d), not 

section 112 sources as provided in the U.S. Code referenced above. 

Although EPA notes the presence of this language appears to be a 

‘‘drafting error,’’ because both provisions are presented in the Statutes at Large 17 EPA argues that ‘‘[u]nder these circumstances, the 

EPA may reasonably construe the provision to authorize the regulation of GHGs under CAA section 111(d).’’ 18

Despite EPA’s position, the evidence indicates Congress intended 

the language in the U.S. Code to be the law. Committee staff has 

reviewed the legislative history relating to the 1990 Amendments 

to the CAA. The legislative history shows (a) the provisions of section 111(d) reflected in the U.S. Code originated as specific language proposed by the President in legislation formally submitted 

to Congress in the summer of 1989,19 which was subsequently incorporated into legislation considered and passed by the House; (b) 

the Senate and House conferees considered and amended the section containing House statutory language providing that sources 

regulated under section 112 cannot be regulated as existing sources 


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20The Statement of Managers accompanying the conference report was expressly described in 

the Congressional Record as an authoritative source of legislative intent. See, e.g., November 

2, 1990 Congressional Record, Statement by the Honorable Henry A. Waxman in the House of 

Representatives, Saturday, October 27, 1990 and available at http://docs.house.gov/meetings/ 

IF/IF03/20140619/102346/HHRG-113-IF03-20140619-SD013.pdf: 

Mr. Speaker, as chairman of the Health and Environment Subcommittee of the Committee on Energy and Commerce, which is the subcommittee with legislative jurisdiction over the Clean Air Act Amendments of 1990, I wish to clarify the legislative history 

of the Clean Air Act Amendments of 1990. 

The clean air legislation (S. 1630) reflects a series of bipartisan compromises. These 

compromises are embodied primarily in the conference report on the clean air bill (S. 

1630) and the statement of managers accompanying the conference report. To the extent that provisions in the conference report track provisions in the House-passed bill 

(H.R. 3030), the report of the Committee on Energy and Commerce is also an authoritative source of the legislative intent of the House. On the other hand, accurate legislative intent is not necessarily reflected in the commentary of individual House Members 

on S. 1630. 

21See CHAFEE-BAUCUS STATEMENT OF SENATE MANAGERS, S. 1630, THE CLEAN 

AIR ACT AMENDMENTS OF 1990, A Legislative History of the Clean Air Act Amendments of 

1990, William S. Hein & Co. Inc. (1998), Volume I, Book 2 at p. 885 (emphasis added). See excerpts available at http://docs.house.gov/meetings/IF/IF03/20140619/102346/HHRG–113– 

IF03–20140619–SD011.pdf. 22The Senate conforming language can be traced to Senate bill S. 816. Provisions of S. 816, 

introduced in the U.S. Senate on April 18, 1989, were subsequently incorporated into S. 1630, 

under section 111; and (c) the Senate expressly receded to the 

House with respect to these substantive provisions regarding section 111(d). 

The Statement of Senate Managers states as follows: 20

SECTION 108—MISCELLANEOUS PROVISIONS. Senate 

bill. In section 103 of the Senate bill revises sections 108(e) 

and (f) of the Clean Air Act to require the Administrator 

and the Secretary of Transportation to update air quality/ 

transportation planning guidance and to add to the transportation control measures to be evaluated by the Administrator after consultation, when appropriate, with the Secretary. 

House amendment. The House amendment contains a 

similar provision to the one in the Senate bill regarding 

amendments to section 108 of the Clean Air Act. In addition, the House amendment contains provisions for a 

technology clearinghouse to be established by the Administrator, for amending section 111 of the Clean Air Act 

relating to new and existing sources, for amending 

section 302 of the Clean Air Act which contains definitions, 

to provide a savings clause, to state that reports that are 

to be submitted to Congress are not subject to judicial review, and for other purposes. 

Conference agreement. The Senate recedes to the 

House except that with respect to the requirement 

regarding judicial review of reports, the House recedes to the Senate, and with respect to transportation planning, the House recedes to the Senate 

with certain modifications. 

[Emphasis added] 21

By receding to the House language, the conferees effectively removed obsolete references to section 112(b)(1)(a) in the underlying 

CAA. The legislative history indicates further that the language in 

the Statutes at Large from the Senate-originated provision, a ‘‘conforming amendment,’’ was essentially an editing oversight that inadvertently remained in the enacted statute.22 This language was 


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the legislation that passed the Senate and became the vehicle for the Clean Air Act Amendments of 1990. Identical provisions were included in H.R. 2585, introduced in the U.S. House 

on June 8, 1989, which was subject along with a competing legislative proposal, H.R. 4, to legislative hearings by the Energy and Commerce Committee. See Hearings Before the Subcommittee on Health and the Environment of the Committee on Energy and Commerce House 

of Representatives, One Hundred First Congress, First Session entitled ‘‘June 22, 1989 TOXIC 

AIR POLLUTANTS—H.R. 4 and H.R. 2585, July 24, 2989 ADMINISTRATION’S AMENDMENTS,’’ Serial No. 101–116. Neither H.R. 2585 nor H.R. 4 were reported out of Committee. 

Subsequently, H.R. 3030, which was introduced on July 27, 1989, specifically incorporated language proposed by the President that served to prohibit the application of section 111(d) to pollutants emitted from source categories regulated under section 112. See A Legislative History 

of the Clean Air Act Amendments of 1990, William S. Hein & Co. Inc. (1998), Volume II, Book 

2 at pp. 3467–3468. The Committee eventually considered and reported favorably H.R. 3030, 

which was passed in the U.S. House and was then inserted in lieu of the Senate language as 

the House amendments to S. 1630. Id. at pp. 3430. See also, Volume II, Book 1 at page 3019. 23The Office of Law Revision Counsel is an independent, nonpartisan office in the U.S. House 

of Representatives under the authority of the Speaker of the House that prepares and conducts 

the codification process for the U.S. Code. While the Statutes at Large serve as legal evidence 

of laws (1 U.S. C. § 112), the subsequent codification process of the U.S. Code serves to correct 

technical errors in the law, eliminate obsolete provisions, and ultimately replaces, once enacted 

as positive law, the Statutes at Large as legal evidence of laws (1 U.S. C. § 204 and 2 U.S. C. 

§ 285b(1)). 24The U.S. Code notes specifically that the amendment ‘‘could not be executed, because of the 

prior amendment by Pub. L. 101–549, § 108(g),’’ which contained the substantive House language. 25See In Re Murray Energy Corporation, U.S. Court of Appeals for the District of Columbia, 

Case No. 14–1112; State of West Virginia v. United States Environmental Protection Agency, 

U.S. Court of Appeals for the District of Columbia, Case No. 14–1146. While the Court issued 

on order on June 9, 2015, dismissing the legal challenges as premature, these issues are expected to be raised in legal challenges to any final rule. 26See e.g., Letter of 15 Governors available at http://www.scribd.com/doc/239195664/Republican-Governors-Urge-President-Obama-to-Promote-Reliable-Affordable-Energy-Policy (‘‘In attempting to regulate outside the fence, the Agency’s proposal not only exceeds the scope of Federal law, but also, in some cases, directly conflicts with established [S]tate law.’’); see also, e.g., 

‘‘EPA’s Section 111(d) Carbon Rule: What if States Just Said No?’’ available at http:// 

www.insideronline.org/summary.cfm?id=23304 (‘‘EPA has ‘creatively’ reinterpreted its Section 

111 authority for adopting performance standards and, for the first time, has proposed standards based on ‘outside-the-fence’ actions.’’). 27See 79 Fed. Reg. at 34830. 

not expressly considered by the conferees because such consideration was unnecessary. The language served as a technical correction, the point of which was to replace a statutory reference that 

had been rendered obsolete by amendments to section 112 with a 

reference that would accurately conform to the revised section 112. 

This technical edit inadvertently remained in the legislation taken 

up by Congress. Once the substantive House provisions were adopted, this technical edit was rendered non-executable because the reference it replaced no longer existed. Subsequent review by the authoritative Office of Law Revision Counsel 23 correctly identified 

this obsolete provision and corrected it in the U.S. Code.24

In short, based on review of the legislative history, it does not 

appear that this rulemaking falls within ‘‘the four corners of 

111(d).’’ When corrected for technical drafting imperfections, as the 

U.S. Code revisions have done, EPA cannot regulate existing power 

plants under section 111(d) because these plants are already regulated as sources under section 112. 

This threshold issue has already been raised in litigation in the 

U.S. Court of Appeals for the District of Columbia.25 Even assuming that EPA has authority under section 111(d) to regulate existing power plants, there remain fundamental issues regarding the 

scope of such authority, including whether EPA can require actions 

‘‘beyond-the-fence’’ of the electric generating units that are the subject of the regulation.26 In particular, while the sources to be regulated under the proposal are limited to ‘‘existing fossil-fuel fired 

electric generating units,’’ 27 EPA is seeking to set emissions limits 


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28See, e.g. 79 Fed. Reg. at 34888–34889 (In response to concerns raised by stakeholders that 

EPA’s authority is limited to measures that may be undertaken at the affected units, and does 

not include ‘‘beyond-the-unit’’ or ‘‘beyond-the-fenceline’’ measures, EPA states: ‘‘As discussed 

above, we propose that the provisions of CAA section 111 do not by their terms preclude the 

[best system of emissions reduction] from including [building blocks 2, 3 and 4]’’). 29See e.g. ‘‘EPA’s CO2 Rule and 18 States’ Resolutions and Legislation, EPA’s Proposed CO2 

Rule Collides with Flexibility Asserted By States,’’ Raymond L. Gifford et al. (August 2014) 

available at http://www.wbklaw.com/uploads/file/ 

EPA’s%20CO2%20Rules%20and%2018%20States’%20Resolutions%20and%20Legislation.pdf. 30States that have passed legislation include Kansas, Kentucky, Louisiana, Missouri, Ohio, 

Pennsylvania, and West Virginia. 

that would not be achievable through emissions controls or other 

actions at the units subject to regulation.28 Rather, to meet EPA’s 

proposed emissions limits, States would need to undertake measures outside the boundaries of those units. 

In addition to issues relating to regulating ‘‘beyond the fence,’’ 

other questions relate to what legal authority the agency would 

have to include its various building blocks in a Federal implementation plan. There are also questions regarding the potential need 

for State or Federal implementing legislation, as well as the consistency of the Clean Power Plan’s approach with State laws or 

pending legislation.29 For example, a number of States have passed 

laws that provide that any CO2 performance standards established 

by the State for existing power plants be based on ‘‘inside the 

fence’’ measures and/or require State legislative approval of a 

plan.30

Other legal and regulatory issues include specific questions about 

how the regulation affects the jurisdiction of the Federal Energy 

Regulatory Commission (FERC) or jurisdictional issues under the 

Federal Power Act, how the rule affects States that have exclusive 

jurisdiction over intrastate electricity matters, as well as interstate 

compliance and enforcement issues, and other matters such as the 

implications of the proposal for cooperatives and municipal utilities 

over which States may have limited or no jurisdiction. 

Legal questions raised by the proposed rule were addressed in 

testimony before the Committee’s Subcommittee on Energy and 

Power from legal experts. For example, Laurence Tribe, the Carl 

M. Loeb University Professor and Professor of Constitutional Law 

at Harvard University, testified at a March 17, 2015 hearing that 

‘‘EPA’s proposal raises grave constitutional questions, exceeds 

EPA’s statutory authority, and violates the Clean Air Act.’’ He further testified: 

EPA possesses only the authority granted to it by Congress. It lacks ‘‘implied’’ or ‘‘inherent’’ powers. Its gambit 

here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting 

to exercise lawmaking power that belongs to Congress and 

judicial power that belongs to the Federal courts. The absence of EPA legal authority in this case makes the Clean 

Power Plan, quite literally, a power grab. 

He also testified: 

I taught the first environmental law course in this country, and I have won major victories for environmental 

causes, but I am committed to doing it within the law. And 

there is a legal way to address these problems. They tried 

to get cap and trade with this Administration, didn’t work. 


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31 In EPA’s FY 2016 budget documents submitted to Congress earlier this year, the agency 

noted that the proposed rule would go far beyond the EPA’s traditional authority, stating: 

The breadth and uniqueness of the Clean Power Plan rulemakings will require that the 

agency devote significant resources to its implementation. Traditionally, the EPA’s regulatory analysis would focus on only emitting sources and ‘‘end of pipe’’ controls. The 

existing power plant rule requires that the EPA look at the emission control strategies 

that many States and companies are currently employing that are either shifting generation away from higher emitting plants or reducing the need for generation in the 

first place (through energy efficiency). Evaluating and capturing these strategies requires the agency to tap into technical and policy expertise not traditionally needed in 

EPA regulatory development . . . and to understand and project system-wide approaches and trends in areas such as electricity transmission, distribution and storage. 

See EPA Congressional Justification for FY 2016 Budget Request, at p.225, available at 

http://www2.epa.gov/sites/production/files/20150902/documents/ 

epalfyl2016lcongressionalljustification.pdf. 

And I guess the EPA is now following a kind of marching 

order saying, well, if you can’t do it through the lawful 

way, just take an agency and tell it to bend and twist and 

tear and rip the law. 

At the March 17, 2015 hearing, Ms. Allison Wood, a Clean Air 

Act lawyer also testified: 

Section 111(d) of the Clean Air Act has always been an insignificant provision designed to be used rarely. Indeed, it 

has been used only five times since 1970. EPA’s proposed 

section 111(d) rule turns this notion on its head and seeks 

to regulate an enormous part of the economy. The rule suffers from numerous legal deficiencies, including whether 

EPA even has authority to issue it given that electric generating units are regulated under section 112 of the Clean 

Air Act. . . . 

. . . EPA proposes for the first time a standard of performance that is based on not operating the source. EPA claims 

for the first time, based on the dictionary definition of the 

word system, that it can regulate any set of things that 

leads to reduced emissions from the source category overall, even if those things go beyond the fence line of the 

plant.31

She further testified: 

To use an illustration that may help people better understand what EPA is proposing to do here, it is as if EPA 

were requiring car owners not only to have catalytic converters on their cars, but also to travel a certain amount 

of days per week by bus, purchase a certain number of 

electric vehicles, and work from home one day a week. All 

of these things would reduce overall car emissions, but 

they do nothing to reduce the rate at which those cars 

emit pollutants per mile, and most people would surely 

agree that the Clean Air Act would not allow EPA to require these types of things from car owners, yet, this type 

of regulation is exactly what EPA is trying to do to power 

plants in the Section 111(d) rule. 

State regulators also highlighted legal concerns. For example, at 

the March 17, 2015 hearing, the Secretary of the North Carolina 

Department of Environment and Natural Resources, Donald van 

der Vaart, testified: 


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32See, e.g., March 17, 2015 Testimony of Craig Butler, the Director of the Ohio Environmental 

Protection Agency (‘‘[T]he proposal seeks to overhaul the Nation’s power generation, transmission, distribution systems, by reducing coal-based electricity, and instituting federally-mandated reliance on energy efficiency, renewable energy under the guise of global climate protection. . . . It is no secret, as we have heard today, that many [S]tates including Ohio, that the 

Clean Power Plan is encumbered with significant legal problems and should not go forward.’’); 

see also September 9, 2014 Testimony of Henry R. Darwin, Director, Arizona Department of Environmental Quality (‘‘I do not believe the Clean Air Act provides EPA with the authority to 

regulate greenhouse gases as it proposes to do so in its Clean Power Rule.’’). 33See 79 Fed. Reg. at 34934–34935. 34See, e.g., NERA Economic Consulting report entitled ‘‘Potential Energy Impacts of the EPA 

Proposed Clean Power Plan,’’ October 2014 available at http://www.nera.com/content/dam/ 

nera/publications/2014/NERAlACCCElCPPlFinall10.17.2014.pdf. With respect to costs, 

the North American Electric Reliability Corporation (NERC), which collects energy efficiency 

program data, also has concluded that EPA has overstated efficiency savings. See NERC Report 

entitled ‘‘Potential Reliability Impacts of EPA’s Proposed Clean Power Plan, Initial Reliability 

Review,’’ November 2014 available at http://www.google.com/url?sa=t&rct=j&q=&esrc=s 

&source=web&cd=2&ved=0CCUQFjAB&url=http%3A%2F%2Fwww.nerc.com%2Fpa%2FRAPA%2 

Fra%2FReliability%2520Assessments%2520DL%2FPotentiallReliabilitylImpactsloflEPA lProposedlCPP—Final.pdf&ei=ep2BVaGuIcjksAWRjqW4BA&usg=AFQjCNFkuP7LTMVQjCdr 

wchQ-vpaq1ij7Q&sig2=UBZ3AC1spN9fOlef3o17Aw&bvm=bv.96041959,d.b2w NERC stated: 

‘‘NERC, EIA, EPRI, and various utilities, have published reports, analysis, and forecasts for energy efficiency that do not align with the CPP’s assumed declining demand trend.’’ Further, 

NERC stated that ‘‘[t]he CPP assumption appears to underestimate costs and does not reflect 

the capital investments that would otherwise be required by utilities to meet growing electricity 

demand or energy efficiency program implementation.’’ 

There is universal agreement that the 111(d) rule will fundamentally restructure how energy is generated and consumed in America. I would argue that EPA’s Section 

111(d) rule is to energy what the Affordable Care Act is to 

healthcare. This fundamental change to America’s electricity model will come at the hands of a rule that few consider legally firm. The EPA acknowledges in the rule that 

it is structured to survive even if portions of the rule are 

struck down. In my more than 20 years of implementing 

air quality rules, I am not aware of any rule where the 

EPA has made an a priori acknowledgement of legal infirmity. 

Other regulators have also testified to the legal issues surrounding the rule.32

Potential impacts on electricity prices 

The proposed rule has raised broad concerns among States, affected entities and other stakeholders because it would raise the 

price of electricity. EPA estimates annual costs of compliance over 

the next fifteen years would range from $5.5 billion and $7.5 billion 

in 2020 to $7.3 billion and $8.8 billion in 2030,33 and that there 

would be ‘‘a [four] to [seven] percent increase in retail electricity 

prices, on average, across the contiguous U.S. in 2020,’’ Id. at 

34948. According to other estimates, the potential costs could be 

significantly higher, and could range from $366 billion to $479 billion over the period 2017–2031.34

At the April 14, 2015 hearing on a discussion draft of H.R. 2042, 

witnesses provided testimony indicating that costs of electricity 

could increase substantially for ratepayers in the majority of States 

during the fifteen year period in which the rule would be implemented. For example, Energy Economist and Attorney Eugene 

Trisko, who has assessed energy costs for households, projected 

that in thirty-one geographically-diverse States electricity rates 

could be fifteen percent higher each year than they would be without the rule during the period 2017 through 2031. He testified: 


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35See e.g., Kansas Corporation Commission Comment (‘‘The KCC estimates a base case that 

the EPA’s CPP as proposed would cost the [S]tate of Kansas $8.75 billion with a possible range 

of costs between $5 billion and $15 billion. The corresponding increase in rates is between [ten 

percent] and [thirty percent] over [thirteen] years. . . .’’); Virginia State Corporation Commission Comment (noting that: 

the incremental cost of compliance for one utility alone (Dominion Virginia Power) 

would likely be between $5.5 billion and $6.0 billion on a net present value basis. . . . 

Contrary to the claim that ‘rates will go up, but bills will go down’, experience and costs 

in Virginia make it extremely unlikely that either electric rates or bills in Virginia will 

go down as a result of the Proposed Regulation). 36Mr. Trisko testified: 

‘‘These average price increases mean that electricity prices for consumers will be [fifteen percent] higher, on average, each year under 

the Clean Power Plan than they would be without the CPP. Peak 

year electric price increases during this period average [twenty-two 

percent] for the [thirty-one] states.’’ The President of Industrial 

Consumers of America, Paul Cicio, also testified that with the 

Clean Power Plan, together with other rules, industrial customers 

could expect up to a 33.7 percent increase in electricity prices by 

2025. 

State officials also testified before the Subcommittee that the 

proposed rule could result in large rate increases in their individual States. For example, at the March 17, 2015 hearing, the 

Chairman of the Florida Public Service Commission, Art Graham, 

testified: ‘‘potential increases of [twenty-two to fifty percent] in 

some retail electric rates is a credible estimate of the level of Florida’s Clean Power Plan costs.’’ The Director of the Ohio EPA, Craig 

Butler, also testified: ‘‘One stunning statistic I will share with you 

is that the Public Utilities Commission of Ohio conducted a detailed analysis of the Clean Power Plan and predicted wholesale 

market energy prices to be 39 percent higher in calendar year 

2025, costing Ohioans approximately $2.5 billion.’’ Other State 

analyses also have underscored the potentially significant adverse 

effects on ratepayers in their individual States.35

Witnesses also testified that the costs of the rule would fall 

disproportionally on lower-income households. For example, at the 

hearing on the discussion draft of H.R. 2042, Mr. Trisko testified: 

Lower-income families are more vulnerable to energy costs 

than higher-income families because energy represents a 

larger portion of their household budgets. Energy costs reduce the amount of income that can be spent on food, 

housing, health care, and other basic necessities. Data presented in the 31 State reports show that minorities and 

senior citizens are disproportionately represented among 

lower-income households. 

He further testified that EPA envisions that consumers will 

spend $560 billion on energy efficiency.36 Such investments, he testified, are unlikely to be made by lower-income households, stating: 

‘‘Senior citizens and other lower-income groups will bear the burden of higher energy costs imposed by EPA’s Clean Power Plan, 

but will be among the least likely to invest in—or benefit from— 

the energy efficiency programs that the proposed rule envisions.’’ 

Witnesses also raised concerns that EPA has significantly understated the costs to the extent the agency has failed to account for 

the significant stranded costs associated with compliance with the 

rule. For example, Lisa Johnson, CEO and General Manager of 


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Now, NERA’s analysis using the four building blocks of the EPA rule, and this is the 

cost to consumers of investments in energy efficiency to meet EPA targets, indicates a 

cost to consumers, and this is in net present value terms, of $560 billion. That means 

Americans will be asked by this rule, American consumers will be asked to spend $560 

billion in investments in energy efficiency. 

He further testified: 

Congressman, I believe that estimate of that extent of energy efficiency investment is 

simply fatuous. As of just a few years ago, the most recent data—and these don’t 

change very quickly—the average American house is owned for a period of seven to 

eight years. You cannot recover a major investment such as in replacing sliding glass 

doors or an HVAC, a heat pump system, you cannot recover those costs in the space 

of seven to eight years. You can do relatively simple things like attic insulation and 

weather-stripping and that sort of thing, but those don’t get you close to the targets 

that EPA is advocating for [States] in this rule. 37See, e.g., 79 Fed. Reg. at 34839–34840. 38See Testimony of Anne E. Smith, Ph.D. available at http://oversight.house.gov/wp-content/ 

uploads/2015/02/ASmith-Oversight-Committee-Testimony-2-2-15.pdf. 39 Id. 40 EIA reports that in 2014, energy sources and the percentage share of total electricity generating were as follows: Coal thirty-nine percent; Natural Gas twenty-seven percent; Nuclear nineSeminole Electric Cooperative, Inc., testified that its 1,300 megawatt Seminole Generating Station (SGS), in which over $530 million in state-of-the-art environmental control technology have been 

invested, would be forced to retire over twenty years before the end 

of its remaining life. She testified: 

If SGS were retired prior to the end of its useful life, the 

remaining net book value (stranded asset) would be required to be written off and the expense would be paid by 

our Members. The Members would continue to pay the 

fixed costs related to SGS without receiving any energy or 

capacity from its operation. Seminole will still have to 

serve the full requirements of our Members, and the replacement capacity related to the early retirement of SGS 

will either have to be constructed or purchased. This will 

cause our Members to pay for both the stranded asset and 

the replacement capacity at the same time. 

In addition to questions about the compliance costs, commenters 

on the rule also have raised questions relating to the climate related benefits. While EPA maintains there will be climate benefits 

based on ‘‘social cost of carbon’’ estimates,37 on February 26, 2015, 

Senior Vice President of NERA Economic Consulting, Anne Smith 

testified before the House Committee on Oversight and Government Reform that EPA’s presentation of its benefits estimate was 

overstated and misleading: ‘‘When correctly presented, USEPA’s estimates indicate the present value of CPP spending through 2030 

will exceed $180 billion while the climate benefits are not expected 

to exceed that cost until about 100 to 125 years after the spending 

has been sunk.’’ 38 Further, she noted that the agency’s estimates 

of the benefits relate to global rather than domestic benefits, and 

testified: ‘‘The CPP’s estimated benefits to U.S. populations is not 

expected to exceed the CPP’s costs under even the most pessimistic 

projections of climate impacts.’’ 39

Potential impacts on electric reliability 

In addition to impacts relating to the high costs of the rule, there 

are significant concerns about the rule’s potential impact on reliability because the effect of the regulation would be to shut down 

a significant amount of the nation’s existing coal-fired electricity 

generation.40 EPA projects that up to fifty gigawatts (GW) of addiVerDate Sep 11 2014 07:27 Jun 23, 2015 Jkt 049006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR171.XXX HR171

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teen percent; Hydropower six percent; Other Renewable seven percent, including Biomass (1.7 

percent), Geothermal (0.4 percent), Solar (0.4 percent), Wind (4.4 percent); Petroleum one percent; and Other Gases < one percent. See http://www.eia.gov/tools/faqs/faq.cfm?id=427&t=3. 41See EIA Analysis of the Impacts of the Clean Power Plan dated May 26, 2015 available at 

http://www.eia.gov/analysis/requests/powerplants/cleanplan/pdf/powerplant.pdf, at p. 16. In 

August 2014, the Government Accountability Office (GAO) estimated that over forty-two GW 

‘‘has either been retired since 2012 or is planned for retirement by 2025.’’ See GAO Report entitled ‘‘EPA Regulations and Electricity: Update on Agencies’ Monitoring Efforts and Coal-Fueled 

Generating Unit Retirements,’’ August 2014, available at http://www.gao.gov/assets/670/ 

665325.pdf. 42See September 9, 2014 Testimony of Kenneth W. Anderson, Jr., Commissioner, Public Utility Commission of Texas; Travis Kavulla, Commissioner, Montana Public Service Commission; 

Henry R. Darwin, Director, Arizona Department of Environmental Quality; Thomas W. Easterly, 

Commissioner, Indiana Department of Environmental Management; March 17, 2015 Testimony 

of Art Graham, Chairman, Florida Public Service Commission; Craig Butler, Director, Ohio Environmental Protection Agency; and Donald van der Vaart, Secretary, North Carolina Department of Environment and Natural Resources. 43See ‘‘Potential Reliability Impacts of EPA’s Proposed Clean Power Plan, Initial Reliability 

Review, November 2014’’ and is available at http://www.nerc.com/pa/RAPA/ra/ 

Reliability%20Assessments%20DL/PotentiallReliabilitylImpactsloflEPAlProposedlCPPl Final.pdf; see also ‘‘Potential Reliability Impacts of EPA’s Proposed Clean Power Plan, Phase 

I, April 2015’’ available at http://www.nerc.com/pa/RAPA/ra/ 

Reliability%20Assessments%20DL/Potential%20Reliability%20Impacts%20of%20EPA%E2%80%9 

9s%20Proposed%20Clean%20Power%20Plan%20-%20Phase%20I.pdf. NERC is the electric reliability organization (ERO) for North America, subject to oversight by FERC and governmental 

authorities in Canada. On November 12, 2014, NERC also released a long-term reliability assessment that raised similar concerns relating to the ‘‘Clean Power Plan.’’ http:// 

www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/2014LTRA.PDF; see also An- nouncement available at http://www.nerc.com/news/Headlines%20DL/ 

LTRA%2012NOV14lFINAL.pdf. 

tional coal-fired generation may become uneconomic by 2030, with 

the vast majority retiring by 2020. EPA specifically estimates that 

in 2020, the amount of additional coal-fired generation that may be 

removed from operation would represent nineteen percent of all 

coal-fired capacity (and 4.6 percent of total generation capacity in 

2020). 79 Fed. Reg. at 34935. The EIA has also projected that approximately fifty GW of coal-fired generation would retire under 

the Clean Power Plan, nearly all by 2020, which would be over and 

above the approximately forty GW EIA currently projects will retire (most before 2017).41

Concerns relating to electric reliability were raised in testimony 

before the Committee, including FERC Commissioners and State 

regulators from Arizona, Florida, Indiana, Montana, North Carolina, Ohio, and Texas.42 The North American Electric Reliability 

Corporation (NERC), which develops and enforces electric reliability standards, has also released two reports to date that identify concerns regarding bulk power system reliability risks associated with the proposed rule.43

Reliability concerns were also underscored during conferences before the FERC. In particular, FERC convened four technical conferences focused on EPA’s proposed rule and issues related to electric reliability, wholesale electric markets, and operations, and energy infrastructure. These conferences on February 19, 2015 and 

March 11, 2015 in Washington, DC, February 25, 2015 in Denver, 

and March 31, 2015 in St. Louis, included numerous submitted oral 

and written testimony that raised concerns relating to the Clean 

Power Plan. 

Need for legislation 

While there are numerous legal, cost, and reliability issues associated with EPA’s proposed 111(d) rule, submittal of State plans 

would be required before the legality of the rule would be established. The Secretary of the North Carolina Department of EnviVerDate Sep 11 2014 07:27 Jun 23, 2015 Jkt 049006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\HR171.XXX HR171

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44See, e.g. Comment of 17 Attorneys General at p. 26 available at http://www.ok.gov/oag/ 

documents/EPA%20Comment%20Letter%20111d%2011-24-2014.pdf; Alabama Dept. of Environmental Management Comment at p. 2 available at http://www.csg.org/aapcalsite/news/documents/AL11-21-2014EPASDBADEMCAA111dcomments.pdf; North Dakota Dept. of Health Comment at p. 6 available at http://www.csg.org/aapcalsite/news/documents/NDDHComments12- 

1-14.pdf; and Florida Dept. of Environmental Protection Comment at p. 3 available at http:// 

docs.house.gov/meetings/IF/IF03/20150414/103312/HHRG-114-IF03-20150414-SD005.pdf. 

ronment and Natural Resources testified at the March 17, 2015 

hearing: 

Given the certain litigation that will ensue if the proposed 

rule under 111(d) is promulgated, states such as North 

Carolina are at risk of investing unnecessary time and resources, developing and enacting state 111(d) plans prior 

to the resolution of litigation. North Carolina recommends 

that the EPA amend the rule’s submittal deadline to require states to submit a 111(d) plan only after the conclusion of the judicial review process. Traditionally, when the 

EPA promulgates a new rule that sets forth requirements 

designed to address some aspect of the Clean Air Act, each 

state must take action, usually in the form of legislation 

and rulemaking, to avoid sanctions directly or avoid sanctions on its sources. The state then submits a demonstration to the EPA for approval, which can take anywhere 

from a few months to many years, during which time the 

states implement their rules. If the rule is struck down, 

however, the state is forced to uproot its earlier work and 

begin a new planning process; legislation, rulemaking, implementation and enforcement, and the process must often 

be amended again when EPA revises its illegal rule in an 

attempt to satisfy the courts. 

Other States have also urged EPA in comments that implementation of any final rule be stayed pending judicial review, including 

in the comments of seventeen State attorneys general, as well as 

in individual comments from the States of Alabama, Florida, and 

North Dakota.44

At the March 17, 2015 hearing, Ms. Wood also addressed the significant resources required to be expended, and testified: 

The plans that states will need to prepare are extremely 

complicated. In the West Virginia litigation, for example, 

the State of Alabama described preparation of the plan 

that will be needed for the section 111(d) rule as ‘‘the most 

complex air pollution rulemaking undertaken by [Alabama] in the last 40 years.’’ [citation omitted] The rule essentially requires a complete overhaul of each state’s energy portfolio. In addition, many states are going to have 

to enact laws and regulations to enable them to do the 

things contemplated by the proposed rule. All of this will 

be completed before litigation over the rule is complete. If 

the rule is ultimately held to be unlawful, the states will 

have already expended enormous amounts of resources to 

develop the plan, and any laws or regulations that have 

been enacted cannot be easily reversed. 


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45 In response to a QFR following the March 17, 2015 hearing, Allison Wood estimated that 

the time to complete judicial review likely ranges from approximately three years to three years 

and eight months, depending upon the nature of the Supreme Court’s review. See QFR Response 

available at http://docs.house.gov/meetings/IF/IF03/20150317/103073/HHRG-114-IF03- 

Wstate-WoodA-20150317-SD007.pdf. She also stated that it was possible that the Supreme Court 

could return the case to the D.C. Circuit for further action. Id. 46The agency announced in December 2010 that it had entered into a settlement and would 

propose and finalize a greenhouse gas regulation under section 111(d) for existing power plants 

by 2012 (see 2010 proposed settlement announced Dec. 23, 2010, available at http:// 

www2.epa.gov/sites/production/files/2013–09/documents/boilerghgsettlement.pdf), but did not 

propose the rule until June 2014. 

What the legislation would do 

The continued affordability and reliability of electricity supplies 

is critical to the nation’s future economic growth, job creation, and 

to all American households and businesses. The bill includes the 

following provisions to protect States and ratepayers. 

First, H.R. 2042 would extend the compliance dates of any final 

rule pending judicial review, including the dates for submission of 

State plans. The bill would extend the compliance dates for the period of time that begins sixty days after a final rule appears in the 

Federal Register, and would end when all final legal challenges 

filed during that period have been resolved, and are no longer subject to legal review. While the bill would extend compliance dates, 

nothing would prevent those States that wanted to move forward 

with implementation prior to the completion of judicial review from 

submitting plans or otherwise complying. 

Second, H.R. 2042 also would provide a safe harbor for States to 

protect ratepayers in the event that the rule was upheld. In particular, the bill would provide that no State shall be required to implement a State or Federal plan that the State’s governor determines, in consultation with other relevant State officials and taking into account rate increases associated with other Federal or 

State regulations, that it would have a significant adverse effect on 

(i) retail, commercial, or industrial ratepayers; or (ii) the reliability 

of the State’s electricity system. In making such a determination, 

a Governor would be required to consult with the State’s energy, 

environmental, public health, and economic development departments or agencies, as well as with NERC. 

The extension of time provided in H.R. 2042 to allow for judicial 

review of a legally controversial and vulnerable rule is reasonable. 

EPA’s accelerated schedule requiring submission of plans within 

thirteen months of a final rule is not mandated by statute and is 

unreasonable given the fundamental changes that EPA envisions 

States would commit to under its rule. At the same time, completion of judicial review typically requires approximately three 

years,45 which is a relatively short period of time in the context of 

major EPA CAA rulemakings.46 Allowing for completion of judicial 

review would ensure that States and other affected stakeholders 

would not have to undertake extensive planning and activities to 

comply with the rule’s unprecedented requirements or to make 

other related and costly decisions that may not easily be reversed 

if the rule is struck down or modified. 

At the same time, such a delay would have no adverse effect on 

the climate given the negligible impact of the rule’s projected reductions in global greenhouse gas emissions. As a practical matter, 

U.S. energy-related carbon-dioxide emissions have declined and are 

expected to remain below 2005 levels in the coming decades. The 


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47 EIA, Annual Energy Outlook 2015 available at http://www.eia.gov/forecasts/AEO/sectionlcarbon.cfm. 

EIA recently reported that U.S. energy-related CO2 emissions will 

remain flat through 2040, and below 2005 levels, without the ‘‘proposed Clean Power Plan or other actions beyond current policies to 

limit or reduce CO2 emissions.’’ 47

Given the complex and extraordinary burdens a final rule may 

impose, and the potential that the rule may not be upheld or may 

be modified, extension of the compliance timelines is warranted to 

protect States and ratepayers. Further, by providing an additional 

safe harbor for States, H.R. 2042 also would address concerns that 

have been raised by many stakeholders, ranging from State regulators to electric utilities, including public power utilities and rural 

cooperatives, to ratepayers and consumers, about the potential impacts of EPA’s proposed rule on electricity prices and reliability. In 

view of the potentially substantial rate increases that would fall on 

households and businesses, such relief is also appropriate. 

Supporters of the legislation 

Supporters of H.R. 2042 include: 

Action 22 Southern Colorado 

AFFORD Group 

Agricultural Council of Arkansas 

Air-Conditioning, Heating, and Refrigeration Institute 

Alabama Automotive Manufacturer’s Association 

Alabama Coal Association 

Alaska Chamber of Commerce 

American Coalition for Clean Coal Electricity 

American Coke and Coal Chemicals Institute 

American Farm Bureau Federation 

Americans for Prosperity 

Americans for Tax Reform 

American Foundry Society 

American Fuel & Petrochemical Manufacturers 

American Knife Manufacturers Association 

American Petroleum Institute 

American Public Power Association 

American Road and Transportation Builders Association 

American Waterways Operators 

Ames Chamber of Commerce 

Arkansas State Chamber of Commerce 

Associated Builders and Contractors 

Associated Builders and Contractors of Wisconsin 

Associated Equipment Distributors 

Associated Industries of Florida 

Associated Industries of Missouri 

Association of American Railroads 

Association of Louisiana Electric Cooperatives, Inc. 

Automotive Recyclers Association 

Balanced Energy Arkansas 

Balanced Energy for Texas 

Baltimore Washington Corridor Chamber 

Bettisworth North Architects and Planners 

Billings Montana Chamber of Commerce 


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Bismarck Mandan Chamber of Commerce 

Brick Industry Association 

Bryant Area Chamber of Commerce 

Business Council of Alabama 

California Cotton Ginners Association 

California Cotton Growers Association 

California Manufacturers & Technology Association 

Caterpillar 

Colorado Association of Commerce and Industry 

Colorado Mining Association 

Consumer Energy Alliance 

Copper and Brass Fabricators Council 

Council of Industry of Southeastern New York 

CropLife America 

Dallas Regional Chamber 

East Feliciana Chamber of Commerce 

Electric Reliability Coordinating Council 

Energy Equipment and Infrastructure Alliance 

Exotic Wildlife Association 

Florida State Hispanic Chamber of Commerce 

Forging Industry Association 

Fort Worth Chamber of Commerce 

Foundry Association of Michigan 

Georgia Association of Manufacturers 

Georgia Chamber of Commerce 

Georgia Motor Trucking Association 

Georgia Railroad Association 

Greater Burlington Partnership 

Greater Houston Partnership 

Greater North Dakota Chamber of Commerce 

Greater Omaha Chamber 

Greater Phoenix Chamber of Commerce 

Greater Pittsburgh Chamber of Commerce 

Greater Shreveport Chamber of Commerce 

Gulf Coast Lignite Coalition 

Illinois Coal Association 

Illinois Manufacturers’ Association 

INDA: Association of the Nonwoven Fabrics Industry 

Independent Cattlemen’s Association of Texas 

Independent Petroleum Association of America 

Independent Women’s Voice 

Indiana Cast Metals Association 

Indiana Chamber of Commerce 

Indiana Manufacturers Association 

Industrial Minerals Association—North America 

Institute for 21st Century Energy 

International Liquid Terminals Association 

Iowa Association of Business and Industry 

Kansas Chamber of Commerce 

Kentucky Coal Association 

Kerrville Area Chamber of Commerce 

Lignite Energy Council 

Lincoln Employers Coalition 

Lincoln Independent Business Association 

Longview Chamber of Commerce 


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Louisiana Association of Business and Industry 

Louisiana Propane Gas Association 

Lubbock Chamber of Commerce 

Metals Service Center Institute 

Michigan Manufacturers Association 

Michigan Railroads Association 

Midwest Electric Cooperative Corporation 

Midwest Food Processors Association Inc. 

Minnesota Chamber of Commerce 

Mississippi Energy Institute 

Mississippi Manufacturers Association 

Missouri Chamber of Commerce and Industry 

Monroe Chamber of Commerce 

Montana Chamber of Commerce 

Montana Coal Council 

Montana Contractors’ Association 

Motor & Equipment Manufacturers Association 

Myrtle Beach Area Chamber of Commerce 

National Association of Home Builders 

National Association of Manufacturers 

National Cattlemen’s Beef Association 

National Electrical Contractors Association 

National Federation of Independent Business 

National Marine Manufacturers Association 

National Mining Association 

National Oilseed Processors Association 

National Rural Electric Cooperative Association 

National Taxpayers Union 

National Tooling and Machining Association 

Natural Gas Supply Association 

Nebraska Chamber of Commerce & Industry 

Nebraska Farm Bureau Federation 

Nebraska Power Association 

Non-Ferrous Founders’ Society 

North American Die Casting Association 

North Carolina Chamber 

North Carolina Energy Forum 

Ohio Cast Metals Association 

Ohio Chamber of Commerce 

Ohio Coal Association 

Ohio Manufacturers’ Association 

Ohio Rural Electric Cooperatives, Inc. 

Oklahoma Railroad Association 

Oklahoma State Chamber of Commerce 

Partnership for Affordable Clean Energy 

Pennsylvania Chamber of Business & Industry 

Pennsylvania Coal Alliance 

Pennsylvania Foundry Association 

Pennsylvania Independent Oil & Gas Association 

Pennsylvania Manufacturers Association 

Pennsylvania Waste Industries Association 

Petroleum Equipment Suppliers Association 

Portland Cement Association 

Precision Machined Products Association 

Precision Metalforming Association 


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Printing Industries of America 

Railway Supply Institute, Inc. 

Rocky Mountain Coal Mining Institute 

San Diego East County Chamber 

Siouxland Chamber of Commerce 

Small Business & Entrepreneurship Council 

South Carolina Chamber of Commerce 

South Louisiana Electric Cooperative Association 

Southwest Louisiana Economic Development Alliance 

SPI: The Plastics Industry Trade Association 

State Chamber of Oklahoma 

Styrene Information & Research Center 

Tempe Chamber of Commerce 

Tennessee Chamber of Commerce & Industry 

Texas Aggregates and Concrete Association 

Texas Association of Business 

Texas Cast Metals Association 

Texas Cotton Ginners’ Association 

Texas Mining and Reclamation Association 

Texas Poultry Federation 

Texas Railroad Association 

The Chamber of Reno, Sparks and Northern Nevada 

The Fertilizer Institute 

The Siouxland Initiative 

U.S. Chamber of Commerce 

United States Hispanic Chamber of Commerce 

Valve Manufacturers Association of America 

Virginia Chamber of Commerce 

Virginia Coal and Energy Alliance 

Virginia Manufacturers Association 

Western Agricultural Processors Association 

West Virginia Coal Association 

West Virginia Chamber of Commerce 

Wisconsin and Minnesota Petroleum Council 

Wisconsin Cast Metals Association 

Wisconsin Independent Businesses 

Wisconsin Industrial Energy Group 

Wisconsin Manufacturers & Commerce 

Wisconsin Motor Carriers Association 

Wyoming Chamber Partnership 

Wyoming Mining Association 

HEARINGS

The Subcommittee on Energy and Power held a legislative hearing on the discussion draft of H.R. 2042 on April 14, 2015, and held 

four prior hearings relating to EPA’s pending regulation of existing 

power plans under section 111(d) of the Clean Air Act. The hearings and witnesses included the following: 

• On April 14, 2015, the Subcommittee held a hearing entitled ‘‘EPA’s Proposed 111(d) Rule for Existing Power Plants, 

and H.R. lll, Ratepayer Protection Act,’’ and received testimony from: 

» The Honorable Janet McCabe, Acting Assistant Administrator for the Office of Air and Radiation, U.S. Environmental Protection Agency; 


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» Eugene M. Trisko, Energy Economist and Attorney on 

behalf of the American Coalition for Clean Coal Electricity; 

» Lisa D. Johnson, CEO and General Manager, Seminole Electric Cooperative, Inc. on behalf of National Rural 

Electric Cooperative Association; 

» Kevin Sunday, Manager, Government Affairs, Pennsylvania Chamber of Business and Industry; 

» Paul Cicio, President, Industrial Energy Consumers of 

America; 

» Susan F. Tierney, Senior Advisor, Analysis Group; 

and 

» Melissa A. Hoffer, Chief, Energy and Environment 

Bureau, Office of the Attorney General, Commonwealth of 

Massachusetts. 

• On March 17, 2015, the Subcommittee held a hearing entitled ‘‘EPA’s Proposed 111(d) Rule for Existing Power Plants: 

Legal and Cost Issues’’ and received testimony from: 

» Laurence H. Tribe, Carl M. Loeb University Professor 

and Professor of Constitutional Law, Harvard Law School; 

» Richard L. Revesz, Lawrence King Professor of Law, 

Dean Emeritus, Director, Institute for Policy Integrity, 

New York University School of Law; 

» Allison D. Wood, Partner, Hunton & Williams; 

» Art Graham, Chairman, Florida Public Service Commission; 

» Kelly Speakes-Backman, Commissioner, Maryland 

Public Service Commission; 

» Craig Butler, Director, Ohio Environmental Protection 

Agency; and 

» Donald van der Vaart, Secretary, North Carolina Department of Environment and Natural Resources. 

• On September 9, 2014, the Subcommittee held a hearing 

entitled ‘‘State Perspectives: Questions concerning EPA’s Proposed Clean Power Plan’’ and received testimony from: 

» Kenneth W. Anderson, Jr., Commissioner, Public Utility Commission of Texas; 

» Travis Kavulla, Commissioner, Montana Public Service Commission; 

» Henry R. Darwin, Director, Arizona Department of 

Environmental Quality; 

» Tom W. Easterly, Commissioner, Indiana Department 

of Environmental Management; 

» Kelly Speakes-Backman, Commissioner, Maryland 

Public Service Commission; and 

» David W. Danner, Chairman, Washington Utilities 

and Transportation Commission. 

• On July 29, 2014, the Subcommittee held a hearing entitled ‘‘FERC Perspectives: Questions Concerning EPA’s Proposed Clean Power Plan and other Grid Reliability Challenges’’ 

and received testimony from: 

» Cheryl A. LaFleur, Acting Chairman, Federal Energy 

Regulatory Commission; 

» Philip D. Moeller, Commissioner, Federal Energy Regulatory Commission; 


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» John R. Norris, Commissioner, Federal Energy Regulatory Commission; » Tony Clark, Commissioner, Federal Energy Regulatory Commission; and » Norman C. Bay, Commissioner, Federal Energy Regulatory Commission. • On June 19, 2014, the Subcommittee held a hearing entitled ‘‘EPA’s Proposed Carbon Dioxide Regulations for Power 

Plants’’ and received testimony from: » Janet McCabe, EPA Acting Assistant Administrator 

for Air and Radiation. 

COMMITTEE CONSIDERATION

On April 21, 2015 and April 22, 2015, the Subcommittee on Energy and Power met in open markup session to consider H. R. 

lll, Ratepayer Protection Act, and forwarded the bill to the full 

Committee, without amendment, by a record vote of 17 ayes and 

12 nays. During the markup, three amendments were offered and 

rejected by a record vote. 

On April 28, 2015 and April 29, 2015, the Committee on Energy 

and Commerce met in open markup session to consider H.R. 2042, 

which was substantially similar to the bill forwarded by the Subcommittee. During the markup, five amendments were offered, of 

which two were offered and rejected by voice vote, and three were 

offered and rejected by record votes. A motion by Mr. Upton to 

order H.R. 2042, reported to the House, without amendment, was 

agreed to by a record vote of 28 ayes and 22 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. A motion by Mr. 

Upton to order H.R. 2042 reported to the House, without amendment, was agreed to by a record vote of 28 ayes and 22 nays. The 

following reflects the record votes taken during the Committee consideration: 


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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.R. 2042 provides direction to EPA to improve the transparency 

and timeliness of the preconstruction permit process under the 

Clean Air Act. 

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.R. 2042, 

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.R. 2042 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

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 13, 2015. 

Hon. FRED UPTON, Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2042, the Ratepayer Protection Act of 2015. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

H.R. 2042—Ratepayer Protection Act of 2015 

This legislation would postpone the dates by which states and operators of existing fossil-fuel fired power plants must comply with 

any existing or future rules addressing emissions of carbon dioxide 


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proposed by the Environmental Protection Agency (EPA). Such 

rules include: 

• Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, published in 

the Federal Register on June 18, 2014; and, 

• Carbon Pollution Emission Guidelines for Existing Stationary Sources: EGUs in Indian Country and U.S. Territories; 

Multi-Jurisdictional Partnerships, published in the Federal 

Register on November 4, 2014. 

Those rules would require states, territories, and Indian tribes to 

meet individual goals for reducing carbon dioxide emissions set by 

EPA by considering a broad array of actions related to energy efficiency by certain dates. 

Under H.R. 2042, the compliance dates for such rules would be 

postponed while a judicial review is pending. The postponement 

would last until a judgment becomes final and is no longer subject 

to further appeal or review. In addition, under this bill, a state 

would not be required to develop any plans to meet emissions goals 

or comply with a federal plan under a final rule if the governor of 

that state determines that implementing a state plan or complying 

with a federal plan under a final rule would have an adverse effect 

on electricity ratepayers or on the reliability of the state’s electricity system. 

Although enacting this legislation would postpone compliance 

dates for rules related to carbon emissions, it would not prohibit 

EPA from working on activities required for implementing such 

rules over the next several years. Those activities include developing guidance and providing technical assistance to states. Thus, 

CBO estimates that implementing this legislation would not have 

a significant effect on the federal budget. However, to the extent 

that state plans required under those rules are postponed because 

of actions initiated by state governors, EPA’s expenditures for state 

grants could be postponed for a few years. 

Enacting H.R. 2042 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 2042 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

The estimate was approved by Theresa Gullo, Assistant Director 

for Budget Analysis. 

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.R. 2042 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. 


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DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 2042 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

Section 1. Short title 

This section provides the short title of ‘‘Ratepayer Protection Act 

of 2015.’’ 

Section 2. Extending compliance dates of rules addressing carbon 

dioxide emissions from existing power plants pending judicial 

review 

This section would extend the compliance dates of any final rule 

issued under section 111(d) of the CAA addressing CO2 emissions 

from existing fossil fuel-fired electric utility generating units, including for submittal of State plans. 

Section 2(a) provides that the term ‘‘compliance date’’ means the 

date by which any State, local, or tribal government or other person is first required to comply with the rule, including the date for 

submittal of State plans to the EPA. 

Section 2(b) provides that the final rules subject to the Act include any final rule that addresses CO2 emissions from existing 

sources that are fossil fuel-fired electric utility generating units 

under section 111(d) of the CAA, including any final rule that succeeds the EPA’s proposed rules published at 79 Fed. Reg. 34830 

(June 18, 2014) or 79 Fed. Reg. 65482 (November 4, 2014). 

Section 2(c) provides that the time period by which the compliance dates would be extended would be the period of time that begins sixty days after the final rule appears in the Federal Register, 

and ends on the date on which judgment becomes final, and no 

longer subject to further appeal or review, in all actions filed during the initial sixty days after the rule appears in the Federal Register seeking review of the rule, including actions pursuant to CAA 

section 307. 

Section 3. Ratepayer protection 

This section provides that no State shall be required to adopt a 

State plan, and no State or entity within a State shall become subject to a Federal plan, pursuant to any final rule described in section 2(b), if the Governor of the State makes a determination, and 

notifies the EPA Administrator, that implementation of the State 

or Federal plan would have a significant adverse effect on 1) the 


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State’s residential, commercial, or industrial ratepayers, taking 

into account the rate increases necessary to implement the State 

or Federal plan, and other rate increases that have been or are anticipated to be necessary to implement other Federal or State environmental requirements; or 2) the reliability of the State’s electricity system, taking into account the effects on the State’s existing and planned generation and retirements, transmission and distribution infrastructure, and projected electricity demands. 

This section further provides that, in making such a determination, the Governor consult with the State’s energy, environmental, 

public health, and economic development departments or agencies, 

and the Electric Reliability Organization, as defined in section 215 

of the Federal Power Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal statute. 


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1 U.S. Environmental Protection Agency, Carbon Pollution; Emission Guidelines for Existing 

Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34830 (June 18, 2014) (Proposed Rule) (online at www.gpo.gov/fdsys/pkg/FR–2014–06–18/pdf/2014–13726.pdf) [hereinafter 

U.S. Environmental Protection Agency Clean Power Plan]. 2 Id. at 34833; U.S. Environmental Protection Agency, Clean Power Plan, Proposal to Reduce 

Carbon Pollution from Existing Power Plants, at 2 (June 2, 2014) (presentation to Congressional 

Staff) (online at www2.epa.gov/sites/production/files/2014–05/ghg-chart.png). 3 Executive Office of the President, The President’s Climate Action Plan (June 2013) (online 

at www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf). 4 Id. at 6. 5President Barack Obama, Presidential Memorandum—Power Sector Carbon Pollution Standards (June 25, 2013) (online at www.whitehouse.gov/the-press-office/2013/06/25/presidentialmemorandum-power-sector-carbon-pollution-standards). 6 Id. 

DISSENTING VIEWS 

Issued by the EPA on June 2, 2014, the proposed ‘‘Clean Power 

Plan’’ rule establishes 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.1

H.R. 2042 would adversely impact the Clean Power Plan in two 

very significant ways. First, the bill would suspend implementation 

of the final Clean Power Plan and would extend all final compliance and submission deadlines by the amount of time needed to 

complete judicial review. And second, the bill allows governors to 

effectively exempt their respective states from any requirements of 

a federal plan to reduce carbon pollution from existing power 

plants. Under current law, EPA is required to develop and implement a federal section 111(d) plan for any state that fails to submit 

its own state plan. H.R. 2042 would overturn this existing Clean 

Air Act requirement as it relates to the Clean Power Plan. 

EPA ACTIONS ON POWER PLANT EMISSIONS OF CARBON POLLUTION

Fossil fuel-fired power plants are by far the largest emitters of 

greenhouse gases from stationary sources in the United States; 

they are responsible for about one-third of total U.S. greenhouse 

gas emissions.2 There are currently no federal limits on their emissions of carbon pollution. 

In June 2013, President Obama announced a Climate Action 

Plan to cut carbon pollution and to prepare for the effects of climate change.3 As part of that Plan, the President directed EPA to 

use its existing authority under the Clean Air Act to control carbon 

pollution from new and existing fossil fuel-fired power plants.4

President Obama simultaneously issued a Presidential Memorandum on Power Sector Carbon Pollution Standards providing 

more detailed direction to EPA.5 It set deadlines of September 20, 

2013, for a new proposed rule for new plants; June 1, 2014, and 

June 1, 2015, for proposed and final rules, respectively, for existing 

plants; and June 30, 2016, for state submission of plans regulating 

existing plants.6 EPA expects to issue its final standards for new, 


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7Senate Committee on Environment and Public Works, Testimony of the Honorable Janet 

McCabe, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, 

Hearing on ‘‘Examining EPA’s Proposed Carbon Dioxide Emissions Rules from New, Modified, 

and Existing Power Plants,’’ 114th Cong. (Feb. 11, 2015); U.S. Environmental Protection Agency, 

Key Dates: Cutting Carbon Pollution from Power Plants (Jan. 7, 2015) (online at www2.epa.gov/ 

sites/production/files/2015-01/documents/20150107fs-key-dates.pdf) 8 Clean Air Act §§ 111(a)(1); 111(b). 

9 Id. at § 111(a)(1). 10 U.S. Environmental Protection Agency, Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units; Proposed Rule, 79 Fed. 

Reg. 1430 (Jan. 8, 2014) (online at www.gpo.gov/fdsys/pkg/FR-2014-01-08/pdf/2013- 

28668.pdf). 11 Clean Air Act § 111(d)(1). 

modified and existing sources under Clean Air Act section 111 this 

summer.7

A. Clean Air Act authority 

Section 111 of the Clean Air Act directs EPA to set performance 

standards to control air pollution from new stationary sources. 

These ‘‘new source performance standards’’ under section 111(b) establish limits on air pollution for sources in a given category (e.g., 

fossil fuel-fired power plants, oil refineries, pulp and paper plants, 

etc.) based on what can be achieved through ‘‘the best system of 

emission reduction . . . adequately demonstrated.’’ 8 In determining the ‘‘best system of emission reduction’’ (BSER), EPA must 

take into account cost and ‘‘any nonair quality health and environmental impact and energy requirements.’’ 9 Under section 111(b), 

EPA proposed performance standards for new coal- and natural 

gas-fired power plants in September 2013.10

For existing sources in a category covered by a new stationery 

source performance standard, section 111 would defer to other 

Clean Air Act provisions for pollutants that are: (1) covered by a 

National Ambient Air Quality Standard (NAAQS); or (2) listed as 

a hazardous air pollutant under section 112.11 Pollutants from existing sources that are not otherwise regulated under those provisions are addressed under section 111(d). With respect to such pollutants, section 111(d) requires EPA to issue rules directing the 

states to reduce pollution from existing sources that would have 

been covered by a section 111(b) standard if they were new sources. 

Under section 111(d)(1), EPA must establish procedures for states 

to submit state plans to regulate existing sources that are similar 

to the procedures and requirements for State Implementation 

Plans (SIPs) under section 110. 

Specifically, the state plans for existing sources must apply a 

‘‘standard of performance’’ for emissions of air pollutants that reflects the degree of emission limitation achievable through BSER, 

as applied to existing sources. Under this provision, EPA determines the BSER and the emission limitation it can achieve. States 

have considerable flexibility, however, in deciding how to achieve 

the overall pollution reduction goals for these sources. The state 

may take into consideration, for example the remaining useful life 

of the existing source, as well as other factors. 


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12 U.S. Environmental Protection Agency Clean Power Plan at 34845. 13 Id. at 34845–34847. 14 Id. 15Senate Committee on Environment and Public Works, Testimony of the Honorable Janet 

McCabe, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, 

Hearing on ‘‘Examining EPA’s Proposed Carbon Dioxide Emissions Rules from New, Modified, 

and Existing Power Plants,’’ 114th Cong. (Feb. 11, 2015). 16 U.S. Environmental Protection Agency Clean Power Plan at 34892. 17 Id. at 34890–34892. 18 Id. at 34895. 

B. Proposed rule for state plans for existing sources 

1. Outreach process 

In developing this proposal, EPA has engaged in an unprecedented level of outreach for the pre-proposal stage of a rulemaking, 

and the proposal reflects extensive stakeholder input.12 Between 

August 2013 and June 2014, EPA held an overview webinar and 

four national teleconferences with states and a wide variety of 

stakeholders; established a mechanism to accept input by e-mail 

and web (receiving more than 2,000 emails); held 11 public listening sessions across the country that were attended by over 3,300 

people; sent consultation letters to 584 tribal leaders; and organized and participated in hundreds of meetings.13

Among others, EPA met with state leaders, including governors, 

environmental commissioners, energy officers, public utility commissioners and air directors; industry leaders and trade association 

representatives; private, investor-owned, public and cooperative 

utilities and their associations; Independent System Operators and 

Regional Transmission Organizations; environmental and environmental justice organizations; religious groups; public health groups, 

doctors and health care providers; consumer groups; and individual 

unions, including the United Mine Workers of America, the International Brotherhood of Boilermakers, the International Brotherhood of Electrical Workers, and the AFL-CIO.14

EPA indicated that the public submitted over 3.5 million public 

comments were submitted on the proposed Clean Power Plan before the December 1, 2014 deadline. The Agency will review and 

address all of the filed comments before finalizing the rule.15

2. Proposed emission guidelines for state plans 

The proposed emissions guidelines establish an individual goal 

for each state, expressed as a carbon intensity target. The carbon 

intensity target is a rate-based limit, which is expressed as a limit 

on the total pounds of carbon dioxide emitted from fossil fuel-fired 

power plants in the state per megawatt hour (MWh) of electricity 

generated in the state, adjusted to account for the MWh reduced 

through energy efficiency savings.16 The individual state carbon intensity goals are produced by applying a consistent national formula to each state’s fossil fuel-fired power plants on a statewide 

basis, inputting state and regional-specific information to produce 

state goals that are tailored to each state’s circumstances.17 For 

each state, EPA proposed a final state goal, to be achieved by 2030, 

and a less stringent interim goal that would apply for the 2020– 

2029 phase-in period.18

EPA developed the standards through several steps. First, EPA 

identified the ‘‘best system of emission reduction . . . adequately 


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19 Id. at 34835–34837, 34854–34890. 20 Id. 21 Id.; U.S. Environmental Protection Agency, Fact Sheet: Clean Power Plan; National Framework for States (June 2, 2014) (online at www2.epa.gov/sites/production/files/2014–05/documents/ 

20140602fs-setting-goals.pdf). 22 U.S. Environmental Protection Agency Clean Power Plan at 34836, 34858–34875. 23 Id. at 34858–34875, 34893 (emphasis added). 24 Id. at 34859–34862. 25 Id. at 34862–34866. 26 Id. at 34866–34871. 27 Id. at 34871–34875. 28 Id. at 34878–34890. 

demonstrated’’ for greenhouse gas emissions from fossil fuel-fired 

power plants.19 In identifying the BSER, EPA relied heavily on the 

fact that the power system is an interconnected and integrated system in which the demand for electricity is met through different 

sources of electricity supply (including energy savings through efficiency).20 These different sources are constantly substituted for 

each other, both in the short term, through the dispatch order of 

various power sources (including demand-side savings), and over 

time, through investments in various new sources of supply (including efficiency). EPA proposed that the BSER is comprised of 

four building blocks: (1) making fossil fuel power plants more efficient; (2) using low-emitting power sources more by generating 

more electricity from existing natural gas combined cycle units; (3) 

building more zero and low-emitting power sources including renewables and some nuclear units; and (4) using electricity more efficiently through demand-side measures.21

For each building block, EPA analyzed the level of application 

that would be reasonable for the purpose of establishing state 

goals, taking into account technical feasibility, the quantity of 

emissions reductions achieved, the costs per metric ton of carbon 

dioxide, reliability, and other factors.22 EPA emphasized that it 

was not identifying the maximum quantity of pollution reduction 

that could be achieved through each building block, but only identifying a level of application that would be reasonable.23 For building 

block 1, EPA estimates that on average, existing coal-fired units 

can improve their heat rate (efficiency of power production) by 

6%.24 For building block 2, EPA estimates that existing natural gas 

combined cycle units could be used at up to 70% of their capacity.25

For building block 3, EPA developed a methodology to estimate the 

technical and economic renewable energy potential for each state, 

based on existing levels of renewable generation in each state and 

region-specific growth factors, as well as estimating the amount of 

nuclear generating capacity that could be preserved from retirement.26 For building block 4, EPA estimates, based on the performance achieved by the top 12 states, that it would be reasonable for 

each state to increase the level of demand-side energy efficiency to 

achieve an efficiency improvement rate of 1.5% per year.27

Next, EPA proposed to determine that the BSER is the combination of all four building blocks, each applied at the identified reasonable level of effort.28 Applying this BSER to the specific circumstances of each state produces the state goals, expressed as a 

carbon intensity target for the fossil fuel-fired generation in each 

state. The state goals vary widely, from a low (most stringent) goal 

of 228 pounds of carbon dioxide per MWh in Washington, to a high 


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29 Id. at 34895. 30 Id. at 34837–34838; see also id. at 34909–34914 (detailing criteria for approvable state 

plan). 31 Id. at 34897–34898. 32 Id. at 34893–34894. 33 Id. at 34837–34838. 34 Id. at 34897. 35 Id. at 34858–34876. 36 Id. 37 Id. at 34897, 34900–34902. 38 Id. at 34833, 34900, 34910. 

(least stringent) goal of 1,783 pounds of carbon dioxide per MWh 

in North Dakota.29

3. State flexibilities 

Under EPA’s proposal, the basic elements for a state plan to be 

approvable are: the plan includes enforceable carbon dioxide limits 

on fossil fuel-fired power plants; any additional measures that 

would reduce carbon from these sources are also enforceable; and 

the plan demonstrates that the state will achieve its state goal over 

the specified time frame.30 EPA proposed multiple ways to maximize state flexibility in controlling carbon pollution from power 

plants and achieving the state goals.31 States and other stakeholders requested these flexibilities in the pre-proposal process. 

First, EPA proposed that a state could either use its rate-based 

goal, or could convert that goal (using a proposed formula for the 

translation) into a mass-based goal, which would cap the total 

quantity of carbon dioxide emissions from fossil fuel-fired power 

plants in the state.32

Second, EPA proposed that states should have extensive flexibility in their plans in deciding how to achieve their state-wide 

goals.33 While EPA used the building blocks to determine what 

would be a reasonable carbon intensity goal for each state, EPA 

emphasized that there is no obligation for the states to use the particular control measures, or apply them at the same levels, that 

EPA identified as the BSER.34 In the proposal, EPA identified the 

potential for greater emissions reductions for each of the building 

blocks compared to the levels at which EPA applied each building 

block to generate the state goals.35 EPA also identified other measures that states could employ in addition to measures under the 

building blocks, including co-firing with natural gas, building new 

natural gas power plants, and building new nuclear capacity beyond what is already planned.36 In addition, EPA’s proposal permits a state to choose either to place the full compliance obligation 

on fossil fuel-fired power plants in the state or undertake a ‘‘portfolio approach.’’ A portfolio approach would include additional 

measures, such as state or local demand-side efficiency programs, 

that would reduce emissions from fossil fuel-fired power plants but 

would be undertaken by the state or other entities.37 EPA also proposed that states could choose to achieve their state goals through 

participation in multi-state approaches, which EPA expects could 

enhance efficiency and lower costs.38

Third, EPA proposed to provide flexibility in the timing both of 

when states must submit their plans and of when emission reductions would have to be achieved. States must submit their plans by 

June 2016; however, EPA proposed to allow a one-year extension 


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39 Id. at 34915; U.S. Environmental Protection Agency, Key Dates: Cutting Carbon Pollution 

from Power Plants (Jan. 7, 2015) (online at www2.epa.gov/sites/production/files/2015-01/documents/20150107fs-key-dates.pdf). 40 Id. at 34838–34839, 34899, 34904–34906. 41 Id. at 34906. 42 U.S. Environmental Protection Agency, Fact Sheet: Clean Power Plan, Overview of the Clean 

Power Plan (June 2, 2014) (online at www2.epa.gov/sites/production/files/2014-05/documents/ 

20140602fs-overview.pdf). 43 Id. 44 Id. 45 U.S. Environmental Protection Agency, Fact Sheet: Clean Power Plan, By the Numbers 

(June 2, 2014) (online at www2.epa.gov/sites/production/files/2014-06/documents/20140602fs-important-numbers-clean-power-plan.pdf). 46 U.S. Environmental Protection Agency, Fact Sheet: Clean Power Plan, Overview of the Clean 

Power Plan (June 2, 2014) (online at www2.epa.gov/sites/production/files/2014-05/documents/ 

20140602fs-overview.pdf) (emphasis added). 47 H.R. 2042, the ‘‘Ratepayer Protection Act of 2015,’’ at § 2(b). 

for states that submit an initial plan but need additional time to 

complete it and a two-year extension for states participating in 

multi-state programs.39 The ten-year phase-in period for achieving 

the reductions allows for the use of measures, such as energy efficiency, that ramp up over time.40 States also would not be required 

to meet their interim goal each year, but rather would be able to 

meet their goals on average over the 2020–2029 period.41

4. Benefits and costs of the proposal 

If the proposed rule is finalized, EPA estimates that in 2030, carbon pollution from the power sector will be reduced by 30% compared to 2005 levels.42 In addition, this rule will cut pollution that 

leads to soot and smog by more than 25% in 2030.43 EPA estimates 

the climate and public health benefits of these pollution controls 

will range anywhere between $55 billion and $93 billion in 2030, 

and will help avoid between 2,700 and 6,600 premature deaths and 

140,000 and 150,000 asthma attacks in children in 2030 alone.44

EPA estimates that the benefits of the proposal will outweigh the 

costs by at least 6 to 1, and by possibly as much as 12 to 1.45 In 

addition, while electricity prices may increase somewhat, EPA estimates that, due to increased use of cost-effective energy efficiency 

measures, actual electricity bills will fall by roughly 8% in 2030.46

ANALYSIS OF H.R. 2042 THE ‘‘RATEPAYER PROTECTION ACT OF 2015’’ 

The following is a brief summary and analysis of the legislation 

A. Summary of H.R. 2042 

Section 2 of the bill delays implementation of the final Clean 

Power Plan by extending all compliance deadlines based on pending judicial review. Under subsection (b), the compliance or submission date extension applies to ‘‘any final rule to address carbon dioxide emissions from existing sources that are fossil fuel fired electric utility generating units under section 111(d) of the Clean Air 

Act.’’ Also, subsection (b) specifically references and applies to rules 

that grow out of both the Clean Power Plan and the November 4, 

2014 supplemental proposal covering Indian Country and U.S. Territories.47

Subsection (c) establishes a uniform time period for all Clean 

Power Plan compliance and submission deadline extensions. Under 

the legislation, the time period starts 60 days after the final rule 


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48 Id. at § 2(c). 49 Id. at § 3(a). 50 Id. at § 3(a)(1). 51 Id. at § 3(a)(2). 

appears in the Federal Register, and ends when ‘‘judgment becomes final, and no longer subject to further appeal or review.’’ 48

Section 3 of the bill restates current law, that no state is required to submit a 111(d) plan. Subsection (a) further allows any 

governor to decide that the state shall not be subject to a federal 

111(d) plan, if the governor makes a determination that implementation of the state or federal plan would ‘‘have a significant adverse 

effect on the State’s residential, commercial, or industrial ratepayers’’ or would ‘‘have a significant adverse effect on the reliability 

of the State’s electricity system.’’ 49

In making a determination on the state or federal plan’s impact 

on ratepayers and electric reliability, the governor shall take into 

account a number of specific factors. Regarding the potential impact on ratepayers, a governor must consider any rate increases 

that are either associated with, or necessary for, implementation of 

the state or federal plan, as well as ‘‘other rate increases that have 

been or are anticipated to be necessary to implement, or are associated with, other Federal or State environmental requirements.’’ 50

Further, the governor must consider the state’s existing and 

planned electricity generation, retirements, transmission and distribution infrastructure, and projected demand when determining 

the state or federal plan’s impact on electric reliability.51

Subsection (b) requires the governor to consult with the public 

utility commission or public service commission of the state, state 

environmental protection, public health and economic departments, 

and any regional transmission organization or independent service 

operator with jurisdiction over the state. 

B. Issues raised by the H.R. 2042 

This legislation raises several major issues. In summary, the bill 

would suspend implementation of the Clean Power Plan and effectively prevent EPA from ever controlling carbon pollution from existing power plants to any significant degree, if a state fails—or 

outright refuses—to comply with the requirements of section 111(d) 

of the Clean Air Act. 

The bill’s proponents argue that legislation is needed to delay implementation of the Clean Power Plan until all legal challenges are 

resolved by the courts. However, legal challenges to final EPA rules 

are routine and courts have the power on their own to stay the effectiveness of regulations under court challenge. The bill throws 

out the existing judicial process by legislatively granting a blanket 

extension for any compliance deadline, regardless of the merits of 

the legal challenge or the final outcome. Under the legislation, the 

Clean Power Plan would automatically be delayed by however 

much time it takes to conclude litigation, providing encouragement 

both for frivolous challenges and additional appeals in order to extend the ultimate compliance time. 

The bill’s proponents have also argued that the legislation is 

needed to provide a ‘‘safe harbor’’ for states who cannot—or will 

not—comply with the requirements of the Clean Power Plan. 


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52 Ayotte, Collins, Graham, Heller, Murkowski, Kirk and Portman 

Under current law, EPA sets the emissions reduction goals under 

section 111(d) and it is up to the states to decide how to best 

achieve these reductions. States are not required to develop or implement their own plans for reducing carbon emissions from existing power plants, but EPA is required to step in with a federal 

111(d) plan when a state does not implement its own. The Clean 

Air Act’s use of cooperative federalism ensures that environmental 

risks are addressed, either by state action or by federal action 

where a state fails to act. 

The bill’s opt-out provision disregards decades of success under 

the Clean Air Act’s use of cooperative federalism. Instead, the draft 

would allow governors to refuse to comply unconditionally with the 

federal requirements of the Clean Power Plan. A governor would 

be able to take the ‘‘Just Say No’’ approach to reducing carbon 

emissions by simply determining that compliance with a phantom 

plan would adversely impact ratepayers or electric reliability. 

A number of amendments were offered during the full committee 

markup to address these concerns. The first, offered by Rep. Tonko, 

would ensure that a governor’s decision to opt-out of the Clean 

Power Plan is subject to judicial review. The amendment highlighted that a governor’s decision to not follow federal law is completely unreviewable under the bill. The second amendment, offered by Rep. Rush, would require a governor wishing to opt-out of 

the Clean Power Plan, to certify that the ratepayer costs attributed 

to implementation of the Clean Power Plan must exceed the state 

costs of responding to extreme weather events caused by climate 

change such as sea level rise, flooding, storms, wildfires and 

drought. Rep. Rush also offered an amendment that would require 

a governor wishing to opt-out of the Clean Power Plan, to certify 

that such a decision would not result in significant adverse public 

health effects, including childhood asthma attacks, heart attacks, 

hospital admissions, and missed school and work days. Finally, 

Rep. Pallone offered an amendment to add a sense of Congress that 

the federal government should promote national security, economic 

growth and public health by addressing human induced climate 

change through the increased use of clean energy, energy efficiency 

and reductions in carbon pollution. The amendment was identical 

to an amendment offered by Sen. Bennet, which passed the Senate 

on March 26, 2015, with the support of all Democratic Senators, as 

well as seven Republican Senators.52 All amendments were defeated in full committee on a party line vote. H.R. 2042 was approved by the full committee by a party line vote of 28–23. 

LEGAL ISSUES RELATED TO THE CLEAN POWER PLAN

Although numerous parties critical of the Clean Power plan have 

suggested that EPA lacks authority for the plan or that the details 

of the plan cannot be squared with the language of the Clean Air 

Act, there is ample reason to believe that legal challenges to the 

EPA rule will ultimately fail. EPA has set forth its interpretation 

of the Clean Air Act as applied to the Clean Power Plan in a detailed legal memorandum and its interpretation is reasonable, 


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53 U.S. Environmental Protection Agency, Legal Memorandum for Proposed Carbon Pollution 

Emission Guidelines for Existing Electric Utility Generating Units (June 2, 2014) (online at 

www2.epa.gov/sites/production/files/2014-06/documents/20140602-legal-memorandum.pdf). 54 Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843–44 (1984). 55Majority Report at footnote 24. 56See United States v. Welden, 377 U.S. 95, 98 n.4 (1964) (‘‘[T]he Code cannot prevail over 

the Statutes at Large when the two are inconsistent.’’) (quoting Stephan v. United States, 319 

U.S. 423, 426 (1943)); see also Five Flags Pipe Line Co. v. DOT, 854 F.2d 1438, 1440 (D.C. Cir. 

1988) (‘‘Thus, where the language of the Statutes at Large conflicts with the language in the 

United States Code that has not been enacted into positive law, the language of the Statutes 

at Large controls.’’) 57 U.S. Const., art. II, § 3. 58 see U.S. Senate, Debate on Agreeing to H. Rept 101–952 (Oct. 27, 1990) 

grounded in the statute and case law and supported by the facts.53

EPA’s reasonable interpretation of the statute will be entitled to 

deference.54

Analysis of EPA legal authority 

As an initial matter, it is beyond dispute that the Statutes at 

Large, not the United States Code provide definitive evidence of 

the law. The majority report recognizes this fact at footnote 24, and 

specifically cites 1 U.S.C. 112 for that proposition (‘‘the Statutes at 

Large serve as legal evidence of the law.’’) Nor can it be disputed 

that there are two provisions relating to section 111(d) in the Statutes at Large and both provisions were passed by both chambers 

of Congress in identical fashion and both provisions were signed by 

the President into law. 

Despite the majority report’s consistent citation to the United 

States Code, on this point, the United States Code is not the law 

and it cannot be considered controlling. As the majority admits, 

only when the United States Code is ‘‘enacted as positive law’’ does 

it ‘‘replace the statutes at large’’ as ‘‘legal evidence of the laws.’’ 55

Such codification has not happened and therefore the Statutes at 

Large, with both the House and Senate provisions are the law of 

the United States.56

Contrary to the views of the majority, there is no evidence that 

the Senate-originated language was enacted into law in error, 

whereas a wealth of evidence shows that it was intentionally 

adopted by Congress. Because there is no dispute that this language was included in the final bill passed by both houses of Congress and signed into law by the President of the United States, 

the Senate provision is just as much part of the Clean Air Act as 

the House-originated language. For EPA now to disregard that 

Senate provision would be a dereliction of the executive’s duty to 

‘‘take care the laws be faithfully executed.’’ 57

In addition, the majority report cites the Chafee-Baucus ‘‘Statement of Senate Managers’’ as evidence that the Senate-originated 

amendment is nothing more than a scrivener’s error. In fact, this 

document is entitled to no legal weight and is scant evidence of the 

actual intent of Congress as a whole in adopting the 1990 Clean 

Air Act Amendments. This statement by two members of one chamber was not reviewed or approved by all of the Senate conferees, 

let alone by the House conferees.58 Nor was it reviewed by the 

members of Congress who voted to adopt the final statutory language or by the President who signed the final statute into law. 

For these reasons, the D.C. Circuit has explicitly held that the 


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59 Environmental Defense Fund v. EPA, 82 F.3d 451, 460 n. 10 (D.C. Cir. 1996). 60See Congressional Research Service, A legislative History of the Clean Air Act Amendments 

of 1990, Prepared for the Committee on Environment and Public Works, 103rd Cong. (1993) (S. 

Prt. 103–38, Vol. I at 46 n.1). To the extent the two provisions conflict with one another, EPA 

is entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 

843–44 (1984) in resolving the conflict. See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 

(2014) (where ‘‘internal tension’’ in provision ‘‘makes possible alternative reasonable constructions, . . . Chevron dictates that a court defer to the agency’s . . . expert judgment about which 

interpretation fits best with, and makes the most sense of, the statutory scheme.’’) (Kagan, J., 

plurality); id. at 2228 (‘‘before concluding that Congress has legislated in conflicting and unintelligible terms,’’ ‘‘traditional tools of statutory construction’’ should be used to ‘‘allow [the provision] to function as a coherent whole’’) (Sotomayor, J. dissenting). As discussed below, EPA’s interpretation of the statute is reasonable and consistent with the text, history, purpose, and 

structure of section 111(d), and thus merits Chevron deference. 

Chafee-Baucus Statement ‘‘cannot undermine the statute’s language.’’ 59

The majority’s interpretation of section 111(d) merely repeats the 

arguments made by Murray Energy in their failed lawsuits in the 

D.C. Circuit challenging EPA’s proposed Clean Power Plan. These 

arguments are not persuasive and are undercut by the text, structure, design, and history of the Clean Air Act, which demonstrate 

that the agency must regulate carbon dioxide pollution from existing power plants under section 111(d), regardless of whether or not 

it has regulated power plants’ hazardous air pollutant (‘‘HAP’’) 

emissions under section 112. EPA’s actions are fully in accord with 

the purpose of section 111(d), and the Clean Power Plan is on solid 

legal footing. 

In 1990, Congress enacted two amendments to section 

111(d)(1)(A)(i) to replace an obsolete cross-reference to the list of 

HAPs. As the Congressional Research Service’s (CRS) legislative 

history, compiled shortly thereafter, these amendments ‘‘appear to 

be duplicative; both, in different language, change the reference to 

section 112.’’ 60 Despite the arguments of the majority, both the 

Senate and House amendments authorize EPA’s promulgation of 

the Clean Power Plan. There is no doubt that the Senate amendment permits EPA to regulate power plant CO2 emissions under 

section 111(d), since it requires the agency to control ‘‘any existing 

source for any air pollutant (i) for which air quality criteria have 

not been issued or which is not included on a list published under 

section 108(a) or 112(b) . . . .’’ Since the agency has not issued air 

quality criteria for CO2 or listed it under section 108(a) or 112(b), 

it must regulate carbon dioxide pollution from existing power 

plants. 

The best interpretation of the House-originated provision produces an identical result, consistent with the observation that the 

two amendments are ‘‘duplicative.’’ Therefore even if one were to 

rely solely on the House provision and exclude the Senate language 

(which again, would be to disregard the actual law), EPA would 

continue to have authority to promulgate the Clean Power Plan. 

The House language directs the agency to regulate ‘‘any existing 

source for any air pollutant (i) for which air quality criteria have 

not been issued or which is not included on a list published under 

section 108(a) or emitted from a source category which is regulated 

under section 112 . . .’’ Because EPA has not issued air quality criteria for carbon dioxide or listed it under section 108(a), this language requires the agency to regulate existing sources’ emissions of 

carbon dioxide under section 111(d) unless carbon dioxide qualifies 


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61 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). 62 Cf. Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 366 (2002) (to determine whether 

a law ‘‘regulates insurance,’’ it is necessary to ‘‘pars[e] . . . the ‘what’ ’’ of the term ‘‘regulates’’) 63 Cf. Rush Prudential, 536 U.S. at 366 (a law does not ‘‘regulate[s] insurance’’ unless ‘‘insurers are regulated with respect to their insurance practices’’) (emphasis added). 64 Robinson, 519 U.S. at 341. 65 Clean Air Act Amendments of 1990, Pub. L. 101–549, § 302(a). 66 Congressional Research Service, A legislative History of the Clean Air Act Amendments of 

1990, Prepared for the Committee on Environment and Public Works, 103rd Cong. (1993) (S. Prt. 

103–38, Vol. I at 46 n.1). 67 42 U.S.C. § 7412(d)(7). 

as an ‘‘air pollutant . . . emitted from a source category which is 

regulated under section 112.’’ 

In construing this provision, it is necessary to consider ‘‘the language itself, the specific context in which that language is used, 

and the broader context of the statute as a whole.’’ 61 Considered 

by itself, the House language is ambiguous. One key source of ambiguity is the meaning of the phrase ‘‘regulated under section 112.’’ 

To determine whether section 112 ‘‘regulate[s]’’ existing sources of 

carbon dioxide, it is necessary to parse the ‘‘what’’ of the term 

‘‘regulate[s].’’.62 It is not facially clear whether this language exempts an existing source of carbon dioxide from regulation under 

section 111(d) when the source is subject to any requirement under 

section 112, or specifically when it is subject to a requirement 

under section 112 with respect to its carbon dioxide emissions.63

The textual ambiguity is resolved when the House-originated 

language is read in light of ‘‘the specific context in which that language is used, and the broader context of the statute as a whole.’’ 64

Reading the House-originated language to bar section 111(d) regulation of non-HAPs from any source category regulated under section 112 does not make sense in the immediate context in which 

the language appears. The House language modifies the phrase 

‘‘any air pollutant’’ not the phrase ‘‘any existing source’’—and appears alongside two other subclauses that exclude certain air pollutants from regulation under section 111(d). The natural inference 

is that the House language excludes a set of air pollutants, not a 

set of sources. 

The same conclusion follows from consideration of the broader 

statutory context. The Senate-originated amendment,65 unambiguously exempts only HAPs from regulation under section 111(d). 

The natural inference is that the House-originated amendment performs a similar or identical function, since the simplest explanation 

for the conferees’ failure to reconcile the two amendments is that, 

in the absence of any substantive difference between the position 

of the two chambers, the conferees failed even to notice the presence of two amendments to the same clause. Indeed, this view is 

supported by the conclusion that the two provisions are ‘‘duplicative.’’ 66

Lending additional support to this position is section 112(d)(7) of 

the statute, also enacted in 1990. Section 112(d)(7) provides that 

‘‘[n]o emission standard or other requirement promulgated under 

[section 112] shall be interpreted . . . to diminish or replace the requirements of a more stringent emission limitation or other applicable requirement established pursuant to section [111]’’ or ‘‘other 

authority of [the Clean Air Act].’’ 67 This provision is clear evidence 

that Congress did not intend regulation of a source’s HAP emisVerDate Sep 11 2014 07:27 Jun 23, 2015 Jkt 049006 PO 00000 Frm 00040 Fmt 6604 Sfmt 6602 E:\HR\OC\HR171.XXX HR171

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68 Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014). 69See 40 Fed. Reg. 55,240 (Nov. 17, 1975). 70Senate Committee on Public Works, National Air Quality Standards Act of 1970, 91st Cong. 

(1970) (S. Rept. 91–1196); see also 40 Fed. Reg. 55,240 (Nov. 17, 1975). 71See 42 U.S.C. § 7412(c)(1) (requiring the listing of ‘‘all categories and subcategories of major 

sources and area sources’’ of HAPs). 72 70 Fed. Reg. 15,994, 16,032 (Mar. 29, 2005). 73See 70 Fed. Reg. at 16,032; see also Amicus Br. of Inst. For Policy Integrity (‘‘IPI Brief’’) 

at 10–11, West Virginia v. EPA, No. 14–1146 (D.C. Cir. 2015) (discussing municipal solid waste 

landfills). 74See IPI Brief at 8–22; see also U.S. Environmental Protection Agency, Memorandum of EPA 

General Counsel Jonathan Z. Cannon, to EPA Administrator Carol M. Browner, Re: EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Sources at 3 n.2 (Apr. 10, 

1998) (stating that EPA’s duty to regulate under section 111(d) extends to any dangerous air 

pollutant ‘‘except criteria pollutants or hazardous air pollutants’’). 

sions under section 112 to displace regulation of that source’s other 

emissions under section 111(d). On the contrary, Congress fully expected identical sources to be regulated under sections 111 and 112 

at the same time; otherwise, section 112(d)(7) would make no 

sense. 

Furthermore, section 111(d) must be interpreted in a manner 

that is consistent with the Clean Air Act’s ‘‘structure and design.’’ 68 Section 111(d) is one of three major regulatory programs 

that Congress enacted in 1970 to control air pollution from existing 

industrial sources.69 Each program—the NAAQS program under 

sections 108–110, the HAP program under section 112, and section 

111(d)—was designed to regulate a specific class of air pollutants. 

Together, the three programs were designed to provide a comprehensive regulatory scheme for existing sources with ‘‘no gaps in 

control activities pertaining to stationary source emissions that 

pose any significant danger to public health or welfare.’’ 70

Section 111(d) would be largely eviscerated if section 

111(d)(1)(A)(i) were construed to exempt all emissions (HAP and 

non-HAP alike) from any source subject to regulation under section 

112 with respect to its HAP emissions, since as Congress intended, 

every large industrial source category is subject to regulation under 

section 112 for its HAP emissions.71 The majority’s view of section 

111(d) would destroy the conscientious design of the Clean Air Act 

and would, perversely, change a gap-filling provision—section 

111(d)—into a gap-creating provision. This would turn the law on 

its head. 

There is simply no evidence that Congress intended to abandon 

the Clean Air Act’s seamless, tripartite regulatory framework in 

1990. To the contrary, the legislative history of the 1990 amendments ‘‘reflects Congress’ desire to require EPA to regulate more 

substances,’’ not fewer.72 The regulatory history of section 111(d) is 

in accord with the legislative history. EPA has regularly used section 111(d) to regulate non-HAP emissions from sources that were 

simultaneously regulated with respect to their HAP emissions 

under section 112.73 Moreover, in the four presidential administrations since the 1990 Amendments, EPA has consistently interpreted section 111(d) to authorize and require the regulation of any 

air pollutant not regulated under the NAAQS or HAP program.74

The majority’s interpretation of the House language would also 

produce absurd results. Under that reading of the statute, EPA 

would only be prohibited from issuing section 111(d) regulations for 

existing power plants if a section 112 rule for those sources were 


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75 American Electric Power Co. v. Connecticut (‘‘AEP’’), 131 S. Ct. 2527 (2011). 76Petitioner’s Brief at 9, 42, Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (D.C. Cir. 

No. 10–174) (2011) (internal citations omitted). See also Amicus Br. of Edison Elec. Inst., et al., in Support of Pets. At 9, Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (D.C. Cir. No. 

10–174) (2011) (brief of leading power industry associations, stating: ‘‘In the case of air pollutants that are not regulated under certain other provisions of the Clean Air Act, such as [greenhouse gases], the Act then ‘requires the States to determine appropriate control limits for existing sources for which there is an NSPS.’ ’’) (internal citation omitted). 77Pet’s Br. at 6–7, 47, 78 Reply Br. at 17, Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (D.C. Cir. No. 10–174) 

(2011). 79 131 S. Ct. at 2537. 80 Id. at 2538 n.7 (emphasis added). 

already finalized and in effect. It would not, however, prohibit EPA 

from issuing section 111(d) regulations first and subsequently regulating those sources under section 112. In other words, under the 

majority’s view, if EPA waited until the day after it finalized power 

plant CO2 regulations to issue the Mercury Air Toxics Standards 

(MATS) rule, the agency would be within its legal rights; but if it 

issued the MATS rule the day before it finalized power plant CO2

regulations, it would relinquish its authority to promulgate the latter regulation. This is, of course, a nonsensical outcome, and illustrates in stark terms why the majority’s reading of the Clean Air 

Act is untenable. 

Also debunking the majority’s interpretation of the statute is the 

Supreme Court’s opinion in American Electric Power Co. v. Connecticut (AEP).75 In AEP, Connecticut and other states urged the 

recognition of a federal common law cause of action that would 

allow states injured by climate change to sue the owners of existing 

coal-fired power plants, the nation’s largest emitters of CO2. The 

companies insisted that the nuisance remedy was not available because Congress, by enacting the Clean Air Act, had conferred authority on EPA to regulate carbon dioxide emissions, including 

from petitioners’ power plants. The companies emphasized that the 

Clean Air Act is a ‘‘comprehensive regulatory scheme,’’ and pointed 

to language from the sponsors of the 1990 amendments who ‘‘repeatedly characterized the Act as ‘comprehensive,’ and commented 

on its expansive reach.’’ 76

The petitioners’ briefs in AEP pointed specifically to EPA’s authority to regulate existing power plants under section 111(d),77

and highlighted the absence of any ‘‘‘gap’ in the statutory system 

with respect to the particular emissions restrictions plaintiffs 

seek.’’ 78 The Supreme Court, by an 8–0 vote, adopted industry’s argument, holding that section 111(d) ‘‘speaks directly to emissions of 

carbon dioxide from the defendants’ power plants,’’ 79 thereby displacing federal common law. 

In a footnote, the AEP Court wrote that ‘‘EPA may not employ 

[section 111(d)] if existing stationary sources of the pollutant in 

question are regulated under the [NAAQS] program . . . or the 

[HAP] program.’’ 80 The Court understood the relevant question to 

be whether existing sources are regulated with respect to the ‘‘pollutant in question’’ under the NAAQS or HAP programs. Crucially, 

the Court treated the NAAQS exclusion and the HAP exclusion as 

parallel limits on EPA’s authority. The NAAQS exclusion clearly 

excludes a class of pollutants, not sources, from regulation under 


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81See 42 U.S.C. § 7411(d)(1)(A)(i (providing that EPA may regulate ‘‘any air pollutant . . . 

which is not included on a list published under section [108(a)]’’). 82 Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (D.C. Cir. No. 10–174) (2011). 83 Id. 84 Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). 85 Burgess v. United States, 553 U.S. 124, 135 (2008). See also United States v. R.L.C., 503 

U.S. 291, 305 n.5 (1992) (refusing to disregard the effects of a ‘‘technical amendment’’ because 

‘‘a statute is a statute, whatever its label’’). 86 U.S. Nat’l. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993), 87Williams Co. v. FERC, 345 F.3d 910, 913 n.1 (D.C. Cir. 2003). 

section 111(d).81 The Court’s syntax indicates that it understood 

the HAP exclusion to establish a parallel, pollutant-based exclusion. Thus, the Court’s footnote is properly read to provide that 

‘‘EPA may not employ [section 111(d)] if existing stationary sources 

of the pollutant in question are regulated’’ with respect to that pollutant under the NAAQS program or HAP program. Had the Court 

not intended the HAP exclusion to be pollutant-specific, a key 

premise of its unanimous merits holding—EPA’s authority to regulate power plants’ carbon dioxide pollution under section 111(d)— 

would have been negated, since power plants’ emissions of criteria 

pollutants have been regulated since the 1970s. 

Notably, the section 112(n)(1) rule regulating power plants’ HAP 

emissions (known as the Mercury and Air Toxics Standards rule) 

was well advanced during the briefing in AEP,82 and the proposed 

rule was signed by the Administrator more than a month before 

the AEP oral argument and more than three months before the 

Court’s decision came down. No party suggested in AEP that EPA’s 

authority to regulate carbon dioxide would go away with the promulgation of a section 112(n)(1) standard for power plants.83 It is 

highly implausible that the Court believed the statutory authority 

underlying its displacement analysis would disappear within 

months if EPA finalized the emission standards for power plants’ 

HAPs emissions that it had already proposed. 

Despite the text, structure, and history of section 111(d), the consistent practice of EPA with regard to that provision, and the Supreme Court’s holding in AEP, the majority maintains that EPA 

may not regulate CO2 emissions from existing power plants under 

section 111(d). Not only is the majority’s view of the House-originated language incorrect, its argument fails independently unless 

the Senate-originated language is simply excised from the statute 

as a ‘‘drafting error’’ or a non-substantive ‘‘conforming amendment.’’ The majority report cites no cases, precedents, or other legal 

authorities holding that a duly enacted provision in the Statutes at 

Large can be disregarded in this manner. On the contrary, the Supreme Court has instructed that courts must ‘‘give effect, if possible, to every word Congress used’’ when construing a statute.84

The Court has also admonished against ‘‘plac[ing] more weight on 

the ‘Conforming Amendments’ caption than it can bear.’’ 85

Furthermore, there is no evidence that the Senate amendment 

was adopted in error. A scrivener’s error is ‘‘a mistake made by 

someone unfamiliar with the law’s object and design,’’ 86 which produces language with ‘‘no plausible interpretation.’’ 87 In contrast, 

the Senate’s eighteen-word amendment makes it clear that substituting ‘‘112(b)’’ for ‘‘112(b)(1)(A)’’ was precise and intentional, not 

a typographical error. The amendment maintains section 111(d)’s 

prior function in the Act’s comprehensive regulatory scheme and 


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88 U.S. Environmental Protection Agency, Legal Memorandum for Proposed Carbon Pollution 

Emission Guidelines for Existing Electric Utility Generating Units (June 2, 2014) (online at 

www2.epa.gov/sites/production/files/2014–06/documents/20140602–legal-memorandum.pdf). 89 Id. 90 Id. at 51. 91 Clean Air Act § 111(d)(1). 92 Clean Air Act § 110(a)(2)(A). 

produces a perfectly sensible result. Moreover, the drafting history 

of the 1990 amendments indicates that the conferees restored the 

Senate-originated language to the final bill after it emerged from 

the House. 

In any case, the Chafee-Baucus Statement provides no support 

for the majority’s position. The statement says nothing to suggest 

that Congress intended to create a gap in the pre-existing comprehensive coverage of all dangerous air pollutants. The most plausible explanation for this silence is that Chafee and Baucus saw no 

difference in meaning between the Senate and House provisions 

and believed them consistent with the ‘‘no gaps’’ policy in place 

since 1970. 

For these reasons, the majority is incorrect to assert that EPA 

may not regulate CO2 emissions from existing power plants due to 

the earlier promulgation of the MATS rule. On the contrary, the 

Clean Air Act directs the agency to control all of the dangerous air 

emissions from existing major sources such as power plants. The 

Clean Power Plan is well within EPA’s authority under section 

111(d), and arguments to the contrary miss the mark. 

Other legal arguments 

The majority report also raises other legal arguments against the 

Clean Power Plan, including an argument that EPA may not take 

a system-wide approach to regulating greenhouse gases from electric generating units. EPA has addressed this issue at length in its 

Legal Memorandum.88

Clean Air Act section 111 defines the term ‘‘standard of performance’’ as ‘‘a standard for emissions of air pollution which reflects 

the degree of emission limitation achievable through the best system of emission reduction . . . which the Administrator determines 

has been adequately demonstrated.’’ 89 That definition is clearly 

broad enough to encompass the four building block approach contemplated by the proposed EPA Clean Power Plan. As EPA notes 

in its Legal Memorandum, when each component term of ‘‘system 

of emission reduction’’ is given its ordinary meaning, the overall 

term is reasonably defined as ‘‘any set of things that reduces emissions.’’ 90

Moreover, section 111(d) makes clear that the procedure governing submission of state 111(d) plans shall be ‘‘similar’’ to the 

procedure governing submission of SIPs under Clean Air Act section 110.91 Section 110, in turn, makes clear that such plans may 

include ‘‘economic incentives such as marketable permits or auctions of emission allowances.’’ 92 Thus, it is not only clear that EPA 

would have authority to consider the use of such emission reduction methods, but also, there is a strong argument that EPA may 

be required to consider such methods in setting the appropriate 

emission limit under section 111(d). 


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45 

93 U.S. House of Representatives, Conference Report, Clean Air Amendments of 1977, at 130, 

95th Cong. (Aug. 3, 1977) (H. Rept. 95–564). 94 U.S. House of Representatives, Conference Report, Clean Air Amendments of 1977, at 130, 

95th Cong. (Aug. 3, 1977) (H. Rept. 95–564). 95 U.S. Environmental Protection Agency, New Stationary Sources Performance Standards; 

Electric Utility Steam Generating Units, 44 Fed. Reg. 33580, 33581 (June 11, 1979). 96See U.S. Environmental Protection Agency, 2017 and Later Model Year Light-Duty Vehicle 

Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62624, 

62627–28 (Oct. 15, 2012). See also U.S. Environmental Protection Agency, Joint Technical Support Document: Final Rulemaking for 2017–2025 Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy Standards at 3–7 (2012) (crediting of zero 

emission vehicles). 97See In Re Murray Energy Corporation v. EPA, No 14–1112, Slip op. (D.C. Cir. 2015) 98 In re Murray Energy, slip op. at 6 

In the legislative history of the 1977 amendments, Congress indicated that EPA should consider beyond-the-fence measures in regulating under section 111. For example, the legislative history instructed that EPA should consider ‘‘oil desulfurization/ 

denitrification at the refinery’’ in establishing emission standards 

for oil-fired power plants.93 The Conference Committee was in 

agreement: EPA should ‘‘give credit for accepted minemouth and 

other precombustion fuel treatment processes, whether they occur 

at, or are achieved by, the source or by another party.’’ 94 Thus, 

Congress specifically contemplated that section 111 standards 

would reflect the availability of credits for off-site activities implemented by third parties, even during the years (1977–1990) when 

the statute required standards for new sources to reflect the application of a ‘‘technological system of continuous emission reduction.’’ 

In addition there is precedent in EPA rulemakings under the 

Clean Air Act for reductions that take place at off-site locations, 

such as coal pre-treatment requirements for coal fired electric generating units.95 Furthermore there is also precedent for crediting 

zero emission output sources in an averaging plan.96

In short, EPA’s proposed rule relies on a system-based approach 

that is grounded in the language of the statute and for which there 

is ample authority and precedent under the Clean Air Act and in 

EPA rulemakings that have been upheld on judicial review. There 

is no reason to expect that EPA’s approach will not be upheld. 

Legislation addressing a proposed rule 

On June 9, 2015, the United States Court of Appeals for the District of Columbia Circuit denied the Petitions for Review of EPA’s 

proposed Clean Power Plan filed by the Murray Energy Corporation and the State of West Virginia.97

Although most of the legal arguments set forth in the majority 

report were briefed in that case, the rationale for the court’s decision was very simple. The court declined to review a proposed rule. 

As Judge Kavanagh noted in his opinion: 

EPA has not yet issued a final rule. It has issued only a 

proposed rule. Petitioners nonetheless ask us to jump into 

the fray now. They want us to do something they candidly 

acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal. . . . We deny the petitions for review and the petition for a writ of prohibition because the complained of action is not final.98


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99Statement of Ranking Member Frank Pallone, Jr. Subcommittee on Energy and Power 

Markup of H.R. 2042, Ratepayer Protection Act April 22, 2015 

H.R. 2042 has the same problem. The rule is not yet final. H.R. 

2042 seeks to have Congress legislate to address a proposed rule, 

not a final rule. It would be extraordinary enough for Congress to 

pass legislation extending by law the implementation dates of a 

final EPA rule and explicitly giving the states the ability to disregard federal law. However, here, Congress would be acting in 

similar fashion with regard to a proposed rule. It is entirely possible that EPA will act in the final rule to address many of the 

issues that are raised in the majority report and that the projected 

dire impacts will either be greatly mitigated, eliminated or proven 

to be non-existent in the final rule. Therefore it would be irresponsible and a waste of time for the Congress to act to legislate 

against EPA’s proposed Clean Power Plan. 

As Ranking Member Pallone has stated: ‘‘this legislation is not 

only dangerous, but also premature, unnecessary and poorly conceived. It asks us to legislate to address phantom problems in a 

rule that has not yet been finalized and it gives individual governors the unfettered ability to thumb their nose at the Clean Air 

Act.99

For the reasons stated above, we dissent from the views contained in the Committee’s report. 

FRANK PALLONE, Jr., 

Ranking Member, Committee 

on Energy and Commerce. BOBBY L. RUSH, Ranking Member, Subcommittee on Energy and 

Power. 

Æ 


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