39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–365 

ELECTRICITY SECURITY AND AFFORDABILITY ACT 

FEBRUARY 28, 2014.—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. 3826] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 3826) to provide direction to the Administrator of the 

Environmental Protection Agency regarding the establishment of 

standards for emissions of any greenhouse gas from fossil fuel-fired 

electric utility generating units, and for other purposes, 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 ................................................................................................................... 11 

Committee Consideration ........................................................................................ 11 

Committee Votes ...................................................................................................... 12 

Committee Oversight Findings ............................................................................... 18 

Statement of General Performance Goals and Objectives .................................... 18 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 18 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 18 

Committee Cost Estimate ....................................................................................... 18 

Congressional Budget Office Estimate ................................................................... 18 

Federal Mandates Statement ................................................................................. 19 

Duplication of Federal Programs ............................................................................ 19 

Disclosure of Directed Rule Makings ..................................................................... 20 

Advisory Committee Statement .............................................................................. 20 

Applicability to Legislative Branch ........................................................................ 20 


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1Section 111(b) applies to new, modified and reconstructed facilities and authorizes EPA to 

establish Federal standards of performance for certain stationary sources that the Administrator 

has determined cause or contribute ‘‘significantly to air pollution which may reasonably be anticipated to endanger public health or welfare’’ and to establish ‘‘standards of performance’’ for 

such sources. 42 U.S.C. § (b)(1)(B). 2Section 111(d) authorizes the EPA Administrator to prescribe regulations establishing a procedure under which States submit to the Administrator a plan establishing standards of performance for certain existing sources and certain air pollutants. 42 U.S.C. § 7411(d). EPA has 

only invoked 111(d) for regulations of existing sources five times in the agency’s history, including for sulfuric acid plants, phosphate fertilizer plants, primary aluminum plants, Kraft pulp 

plants, and municipal solid waste landfills. 

Section-by-Section Analysis of the Legislation ...................................................... 20 

Changes in Existing Law Made by the Bill, as Reported ..................................... 21 

Dissenting Views ..................................................................................................... 22 

PURPOSE AND SUMMARY

H.R. 3826, the ‘‘Electricity Security and Affordability Act,’’ was 

introduced by Rep. Ed Whitfield on January 9, 2014, together with 

59 original co-sponsors. This legislation would provide direction to 

the Environmental Protection Agency (EPA) regarding the agency’s 

pending greenhouse gas (GHG) emissions standards for fossil fuelfired power plants. Key provisions include the following: • The bill requires that for any GHG standards developed by the 

EPA for new plants, that the agency: (1) establish separate standards for natural gas and coal-fired power plants; and (2) set standards for coal-fired power plants that reflect emissions levels that 

have been demonstrated to be achievable using commercially available technologies. • The bill requires that for any GHG standards, rules, or guidelines developed by the EPA for reconstructed, modified, or existing 

plants, that the EPA Administrator report to Congress on the cost 

and other impacts, and that the regulation shall not take effect unless Congress enacts a federal law specifying the effective date. 

BACKGROUND AND NEED FOR LEGISLATION

On June 25, 2013, President Obama announced a ‘‘Climate Action Plan’’ that directs the EPA to establish Federal standards to 

reduce carbon dioxide emissions from new and existing fossil fuelfired power plants. In a Presidential Memorandum, the President 

specifically directed the agency: (1) to propose standards for new 

plants by September 20, 2013, and to finalize those standards in 

a ‘‘timely fashion’’; (2) to propose standards, regulations, or guidelines for modified, reconstructed, and existing plants by June 1, 

2014, and to finalize those standards, regulations, or guidelines by 

June 1, 2015; and (3) to require States to submit implementation 

plans not later than June 30, 2016. 

The President has directed EPA to develop these power plant 

standards pursuant to existing executive authorities under Section 

111 of the Clean Air Act (CAA), commonly referred to as the ‘‘New 

Source Performance Standards’’ (NSPS) program. That statute authorizes EPA, in certain circumstances, to establish standards of 

performance under Section 111(b) for new stationary sources,1 and 

issue guidelines under Section 111(d) for existing stationary 

sources.2 Under section 111, a ‘‘standard of performance’’ is defined 

as: 

a standard for the emissions of air pollutants which reflects the degree of emission limitation achievable through 


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3This proposed rule replaces a prior draft rule published in April 2012 in which EPA had proposed to set a single standard for both natural gas-fired and coal-fired power plants. See 77 Fed. 

Reg. 22392 (April 13, 2012). 4See 79 Fed. Reg. 1430 (Jan. 8, 2014). For natural gas-fired units, the rule proposed a carbon 

dioxide (CO2) standard of 1,000 pounds per megawatt hour (lbs/MWh) for large units (greater 

than 850 mmBtu/hour), and a standard of 1,100 lbs MWh for smaller natural gas units (less 

than 850 mmBtu/hour), and to exempt certain units that supply less than one-third of its potential electric output to the grid. See 79 Fed. Reg. 1430 (Jan. 8, 2014). For coal-fired units, the 

rule proposes a standard of 1,100 lbs/MWh over 12 months, or 1,000 to 1,050 lbs/MWh over a 

period of 84 months (7 years). Id. 

the application of the best system of emission reduction 

which (taking into account the cost of achieving such reduction and any nonair quality health and environmental 

impact and energy requirements) the Administrator determines has been adequately demonstrated. 42 U.S.C. 

7411(a)(1). 

EPA’s pending CO2 regulations for new power plants 

On September 20, 2013, EPA proposed ‘‘Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: 

Electric Generating Units’’ which would establish separate carbon 

dioxide (CO2) standards for natural gas-fired and for coal-fired electric generating units.3 In the proposal, EPA effectively requires 

that any new coal-fired units built in the United States install carbon capture and storage (CCS) technologies, which have not been 

successfully demonstrated for commercial service at any full scale 

commercial power plant in the world.4

EPA maintains in the proposed rule that CCS technologies for 

new coal-fired power plants have been ‘‘adequately demonstrated’’ 

for purposes of CAA section 111 based on three government-funded 

CCS power plant projects under the Department of Energy’s (DOE) 

Clean Coal Power Initiative, including a project under construction 

in Mississippi, and two planned projects in Texas and California. 

EPA also cites a fourth small-scale, Canadian government-funded 

CCS post-combustion project under construction in Saskatchewan, 

Canada. At the November 14, 2013 legislative hearing on the discussion draft of H.R. 3826, EPA Acting Administrator Janet 

McCabe pointed to these four projects, all of which involve use of 

CO2 for enhanced oil recovery, as the basis for meeting the statutory requirement that CCS technologies be adequately demonstrated for coal-fired power plants. 

Status of CCS Technologies for Commercial-Scale Power Plants: 

EPA’s proposal to mandate CCS for coal-fired power plants has 

generated significant legal controversy because there are no power 

plants in commercial service anywhere in the world that have installed and operated the CCS technologies necessary to comply 

with the rule. None of the four government funded projects cited 

by EPA is in operation, and two of the projects have not yet broken 

ground. According to DOE’s own National Energy Technology 

(NETL), moreover, ‘‘these technologies are not ready in their current state of development for implementation on commercial coalbased power plants because they have not been demonstrated at 

appropriate scale, require approximately one-third of the plant’s 

steam and power to operate, and are cost prohibitive.’’ Consistent 

with these statements, at a hearing on October 29, 2013 before the 

House Committee on Science, Space, and Technology, DOE’s former 

Assistant Secretary for Fossil Energy, Charles D. McConnell, testiVerDate Mar 15 2010 07:28 Mar 04, 2014 Jkt 039006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR365.XXX HR365

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5DOE’s Deputy Assistant Secretary of DOE’s Office of Clean Coal, James Wood, said in June 

2012 that ‘‘our goal is to have commercially available capture and storage technologies broadly 

available in the public sector by 2020–2025.’’ See speech, The Third International Advanced Coal 

Technologies Conference, June 4, 2012 Xi’an, China, entitled ‘‘Carbon Capture: Opportunities 

and Obstacles,’’ James F. Wood, Deputy Assistant Secretary, Office of Clean Coal, U.S. Department of Energy available at http://www.uwyo.edu/ser/lfiles/docs/conferences/2013/china/ 

james%20wood.pdf. I September 2013, the Attorneys General of 17 states and senior environmental regulator from one additional state, wrote: ‘‘It seems incontrovertible that no post-combustion reduction system has been adequately demonstrated’’ for CO2 emissions from EGUs on 

a broad, commercial scale. A system of carbon capture and storage is perhaps a decade away 

from being technologically and economically feasible. A permitting system for storing CO2 emissions underground and a set of legal rules governing liability for CO2 storage has not been put 

in place in most states.’’ 6See, e.g. Sept. 20, 2012 Testimony of Mr. Robert Hilton, Vice President, Power Technologies 

for Government Affairs for Alstom (‘‘Alstom does not currently deem its technologies for CCS 

commercial and, to my knowledge, there are no other technology suppliers globally that can 

meet this criteria or are willing to make a normal commercial contract for CCS at commercial 

fied that ‘‘it is disingenuous to state that the technology is 

‘ready’.’’ 5

Numerous witnesses have testified before the Subcommittee on 

Energy and Power that CCS is not currently commercially viable 

for coal-fired power plants. For example, at the November14, 2013 

hearing on the discussion draft of H.R. 3826, witnesses testified as 

follows: • Mr. Ed Chicanowiz, an engineering consultant who has designed and tested environmental controls for fossil power stations 

for more than four decades, testified that ‘‘CCS, at some time in 

the future, may prove a feasible technology to control CO2 emissions.’’ He further testified, however, that ‘‘[i]n my opinion, we need 

until about 2020, to make this assessment with a reasonable degree of confidence. CCS is not commercially proven now.’’ 

• Dr. Donald van der Vaart, Chief of the Permitting Section of 

the North Carolina Department of Environment and Natural Resources-Division of Air Quality, testified: ‘‘EPA’s recently proposed 

NSPS for utility units assumed carbon capture and storage—or 

CCS—has been ‘adequately demonstrated.’ One need only look at 

the yet to operate Kemper County Energy Facility in Mississippi, 

with its substantial governmental funding, as prima facie evidence 

that EPA’s conclusions are unsupported. In addition to the fact 

that there is not a single fossil fuel-fired utility plant operating 

with CCS, EPA themselves acknowledged geologic sequestration is 

not generally available at the emission units themselves.’’ 

• Mr. Ross Eisenberg, Vice President, Energy and Resources Policy for the National Association of Manufacturers similarly testified: ‘‘Because CCS is neither commercially available nor cost effective for a utility-scale power generation project, the rule effectively 

bans the construction of any coal-fired power plant going forward.’’ 

He further testified: ‘‘Partial CCS for a utility-scale coal-fired 

power plant has not been adequately demonstrated and is extremely costly. The EPA can only point to four examples of CCS to 

support its conclusion; only two are actually under construction, 

and only one of those is in the United States. The EPA cannot 

point to a single completed, operational facility that meets the 

standard for coal it has chosen. While we believe CCS holds great 

promise as a technology, it is not ready to be deployed the way the 

EPA insists it will be deployed in the near term.’’ 

Other witnesses have similarly testified before the Subcommittee 

regarding the technical, economic, legal and other barriers to deployment.6


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scale.’’ Further, ‘‘the time to commercialization for CCS technology is not clear.’’); Sept. 20, 2012 

Testimony of Mark McCullough, Executive Vice President of American Electric Power (‘‘as a consequence of our first-hand experience and intimate understanding of CCS technologies, AEP is 

convinced that CCS is many years from providing a commercially viable solution to reducing 

CO2 emissions due to the numerous technical, financial, legal, and regulatory challenges that 

must first be addressed’’); Sept. 20, 2012 Testimony of John N. Voyles, Jr., Vice President, 

Transmission & Generation Services for LG&E and KU Energy LLC (‘‘the volume of storage necessary to facilitate such operations on a continuous basis for the life of an electric generating 

station has yet to be established. Very serious questions remain regarding the implications such 

injection processes have on mineral and property rights, the monitoring of the CO2 plume across 

property lines or state boundaries and the verification systems necessary to ensure long term 

monitoring is taken into account.’’); June 19, 2012 Testimony of Steven E. Winberg, Vice President, Research & Development for CONSOL Energy Inc. (‘‘What is needed is commercially-available CCS technologies and this is 10 to 15 years away from the time when CCS suppliers will 

be able to provide performance guarantees and warrantees.’’) 7See 42 U.S.C. 15962(i)(‘‘No technology, or level of emission reduction, solely by reason of the 

use of the technology, or the achievement of the emission reduction, by 1 or more facilities receiving assistance under this Act, shall be considered to be adequately demonstrated for purposes of section 111 of the Clean Air Act . . . .’’); 26 U.S.C. 48A(g) (‘‘No use of technology (or 

level of emission reduction solely by reason of the use of the technology), and no achievement 

of any emission reduction by the demonstration of any technology or performance level, by or 

at one or more facilities with respect to which a credit is allowed under this section, shall be 

considered to indicate that the technology . . . is adequately demonstrated for purposes of section 111 of the Clean Air Act . . . .’’); see also H.R. Rept. No. 109–215 at 239–40 (July 29, 

2005)(‘‘the use of a certain technology by any facility assisted under this subtitle . . . will not 

result in that technology . . . being considered achievable, achievable in practice, or ‘adequately 

demonstrated’ for purposes of [section 111 of the Clean Air Act]’’). 

CCS Capital Costs and Other Limitations: Even if all of the 

power plant projects cited by EPA to show CCS is ‘‘adequately demonstrated’’ were in operation and meeting EPA’s proposed emissions standards, the costs associated with CCS are prohibitive. At 

the November 14, 2013 hearing relating to H.R. 3826, Mr. 

Eisenberg testified: ‘‘The Energy Information Administration estimates the overnight capital cost to build a new integrated gasification combined cycle (IGCC) coal plant with CCS to be $6,599 per 

kilowatt (kW). This is more than six times the price of a new 

NGCC plant, the natural gas standard the EPA picked as the 

NSPS for that fuel. It is triple the price per kW of a new onshore 

wind farm, double the cost per kW of new hydropower and more 

than $1,000 per kW more expensive than solar or nuclear. The 

standard that the EPA has chosen for coal—which, by definition, 

must be adequately demonstrated and take into account cost—is so 

expensive that nobody would build it.’’ 

Even ignoring the technical challenges and costs concerns associated with CCS, moreover, the four projects cited by EPA are all enhanced oil recovery (EOR) projects. While such projects may be 

suitable for certain states or regions of the country, EOR for power 

plants is not practicable nationally given geographic and geologic 

constraints. The Southern Company, which owns the Kemper 

project in Mississippi, has stated that the unique characteristics of 

the project ‘‘cannot be consistently replicated on a national level’’ 

and ‘‘should not serve as a primary basis for new emissions standards impacting all new coal-fired power plants.’’ 

Energy Policy Act of 2005: EPA’s proposed standards for new 

plants have raised further legal controversy because the Energy 

Policy Act of 2005 prohibits the agency from considering technology 

used at a facility receiving assistance under the DOE’s Clean Coal 

Power Initiative (CCPI), or at a facility that is receiving an advanced coal project tax credit, as being ‘‘adequately demonstrated’’ 

for purposes of Section 111 of the CAA.7 The effect of these proviVerDate Mar 15 2010 07:16 Mar 04, 2014 Jkt 039006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR365.XXX HR365

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8To the extent that some have argued that CCS technologies should be viewed like scrubbers 

in the 1970s, this is not an appropriate analogy. When EPA was seeking to mandate ‘‘wet scrubbers’’ in the 1970s, scrubbers, unlike CCS technologies, were actually in use in 3 power plants 

and construction underway at another 15 power plants, none of which received subsidies. 37 

Fed. Reg. 5767, 5768 (March 21, 1972). 9See, Speech at The Third International Advanced Coal Technologies Conference, June 4, 

2012 Xi’an, China, ‘‘Carbon Capture: Opportunities and Obstacles,’’ James F. Wood, Deputy Assistant Secretary, Office of Clean Coal, U.S. Department of Energy, supra. 

sions is to prevent EPA from prematurely mandating use of a technology before it is commercially viable.8

On November 15, 2013, Members of the Committee wrote to EPA 

regarding these provisions of the Energy Policy Act of 2005 and to 

request that the agency withdraw the proposed rule. While EPA 

failed to provide a timely response to the Committee’s request and 

proceeded with publication of the proposed rule in the Federal Register on January 8, 2014, on February 7, 2014, EPA posted on its 

website a ‘‘Notice of Data Availability’’ and related ‘‘Technical Support Document’’ (TSD). These documents maintain that, notwithstanding the provisions of the Energy Policy Act of 2005, the agency can make a determination that CCS is the best system of emission reduction adequately demonstrated for new coal-fired power 

plants. EPA maintains that CCS for power plants is adequately 

demonstrated because each of the ‘‘components’’ of CCS has been 

demonstrated to be feasible, and even if not demonstrated for a facility that generates electricity, they have been demonstrated for 

various discrete projects in the industrial sector. 

EPA’s position that demonstration of the ‘‘components’’ of CCS in 

other sectors shows CCS for power plants is ‘‘adequately demonstrated’’ is undermined by the fact that these components have 

not been integrated at commercial scale and operated in commercial service in full-scale commercial power plants. Most of the additional projects cited by EPA are also DOE CCPI projects. Further, 

DOE is continuing to spend billions of dollars to demonstrate CCS 

technologies for coal-fired power plants, which would be unnecessary if the technologies were presently adequately demonstrated for 

commercial service in the electricity sector. Moreover, as former 

DOE Deputy Assistant Secretary of DOE’s Office of Clean Coal, 

James Wood, said in June 2012: ‘‘technologies to capture and store 

carbon emissions from electric power plants are elusive, expensive 

and, although there are CO2 separation technologies in use in the 

natural gas and chemical processing industries, there has not yet 

been widespread deployment in the electric power industry, and 

there is little history of the integration of these technologies with 

electric generation in reliable or cost-effective modes.’’ 9

Electricity Prices and Fuel Diversity: In addition to the above, the 

proposed CCS mandate has generated controversy because of its 

potential impacts on the diversity, affordability and reliability of 

the nation’s electricity supplies. The nation’s electricity generation 

fleet is currently experiencing a dramatic shift, away from coalfired generation and increasingly towards use of natural gas and 

renewable energy sources, spurred by low natural gas prices and 

a suite of new environmental regulations. This shift will largely 

occur over the next few years as natural gas prices are expected 

to remain low and recent environmental regulations accelerate the 

retirement of a significant portion of the nation’s coal-fired power 


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10See NERC, 2013 Long-Term Reliability Assessment, Dec. 2013 (‘‘The amount of coal-fired 

generation during peak is expected to decline substantially, as 39.4 GW of retirements and 

derates outpace 4.3 GW of new additions, resulting in a net reduction of 35.1 GW by 2023. Most 

unit retirements are planned between 2014 and 2016, when requirements of environmental regulations become effective.’’) The 2014–2016 timeframe is triggered by the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS) (a/k/a ‘‘Utility MACT’’) rule 

which is scheduled to take effect in April 2015, with a deadline that may be extended by up 

to one year by state permitting agencies. In addition to coal retirements, NERC has identified 

a variety of emerging reliability challenges, including challenges associated with reliably integrating high variable renewable generation, nuclear generation retirements, and other challenges. Id. at pp. 2–4. 

plants, expected primarily between 2014 and 2016.10 As recently as 

February 14, 2014, EIA has projected that there will be more coalfired power plant retirements by 2016 than have been scheduled, 

and that 60 gigawatts (GW) of capacity will retire by 2020. 

At the November 14, 2013 legislative hearing relating to H.R. 

3826, Oklahoma Attorney General E. Scott Pruitt, testified: ‘‘EPA’s 

proposed EGU NSPS would foreclose the construction of new coalbased electric generation absent carbon capture and storage 

(‘‘CCS’’), yet CCS is likely to remain commercially infeasible for a 

decade or more.’’ He further testified: ‘‘The elimination of coal as 

a fuel for new electric generation would have highly concerning implications for electricity prices and for the economy and job-creation 

in general, as well as the competitiveness of American manufacturing.’’ 

The President and CEO of East Kentucky Power Cooperative, 

Tony Campbell, also testified that: ‘‘Coal-fired generation is essential to ensure energy diversity and to keep electricity prices low. Although natural gas prices are currently low, recent data from the 

United States Energy Information Administration (‘‘EIA’’) shows 

that natural gas prices have increased by more than 50% since 

April 2012.’’ 

More recently, at a February 11, 2014 hearing before the Subcommittee on Oversight and Investigations, DOE Deputy Assistant 

Secretary for Clean Coal, Office of Fossil Energy at the Department 

of Energy, Julio Friedmann, testified that CCS for new coal plants 

could increase electricity costs dramatically, stating that for the 

first generation technology for a pulverized coal plant adding CCS 

‘‘looks something like a 70 or 80 percent increase on the wholesale 

price of electricity.’’ 

Precedential Effect of Proposed Regulation: Finally, the proposed 

rule has generated controversy because of concerns that EPA’s proposed CCS mandate for new coal plants will set a precedent for 

other types of facilities, including refineries and other sources subject to regulation under CAA section 111. Mr. Eisenberg testified 

at the November 14, 2013 hearing that: ‘‘In the proposal, the EPA 

cannot point to a single operating facility in the United States that 

uses partial CCS, a technology the EPA insists is ‘adequately demonstrated.’ In addition, the EPA for years has maintained the practice that it cannot require facilities to ‘redefine the source’; it can 

dictate a standard of performance, but not pick a technology. Here, 

the EPA clearly picked a technology (IGCC) that is fundamentally 

different from a coal-fired boiler. A precedent based on choosing 

IGCC with partial CCS as the best system of emissions reduction 

could have wide-ranging consequences for other industries receiving a GHG NSPS.’’ 


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11 In that document, EPA expresses its view that the agency may take either a ‘‘source-based 

approach’’ or a ‘‘system-based approach’’ to regulation under section 111(d). EPA specifically 

asks states to provide information regarding their experience with ‘‘programs that reduce CO2

emissions in the electric power sector,’’ including ‘‘greenhouse gas (GHG) emissions performance 

standards, emissions budget trading programs, resource planning requirements, end-use energy 

efficiency resource standards, renewable energy portfolio standards, and appliance and building 

code energy standards.’’ 12The Attorneys General further expressed concern that: ‘‘In short, EPA may attempt to force 

coal-fueled EGUs to decrease operation time or retire early, or force utilities to rely more heavily 

on natural gas and other resources in an effort to ensure greater CO2 emission reductions. Such 

proposals, often offered as ways of providing ‘‘flexibility,’’ do not conform to the limitations Congress has placed on EPA in the Clean Air Act, nor do they properly preserve the primary role 

of States in the development of standards of performance for existing sources. Under § 111(d), 

it is the States, not EPA, that are authorized to adopt performance standards; therefore it is 

the States, not EPA, that weigh the § 111(a)(1) factors to determine what technology is adequately demonstrated.’’ 

EPA’s pending CO2 regulations for existing power plants 

Pursuant to the President’s Climate Action Plan, EPA is also 

proceeding to develop CO2 regulations for existing plants. In the 

Fall of 2013, EPA conducted ‘‘Listening Sessions’’ and also released 

a document dated September 23, 2013 that it referred to as ‘‘Questions for States’’ and was entitled ‘‘Considerations in the Design of 

a Program to Reduce Carbon Pollution from Existing Power 

Plants.’’ 11

At the November 14, 2013 legislative hearing on H.R. 3826, Assistant Administrative Janet McCabe, rejected the view that states, 

rather than EPA, would set standards of performance. Specifically, 

she testified that: ‘‘It is EPA’s role to set the guideline, the target.’’ 

When asked whether it was states or EPA that would have the actual authority to set the performance standards for existing plants, 

she testified that ‘‘EPA will set the target, but states will have 

flexibility to meet that in whatever way makes sense to them. So 

it does not need to be a unit by unit regulation, or expectation.’’ 

There is significant concern that the agency will seek to set 

standards that go beyond the scope of the agency’s legal authorities 

under section 111(d). At the November 14, 2013 hearing relating to 

H.R. 3826, Oklahoma Attorney General E. Scott Pruitt testified 

that ‘‘[i]n recent years the EPA has expressed an unwillingness to 

appropriately defer to state authority under the Clean Air Act.’’ 

Further, he and the Attorneys General of 16 other states sent a 

white paper to EPA in September 2013 in which they stated: ‘‘In 

contemplating regulation of existing EGUs, however, EPA appears 

poised to go beyond the establishment of procedures and usurp the 

states’ authority by setting minimum substantive requirements for 

state performance standards.’’ 12 They further stated: ‘‘The prospect 

for EPA adoption of GHG performance standards for new or existing coal-based EGUs raises serious concerns. EPA’s aggressive 

standards for new coal-based EGUs indicate a similarly aggressive 

approach to existing coal-based EGUs. While EPA is authorized to 

require States to submit plans containing performance standards, 

EPA may not dictate what those performance standards shall be. 

Nor may EPA require States to adopt GHG performance standards 

that are not based on adequately demonstrated technology or that 

mandate, in the guise of ‘flexible approaches,’ the retirement or reduced operation of still-viable coal-based EGUs.’’ 

Dr. Van der Vaart also testified at the November 14, 2013 hearing that there were significant legal questions about EPA’s authority to regulate under section 111(d). Even in cases where EPA does 


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have authority to establish emissions guidelines, however, he testified that that authority is limited: ‘‘EPA is not authorized to impose emissions standards on existing sources. Rather, EPA can 

only establish a unit-specific guideline that describes what control 

technologies have been demonstrated. Once EPA provides that 

guideline, section 111(d) allows States to develop unit specific emission standards after considering many factors including the cost, 

physical constraints on installing controls, and the remaining useful life of the emission units. The plain language of the Act as well 

as legal precedent precludes EPA and States from designing a 

standard that relies on reductions made outside of the emissions 

unit. Any flexibility in compliance with a standard based on a specific emission unit resides with the States who have the primary 

responsibility for implementation of this program.’’ 

Mr. Campell also testified at that hearing that ‘‘EKPC’s greatest 

apprehension relates to regulations for existing sources. EKPC operates three baseload power plants fueled by coal and one plant operated by natural gas-fired combustion turbines. EKPC has invested almost $1 billion in retrofitting existing coal-fired power 

plants with modern air pollution control equipment. Further, 

EKPC spent another $1 billion to construct two of the cleanest coal 

units in the country. An existing source rule that requires CCS 

would leave EKPC with no choice but to convert these units to natural gas, essentially wasting the extensive capital investments that 

have been made to lower pollutants from the coal-fired units.’’ Further, ‘‘EKPC is very worried about the supply of electricity to its 

rural cooperative members and its cost. There is a lack of technology that would allow EKPC to control GHG emissions, and a 

lack of demonstrated benefits to the environment. Most if not all 

coal-fired units will be forced to retire as a result of the regulation 

of GHG emissions, which would astronomically increase electricity 

rates and ultimately cause further job losses.’’ 

While EPA has not yet proposed standards for existing power 

plants, the costs and job impacts of such regulations have the potential to be very significant given coal-fired power generation currently supplies approximately 40 percent of the nation’s electricity. 

At the November 14, 2013 hearing, Stephen Hawkins of the Natural Resources Defense Council (NRDC) maintained that his organization’s cap-and-trade proposal for regulation of existing plants 

would cost about $4 billion annually. At the hearing, however, a 

November 13, 2013 letter from the American Coalition for Clean 

Coal Electricity to Chairman Whitfield was submitted which stated 

that National Economic Research Associates has preliminarily estimated that the costs of the NRDC proposal could result in ‘‘total 

costs to consumers of as much as $145 billion’’ between 2018–2033, 

and could result in more than 2.85 million jobs lost over the next 

two decades. 

Additional considerations 

Any regulations of CO2 emissions from U.S. power plants should 

be viewed in the context of overall global emissions. U.S. GHG 

emissions represent only 19% of global emissions according to EPA, 

and that share is declining every year as China and other developing economies increase their use of energy. U.S. energy related 

CO2 emissions have declined dramatically and are likely to remain 


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13See EIA ‘‘AEO2014 Early Release Overview.’’ 

flat in the coming years. In April 2013, EIA reported that U.S. CO2

emissions resulting from energy use were at their lowest levels 

since 1994. More recently, EIA projected total U.S. energy-related 

emissions of CO2 will remain below the 2005 level in every year 

through 2040, and will be more than seven percent below their 

2005 level in 2040.13

Any regulations of CO2 emissions from U.S. power plants should 

also be examined to determine whether they will have any meaningful impact on future global climate changes. Administrator 

McCarthy, at a September 18, 2013 hearing before the Subcommittee, when asked about whether EPA can solve the problems 

of climate change, testified: ‘‘I think what you are asking is can 

EPA in and of itself solve the problems of climate change. No, we 

cannot.’’ In response to questions from Representative Pompeo regarding whether EPA regulatory actions will have a meaningful 

impact on climate indicators, she acknowledged that it is ‘‘unlikely 

that any specific one step is going to be seen as having a visible 

impact on any of those impacts, a visible change in any of those 

impacts.’’ 

What the Act will do 

H.R. 3826 would ensure that any standards established by EPA 

for new power plants would be achievable based on technologies 

that have actually been demonstrated at commercial power plants, 

rather than based on what EPA expects will be demonstrated in 

the future. H.R. 3826, further, would ensure that EPA’s pending 

GHG regulations for existing plants would be subject to Congressional approval. 

In particular, for new power plants, H.R. 3826 provides that any 

rule establishing GHG standards for new plants may not be issued 

unless the EPA Administrator: (1) establishes separate standards 

for natural gas and coal-fired plants; (2) sets standards for the coal 

category that have been achieved over a one-year period by at least 

6 units located at different commercial power plants in the United 

States; and (3) establishes a subcategory for coal-fired plants that 

use lignite coal and sets standards that have been achieved over 

a one-year period by at least 3 units located at different commercial 

power plants in the United States. 

For existing power plants, H.R. 3826 provides that any rule establishing GHG standards or guidelines applicable to modified, reconstructed, or existing plants shall not take effect unless a federal 

law is enacted specifying the effective date. Further, for any such 

rule, the bill would also require that the EPA Administrator submit a report to Congress regarding the proposed rule, its economic 

impacts, and the projected effects on global GHG emissions. 

H.R. 3826 would also repeal EPA’s earlier proposed rules for new 

power plants, including the rule announced on September 20, 2013, 

any subsequently issued rules for new plants that do not meet the 

requirements of the bill, and any GHG standards or guidelines applicable to modified, reconstructed or existing plants issued prior to 

the date of enactment. 


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Supporters of the legislation 

The legislation is supported by a broad coalition representing virtually all aspects of the U.S. economy. Supporters include: 

American Chemistry Council 

American Coalition for Clean Coal Electricity 

American Farm Bureau Federation 

American Forest & Paper Association 

American Fuel and Petrochemical Manufacturers 

American Iron and Steel Institute 

America’s Natural Gas Alliance 

American Petroleum Institute 

American Public Power Association 

Association of American Railroads 

Council of Industrial Boiler Owners 

Electric Reliability Coordinating Council 

Industrial Consumers of America 

Industrial Minerals Association—North America 

International Liquid Terminals Association 

National Association of Manufacturers 

National Federation of Independent Business 

National Mining Association 

National Oilseed Processors Association 

National Rural Electric Cooperative Association 

National Taxpayers Union 

Portland Cement Association 

The Fertilizer Institute 

U.S. Chamber of Commerce 

United Mine Workers 

HEARINGS

The Subcommittee held a hearing on the discussion draft of H.R. 

3826 on November 14, 2013. The Subcommittee received testimony 

from: 

• Joe Manchin, Senator, West Virginia; 

• Janet McCabe, Acting Administrator for Air and Radiation, U.S. Environmental Protection Agency; 

• E. Scott Pruitt, Oklahoma Attorney General; 

• Henry Hale, Mayor, Fulton, Arkansas; 

• Tony Campbell, President and CEO, East Kentucky Power 

Cooperative; 

• Donald R. van der Vaart, Chief, Permitting Section, North 

Carolina Department of Environmental and Natural Resources-Division of Air Quality; 

• David Hawkins, Director of Climate Programs, Natural 

Resources Defense Council; 

• Susan F. Tierney, Managing Principal, Analysis Group; 

• J. Edward Cichanowicz, Engineering Consultant; and 

• Ross Eisenberg, Vice President, Energy and Resources Policy, National Association of Manufacturers. 

COMMITTEE CONSIDERATION

On January 13 and 14, 2014, the Subcommittee on Energy and 

Power met in open markup session, and forwarded H.R. 3826 to 

the full Committee, by a roll call vote of 18 ayes and 11 nays. DurVerDate Mar 15 2010 07:16 Mar 04, 2014 Jkt 039006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR365.XXX HR365

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ing the markup, one amendment was offered and was rejected a 

roll call vote. 

On January 27 and 28, 2014, the Committee on Energy and 

Commerce met in open markup session to consider H.R. 3826. During the markup, five amendments were offered, of which 4 were rejected by record votes, and 1 by voice vote. A motion by Mr. Upton 

to order H.R. 3826, reported to the House, without amendment, 

was agreed to by a record vote of 29 ayes and 19 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. 3626 reported to the House, without amendment, was agreed to by a roll call vote of 29 ayes and 19 nays. The 

following reflects the roll call votes taken during the Committee 

consideration: 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 32 

BILL: H.R. 3826, the "Energy Security and Affordability Act" 

AMENDMENT: An amendment offered by Mr. Waxman, No. I, to provide that the provisions ofH.R. 3826 

shall take effect when the Administrator of the Energy Information Administration certifies 

that a Federal program, other than a program under section 111 of the Clean Air Act (42 

U.S.C. 7411), will reduce carbon dioxide emissions from fossil fuel-fired electric utility 

generating units, or from sources economy-wide, in at least equivalent quantities and with 

similar timing to the carbon pollution reductions required in the aggregate by the rules and 

guidelines listed in paragraphs (2), (3), and (4) of section 4 of the bill. 

DISPOSITION: NOT AGREED TO, by a roll call vote of 18 yeas and 28 nays 

REPRESENTATIVE vc,~ NAYS PRESENT REPRESENTATIVE 

Mr. Upton X Mr. Waxman X 

Mr.Hall X Mr. Dingell X 

Mr. Barton Mr. Pallone X 

Mr. Whitfield X Mr.Rush 

Mr. Shimkus X Ms. Eshoo 

Mr.Pitts X Mr. Engel X 

Mr. Walden X Mr. Green X 

Mr. Terry X Ms. DeGette X 

Mr. Rogers Mrs. Capps X 

Mr. Murphy X Mr. Doyle X 

Mr. Burgess X Ms. Schakowsky X 

Mrs. Blackburn X Mr. Matheson X 

Mr. Gingrey X Mr. Butterfield 

Mr. Scalise X Mr. Barrow X 

Mr. Latta X Ms. Matsui X 

Mrs. McMorris Rodgers Ms. Christensen 

Mr. Harper X Ms. Castor X 

Mr. Lance X Mr. Sarbanes X 

Mr. Cassidy Mr. McNerney X 

Mr. Guthrie X Mr. Braley X 

Mr. Olson X Mr. Welch X 

Mr. McKinley X Mr. Lujan X 

Mr. Gardner X Mr. Tonko X 

Mr. Pompeo Mr. Yarmuth X 

Kinzinger 

Griffith 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

01128/2014 
14 


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COMMITTEE ON ENERGY AND COMMERCE -- ll3TH CONGRESS 

ROLL CALL VOTE # 33 

BILL: H.R. 3826, the "Energy Security and Affordability Act" 

AMENDMENT: An amendment offered by Mr. Yannuth, No.2, to authorize qualified industry organizations 

to conduct a referendum among the owners or operators of distribution utilities delivering 

fossil fuel-based electricity for tbe creation of a Carbon Storage Research Corporation to 

establish and administer a program to accelerate the deployment of carbon dioxide capture 

and storage technologies and methods. 

DISPOSITION: NOT AGREED TO, by a roll call vote of 16 yeas and 30 nays 

EPRESENT A TIVE YEAS NAYS PRESENT REPRESENTATIVE YEAS NAYS PRESENT 

Mr. Upton X Mr. Waxman X 

Mr.Hall X Mr. Dingell X 

Mr. Barton X Mr. Pallone 

Mr. Whitfield X Mr.Rush 

Mr. Shimkus X Ms. Eshoo 

Mr. Pitts X Mr. Engel 

Mr. Walden X Mr. Green 

Mr. Terry X Ms. DeGette X 

Mr. Rogers Mrs. Capps X 

Mr. Murphy X Mr. Doyle X 

Mr. Burgess X Ms. Sehakowsky X 

Mrs. Blackburn X Mr. Matheson X 

Mr. Gingrey X Mr. Butterfield X 

Mr. Scalise X Mr. Barrow X 

Mr.Latta X Ms. Matsui X 

Mrs. McMorris Rodgers Ms. Christensen 

Mr. Harper X Ms. Castor X 

Mr. Lance X Mr. Sarbanes X 

Mr. Cassidy X Mr. McNerney X 

Mr. Guthrie X Mr. Braley X 

Mr. Olson X Mr. Welch X 

Mr. McKinley X Mr. Lujan X 

Mr. Gardner X Mr. Tonko X 

Mr. Pompeo X Mr. Yannuth X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

~ X 

X 

01/28/2014 
15 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 34 

BILL: H.R. 3826, the "Energy Security and Affordability Act" 

AMENDMENT: An amendment offered by Ms. Schakowsky, No.3, to adopt the Environmental Protection 

Agency finding that greenhouse gas emissions threatens public health and welfare by 

contributing to long-lasting changes in our climate fhat can have a range of negative effects 

on human health and the environment. 

DISPOSITION: NOT AGREED TO, by a roll call vote 0[20 yeas and 24 nays 

REPR vc .C mPRESENT REPRESENTA TlVE YS PRESENT 

Mr. Upton Mr. Waxman X 

Mr.Hall X Mr. Dingell X 

Mr. Barton X Mr. Pallone X 

Mr. Whitfield X Mr. Rush 

Mr. Shimkus Ms. Eshoo 

Mr. Pitts X Mr. Engel 

Mr. Walden X Mr. Green X 

Mr. Terry X Ms. DeGelte X 

Mr. Rogers Mrs. Capps X 

Mr. Murphy X Mr. Doyle X 

Mr. Burgess X Ms. Sehakowsky X 

Mrs. Blackburn X Mr. Matheson X 

Mr. Gingrey Mr. Butterfield X 

Mr. Scalise X Mr. Barrow X 

Mr. Latta X Ms. Matsui X 

Mrs. McMorris Rodgers Ms. Christensen 

Mr. Harper X Ms. Castor X 

Mr. Lance X Mr. Sarhanes X 

Mr. Cassidy Mr. McNerney X 

Mr. Guthrie X Mr. Braley X 

Mr. Olson X Mr. Welch X 

Mr. McKinley X Mr. Lujan X 

Mr. Gardner X Mr. Tonka X 

Mr. Pompeo X Mr. Yarmuth X 

Mr. Kinzinger X 

Mr.Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers 

01/28/2014 
16 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 35 

BILL: H.R. 3826, the "Energy Security and Affordability Act" 

AMENDMENT: An amendment offered by Ms. Capps, No.4, to alter the bill's requirement that any 

greenhouse standards established under section 111 of the Clean Air Act (42 U.S.C. 7411) 

for new coal-fired electric generating units be demonstrated to be achievable at plants in the 

United States, and would allow the agency to base such standards on demonstration of the 

technologies by electric generating units located outside the United States. 

DISPOSITION: NOT AGREED TO, by a roll call vote of 18 yeas and 26 nays 

Mr. Upton X Mr. Waxman X 

Mr.Hall X Mr. Dingell X 

Mr. Barton X Mr. Pallone X 

Mr. Whitfield X Mr. Rush 

Mr. Shimkus Ms. Eshoo 

Pitts X Mr. Engel 

Mr. Walden X Mr. Green X 

Mr. Terry X Ms. DeGette X 

Mr. Rogers Mrs. Capps X 

Mr. Murphy X Mr. Doyle X 

Mr. Burgess X Ms. Schakowsky X 

Mrs. Blackburn X Mr. Matheson X 

Mr. Gingrey X Mr. Butterfield X 

Mr. Scalise X Mr. Barrow X 

Mr. Latta X Ms. Matsui X 

Mrs. McMorris Rodgers Ms. Christensen 

Mr. Harper X Ms. Castor X 

Mr. Lance X Mr. Sarhanes X 

Mr. Cassidy Mr. McNerney X 

Mr. Guthrie X Mr. Braley X 

Mr. Olson X Mr. Welch X 

Mr. McKinley X Mr. Lujan X 

Mr. Gardner X Mr. Tonko X 

Mr. Pompeo X Mr. Yarmuth X 

Mr. Kinzinger X 

Mr.Griffith X 

Mr. Bilirakis 

Mr. Johnson X 

Mr. Long X 

I •• 

Oll28/2014 
17 


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COMMITTEE ON ENERGY AND COMMERCE - 1 13TH CONGRESS 

ROLL CALL VOTE # 36 

BILL: H.R. 3826, the "Energy Security and Affordability Act" 

AMENDMENT: A motion by Mr. Upton to order H.R. 3826 favorably reported to the House, as amended. 

(Final Passage) 

DISPOSITION: AGREED TO, by a roll call vote of29 yeas and 19 nays 

REPRESENTA TlVE 

Mr. Upton X Mr. Waxman X 

Mr.Hall X Mr.Dingell X 

Mr. Barton X Mr. Pallone X 

Mr. Whitfield X Mr. Rush 

Mr. Shimkus Ms. Eshoo 

Mr.Pitts X Mr. Engel X 

Mr. Walden X Mr. Green X 

Mr. Terry X Ms. DeGette X 

Mr. Rogers Mrs. Capps X 

Mr. Murphy X Mr.Doyle X 

Mr. Burgess X Ms. Schakowsky X 

Mrs. Blackburn X Mr. Matheson X 

Mr. Gingrey X Mr. Butterfield X 

Mr. Scalise X Mr. Barrow X 

Mr.Latta X Ms. Matsui X 

Mrs. McMorris Rodgers X Ms. Christensen 

Mr. Harper X Ms. Castor X 

Mr. Lance X Mr. Sarbanes X 

Mr. Cassidy Mr. McNerney X 

Mr. Guthrie X Mr. Braley X 

Mr. Olson X Mr. Welch X 

Mr. McKinley X Mr. Lujan X 

Mr. Gardner X Mr. Tonko X 

Mr. Pompeo X Mr. Yarrnuth X 

Mr. Kinzinger X 

Mr.Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

Ol/28/2014 
18 

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. 3826 provides direction to EPA regarding the agency’s pending GHG regulations for power plant rules to ensure continued access to diverse, reliable, and affordable electricity supplies in the 

United States. 

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. 3826 

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. 3826 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, February 12, 2014. 

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. 3826, the Electricity Security and Affordability Act. 

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

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

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 3826—Electricity Security and Affordability Act 

Summary: On January 8, 2014, the Environmental Protection 

Agency (EPA) published a proposed rule that would establish uniVerDate Mar 15 2010 07:16 Mar 04, 2014 Jkt 039006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR365.XXX HR365

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form national limits on greenhouse gas (GHG) emissions from new 

electricity-generating facilities that use coal or natural gas. The 

rule also sets new standards of performance for those power plants, 

including the requirement to install carbon capture and sequestration technology. H.R. 3826 would repeal this pending rule and 

place new requirements on any future regulations addressing GHG 

emissions from new or existing power plants. CBO estimates that implementing this legislation would cost $2 

million over the 2015–2019 period, subject to the availability of appropriated funds. Enacting H.R. 3826 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 3826 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would not affect the budgets of state, local, or tribal governments. 

Estimated cost to the Federal Government: CBO estimates that 

implementing H.R. 3826 would cost $2 million over the next five 

years. The costs of this legislation fall within budget function 300 

(natural resources and environment). 

Basis of estimate: For this estimate, CBO assumes that H.R. 

3826 will be enacted by the end of 2014 and that the necessary 

amounts to implement the legislation will be appropriated. Under 

the bill, CBO expects that EPA would need two years to develop 

new regulations—using requirements specified in H.R. 3826—for 

GHG emissions from new power plants. Based on the cost of developing the regulations published in January 2014, CBO estimates 

that work would cost $4 million. We also estimate that implementing and enforcing the new rule would cost $3 million over the 

2017–2019 period. However, because we expect EPA will spend 

about $5 million over the same period under current law to implement and enforce the rule published in January 2014, the net additional cost of implementing H.R. 3826 would total about $2 million 

over the next five years. 

Pay-As-You-Go considerations: None. 

Intergovernmental and private-sector impact: H.R. 3826 contains 

no intergovernmental or private-sector mandates as defined in 

UMRA. 

Estimate prepared by: Federal costs: Susanne S. Mehlman; Impact on state, local, and tribal governments: Lisa Ramirez-Branum; 

Impact on the private sector: Amy Petz. 

Estimate approved by: Theresa Gullo, Deputy 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. 3826 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. 3826 specifically directs to be completed no specific rulemakings within the meaning 

of 5 U.S.C. 551. 

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: This section provides the short title of ‘‘Electricity Security and Affordability Act.’’ 

Section 2: This section provides direction relating to the establishment of standards for new fossil fuel-fired electricity generating 

units (EGUs). 

Section 2(a) provides that the EPA Administrator may not issue, 

implement, or enforce any proposed or final rule under section 111 

of the CAA that establishes GHG emissions standards for new fossil fuel-fired EGUs unless the Administrator meets the requirements of subsections (b) and (c). 

Section 2(b) provides that the Administrator must establish separate source categories for new EGUs fueled with coal and natural 

gas. This section provides that for the coal category, the EPA Administrator may not set a standard unless it has been achieved for 

a continuous 12-month period by at least 6 EGUs located at different power plants in the U.S., which collectively are representative of the operating characteristics of EGUs at different locations 

in the U.S., and which have operated for the entire 12-month period on a full commercial basis. 

Section 2(c) further provides for the coal category that the Administrator must establish a subcategory for new EGUs fueled by 

lignite coal, and may not set a standard for that subcategory unless 

it has been achieved for a continuous 12-month period by at least 

3 EGUs located at different power plants in the U.S., which collectively are representative of the operating characteristics of EGUs 

at different locations in the U.S., and which have operated for the 

entire 12-month period on a full commercial basis. 

Sections 2(b) and (c) also provide that in establishing standards 

for the coal category, the Administrator may not set the standards 

based on results from a demonstration project. 

Section 3: This section provides that any rules or guidelines 

issued by the Administrator establishing standards of performance 

under CAA section 111 for modified or reconstructed fossil fuelfired EGUs, or guidelines for existing fossil fuel-fired EGUs, will 

not take effect unless a Federal law is enacted specifying such 

rule’s or guidelines’ effective date. The section further provides that 

such rules or guidelines may not take effect unless the Administrator has submitted to Congress a report containing (1) the text 


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of such rule or guidelines; (2) the economic impacts of such rule or 

guidelines, including potential effects on economic growth, competitiveness and jobs, and on electricity ratepayers; and (3) the amount 

of GHG emissions that such rule or guidelines are projected to reduce as compared to overall GHG emissions. 

Section 4: This section provides that the EPA’s proposed standards for new fossil fuel-fired EGUs, and any substantially similar 

rules that do not meet the requirements of section 2 of this Act, 

are of no force and effect. The section further provides that any 

rules or guidelines for modified, reconstructed, or existing fossil 

fuel-fired EGUs promulgated prior to enactment of the Act are also 

of no force and effect. 

Section 5: This section contains the following definitions: 

(1) ‘‘Demonstration project’’ means a project to test or demonstrate the feasibility of carbon capture and storage technologies 

that has received government funding or financial assistance. 

(2) ‘‘Existing source’’ has the meaning given such term in CAA 

section 111(a), except that such term shall not include any modified 

source. 

(3) ‘‘Greenhouse gas’’ means any of the following: carbon dioxide, 

methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, or 

perfluorocarbons. 

(4) ‘‘Modification’’ has the meaning given such term in CAA section 111(a). 

(5) ‘‘Modified source’’ means any stationary source, the modification of which is commenced after the date of enactment of the Act. 

(6) ‘‘New source’’ has the meaning given such term in CAA section 111(a), except that such term shall not include any modified 

source. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal statute. 


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1 Executive Office of the President, The President’s Climate Action Plan (Jun. 2013) (online 

at www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf). 2 Id. at 6. 3President Barack Obama, Presidential Memorandum—Power Sector Carbon Pollution Standards (Jun. 25, 2013) (online at www.whitehouse.gov/the-press-office/2013/06/25/presidentialmemorandum-power-sector-carbon-pollution-standards). 4 Id. 

5 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) (hereinafter GHG Performance Standards NPRM) (online at 

www.gpo.gov/fdsys/pkg/FR–2014–01–08/pdf/2013–28668.pdf). 6 U.S. Environmental Protection Agency, Carbon Pollution Standards; Public Listening Sessions (online at www2.epa.gov/carbon-pollution-standards/public-listening-sessions). 7 U.S. Environmental Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and 

Sinks: 1990–2011 (Apr. 12, 2013) (online at www.epa.gov/climatechange/Downloads/ 

ghgemissions/US-GHG-Inventory–2013–Main-Text.pdf). 8 Id. 

DISSENTING VIEWS 

I. SUMMARY

On June 25, 2013, President Obama announced a Climate Action 

Plan to cut carbon pollution and prepare for the effects of climate 

change.1 In that Plan, he directed the Environmental Protection 

Agency (EPA) to use its existing authority under the Clean Air Act 

to control carbon pollution from new and existing fossil fuel-fired 

power plants.2 President Obama simultaneously issued a Presidential Memorandum on Power Sector Carbon Pollution Standards 

providing more detailed direction to EPA, including deadlines.3 The 

memorandum 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 states to submit plans for regulating existing plants.4 On 

September 20, 2013, EPA issued proposed carbon pollution standards for new coal- and natural gas-fired power plants.5 EPA has 

held listening sessions across the country to discuss its forthcoming 

proposal for existing plants.6

H.R. 3826 would block EPA’s proposed carbon pollution standards for both new and existing coal-fired power plants, which are 

the largest stationary sources of carbon pollution in the country.7

Existing coal plants alone account for roughly one-third of the nation’s carbon dioxide emissions.8 Thus, blocking EPA’s standards 

would significantly impair efforts to address climate change. Supporters of this bill claim that this bill is needed to ensure that 

EPA’s standards for coal are achievable. But in reality, this bill 

would prevent EPA from addressing carbon pollution from coal regardless of the availability of effective pollution controls. 

This bill would set conditions for EPA’s regulation of new coalfired power plants that will never be met, ensuring that carbon pollution from these plants remains uncontrolled. Under this bill, EPA 

would only be permitted to set standards for new coal plants if the 

power sector first voluntarily broadly adopts the pollution controls 


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needed to comply with these standards, without any government 

mandate, funding, or financial assistance. This simply will not 

occur. Economists view pollution as a classic ‘‘market failure,’’ in 

which every firm has an incentive to pollute, even though the combined effects of such pollution make society as a whole worse off. 

Controlling pollution reduces firms’ profits, or at best diverts resources that otherwise could be more profitably deployed. Thus, 

competitive firms do not generally control their pollution absent 

non-market incentives, such as government regulation or financial 

assistance. There is no reason to believe that this situation is different when it comes to carbon pollution. 

Supporters of this bill argue that the bill’s extreme restrictions 

on EPA’s standard-setting authority are needed because EPA’s proposed standard for new coal-fired power plants would require use 

of partial carbon capture and sequestration (CCS) technology, 

which they claim is unavailable. This claim is false. EPA’s proposed 

standard is based on a wealth of evidence that partial CCS is available, feasible, has been used commercially for decades, and is 

scheduled to come online in full-scale commercial applications at 

coal-fired power plants in the United States and abroad in 2014. 

Moreover, EPA’s proposal is consistent with the requirements of 

the Clean Air Act and with decades of agency practice and judicial 

precedent on issues ranging from smog to acid rain. 

This bill would also ensure that carbon pollution from existing 

coal-fired power plants remains uncontrolled by requiring that Congress pass a new federal law before EPA can address these emissions. This has the effect of revoking EPA’s existing authority to 

act. Moreover, EPA has not yet issued a proposed standard for existing coal plants, and EPA has been engaging in extensive stakeholder outreach to determine the best way forward. Nevertheless, 

this bill would end EPA’s efforts without even knowing what EPA 

may propose. 

In committee, Democratic members offered amendments, among 

others, to delay this bill’s effect until another federal program could 

be identified to reduce carbon pollution, to allow EPA’s proposed 

new coal plant standards to move forward, but with federal funding 

to help utilities install CCS, and to modify provisions of this bill 

that would prevent EPA from setting standards based on available 

pollution controls. The majority rejected each of these amendments. 

In a party line vote, Republican members even rejected an amendment that simply acknowledged the scientific fact that 

‘‘[g]reenhouse gas (GHG) pollution threatens the American public’s 

health and welfare by contributing to long-lasting changes in our 

climate that can have a range of negative effects on human health 

and the environment.’’ No Democratic members voted to deny this 

climate science. 

In sum, H.R. 3826 is a radical rewrite of the Clean Air Act, and 

represents a significant step backward in addressing climate 

change. The following sections provide additional background on 

EPA’s Clean Air Act authority, EPA’s proposed standards for new 

and existing coal-fired power plants, and the specific provisions of 

and numerous problems with this bill. 


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9 Clean Air Act § 111(b). 

10 U.S. Environmental Protection Agency, GHG Performance Standards NPRM. 11 Id. at 1462. 12Senate Committee on Public Works, National Air Quality Standards Act of 1970, at 17, 91st 

Cong. (Sept. 17, 1970) (S. Rept. 91–1196). 13Senate Committee on Environment and Public Works, Clean Air Amendments of 1977, at 

17, 95th Cong. (May 10, 1977) (S. Rept. 95–127). 14Sierra Club v. Costle, 657 F.2d 298, 346 (D.C. Cir. 1981). 

II. EXISTING EPA AUTHORITY AND ACTIONS ON POWER PLANT

EMISSIONS OF CARBON POLLUTION

President Obama’s June 25, 2013, memorandum directs EPA to 

use the agency’s existing authority under section 111 of the Clean 

Air Act to control carbon pollution from both new and existing fossil-fuel fired power plants. EPA’s September 20, 2013, proposal for 

new coal- and natural gas-fired power plants and its forthcoming 

proposal for existing fossil fuel-fired power plants responds to the 

President’s directive and to the direction and requirements of section 111. 

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. Section 111(b) requires these standards to ‘‘reflect the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of 

achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.’’ 9 Over the long history of this provision, which has been part of the Clean Air Act in 

various forms since 1970, the D.C. Circuit has provided guidance 

to EPA on how to interpret and implement this directive.10 The key 

considerations for setting a section 111(b) standard are technical 

feasibility, quantity of emissions reductions, costs that are reasonable (i.e., not exorbitant), and advancing pollution-control technology.11

The advancement of pollution-control technology is intended to 

force the adoption of new, innovative, and more effective technologies, and not simply those technologies that have already been 

widely adopted. This intent is clearly stated both in the requirement for ‘‘best system of emission reduction’’ and in the legislative 

history. For example, the Senate Committee Reports for the 1970 

and 1977 Clean Air Act Amendments explain that new source performance standards ‘‘should provide an incentive for industries to 

work toward constant improvement’’ 12 and ‘‘stimulate the development of new and better technology.’’ 13 In interpreting this mandate, the D.C. Circuit has noted that the statute ‘‘embraces . . . 

technological innovation.’’ 14

In addition, section 111(d) requires EPA to issue rules to direct 

states to reduce pollution from existing sources that would have 

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

with respect to air pollutants that are neither covered by a National Ambient Air Quality Standard (NAAQS) or listed as a hazardous air pollutant under section 112 (i.e., that are not otherwise 

regulated). Section 111(d) provides that the state regulations for 

existing sources are required under a procedure analogous to the 


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15 Clean Air Act § 110(a)(2)(A). 16 U.S. Environmental Protection Agency, GHG Performance Standards NPRM. Note that 

EPA had issued a previous proposal to set carbon pollution performance standards for these 

sources in April 2012, but decided to withdraw that proposal and re-propose in this notice. 17 Id. at 1436. 18 Id. at 1467–1485. 19 Id. The majority claims that EPA’s proposal violates provisions in the Energy Policy Act 

of 2005 that bar EPA from consId.ering the use of technology at a facility that received federal 

financial assistance under that Act to determine whether the technology is ‘‘adequately demonstrated’’ for the purposes of Clean Air Act section 111. Letter from Chairman Upton and 

Chairman Whitfield to U.S. Environmental Protection Agency Administrator McCarthy (Nov. 15, 

2013) (online at energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/letters/20131115EPA.pdf). These claims are based on an erroneous interpretation of the provisions, 

which prohibit EPA from making a section 111 determination based solely on the use of technology at a federally funded demonstration project, but do not preclude all use of such information as supporting evidence, as well as a misreading of EPA’s proposal, which cites extensive 

other evidence supporting the proposed finding. See, e.g., Environmental Defense Fund, The 

Strong Legal Foundation for the Carbon Pollution Standards for New Power Plants: A Response 

Continued 

requirements for State Implementation Plans (SIPs) under section 

110. The SIP provisions explicitly allow state plans to include ‘‘economic incentives such as fees, marketable permits, and auctions of 

emissions rights.’’ 15 Thus, states have considerable flexibility to design their own standards, subject to the overall pollution reduction 

goals for these sources established by EPA by rule. EPA can step 

in and regulate existing sources directly if a state fails to develop 

and enforce adequate requirements. 

B. EPA’s proposed rule for new sources 

1. Proposed standards of performance 

EPA has proposed to set standards of performance for carbon 

dioxId.e (CO2) emissions from new coal-fired power plants based on 

a finding that technology to partially capture carbon emissions 

from these plants is the ‘‘best system of emission reduction . . . adequately demonstrated.’’ 16 Specifically, EPA proposes to allow new 

coal-fired units to meet either a limit of 1,100 pounds of CO2 per 

megawatt hour (lbs CO2/MWh), if met over a 12-month period, or 

1,000–1,050 lbs CO2/MWh, if met over a more flexible 84-month 

(seven-year) period. EPA also proposes to set standards for natural 

gas-fired units based on the emission reductions achieved by natural gas combined cycle units of 1,000 lbs CO2/MWh for larger 

units. To meet the 1,100 lbs CO2/MWh standard for new coal-fired 

units, power plant operators will need to install partial carbon capture and sequestration (CCS) technology sufficient to reduce CO2

emissions by 30% to 50% below units without CCS.17

EPA’s proposal finds that partial CCS is the best system of emission reduction because it is technically feasible, achieves significant 

CO2 reductions, provides an incentive for technological innovation, 

and has reasonable costs, which means that the costs can be accommodated by the industry.18 The proposal relies upon extensive 

technical information including findings of the 2010 Interagency 

Task Force on CCS, which was established by President Obama, 

studies and reports from the Department of Energy national laboratories, particularly the National Energy Technology Laboratory, 

which focuses on fossil fuel technologies, and results from demonstration projects and full-scale CCS projects that are in operation 

or under construction or development at power plants and other industrial facilities.19


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to the House Energy and Commerce Committee’s Letter on the Energy Policy Act of 2005 and 

Carbon Capture and Storage Technology (Dec. 5, 2013) (online at blogs.edf.org/climate411/files/ 

2013/12/Response-to-House-Committee-Letter-on-EPAct.pdf). 20 U.S. Environmental Protection Agency, GHG Performance Standards NPRM, at 1496. 21 Id. at 1475. 22 Id. at 1475–1477. 23 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, statement of Dr. Julio Friedmann, Deputy Assistant Secretary for Clean Coal, U.S. Department of Energy, Hearing on Department of Energy Oversight: Status of Clean Coal Programs, 113th Cong. (Feb. 11, 2014). 24 Id. 

With respect to costs, EPA notes several key points. First, very 

few new coal-fired units are projected to be constructed in the future due to higher costs than natural gas-fired units and some renewable energy resources, as well as uncertainty regarding future 

regulations to address carbon pollution. Thus, the rule is projected 

to impose no notable compliance costs.20 The few new coal-fired 

projects that are currently being considered or constructed have 

substantially higher per-kilowatt electricity costs than natural gasfired units, but some utilities may prefer coal based on considerations of energy and fuel diversity, as well as concerns about future 

higher natural gas prices.21 Second, there is substantial potential 

to use the captured CO2 for enhanced oil recovery (EOR), which 

considerably lowers the costs. Third, requiring partial CCS instead 

of full CCS, which would require capture rates of around 90%, further substantially lowers costs. And finally, based on the projected 

costs of the electricity produced, partial CCS is competitive with 

new nuclear power and biomass power, even without EOR.22

In this report, the majority cites to testimony from Dr. Julio 

Friedmann, Deputy Assistant Secretary for Clean Coal, U.S. Department of Energy (DOE), at a February 11, 2014, hearing before 

the Subcommittee on Oversight and Investigations, stating that the 

cost of first generation CCS technology ‘‘looks something like a 70 

or 80 percent increase on the wholesale price of electricity.’’ 23 Dr. 

Friedman further stated that actual retail costs for consumers will 

vary by market, and he explained that the percentage increase is 

substantial because the current price of coal is so low, such that 

even a small numeric increase represents a substantial percentage 

of the small initial number. In addition, he noted that this estimate 

is for full capture and costs are ‘‘much less’’ for partial capture 

(which is what EPA has proposed to require). Finally, he pointed 

out that companies can sell CO2 for enhanced oil recovery, which 

can recover almost half of these costs, and that costs are expected 

to drop by half for second generation technology.24

At the November 14, 2013, Energy and Power Subcommittee 

hearing, Dr. Sue Tierney, Managing Principal of The Analysis 

Group, testified that uncertainty in carbon regulation has made 

new investments in coal-fired power plants risky, while simultaneously making it difficult for utilities to gain regulatory approval 

for the CCS projects needed to reduce their carbon pollution. She 

testified that EPA’s proposed performance standards for new coalfired power plants are needed to provide regulatory certainty for 

coal and CCS to move forward and that EPA’s proposed standards 

will create ‘‘a positive investment environment at a time when the 


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25 House Committee on Energy and Commerce, Subcommittee on Energy and Power, statement of Dr. Sue Tierney, Managing Principal, The Analysis Group, Hearing on EPA’s Proposed 

GHG Standards for New Power Plants and H.R.ll, Whitfield-Manchin Legislation, 113th 

Cong. (Nov. 14, 2013). 26 U.S. Environmental Protection Agency, GHG Performance Standards NPRM, at 1471–1472. 27 Id. at 1472. 28 Id. at 1472–1474. 29 Id. at 1472. 30 Id. at 1473. 31 Id. 32 Id. at 1472. 33 Id. at 1472–1473, 1475. 34 Id. at 1474–1475. 35 Id. at 1475. 36 Id. at 1435, 1475, 1479. 

nation stands to spend up to a trillion dollars on new generating 

capacity in parts of the country.’’ 25

2. Status of CCS technology 

In the proposed rule, EPA notes that each step of the CCS process—CO2 capture, compression and transportation, and storage—is 

feasible and has been demonstrated. Technologies to capture CO2

from industrial gas streams have been around since the 1930s, and 

the technologies needed to capture CO2 from coal-fired power generation are all technologically feasible.26 The U.S. has transported 

CO2 by pipeline for nearly 40 years and currently has 3,600 miles 

of existing pipelines that transport more than 50 million metric 

tons of CO2 per year.27 CO2 storage, too, is both technologically feasible and demonstrated.28 EPA cites research that 95% of the 500 

largest CO2 point sources in the U.S. are within 50 miles of a possible geological storage site,29 while the U.S. Geological Survey recently estimated that the U.S. could store 500 times the country’s 

annual energy-related CO2 emissions underground.30 CO2 has been 

injected underground for more than 40 years in the U.S. for the 

purpose of EOR,31 including EOR activities in the Permian Basin 

from 1972 to 2005 that resulted in net storage of 55 million metric 

tons of CO2 underground.32 CO2 storage has also been demonstrated at non-EOR sites.33

In the power sector, CCS has been demonstrated at pilot-scale at 

coal-fired power plants in the U.S. and abroad, including American 

Electric Power’s Mountaineer Plant in West Virginia and Southern 

Company’s Alabama Power Plant Barry.34 These technologies are 

now being brought to commercial-scale. The first commercial-scale 

coal-fired CCS projects in North America are expected to begin operating in 2014, and include Southern Company’s 582 MW IGCC 

Kemper County Energy Facility in Mississippi, which will capture 

65% of its CO2 emissions for EOR, and SaskPower’s 110 MW 

Boundary Dam Project in Saskatchewan, Canada, which will capture 90% of its CO2 emissions.35 Other commercial-scale CCS 

projects being developed in the U.S. include the 400 MW IGCC 

Texas Clean Energy Project, the 300 MW IGCC Hydrogen Energy 

California project, and the Future Gen 2.0 project in Illinois.36

At a February 11, 2014 hearing before the Subcommittee on 

Oversight and Investigations, Dr. Julio Friedmann stated unambiguously: ‘‘this first generation CCS technology is commercially available today. You can call up a number of U.S. and international 

manufacturers, and they will sell you a unit at a large scale for 


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37 House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, statement of Dr. Julio Friedmann, Deputy Assistant Secretary for Clean Coal, U.S. Department of Energy, Hearing on Department of Energy Oversight: Status of Clean Coal Programs, 113th Cong. (Feb. 11, 2014). 38 CAL. CODE REGS. tit. 20 2902 (2007); OR. REV. STAT. 757.524 (2009). 39 N.Y. COMP. CODES R. & REGS. tit. 6, 251.3; WASH. REV. CODE 80.80.040 (2011); WASH. ADMIN. CODE 194–26–020 (2013). 40MONT. CODE ANN. 69–8–421(8) (2007). 41 Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations (Canadian Environmental Protection Act) SOR/2012–167 (Can.) (online at 

www.gazette.gc.ca/rp-pr/p2/2012/2012–09–12/html/sor-dors167–eng.html#archived). 42 Energy Act, 2013, c. 32, 57 (U.K.) (online at legislation.gov.uk/ukpga/2013/32/pdfs/ 

ukpga—20130032—en.pdf). 43President Barack Obama, Presidential Memorandum—Power Sector Carbon Pollution 

Standards (Jun. 25, 2013) (online at www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards). 44 Id. 45 U.S. Environmental Protection Agency, Carbon Pollution Standards; Public Listening Sessions (online at www2.epa.gov/carbon-pollution-standards/public-listening-sessions). 

capture of more than a million tons per year.’’ 37 He added that a 

number of these companies now offer performance guarantees. 

3. Similar regulatory requirements in states and other countries 

EPA’s proposed CO2 standards for new power plants are similar 

to standards already adopted by the states of California, Oregon, 

Montana, New York, and Washington. California and Oregon require new coal-fired power plants to meet a 1,100 lbs CO2/MWh 

emission standard,38 the same level EPA proposes. New York and 

Washington limit power plant emissions to 925 and 970 lbs CO2/ 

MWh, respectively, which will require new coal-fired power plants 

to capture and store even more of their CO2 than under EPA’s proposal.39 Finally, Montana has adopted a standard requiring new 

coal-fired power plants to capture and store at least 50% of their 

CO2 emissions, similar to EPA’s proposed standard.40

EPA’s proposed standards are also consistent with efforts in 

other countries. Canada has adopted an emission standard of 926 

lbs CO2/MWh for new coal-fired power plants,41 while the United 

Kingdom has adopted an emission standard of 992 lbs CO2/MWh 

for all new fossil fuel-fired power plants.42 Both standards will require new coal plants to use partial CCS. 

C. EPA’s upcoming proposal on existing sources 

President Obama’s June 25, 2013, memorandum directed EPA to 

launch the effort to develop carbon pollution requirements for existing power plants ‘‘through direct engagement with States, . . . 

leaders in the power sector, labor leaders, non-governmental organizations, other experts, tribal officials, other stakeholders, and 

members of the public.’’ 43 The memorandum also directed EPA to 

tailor the requirements to reduce costs and encourage the use of 

market-based instruments, performance standards, and other regulatory flexibilities.44

EPA is in the process of developing a proposal for existing power 

plants to meet the President’s June 2014 deadline. In October and 

November of 2013, EPA held eleven listening sessions across the 

country, which took place at each EPA regional office and EPA 

headquarters.45 The purpose was ‘‘to solicit ideas and input from 

the public and stakeholders about the best Clean Air Act apVerDate Mar 15 2010 07:16 Mar 04, 2014 Jkt 039006 PO 00000 Frm 00028 Fmt 6604 Sfmt 6602 E:\HR\OC\HR365.XXX HR365

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46 Id. 

proaches to reducing carbon pollution from existing power 

plants.’’ 46

III. SECTION-BY-SECTION ANALYSIS OF H.R. 3826

H.R. 3826, as reported by the majority, would effectively eliminate EPA’s existing Clean Air Act section 111 authority with respect to coal-fired power plants. 

A. Section 2 

Section 2 of this bill prohibits the EPA Administrator from 

issuing, implementing, or enforcing any rule under section 111 of 

the Clean Air Act establishing greenhouse gas (GHG) emission 

standards for new fossil fuel-fired electric utility generating units 

unless specified conditions are met. EPA must set separate standards for coal and natural gas units and for units burning lignite 

coal. Additionally, no standard may be established for new coalfired units unless the standard has already been achieved for 

twelve continuous months by at least six U.S. generating units, 

which are located at different generating stations, collectively represent the operating characteristics of electric generation at different locations in the U.S., and are each operated for the entire 

12-month period on a commercial basis. Section 2 establishes the 

same emissions standard requirements for new units burning lignite coal, but requires that the standard has been met by three 

U.S. generating units rather than the six required for non-lignite 

coal. 

In establishing emission standards for lignite and non-lignite 

coal-fired units, section 2 prohibits the EPA Administrator from relying on the results of demonstration projects. Section 5 of this bill 

defines a demonstration project as any ‘‘project to test or demonstrate the feasibility of carbon capture and storage technologies 

that has received government funding or financial assistance.’’ The 

term ‘‘government funding or financial assistance’’ is not further 

defined. 

During the full committee markup, Representative John Yarmuth introduced an amendment to strike and replace section 2 

with a federal funding mechanism that would allow EPA’s proposed new source standards to move forward, but help offset utilities’ CCS costs. This amendment was defeated by a vote of 16 to 

30. Representative Lois Capps introduced an amendment during 

the full committee markup to allow EPA to count pollution control 

technologies used in other countries toward the 6-unit and 3-unit 

requirements for coal and lignite coal. This amendment was defeated by a vote of 18 to 26. Representative Jerry McNerney introduced an amendment during the full committee markup to strike 

the clauses prohibiting EPA from considering demonstration 

projects. This amendment was defeated on a voice vote. 

B. Section 3 

Section 3 of this bill prevents EPA from establishing any GHG 

emission standard for modified, reconstructed, or existing fossil 


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47 House Committee on Energy and Commerce, Subcommittee on Energy and Power, statement of David Hawkins, Director of Climate Programs, Natural Resources Defense Council, 

Hearing on EPA’s Proposed GHG Standards for New Power Plants and H.R.ll, WhitfieldManchin Legislation, 113th Cong. (Nov. 14, 2013). 

fuel-fired generating units unless Congress passes a new federal 

law to implement the standard. 

C. Section 4 

Section 4 of this bill nullifies all proposed or final EPA rules and 

guidelines issued prior to enactment of this bill that propose or set 

GHG emissions standards for fossil fuel-fired generating units. 

Ranking Member Henry Waxman introduced an amendment in 

the subcommittee and full committee markups to provide that this 

bill would only take effect once another Federal program, other 

than section 111 of the Clean Air Act, has been identified that will 

reduce carbon pollution in at least equivalent quantities and with 

similar timing to the reductions required under the EPA rules and 

guidelines nullified under section 4. This amendment was defeated 

in full committee by a vote of 18 to 28. Representative Jan Schakowsky introduced an amendment in full committee markup that 

would have made no changes to this bill other than to accept EPA’s 

scientific finding under the proposed new source rule that 

‘‘[g]reenhouse gas (GHG) pollution threatens the American public’s 

health and welfare by contributing to long-lasting changes in our 

climate that can have a range of negative effects on human health 

and the environment.’’ This amendment was defeated in full committee on a party line vote of 20 to 24. All Republican members 

present during the vote rejected this scientific statement by voting 

against the amendment. All Democratic members present voted to 

accept the science and the amendment. 

IV. POTENTIAL IMPACT OF H.R. 3826

This bill raises several major issues, and would effectively prevent EPA from requiring coal-fired power plants to control carbon 

pollution to any significant degree under existing law. At the November 14, 2013, Energy and Power Subcommittee hearing on this 

bill, David Hawkins, Director of Climate Programs at the Natural 

Resources Defense Council, testified that this bill would ‘‘render 

useless’’ the Clean Air Act provisions needed to curb carbon pollution from fossil fuel-fired power plants, the nation’s largest source 

of this pollution.47

A. This bill sets conditions for regulating new coal-fired power 

plants that will never be met, ensuring that carbon pollution remains uncontrolled 

This bill would reverse decades of Clean Air Act precedent and 

practice by barring EPA from requiring new coal-fired power plants 

to install pollution controls unless such controls have already been 

broadly adopted by the power sector without any government financial assistance in any form. The bill turns the rationale for government regulation of pollution on its head. Economists view pollution as a classic ‘‘market failure,’’ in which every firm has an incentive to pollute, even though the combined effects of such pollution 

make society as a whole worse off. Controlling pollution reduces 


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48 House Committee on Energy and Commerce, Subcommittee on Energy and Power, statement of Janet McCabe, Acting Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, Hearing on EPA’s Proposed GHG Standards for New Power Plants 

and H.R.ll, Whitfield-Manchin Legislation, 113th Cong. (Nov. 14, 2013). 

firms’ profits, or at best diverts resources that otherwise could be 

more profitably deployed. Thus, as a general matter, competitive 

firms do not control their pollution absent non-market incentives, 

such as government regulation or financial assistance. 

And yet this bill would bar EPA from establishing a standard for 

carbon pollution from coal-fired power plants until such standard 

has been met voluntarily, without any EPA mandate, by at least 

six plants, which represent ‘‘the operating characteristics of electric 

generation at different locations in the United States.’’ This bill 

would further bar EPA from setting any standard for lignite coalfired plants that has not already been met voluntarily by at least 

three U.S. plants. Furthermore, none of these three or six plants 

can have ‘‘received government funding or financial assistance,’’ a 

phrase so broad that it may well preclude plants that receive local 

tax breaks or take advantage of any federal tax incentives for 

things such as interest deductions, accelerated depreciation, and 

tax-exempt financing. With these restrictions, it is highly unlikely 

that a standard requiring substantial reductions in carbon pollution from new coal-fired power plants could ever be adopted by 

EPA under this bill. In fact, it appears that EPA could not even 

require new coal plants to control pollution to the levels achieved 

by the state of the art conventional coal-fired power plants, termed 

‘‘ultra-supercritical’’ plants. This technology is now commonly used 

in China, but there is only one ultra-supercritical plant in the 

United States. 

B. This bill also ensures that carbon pollution from existing coalfired power plants will remain uncontrolled by requiring enactment of a new federal law before EPA can address these emissions 

For existing coal-fired power plants, this bill’s requirement that 

a new federal law be enacted before any carbon pollution standard 

can become effective, as a practical matter, blocks the adoption of 

any such standard under existing law. 

EPA Acting Assistant Administrator Janet McCabe testified at 

the November 14, 2013, Energy and Power Subcommittee hearing 

that this bill’s requirements are contrary to the longstanding Clean 

Air Act approach used to require industry to adopt new pollution 

controls such as scrubbers, which have improved public health for 

millions of Americans and were not in widespread use before EPA 

required them. She further testified that this bill would not provide 

an effective and workable approach to regulating carbon pollution 

from coal-fired power plants.48


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For the reasons stated above, we dissent from the views contained in the Committee’s report. 

Sincerely, 

HENRY A. WAXMAN, Ranking Member. 

BOBBY L. RUSH, Ranking Member, Subcommittee on Energy and 

Power. 

Æ 


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