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95–538 2016

EPA’S PROPOSED 111(d) RULE FOR EXISTING 

POWER PLANTS: LEGAL AND COST ISSUES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 17, 2015 

Serial No. 114–20 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

(III) 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

PETE OLSON, Texas 

Vice Chairman 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Vice Chairman 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

BILL FLORES, Texas 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JERRY MCNERNEY, California 

PAUL TONKO, New York 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

DAVID LOEBSACK, Iowa 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(V) 

C O N T E N T S 

Page 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Jerry McNerney, a Representative in Congress from the State of California, opening statement .................................................................................... 3 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 5 

Prepared statement .......................................................................................... 6 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 6 

WITNESSES

Laurence H. Tribe, Carl M. Loeb University Professor and Professor Constitutional Law, Harvard Law School ........................................................................ 8 

Prepared statement 1 ........................................................................................ 9 

Allison D. Wood, Partner, Hunton and Williams, LLP ........................................ 10 

Prepared statement .......................................................................................... 12 

Answers to submitted questions ...................................................................... 195 

Richard L. Revesz, Lawrence King Professor of Law, Dean Emeritus, Director, 

Institute for Policy Integrity, New York University School of Law ................. 34 

Prepared statement .......................................................................................... 36 

Craig Butler, Director, Ohio Environmental Protection Agency ......................... 84 

Prepared statement .......................................................................................... 87 

Kelly Speakes-Backman, Commissioner, Maryland Public Service Commission, and Chair, Board of Directors, Regional Greenhouse Gas Initiative, 

Inc. ......................................................................................................................... 101 

Prepared statement .......................................................................................... 103 

Art Graham, Chairman, Florida Public Service Commission .............................. 111 

Prepared statement .......................................................................................... 113 

Donald Van Der Vaart, Secretary, North Carolina Department of Environment and Natural Resources ............................................................................... 130 

Prepared statement .......................................................................................... 132 

SUBMITTED MATERIAL

Comments on EPA Proposed Rule from the Florida Public Service Commission, December 1, 2014 ........................................................................................ 156 

Comments on EPA Proposed Rule from the Florida Office of Public Counsel, 

November 30, 2014 .............................................................................................. 179 

1 Available at: http://docs.house.gov/meetings/if/if03/20150317/103073/ 

hhrg-114-if03-wstate-tribel-20150317-u1.pdf. 

(1) 

EPA’S PROPOSED 111(d) RULE FOR EXISTING 

POWER PLANTS: LEGAL AND COST ISSUES 

TUESDAY, MARCH 17, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENERGY AND POWER, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:00 a.m., in room 

2123 of the Rayburn House Office Building, Hon. Ed Whitfield 

(chairman of the subcommittee) presiding. 

Members present: Representatives Whitfield, Olson, Barton, 

Shimkus, Pitts, Latta, Harper, McKinley, Pompeo, Kinzinger, Griffith, Johnson, Long, Ellmers, Flores, Mullin, Upton (ex officio), 

McNerney, Tonko, Engel, Green, Capps, Castor, Sarbanes, 

Yarmuth, Loebsack, and Pallone (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Charlotte Baker, 

Deputy Communications Director; Leighton Brown, Press Assistance; Allison Busbee, Policy Coordinator, Energy and Power; Patrick Currier, Senior Counsel, Energy and Power; Tom 

Hassenboehler, Chief Counsel, Energy and Power; Mary Neumayr, 

Senior Energy Counsel; Chris Sarley, Policy Coordinator, Environment and Economy; Peter Spencer, Professional Staff Member, 

Oversight; Jean Woodrow, Director, Information Technology; Christine Brennan, Democratic Press Secretary; Jeff Carroll, Democratic 

Staff Director; Michael Goo, Democratic Senior Counsel, Energy 

and Environment; Caitlin Haberman, Democratic Professional Staff 

Member; Ashley Jones, Democratic Director, Outreach and Member 

Services; Rick Kessler, Democratic Senior Advisor and Staff Director, Energy and Environment; and John Marshall, Democratic Policy Coordinator. 

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Mr. WHITFIELD. I would like to call our hearing to order this 

morning, and today’s title is EPA’s Proposed 111(d) Rule for Existing Power Plants: Legal and Cost Issues. And we have two panels 

of witnesses this morning, and I want to thank those of you on the 

first panel. I will be introducing each one of you before you give 

your opening statement, and you will be given 5 minutes at that 

time, but before we are able to listen to your marvelous opening 

statements, you have to listen to our opening statements, which 

sometimes is not quite as exciting to people. 

2 

At this time, I would like to recognize myself for a 5-minute 

opening statement. 

As I said, this morning our subcommittee will hold its first hearing this year on the EPA’s proposed Clean Power Plan. We will examine specifically the circuitous and tortured rationale, in my opinion, of EPA that Section 111(d) of the Clean Air Act grants them 

the authority to regulate CO2 emissions from electric generating 

units that are already regulated under Section 112. We are also 

going to look closely at the impact on states and consumers. 

It appears that EPA is—excuse me just 1 minute. Given the 

stringency of this EPA proposed rule regarding CO2 emissions at 

existing in coal plants, states are going to be forced to adopt state 

implementation plans within 1 year. And this regulation is so onerous for coal generation that, according to EPA’s own projections, 

the amount of coat for electric generation in America would decline 

by 40 percent from the 2009 levels. The well-respected economic 

consulting firm, NERA, concluded that the proposal is the most expensive environmental regulation ever imposed on the electric 

power sector, costing between $41 to $73 billion per year, with 14 

states facing peak year electricity price increases that are likely to 

exceed 20 percent. Regional grid reliability coordinators have begun 

warning that the rule will curse portions of the grid to suffer cascading outages and voltage collapse. 

The North American Electricity Reliability Corporation recently 

produced an initial analysis that questioned the validity of the 

basic assumptions underlying the rule, and raised a multitude of 

concerns as to how the rule will affect the grid. This proposed rule 

has been described as a power grab, extreme, radical, unprecedented, and a violation of existing law. I agree with those characterizations. Even EPA has acknowledged that a literal application 

of Section 111(d) would likely preclude its proposal because the 

electric generating units are already regulated under Section 112. 

This proposed regulation would create turmoil in the generation, 

transmission, and distribution of electricity. It is being proposed because the President was unable to convince Congress to adopt a 

cap and trade legislation, and he has made international commitments without input or advice and consent from Congress, and in 

his Georgetown speech, he committed the U.S. to an extreme policy. It appears that EPA is trying to find a way to implement the 

President’s plan pursuant to his international commitments, even 

though EPA has readily acknowledged that this proposal would not 

make a measurable difference in addressing climate change. 

So this is a significant issue that is going to have a dramatic impact on everything relating to electricity generation in America, 

and it is our responsibility to make all of this transparent, to give 

the American people the opportunity to be aware of how extreme 

this is, and what a fundamental change it would make, and to address the question is it really legal. And that is what we intend to 

do today. That is why we are thrilled with the panel of witnesses 

that we have. 

[The prepared statement of Mr. Whitfield follows:] 

3 

PREPARED STATEMENT OF HON. ED WHITFIELD

This morning our subcommittee will hold its first hearing of the year on the EPA’s 

proposed ‘‘Clean Power Plan.’’ At this point, everyone from legal scholars to state 

government officials to affected utilities has had opportunity to review this proposed 

rule. As we will learn today, many have expressed serious concerns whether EPA 

can move forward with the proposed rule. Given the potential adverse impacts on 

ratepayers, many also question whether the agency should do so. 

EPA’s plan to commandeer from state control nearly every major aspect of electricity generation, distribution, and use is based on section 111(d) of the Clean Air 

Act. However, there is a threshold question about whether EPA has statutory authority to proceed with its Clean Power Plan at all under that provision. Even assuming authority exists; neither the language of this provision nor its decades-long 

implementation history suggests that it authorizes such a sweeping federal agenda. 

This is especially true of the agency’s attempts to regulate beyond the fence line of 

power plants by interfering with state decisions on matters like renewable portfolio 

standards and energy conservation mandates. 

Equally troubling are the Constitutional issues. Federalism is a core principle in 

our system of government and has proven to be a key component of effective energy 

and environmental policy. Unfortunately, the Clean Power Plan presents an unprecedented effort to tip the federal/state balance towards federal dominance over state 

electricity systems. Not surprisingly, officials from more than half the states have 

questioned EPA’s legal authority to pursue this regulation. 

At risk is the discretion states have always had over the electricity generation 

mix. For example, my home state of Kentucky has chosen to rely mostly on coal to 

provide affordable and reliable electricity for its consumers and businesses. As a result, we are fortunate to have some of the lowest electricity rates in the country. 

Other states have chosen their own paths as they see fit to best serve their citizens’ 

needs. But under the Clean Power Plan, each state’s electricity plan would have to 

meet EPA’s criteria for reducing carbon dioxide emissions and be approved by the 

agency. 

Any state that does not have a plan approved by the Administrator of the EPA 

would be subject to a Federal plan being imposed on it. EPA has yet to tell us what 

this federal plan would entail, but it is unlikely to be a viable option so much as 

an approach to compel states to submit to EPA demands in order to get their state 

plans approved. 

Given the Constitutional, statutory, and other legal issues surrounding the Clean 

Power Plan, I don’t believe it will withstand judicial scrutiny. Given the tight deadlines under the proposed rule, states will be facing a decision about whether to submit their plans and initiate costly steps towards compliance before judicial review 

is complete. This would be unfortunate, because whether or not the Clean Power 

Plan is bad law, it certainly is bad policy. 

Even Administrator McCarthy has admitted that none of EPA’s climate rules 

would actually make a measurable difference on future temperatures. The Clean 

Power Plan will, however, make a difference in many areas of the country to those 

who pay an electric bill. 

Indeed, the very purpose of the proposed rule is to replace affordability considerations with environmental ones in each state’s electricity system. One study by 

NERA puts the total cost at $366 billion through 2031 and estimates increases in 

electricity prices of 12 percent or more. Beyond costs, there are highly credible 

warnings that ratepayers would face reliability risks, which already are a concern 

because of several other EPA rules targeting coal-fired generation but would get 

worse under the Clean Power Plan. No wonder states are fighting back against 

EPA. 

Mr. WHITFIELD. And with that, I would like to recognize the gentleman from California for his 5-minute opening statement. 

OPENING STATEMENT OF HON. JERRY MCNERNEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

You mentioned this is the first hearing on this issue this year, 

but it is our fourth hearing on this issue in the last few years. So 

climate change is here. I mean it is happening. It is not a matter 

4 

of speculation. We need to take action; we need to take it now. The 

longer we wait to take action on climate change, the more expensive it is going to be, the more damaging the effects of climate 

change are going to be, so it is incumbent upon us to do something 

about it. But the good news is that if the United States takes the 

lead, then we are going to be able to develop the technology, we are 

going to be able to export jobs, I mean we are going to be able to 

export materials, it is going to be a win for the United States, so 

we might as well embrace this now. Taking steps to curb carbon 

emission will have beneficial impacts such as repairing and replacing aging infrastructure with very high efficiency infrastructure. 

Now, I know that the coal producers are worried about this, but 

my advice to them is embrace carbon sequestration. Embrace it, because coal is going to be reduced whether we like it or not, but if 

we embrace carbon sequestration, then we will be able to continue 

to use coal and keep those important American jobs. So that is my 

advice to the coal producers. But we are going to be able to increase our clean energy sources, renewable energy, energy efficiency and so on. So I think this is an opportunity for us. 

Now, the Clean Air Act does give the EPA administrator the authority to put in place measures to reduce carbon dioxide production, and authority has been upheld in the courts. Now, I think we 

are going to hear some opinions about that this morning, but it has 

already been upheld in the courts. 

Now, the EPA’s proposal, in my opinion, is reasonable. It includes energy efficiency, it includes looking for new, more efficient 

sources of energy, and using demand issues to help us reduce our 

carbon emissions. Now, the administration does have the responsibility to take action to protect us from the effects of climate change, 

so that is exactly what the Clean Power Plan does. Fourteen states 

in the United States, including my home state of California, have 

embraced this proposal. In a letter to the EPA, they wrote that 

even greater levels of cost-effective carbon pollution reductions 

from the power sector are achievable in this time frame, using the 

system described by the EPA. The EPA found that the power sector 

could reduce its emissions by 26 percent below the 2005 levels 

under this initiative. That is a lot. Twenty-six percent reduction of 

the 2005 levels. That is significant, and that has put us in a leadership position. It has given other countries like China a motive to 

start reducing their carbon emissions, which is absolutely critical 

if we want to reduce carbon emissions in time to prevent the worst 

impacts of climate change. So this is really a win-win. But another 

thing that is really important is that the level of the amount of outreach that was done with this proposal was really unprecedented. 

The rule that we have in front of us is not final, so it is important 

for us to continue examining this issue, and to hear from all the 

stakeholders, and work together to find something that is going to 

benefit our Nation, put is in a leadership position, increase the 

economy, economic growth, and help stop climate change before the 

worst impacts are felt throughout the United States and throughout the world. 

So with that, I am going to yield back, Mr. Chairman. 

Mr. WHITFIELD. Thank you, Mr. McNerney. 

5 

At this time, I would like to recognize the chairman of the full 

committee, Mr. Upton, for 5 minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Thank you, Mr. Chairman. 

Today we continue our examination of what many folks believe 

is the most problematic of all the global warming-related regulations being churned out by this Administration; the proposed Clean 

Power Plan by EPA. And I welcome our witnesses who are going 

to be discussing both the legal and cost concerns with this proposed 

rule, as well as the looming compliance difficulties at the state 

level. 

The Clean Air Act has been around since 1970, and we know 

from experience that it works best when implemented in the spirit 

of cooperative federalism. We have proven that we can accomplish 

a great deal to improve air quality when federal and state governments work together as partners. However, this proposed rule 

yanks the rug out from underneath the states with EPA dictating 

to the states, and effectively micromanaging intrastate electricity 

policy decisions to a degree even the agency admits is unprecedented. This raises a broad array of legal issues, not to mention 

that it is bad policy. 

As a result, many states are sounding the alarm about the legality of the rule and the implications for their citizens and their ratepayers. In addition to significant constitutional and other legal 

questions, states have expressed concerns about the feasibility of 

EPA’s proposed requirements and the likely impacts on electricity 

costs and reliability. The risks to ratepayers are especially serious 

in states that rely on coal for a substantial part of their electricity 

generation. Under the Clean Power Plan, states would be forced to 

redesign their electricity generation, transmission, and distribution 

systems and related laws and policies, and to do so over a short 

time frame. Longstanding policies would be essentially wiped clean, 

and jobs and family budgets could suffer as a result, particularly 

for the most vulnerable. 

Today, we are going to hear several perspectives from both legal 

experts and state environmental and energy regulators. I am particularly concerned about the impacts on states, such as Michigan, 

which have a significant manufacturing sector. American manufacturers have shown that they can compete with anyone in the world, 

unless they face an uneven playing field caused by unilateral regulations like the EPA’s proposed plan. 

Other EPA regulations like the Utility MACT rule have already 

contributed to rising electric rates and growing concerns about reliability. With the economy still far from fully recovered, the last 

thing job creators need is another expensive regulation likely to 

drive up energy prices. And the last thing struggling families need 

is to see their electric bills go up as well. 

So I hope that today’s hearing will inform our efforts to develop 

commonsense policies that will ensure that electricity remains affordable and reliable in the coming decades. Jobs and the economy 

certainly are very important, and they remain our focus, and we 

6 

will continue to work to keep the lights on and the electricity bills 

affordable. 

And I yield to other Republicans wishing to speak. Seeing none, 

I yield back the balance of my time. 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Today we continue our examination of what many folks believe is the most problematic of all the global warming-related regulations being churned out by the 

Obama administration EPA—the proposed ‘‘Clean Power Plan.’’ I welcome our witnesses who will be discussing both the legal and cost concerns with this proposed 

rule as well as the looming compliance difficulties at the state level. 

The Clean Air Act has been around since 1970, and we know from experience that 

it works best when implemented in the spirit of cooperative federalism. We have 

proven that we can accomplish a great deal to improve air quality when federal and 

state governments work together as partners. However, this proposed rule yanks 

the rug out from under states, with EPA dictating to states and effectively micromanaging intrastate electricity policy decisions to a degree even the agency admits 

is unprecedented. This raises a broad array of legal issues, not to mention that it 

is bad policy. 

As a result, many states are sounding the alarm about the legality of the rule 

and the implications for their citizens and ratepayers. In addition to significant Constitutional and other legal questions, states have expressed concerns about the feasibility of EPA’s proposed requirements and the likely impacts on electricity costs and 

reliability. 

The risks to ratepayers are especially serious in states that rely on coal for a substantial part of their electricity generation. Under the Clean Power Plan, states 

would be forced to redesign their electricity generation, transmission, and distribution systems and related laws and policies, and to do so over a short timeframe. 

Longstanding policies would be essentially ‘‘wiped clean,’’ and jobs and family budgets could suffer as a result. 

Today, we will hear several perspectives from both legal experts and state environmental and energy regulators. I am particularly concerned about the impacts on 

states, such as my state of Michigan, which have a significant manufacturing sector. 

American manufacturers have shown that they can compete with anyone in the 

world—unless they face an uneven playing field caused by unilateral regulations 

like the EPA’s proposed plan. 

Other EPA regulations like the Utility MACT rule have already contributed to rising electric rates and growing concerns about reliability. With the economy still far 

from fully recovered, the last thing job creators need is another expensive regulation 

likely to drive up energy prices. And the last thing struggling families need is to 

see their electric bills continue to go up. 

I hope that today’s hearing will inform our efforts to develop commonsense policies that will ensure that electricity remains affordable and reliable in the coming 

decades. Jobs and the economy. That remains our focus. We will continue working 

to keep the lights on and the electric bills affordable. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, I would like to recognize the gentleman from New 

Jersey, Mr. Pallone, the ranking member on the committee, 5 minutes. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Chairman Whitfield. 

As we sit here today, unchecked climate change continues to reshape our world. According to NOAA, 2014 was the warmest year 

ever recorded, and 9 of the 10 hottest years have occurred since 

2000. We know this warming is due to carbon pollution from fossil 

fuels accumulating in the atmosphere, trapping more heat and 

7 

changing our climate. We can already see the effects of this warming in rapidly-melting ice sheets and glaciers, extreme droughts 

and wildfires, increased storm damages, shrinking coral reefs, and 

beyond. Globally, the cost of these impacts easily reach into billions 

of dollars each year, and that trend shows no sign of slowing down. 

To that end, EPA has proposed a workable plan to reduce emissions of carbon pollution from power plants, which are the largest 

uncontrolled source of manmade greenhouse gases in the U.S. 

Today, we will hear more about the Clean Power Plan, but there 

are few features that merit emphasizing in advance. First, the 

Clean Power Plan is not a one-size-fits-all proposal for reducing 

emissions. It uses a flexible state-based approach that takes account of each individual state’s unique capacity to reduce emissions 

from its electricity sector. Second, EPA is not proposing that states 

act overnight. States have until 2030 to meet their final goals, and 

the plan’s interim goals don’t begin until 2020. Third, the Clean 

Power Plan falls well within the legal authority and responsibility 

of EPA to address carbon pollution from power plants. This systemwide approach is based on the plain language of the Clean Air Act. 

And finally, and perhaps most importantly, the Clean Power Plan 

is just a proposal and is not yet finalized. 

EPA received over 3 1⁄2 million public comments on the Clean 

Power Plan, and is reviewing these comments as we speak. EPA 

can and will make adjustments to its proposal. EPA is looking hard 

at a range of issues relating to timing, reliability, technical, and 

legal issues, and EPA is working in close coordination with states, 

utilities, grid operators, and other federal agencies like DOE and 

FERC to make sure the plan is done right. 

And there are those who deny science. They claim that climate 

change is not real or manmade, that it is caused by natural cycles 

or sunspots, and that simply is untrue. The world’s leading scientists have told us that climate change is happening, is caused by 

humans, and will have extremely serious impacts. The Republicanled Congress has not listened to the scientists, and has yet to take 

action to address these serious climate threats. And just saying no 

isn’t an option anymore. We must reduce our carbon emissions, and 

the Clean Power Plan is a reasonable first step. 

So those who have concerns with EPA’s plan have a responsibility, in my opinion, to not just criticize it, but also to propose alternative ways to achieve the same goal. There are always those 

who are willing to make absurd arguments on behalf of companies 

that profit from the status quo, and we will hear today from some 

of these that EPA’s plan is not legal, that it is unworkable, that 

some states may refuse to participate, but I think that those making those arguments aren’t really interested in finding solutions to 

our carbon pollution problem. They are not interested in developing 

a plan to help us reduce emissions while still maintaining a safe, 

reasonably-priced electricity system. To quote the words of EPA 

Administrator McCarthy, they are just trying to put their heads in 

the sand. They are more than welcome to do that but history will 

not treat them kindly. Keep this in mind as we listen today and 

during future hearings and debates on the Clean Power Plan. I 

think you will be able to recognize those who are simply arguing 

for inaction on behalf of entrenched fossil fuel interests, and comVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
8 

pare them to those who want to act on climate change, and also 

want the development of our path forward to be thoughtful, sensible, and effective. 

So for my part, I am in the latter camp, and I urge all of my colleagues to join me. And I look forward to hearing from the witnesses. 

I don’t think anybody on my side wanted time, is that correct? 

So I will just yield back my time. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Gentleman yields back. Thank you very much. 

And that concludes our opening statements. So now we will turn 

to our panel of witnesses, and I am going to introduce each one of 

you individually before you give your opening statements. 

So our first opening statement will be given by Mr. Laurence 

Tribe, who is the Carl M. Loeb University Professor and Professor 

of Constitutional Law, Harvard. Professor Tribe, welcome, and we 

look forward to your testimony. You are recognized for 5 minutes, 

and be sure to turn the microphone on because it is not on automatically. So thank you. 

STATEMENTS OF LAURENCE H. TRIBE, CARL M. LOEB UNIVERSITY PROFESSOR AND PROFESSOR CONSTITUTIONAL LAW, 

HARVARD LAW SCHOOL; ALLISON D. WOOD, PARTNER, 

HUNTON AND WILLIAMS LLP; AND RICHARD L. REVESZ, 

LAWRENCE KING PROFESSOR OF LAW, DEAN EMERITUS, DIRECTOR, INSTITUTE FOR POLICY INTEGRITY, NEW YORK 

UNIVERSITY SCHOOL OF LAW 

STATEMENT OF LAURENCE H. TRIBE 

Mr. TRIBE. Mr. Chairman, members of the committee, I am honored to testify about EPA’s proposed CO2 power plant regulations. 

I have submitted my full written statement for the record. 

EPA’s proposal raises grave constitutional questions, exceeds 

EPA’s statutory authority, and violates the Clean Air Act. 

First, the plan conflicts with settled principles of federalism and 

Supreme Court precedent because it would commandeer state governments, treating them more like marionettes, dancing to the 

tune of a federal puppeteer, than like laboratories of democracy. It 

would dictate the CO2 emissions target that each state must adopt 

within a year, commanding every state to enact an EPA-approved 

package of laws meeting that target by requiring power plants to 

shut down or reduce operations, consumers and businesses to use 

less electricity and pay more for it, and utilities to shift from coal 

to natural gas and other energy sources; a total overhaul of the 

states’ way of life. 

Now, reducing states to this submissive role would confound the 

political accountability that the Tenth Amendment guarantees. 

EPA’s plan would increase energy costs over local opposition, while 

cloaking that increase in the Emperor’s garb of state choice, with 

state governments taking the blame for policies actually dictated 

and necessitated by EPA. A state that submits no plan meeting 

EPA’s approval by 2016 confronts a centrally-planned and administered federal scheme of uncertain scope, burdening the state of its 

citizens backed by draconian sanctions like the loss of federal funds 

under preexisting antipollution programs. Prominent defenders of 

9 

the EPA’s proposal necessarily concede that noncomplying states 

gambling on whatever unpredictable backup plan EPA might impose would be at a huge disadvantage. 

EPA’s proposal also presents serious Fifth Amendment problems. 

We are all CO2 emitters, and atmospheric CO2 is the intermingled 

result of all human activity, but EPA would impose costs, that 

ought to be borne equitably by everyone, on a small group of power 

plants and companies after requiring those same companies to invest billions of dollars to reduce their non-CO2 pollutants over the 

past 25 years. The Constitution demands just compensation to rectify that bait and switch. 

Now, courts would never assume a congressional design to confer 

such revolutionary and constitutionally dubious power on EPA unless Congress clearly said so. But far from it, under the very Clean 

Air Act provision that EPA invokes, Section 111(d), Congress expressly prohibited EPA from doing exactly what it proposes to do 

here: regulate emissions from coal-fired power plants under Section 

111(d), when those same power plants are already being regulated 

in costly ways under Section 112. In 1995, EPA itself read the 

Clean Air Act to prohibit such duplication, as did the D.C. Circuit 

Court of Appeals in 2008, and the U.S. Supreme Court in 2011. 

If the Clean Air Act’s meaning were ambiguous, and it isn’t, settled principles of statutory interpretation would mean that EPA 

and any reviewing court would have to interpret the Act to avoid 

the constitutional difficulties that EPA’s interpretation raises 

under the Fifth and Tenth Amendments. Now, to circumvent that 

avoidance principle, EPA resorts to sheer fantasy. It claims that 

Congress enacted a law in 1990 that never made it into the U.S. 

Code, and that everybody has been using the wrong version of the 

statute for the past quarter century. Really? Crediting that story 

would call into question dozens of similar statutory provisions 

throughout the U.S. Code. The tale is pure fiction. There is no mistake in the U.S. Code, but even if Congress had truly tossed two 

different bills in the air and told EPA to decide which one to catch 

and run with, that would be a power Congress could not give away, 

and EPA could not recognize and exercise. It is a law-making 

power that belongs only to you, backed by a judicial power that belongs only to the courts. 

EPA is attempting an unconstitutional trifecta; usurping the prerogatives of the states, Congress and the federal courts all at once. 

Much is up for grabs in this complex area, but burning the Constitution of the United States, about which I care deeply, cannot be 

part of our national energy policy to deal with the problems of climate change. 

Thank you very much. 

[Mr. Tribe’s testimony has been retained in committee files and 

can be found at:http://docs.house.gov/meetings/if/if03/20150317/ 

103073/hhrg-114-if03-wstate-tribel-20150317-u1.pdf.] 

Mr. WHITFIELD. Thank you, Professor Tribe. 

At this time, our next witness is Allison Wood, who is a partner 

at Hunton and Williams. And welcome. We appreciate you being 

here, and you are recognized for 5 minutes. 

10 

STATEMENT OF ALLISON D. WOOD 

Ms. WOOD. Good morning. It is an honor to appear before this 

subcommittee to offer testimony on EPA’s proposed Section 111(d) 

rule. 

I have practiced environmental law for over 16 years, and for the 

past decade, my practice has focused almost exclusively on climate 

change. 

EPA’s proposed rule suffers from a great many legal infirmities, 

and I will focus on two of those today. The first defect is that EPA 

is prohibited from regulating electric generating units under Section 111(d) because those units are already subject to regulation 

under a different provision of the Clean Air Act, Section 112, which 

regulates sources of hazardous air pollutants. 

Section 111(d) has always been a little-used provision of the 

Clean Air Act that was designed to catch the handful of sources 

that were not regulated under the Act’s other major provisions. Indeed, this provision has been used to regulate sources only five 

times since 1970. The confusion over this point comes from two 

amendments that were made to Section 111(d) during the 1990 

amendments to the Clean Air Act, both of which appear in the 

Statutes at Large. EPA claims this leads to ambiguity, but in fact, 

the codifiers properly included in the United States Code only the 

House amendment; the amendment that clearly precludes regulation under Section 111(d) of source categories that are regulated 

under Section 112. This was appropriate, given that the managers 

of the Senate bill had expressly receded to the House amendment. 

The second legal defect involves EPA’s overbroad interpretation 

of the term system of emission reduction in Section 111. In every 

other rulemaking under Section 111(d), EPA looked at existing 

sources to see what technology and processes were in place to limit 

pollution. EPA then based its determination of the best system of 

emission reduction for those types of existing sources on the known 

and demonstrated technologies and processes that were in use. 

States then applied the system of emission reduction to existing 

sources within their borders that did not yet have these pollution 

controls, while taking into account several factors including the 

source’s remaining useful life. 

In this rulemaking, EPA turns this established procedure on its 

head and proposes for the first time a standard of performance that 

is based on not operating the source. EPA claims for the first time, 

based on the dictionary definition of the word ‘‘system,’’ that it can 

regulate any set of things that leads to reduced emissions from the 

source category overall, even if those things go beyond the fence 

line of the plant. EPA’s new interpretation is fundamentally 

flawed. A system of emission reduction must begin and end at the 

source itself. EPA’s interpretation would allow the agency endless 

regulation over all manner of things that are completely outside its 

purview. To use an illustration that may help people better understand what EPA is proposing to do here, it is as if EPA were requiring car owners not only to have catalytic converters on their 

cars, but also to travel a certain amount of days per week by bus, 

purchase a certain number of electric vehicles, and work from home 

one day a week. All of these things would reduce overall car emissions, but they do nothing to reduce the rate at which those cars 

11 

emit pollutants per mile, and most people would surely agree that 

the Clean Air Act would not allow EPA to require these types of 

things from car owners, yet, this type of regulation is exactly what 

EPA is trying to do to power plants in the Section 111(d) rule. 

Finally, it should be noted that litigation over this rule will absolutely occur when it is finalized. Unfortunately, litigation takes 

time, and states are going to be forced to act before courts determine whether the Section 111(d) rule is lawful. State plans must 

be submitted within 1 year after the rule is finalized, unless a partial plan is submitted and EPA grants an extension. These plans 

will be very complex, and states have never before had to submit 

a plan under Section 111(d) of this magnitude. Many states will 

need to pass legislation as part of their plan preparation. Regulations will need to be promulgated. Litigation will not be resolved 

before these things happen. Under this timing, any victory the 

states achieve will end up being hollow. A victory will not be able 

to give the states back the resources that were expended in plan 

development, nor will it solve the issue of states having to go 

through the time-consuming and uncertain process of unwinding 

legislation and regulations that were passed to put the plan in 

place. 

Thank you again for the opportunity to testify today. 

[The prepared statement of Ms. Wood follows:] 

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Mr. WHITFIELD. Thank you, Ms. Wood. 

At this time, our third witness is Professor Richard Revesz, who 

is the Lawrence King Professor of Law, Dean Emeritus, Director of 

Institute for Policy Integrity at the New York University School of 

Law. And thank you very much for being with us today, Professor, 

and you are recognized for 5 minutes. 

STATEMENT OF RICHARD L. REVESZ 

Mr. REVESZ. Thank you, Mr. Chairman, and thank you for inviting me to testify before the committee. 

My written testimony covers four main points. First, the Clean 

Power Plan is a natural extension of previous EPA policies stretching back decades, and promulgated under both Republican and 

Democratic administrations, that use flexible compliance mechanisms to address the environmental harms of power production. 

Second, the Clean Power Plan does not give rise to any constitutional problems. Third, EPA has clear authority to implement the 

Clean Power Plan under Section 111(d) of the Clean Air Act. And 

fourth, EPA’s proposed guidelines in Section 111(d) are authorized 

by the statute and based upon demonstrated approaches that some 

utilities and states have already taken to reduce greenhouse gas 

emissions. 

On the first point, for the past quarter of a century, each President has taken measures to regulate the emissions of existing 

power plants because they are the Nation’s largest sources of many 

harmful air pollutants, including mercury, sulfur dioxide, and carbon dioxide. Under the Administration of President George H. W. 

Bush, Congress enacted a 1990 amendment which capped sulfur dioxide emissions from existing power plants, and established an innovative trade mechanism to achieve reductions as cheaply as possible. Later, the Administrations of President Bill Clinton, George 

W. Bush, and Barack Obama each promulgated important regulations requiring existing power plants to reduce emissions of smog 

and particulate precursors that negatively affect the air quality in 

downwind states, again using cost-effective flexible trading mechanisms. And finally, the Administrations of both President George 

W. Bush and Barack Obama issued rules limiting emissions of 

mercury from existing plants. 

Like these earlier programs, EPA’s Clean Power Plan will costeffectively reduce pollution from existing power plants through a 

flexible program that enables states to rely on traditional regulation, emissions trading, or any other tool that they may prefer. 

My second point on the constitutional issues. The first claim 

made by opponents is there is a problem with the way Congress 

delegated regulatory power to EPA under Section 111(d) because 

the House and Senate passed arguably inconsistent amendments to 

the provision in 1990. Both the House and Senate versions were 

then included in a conference bill that was passed by each chamber 

and signed by President George H. W. Bush. In all of our history, 

the Supreme Court has struck down only two statutory provisions 

as constitutionally impermissible delegations to an administrative 

agency, both in the mid-1930’s, during its skirmishes with President Franklin Roosevelt over the New Deal. Supreme Court has 

never invalidated a federal statue on non-delegation grounds on the 

35 

basis of the argument that opponents of the Clean Power Plan now 

advance: that a statute has arguably inconsistent provisions. Instead, the courts have consistently dealt with this problem by finding ways to develop a workable interpretation of the statute. 

Opponents of the Clean Power Plan make a similarly farfetched 

argument the plan violates the Takings Clause of the Fifth Amendment, which protects private property rights. A regulation leads to 

a Takings violation only if it deprives an owner of essentially all 

of the value of his or her property, which is not the case here. And 

even if it were, the appropriate remedy is a subsequent suit for 

compensation, not the invalidation of a nationwide rule. 

Finally, opponents claim that the Clean Power Plan runs afoul 

of the Tenth Amendment’s prohibition against the commandeering 

of state institutions by the Federal Government. This extreme and 

unsupported interpretation of the Tenth Amendment would invalidate many of the core provisions of the Clean Air Act, not only Section 111(d), in fact, it is the basis for how the National Ambient 

Air Quality Standards under the Clean Air Act, which are the centerpiece of the statue, and have been its centerpiece since 1970, are 

administered. And nothing here is commandeered anyway. The 

states are merely given the option to submit plans if they choose 

to do so. If they do not, the Federal Government has the authority 

to impose federal implementation plans that give rise to no constitutional problem at all because they do not involve state institutions. 

The third point, the statutory point. Congress passed two amendments: the House Amendment and the Senate Amendment. The opponents of the Clean Power Plan would like us to ignore the Senate 

Amendment because it was not included in the U.S. Code by the 

Office of Law Revision Counsel, but everyone knows that a mere 

functionary cannot supplant the will of Congress. To do so would 

violate the principles of bicameralism and presentment. And in any 

event, even the House Amendment, which the opponents of the 

Clean Power Plan would like to credit, is not subject to a single interpretation; it is subject to multiple interpretations, and under 

traditional principles of statutory construction, the interpretation 

by the agency, by EPA, is entitled to deference in the courts. 

And finally, on the claim that the Clean Power Plan violates 

some provision of the Clean Air Act because it regulates beyond the 

fence line, the product here is electricity, not electricity produced 

by coal, and EPA has the authority to define the system in that 

way, and has done so. 

Thank you very much, and I would be delighted to answer questions. 

[The prepared statement of Mr. Revesz follows:] 

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Mr. WHITFIELD. Thank you, Professor Revesz. And thank all of 

you for your statements. 

At this time, the members have an opportunity to ask questions, 

and I would like to recognize myself for 5 minutes at this time. 

Ms. Wood, we have heard a lot of discussion about inside the 

fence and outside the fence, and as I said in my opening statement, 

this regulation has been characterized in a lot of different ways; extreme, radical, power grab. Would you explain from your perspective of why this is so significantly different in that it allows outside-the-fence solutions? 

Ms. WOOD. Outside the—— 

Mr. WHITFIELD. Turn your microphone on. 

Ms. WOOD. Yes, thank you. The outside-the-fence line nomenclature is being used a lot. Indeed, you can’t even go beyond the 

source itself. So here we are talking about the actual electric generating unit. And the reason why people talk a lot about going beyond the fence line with this rule is that, of the four building 

blocks that are set forth in the rule, only one of them actually gets 

any kind of emission reduction at the source itself, and that is 

building block one that has to do with energy efficiency improvements that can be made. 

All of the other building blocks take place somewhere else beyond 

the source, outside the fence line. This has never been the case 

with any other rulemaking under Section 111(d). 

Mr. WHITFIELD. Never been the case before? 

Ms. WOOD. No. 

Mr. WHITFIELD. I take it that a state would even be able to mandate the type of material used in a building under this regulation 

if it is adopted. Would that be correct? 

Ms. WOOD. It—— 

Mr. WHITFIELD. In order to meet the overall emission cap. 

Ms. WOOD. Right. Exactly. You could add building block five that 

would say you have to have Energy Star buildings to try to reduce—— 

Mr. WHITFIELD. Right. 

Ms. WOOD [continuing]. Energy consumption. I mean that could 

also arguably fall within the building block four, which is designed 

to have consumers use less electricity. 

Mr. WHITFIELD. I thought your illustration was very good about 

driving to work. You could be mandated to take a bus, you could 

be mandated to this vehicle or ride a bicycle certain days, whatever, but it doesn’t do anything about reducing the emission of your 

automobile. 

Ms. WOOD. Right, and that is exactly the point of beyond the 

source or beyond the fence line. 

Mr. WHITFIELD. Yes. 

Ms. WOOD. The emission reductions that you would get—— 

Mr. WHITFIELD. Yes. 

Ms. WOOD [continuing]. From not driving your car one day a 

week have nothing to do with—— 

Mr. WHITFIELD. Yes. 

Ms. WOOD [continuing]. The car running and getting—— 

Mr. WHITFIELD. Yes. 

Ms. WOOD [continuing]. And emitting less pollution—— 

51 

Mr. WHITFIELD. Yes. 

Ms. WOOD [continuing]. It has to do with the car not running. 

Mr. WHITFIELD. And so, Professor Tribe, do you agree that this 

inside-the-fence, outside-the-fence is a radical change for EPA? 

Mr. TRIBE. Mr. Chairman, I agree very much that it is a radical 

change, and it is a radical change that bears on what this committee needs to think about in several ways. First of all, I think 

it shows how unrealistic is the claim that, you know, there is nothing going on here, just move along, don’t bother, which is, I think, 

the essence of Professor Revesz’s testimony. No constitutional problem, nothing new. But it is radically new. I mean we should all, 

I think, be honest with ourselves. Yes, many people think that 

there are severe problems that need to be addressed, but the question is do we care about the rule of law and how we go about addressing them. 

Mr. WHITFIELD. Right. 

Mr. TRIBE. Now, the way that a court, if a court gets its hands 

on this, would look at the outside-the-fence issue isn’t just as a 

technical matter, inside, outside, it would look at it in terms of no 

limiting principle. 

Mr. WHITFIELD. Right. 

Mr. TRIBE. As a number of state attorneys general have said, if 

you—if the EPA can do this, it can tell you how often to use your 

electric toothbrush. 

Mr. WHITFIELD. And the EPA has even had legal memorandums 

themselves saying that they didn’t think they had the authority to 

regulate under 111(d). 

Mr. TRIBE. Yes, that is right. In 1995, they didn’t think they had 

the authority. They were told in 2008 by the D.C. Circuit they 

didn’t have the authority. In 2011, the U.S. Supreme Court told 

them they didn’t have the authority, and they say never mind. 

Mr. WHITFIELD. Yes. Well, why wouldn’t they regulate under Section 108? 

Mr. TRIBE. Well, 108 to 110, with respect to the National Ambient Air Quality Standards, really don’t fit this very well or else you 

could be sure that they would go that route. The reason they don’t 

fit is that they are really based on state designation of geographical 

areas within the state as attainment, non-attainment or 

unclassifiable. 

Mr. WHITFIELD. Right. 

Mr. TRIBE. I would hate to live in an unclassifiable area. But the 

point is that CO2 comingles with everything uniformly throughout 

the global atmosphere—— 

Mr. WHITFIELD. Right. 

Mr. TRIBE [continuing]. And so you really couldn’t approach it by 

making the findings. And besides the findings that you would have 

to make under 108 to 110 would be very difficult to make, and 

would require a procedure that they haven’t gone through. 

Mr. WHITFIELD. And they can’t do it under 112 because CO2 is 

not a listed hazardous air pollutant. 

Mr. TRIBE. Right, under 112, there are 188 hazardous air pollutants listed by Congress. Nobody claims that CO2, which is essential 

for life, is hazardous in that sense. They try to—— 

Mr. WHITFIELD. Yes. 

52 

Mr. TRIBE [continuing]. Split hairs by saying, well, it may not be 

hazardous but it is dangerous. But we are not writing a novel here, 

but we are talking about a law passed by this body, and I am concerned that I have cared about the environment ever since I was 

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

I am committed to doing it within the law. And there is a legal way 

to address these problems. They tried to get cap and trade with 

this Administration, didn’t work. And I guess the EPA is now following a kind of marching order saying, well, if you can’t do it 

through the lawful way, just take an agency and tell it to bend and 

twist and tear and rip the law. 

When I use the metaphor that burning the Constitution is not 

a good source of fuel for dealing with these problems, I was being 

metaphorical only in part. When you tear the Constitution apart 

bit by bit, and give it the death by 1,000 cuts, what else will we 

sacrifice the Constitution for? 

Mr. WHITFIELD. Thank you, Professor Tribe. My time has expired. 

At this time, I recognize the gentleman from California for 5 

minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

Mr. Revesz or Professor, would you describe what the Supreme 

Court actions have been thus far with regard to the EPA that is 

applicable to the Clean Air Plan? 

Mr. REVESZ. Sure. The Supreme Court has never said any—— 

Mr. MCNERNEY. Your speaker. 

Mr. REVESZ. Sorry. The Supreme Court has never said anything 

that raises any questions about the legality of the Clean Power 

Plan. In fact, the case that Professor Tribe mentioned from 2011, 

the American Electric Power case, actually stands for exactly the 

opposite proposition. I mean the Supreme Court decided to preempt 

federal common-law claims because it said that EPA had the authority to regulate the carbon dioxide emissions of plants under 

Section 111(d). And so the Supreme Court has not stood in the way 

of this kind of regulation. There isn’t a single Supreme Court case 

that raises any constitutional question. As I indicated, non-delegation claim is not a serious one. The Supreme Court has never 

struck any federal statute down on these grounds since the mid1930s, and here all we have are two different conflicting approaches to a provision, and that is exactly where the agency gets 

the first crack at interpreting, and then the courts review the agency’s interpretation. And that is actually already going on. There 

has been a challenge to the proposed rule that is now pending in 

the D.C. Circuit, it is going be argued on April 16, and then the 

standard way that these things are going to happen, the D.C. Circuit will decide whether the agency’s interpretation is right or is 

wrong, but there is no real constitutional issue there. 

The Takings claim, again, the Supreme Court—there isn’t a single case that would support holding this to be a Takings. If some 

firm thinks that it has been deprived of the whole value of its property through this regulation, which seems extremely unlikely, it 

can bring an action for compensation. If it, in fact, has been deVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
53 

prived of the value of its property, it would presumably prevail, but 

that is not a reason for striking down a nationwide rule. 

And on the Tenth Amendment point, and I wanted to stress 

something that was very important, the cooperative federalism 

model that is the core of the Clean Air Act provides for federal 

standards, gives the states an opportunity to come up with state 

implementation plans, and if they don’t, the Federal Government 

can act and impose a federal implementation plan. This is the 

scheme under Section 108 through 110 that the chairman mentioned. It is the way National Ambient Air Quality Standards are 

done in this country. These are the standards that have saved hundreds of thousands of lives. They are the most successful federal 

environmental program ever. And if Section 111(d) has the Tenth 

Amendment problem, as Professor Tribe ascribes to it, Section 109 

would have exactly the same problem because it is exactly the 

same cooperative federalism model. And, in fact, Section 111(d) 

uses pretty much the same language as Section 109. 

These are programs that have been around for 45 years, that 

were passed through a bipartisan consensus, they form the fabric 

of our environmental laws, and there is nothing different here than 

there is under Section 109. 

Mr. MCNERNEY. Well, I was going to ask you about the Tenth 

Amendment, but you sort of wandered into that so I don’t need to 

ask that question. 

So with that, I will yield back the—— 

Mr. REVESZ. If I could say something about the unprecedented 

nature of this regulation that Professor Tribe and Ms. Wood alluded to. There is nothing of that sort. I mean just last term, the 

Supreme Court upheld an important EPA rule that regulates the 

interstate emissions where the statute says that it prohibits any 

source from emitting any air pollutant that will significantly contribute to environmental problems in downwind states. And EPA 

authorized states to adopt trading mechanisms that go beyond imposing controls on particular sources. This issue was litigated before the Supreme Court. Its opponents argued EPA didn’t have the 

authority to do that because the statute said refer to any source, 

and in the end, the Supreme Court upheld that regulation on a 6– 

2 vote with Justices Scalia and Thomas dissenting. 

So that is a very comparable program. It is also part of the same 

effort to control the emissions of existing power plants because they 

are such important contributors to pollution in this country. 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, recognize the gentleman from Texas, Mr. Barton, 

for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. 

I don’t normally reread parts of testimony, but I am going to in 

this case read the some of the paragraphs of Professor Tribe because I think he lays out pretty explicitly and clearly what this is 

all about. This is at least his executive summary of his testimony 

today, and I quote, ‘‘EPA lacks the statutory and constitutional authority to adopt its plan. The obscure section of the Clean Air Act 

that EPA invokes to support its breathtaking exercise of power in 

fact authorizes only regulating individual plants and, far from givVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
54 

ing EPA the green light it claims, actually forbids what it seeks to 

do. Even if the Act could be stretched to usurp state sovereignty 

and confiscate business investments the EPA had previously encouraged and in some cases mandated, as this plan does, the duty 

to avoid clashing with the Tenth and Fifth Amendments would prohibit such stretching. EPA possesses only the authority granted to 

it by the Congress. It lacks implied or inherent powers. Its gambit 

here raises serious questions under the separation of powers Article I and Article III because EPA is attempting to exercise lawmaking power that belongs to Congress, and judicial power that belongs to the federal courts. The absence of EPA legal authority in 

this case makes the Clean Power Plan quite literally a power grab. 

EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress, and the federal courts all at once. 

Burning the Constitution should not become part of our national 

energy policy.’’ 

Now, that is pretty straightforward. Professor Tribe, I assume 

that we would stipulate that you are an expert in the Constitution, 

is that fair to say? 

Mr. TRIBE. Some people have said that. 

Mr. BARTON. Some people have said that, OK. I would also assume that the committee can stipulate that you are an expert in 

regulatory authority or environmental issues, is that also fair to 

say? 

Mr. TRIBE. Again—— 

Mr. BARTON. Some people say that? 

Mr. TRIBE. Some people say it, right. 

Mr. BARTON. Some people say that. 

Mr. TRIBE. Yes. 

Mr. BARTON. Well, would you say, and again I want to quote 

from another Supreme Court case, this is in the Supreme Court 

case back in 2001, Whitman v. the American Trucking Association, 

that Congress does not alter the fundamental details of a regulatory scheme in vague terms. It does not, one might say, hide elephants in a mouse hole. Would you say this is an attempt to hide 

an elephant in a mouse hole? 

Mr. TRIBE. I would say, Mr. Chairman, that it is an attempt to 

hide a very large constitutionally-troubled elephant in a very tiny 

mouse hole, and not a mouse hole that was accurately described, 

I might add, by Professor Revesz. Let me give you, if I might, just 

one example. He—— 

Mr. BARTON. Be quick because—— 

Mr. TRIBE [continuing]. Talked about—— 

Mr. BARTON [continuing]. I only have a minute and a half left. 

Mr. TRIBE. Well, he just misdescribed the cases. The case of AEP 

v. Connecticut, he said Congress—the Supreme Court said that the 

EPA has this power, except the majority opinion in footnote 7 said 

there is an exception under 111(d), you can’t use this power to regulate a source that is already being regulated under 112. Professor 

Revesz conveniently left out the only part of this case that is relevant. 

He also says that—well, I shouldn’t take your time. 

Mr. BARTON. Well, let me just reclaim my time. 

55 

I was on the committee in 1990. I don’t think Mr. Green was. I 

am not sure anybody else currently here was on the committee. Mr. 

Pallone may have been, I am not sure, but I participated in these 

debates. I was not on the Conference Committee between the 

House and the Senate so I can’t claim personal knowledge, but I 

was on the committee and I was actively engaged in a bipartisan 

fashion in crafting this law, and we had a coalition of conservative 

Democrats, like Billy Tauzin and Ralph Hall and Mike Synar on 

the Democrat side with the Republicans, and Mr. Dingell, who was 

chairman at the time, kind of played us back and forth, but there 

was never a debate in the committee that would interpret the 

Clean Air Act amendments as the proponents of the Clean Power 

rule. Never. It was never. Just the opposite. Just the opposite. 

And, Mr. Chairman, I hope after the conclusion of these hearings, that we move legislation on a bipartisan basis that explicitly 

clarifies this point. The EPA has a right to set a national standard 

in interstate commerce to protect public health. It does not have 

the right to go in and micromanage how a state complies with a 

national standard which, as I understand it, is exactly what this 

Clean Power Plan does. 

And with that, I yield back. 

Mr. WHITFIELD. Thank you, Mr. Barton. 

At this time, recognize the gentleman from New Jersey, Mr. 

Pallone, for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

I am a little surprised by some of the legal arguments we are 

hearing against the Clean Power Plan, but I guess I have been 

around long enough to know that you can get constitutional lawyers and professors to say anything on both sides, just like you can 

get lawyers at home to say anything on both sides. So I just wanted to give Professor Revesz some time to comment on some of the 

comments that have been made by Professor Tribe. For instance, 

we are hearing that the Clean Air Act actually prohibits EPA from 

issuing the Clean Power Plan, however, the Supreme Court disagrees, citing American Electric Power v. the Connecticut case, if 

need be. An argument is also being made that since EPA acted to 

regulate mercury pollution from power plants, EPA does not have 

the authority to issue the Clean Power Plan. So, Professor Revesz, 

is this argument a reasonable interpretation of the law? 

Mr. REVESZ. No. Several things. First, on the American Electric 

Power case that we have now been arguing, there is footnote 7. I 

am very familiar with it. Footnote 7 is subject to more than one 

interpretation. In fact, I am holding the Brief of the Federal Government in the D.C. Circuit case, and the Federal Government is 

interpreting this differently—the footnote differently. It is interpreting the footnote not to stand in the way of exactly what EPA 

is doing on the Clean Power Plan. On the standard techniques of 

statute interpretation, EPA, as the agency empowered by Congress 

to administer the statute, deserves deference. This is EPA’s interpretation. EPA’s interpretation is consistent with the argument I 

made, not with the argument Professor Tribe made. 

Now, Professor Tribe may, in fact, be ultimately right. That is for 

a court to decide. I believe that he is wrong. EPA believes that he 

56 

is wrong. And we will find out, this issue will be argued extensively 

on April 16 before the D.C. Circuit. 

On the question about whether EPA cannot regulate under Section 111(d) because it has regulated mercury emissions under Section 112, that is wrong as well. There are two amendments. There 

is a House Amendment and a Senate Amendment. They were both 

passed. Now, it turns out that only one of them was included in 

the U.S. Code. That was a decision made by a mere functionary. 

This is the Office of Law—of—something or other. Of Legislative 

Counsel. That person cannot supplant the will of Congress, and 

that is well established. So EPA has, for 25 years, under Administrations of both parties, sought to give meaning to both the House 

Amendment and the Senate Amendment. 

The opponents would like us to ignore the Senate Amendment 

entirely, and they would like to give the House Amendment a particular gloss, and it is a gloss that involves rewriting the statute. 

The statute uses two—twice the word or, and they would like us 

to instead supplant the word and. The word and would be more 

convenient for them, but actually, the statute has the word or. So 

not only would we have to ignore the Senate Amendment, which 

there is no basis for doing, but we also would have to rewrite the 

House Amendment, and we would have to go through an additional 

hurdle which is not giving EPA the deference that it is due under 

traditional principles of statutory interpretation as embodied in the 

Chevron case. 

If I can make one related point. On this analogy to cars, I don’t 

think that the analogy to cars really works here because in the car 

example that Ms. Wood referred to, the product is the car, and if 

EPA wants to regulate cars it can regulate cars, and regulate the 

emissions of cars, as it does and has done since the early 1970s. 

Here, the product is electricity. It is not electricity produced by 

coal-fired power plants, it is electricity. And as you know, we have 

an integrated system for delivering usable electricity to consumers, 

and EPA can figure out what the best system of emission reduction 

for delivering usable electricity to consumers is. 

Let me give you an example. When I was growing up in Argentina, where I was born, when I had a fever my mother would give 

me a mercury thermometer. These things aren’t sold in this country because they are dangerous, and instead, we use digital thermometers. If using the logic of the opponents of the Clean Power 

Plan, the product would be a mercury thermometer as opposed to 

a thermometer and, therefore, a regulation that might actually 

bring mercury thermometers out of business might be considered 

suspect, but we have never used a principle like this for regulation 

in this country, for good reason, because doing so entrenches bad 

technologies and stands in the way of innovation. The product here 

is not electricity produced by coal-fired power plants, it is usable 

electricity delivered to the consumers’ home. 

Mr. PALLONE. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Thank you. 

At this time, recognize the gentleman from Texas, Mr. Olson, for 

5 minutes. 

Mr. OLSON. I thank the chair. And welcome, Professor Tribe, Ms. 

Wood, and Professor Revesz. 

57 

This hearing is about one document; this Constitution. I have 

had this in my pocket for over 2 decades now. It is kind of worn, 

comes out by pages, but it is still is very much alive. 

And my first question is to you, Ms. Wood. Under EPA’s proposed Clean Power Plan, states would have only 13 months to develop their state plans. Is that 13 months by statute? If not, where 

does that mandate come from? 

Ms. WOOD. No, the 13 months is not from statute. The 13 

months is just a deadline that EPA has come up with in this proposed rule. Under the applicable regulations, the deadline is actually 9 months for a state to submit its plan, but the regulations are 

very clear that EPA can extend that deadline as it sees fit, so it 

has wide discretion there. So it has actually extended it from 9 

months to 13. 

Mr. OLSON. Wow, 4 more months. Now correct me if I am wrong, 

but under less complex programs don’t they allow usually 3 years 

to determine these standards, 3 years as opposed to 9 months or 

13 months, is that true? 

Ms. WOOD. Typically, for state implementation plans, which are 

often called SIPs under the Section 110, the NAAQS Program, 

states do get 3 years. 

Mr. OLSON. And this is for you, Mr. Tribe, as well as Ms. Wood. 

In light of the typical period for developing state implementation 

plans under the NAAQS Programs, does EPA’s accelerated timeline 

in the Clean Power Plan for submitted state plans raise concerns? 

Constitutional concerns, can you do it, yes, no, reliable, whatever? 

Mr. TRIBE. Are you asking whether the—— 

Mr. OLSON. What are your concerns, sir? What raises these concerns in all this accelerated development going down from 3 years 

to 9 months to 13 months, what—— 

Mr. TRIBE. Well—— 

Mr. OLSON [continuing]. Are your concerns? How about—— 

Mr. TRIBE. Frankly, I don’t know that the time change raises a 

big constitutional concern, but if I could, without cutting too much 

into your time, verify—— 

Mr. OLSON. No, it is your time, sir. 

Mr. TRIBE [continuing]. One point which I think is absolutely 

crucial to that little document that you are holding, and that is the 

suggestion that we should defer to EPA on which of the 2 versions 

of this law, are really the law of the land. Let me be absolutely 

clear, it was not some functionary, it was the Senate conferees on 

October 27, 1990, who said we recede to the House version. The 

Senate version couldn’t be implemented because it was just a clerical thing that referred to something that no longer existed. So that 

is absolutely clear. This ghost version of the law that Professor 

Revesz wants to resurrect, and I don’t know why he would bother 

if the law as it really is in the books supported what they are 

doing, but I don’t have time to go through the grammar to show 

why it doesn’t, this ghost version doesn’t exist. There may be 

ghosts, but this ghost is a nonexistent one. And now what he is 

saying is that because courts generally defer to agencies like EPA, 

when they take a statute that is ambiguous and interpret it one 

way or another, it should also somehow follow that when Congress 

tosses a law into the air, and there is another ghost competing with 

58 

it, it is OK for the EPA to grab the ghost and run with it. What 

kind of version of the Constitution is he reading? Certainly not the 

one you have in your pocket. 

Mr. OLSON. Yes, sir. I mean I am looking through this document. 

It has also the Declaration of Independence and the Constitution, 

27 amendments, I don’t see a ghost version anywhere in this document. So that is great insight. 

My final question is for all three witnesses. EPA has announced 

they will finalize this proposed Clean Power Plan for existing 

power plants this summer. Do you expect that will be challenged 

in the courts, and will be that be struck down or vacated in your 

humble opinion? 

Mr. TRIBE. Well, it is being challenged already in a particular 

case in the D.C. Circuit, but the problem is that that court might 

not reach the merits. It might say it is premature because, after 

all, we don’t have a final rule yet, but the real dilemma is that 

states are confronted with not a ghost but a phantom. They are 

confronted with some federal alternative that they can’t yet see, 

and so they are under enormous pressure, which is what makes 

this a violation of the Tenth Amendment, under enormous pressure 

to revise their whole economy. And by the time that has happened, 

it might be too late for a court to unwind everything that has gone 

on. And, you know, maybe if that would have solved the whole climate problem, one would say, well, what is a little legal violation, 

but when you look at what the EPA itself says, it says that if this 

proposal were perfectly implemented and were not offset by what 

goes on abroad, what it would achieve by the year 2100 is, at most, 

reducing the rise of sea levels by 3⁄10 of a centimeter, which is two 

or three sheets of paper, and reducing global mean temperature by 

under 1/100 of 1 degree centigrade. And I ask you, even if we could 

get all of that, is it worth that little document you are holding—— 

Mr. OLSON. Thank you, sir. 

Mr. TRIBE [continuing]. And I would say no. 

Mr. OLSON. I am out of my time. Thank you for being a 

ghostbuster. 

Mr. WHITFIELD. Gentleman’s time has expired. 

At this time, I will recognize the gentlelady from Florida, Ms. 

Castor, for 5 minutes. 

Ms. CASTOR. Thank you, Mr. Chairman. And thank you to our 

esteemed panelists today. It has been very insightful. 

Professor Revesz, you have cited the Whitman v. American 

Trucking Association opinion as one of the most important environmental decisions overall in the history of the Supreme Court, and 

you say it has particular import for the Clean Power Plan. That 

was a case—who was the author of that case? 

Mr. REVESZ. Justice Scalia. 

Ms. CASTOR. Justice Scalia. The central issue was the delegation 

of authority, whether it was constitutional or unconstitutional, is 

that right? 

Mr. REVESZ. That is correct. 

Ms. CASTOR. So what did Justice Scalia say in that case that you 

think is quite analogous here, and that might be an issue—— 

Mr. REVESZ. Right. 

Ms. CASTOR [continuing]. In future court cases? 

59 

Mr. REVESZ. Right. Thank you. So that was a case in which Professor Tribe wrote a Brief, arguing that the Clean Air Act was— 

involved an unconstitutional delegation of legislative power to the 

administrative agency. Justice Scalia was widely regarded at the 

time, and still is, as the greatest friend of non-delegation doctrine 

in the Supreme Court, and Justice Scalia writing for unanimous 

court rejected the non-delegation argument. It was rejected unanimously by a vote of 9 to 0. And that case is relevant to this situation because that was the last time that a broad non-delegation argument was made challenging a major environmental provision. It 

was a provision of the—— 

Ms. CASTOR. And that is the Clean Air Act too—— 

Mr. REVESZ [continuing]. Very same statute. 

Ms. CASTOR [continuing]. Is that right? 

Mr. REVESZ. It is the Clean Air Act as well, the very same statute. And Professor Tribe made his argument, just like he is making 

it now, and it was unanimously rejected by the Supreme Court. 

If I can take just a moment to say something about ghosts. You 

know, I never knew that laws came in ghost and non-ghost 

versions. I mean they are either laws or they are not laws. If they 

are passed by both chambers and signed by the President, they are 

laws. If they are not passed by both chambers and not signed by 

the President, they are not laws. Here, there was a House Amendment and there was a Senate Amendment. Both the House Amendment and the Senate Amendment were passed by both chambers 

and they were signed by the President of the United States. That 

makes them a law. 

What the Senate manager said about receding would have been 

really interesting and very important if, in fact, they had carried 

out what they said and withdrawn the language, but the language 

was not withdrawn, it was passed by both bodies and, therefore, it 

became a law. Not a ghost law, a real law. And what EPA is asked 

to do here is not, as Professor Tribe said, to pick whether it likes 

the House Amendment better than the Senate Amendment, the 

question is whether these conflicting provisions of the federal statute can be properly reconciled. That is the business of an administrative agency, and an agency takes a first crack at doing that. 

EPA is not going to say we like the Senate Amendment better, it 

is going to say we think we can give both meaning to both the 

House Amendment and the Senate Amendment. And if they do it 

appropriately, the courts will defer to their interpretation. And if 

they don’t do it appropriately, the courts will strike it down. And 

that issue is now being litigated, as Professor Tribe noted, before 

the D.C. Circuit, and it is going to get argued on April 16, but certainly, that is the standard tool of statute interpretation. That cannot, under any plausible guise, become a constitutional problem. 

Ms. CASTOR. And if it was unconstitutional, what would happen 

to a whole range of environmental protection laws in America? 

Mr. REVESZ. Well, I mean if a court said that there was an unconstitutional delegation here because there was—there were separate House and Senate Amendments, and again, this would be—it 

is hard to even imagine how that could be the case, given the history of the non-delegation doctrine in this country, arguably both 

provisions would be invalid, and arguably we would go back to the 

60 

preexisting law which would be the 111(d) provision that was in 

the books before 1990, which would, I think quite clearly, give EPA 

the power to do exactly what it is doing here. 

So even if this was all right, it is not clear the remedy would 

help opponents of the Clean Power Plan at all. 

Ms. CASTOR. OK, thank you. 

I yield back my time. 

Mr. WHITFIELD. The gentlelady yields back. 

At this time, recognize the gentleman from Illinois, Mr. Shimkus, 

for 5 minutes. 

Mr. SHIMKUS. Thank you for all you smart people for being here. 

This has really be educational and enlightening, and unfortunately, 

it is going to have real consequences. 

So first, I was involved in a Conference Committee, the 2005 Energy Act, which was done here, open amendment, debated, and we 

don’t do Conference Committees very much anymore, and so I 

think that is why there is confusion. So the first question is, if one 

chamber recedes to the other one, then the conference report has 

the language of the amendment that was accepted. There is no second amendment, is that true, Mr.—Professor Tribe? 

Mr. TRIBE. Yes, here—— 

Mr. SHIMKUS. Briefly. 

Mr. TRIBE. No. 

Mr. SHIMKUS. Thank you. Ms. Wood? 

Ms. WOOD. No. 

Mr. SHIMKUS. Professor Revesz, you seem to think there is. How 

can there be two amendments when there—when you vote on a 

conference bill with language that has been given up by the Senate? 

Mr. REVESZ. Because they both happen to be in the statutes-atlarge. 

Mr. SHIMKUS. If—typically, if a chamber withdraws its amendment, would you—— 

Mr. REVESZ. It is not—— 

Mr. SHIMKUS [continuing]. But the chamber did withdraw the 

amendment. 

Mr. REVESZ. It did not—— 

Mr. SHIMKUS. Receded to it. Receded to the House language. 

Mr. REVESZ. The House manager said—— 

Mr. SHIMKUS. All right. 

Mr. REVESZ [continuing]. That they were receding—— 

Mr. SHIMKUS. All right. 

Mr. REVESZ [continuing]. But both amendments were passed by 

both chambers, and both amendments were signed by the President. That is not the standard situation where a manager—— 

Mr. TRIBE. But it is standard. Excuse me, I don’t mean to interrupt. It happens all the time. If Professor Revesz’s view were accepted, there would be sheer chaos because this kind of situation—— 

Mr. SHIMKUS. You would have multiple definitions of the language that was supposedly passed by the Legislative Branch. 

Mr. TRIBE. Right, and I am not—— 

Mr. SHIMKUS. OK. 

Mr. TRIBE. I am not making a delegation argument here at all. 

61 

Mr. SHIMKUS. All right, thank you. I want to go to my second 

question. 

To Ms. Wood, Professor Revesz talked about electricity in the 

interstate commerce and the regulated entity where it is really— 

what is it, you tell me? I think I know what it is but you tell me. 

Ms. WOOD. The confusion that you are rightfully experiencing is 

because he is convoluting that somehow the Clean Air Act regulates the product that is being sold, and that is absolutely not the 

case. What—— 

Mr. SHIMKUS. And the product in this case would be? 

Ms. WOOD. The product is electricity. 

Mr. SHIMKUS. And what should they be doing? 

Ms. WOOD. But what is being regulated, and what needs to be 

regulated, is the electric generating unit, the piece of equipment 

that is generating electricity. And in my car example, the fact that 

he car, which is what is the emitting source, and the product is the 

same thing, just happens to be a coincidence, but what the Clean 

Air Act regulates are sources of air pollution. 

Mr. SHIMKUS. Yes, thank you. And I was following up on Congressman Olson’s discussion on the 9 plus 4 equals 13 months. 

Were—how long would judicial review take in a case like this? This 

is to Mrs. Wood—Ms. Wood. 

Ms. WOOD. Typically, in the D.C. Circuit you would be looking 

at 1 1⁄2 to 2 years before you would get a decision. 

Mr. SHIMKUS. So before we have—so that is the problem that a 

lot of us have. OK, there is a constitutional debate and conflicting 

views, I think we have established that, but we are going to enforce 

standards on not just the utilities but the ratepayers before this decision gets rendered. 

Ms. WOOD. Indeed, and that is a very real problem, and you can 

see a very real-world example of it right now with the Mercury and 

Air Toxics Standards. That case is being argued next week before 

the Supreme Court, and a victory in that case is probably going to 

be hollow for many, many electric utilities because they have already installed the pollution controls under that rule. 

Mr. SHIMKUS. And as we have had discussions here, the realworld implications are trying to comply financially. The difference 

between the Clean—some of the Clean Air Act and sulfur dioxide 

was that we had technology to do it. 

Ms. WOOD. Yes. There were scrubbers that would remove the—— 

Mr. SHIMKUS. We knew the cost—— 

Ms. WOOD [continuing]. Sulfur dioxide. 

Mr. SHIMKUS [continuing]. They were—and this committee has 

been clear in our hearings that every process except for advanced 

oil recovery in a small facility in Canada is not financially doable, 

and the government has invested and actually pulled out of the 

FutureGen 2.0 because it is too expensive. This government has 

made a decision they can’t do a carbon sequestration. 

Ms. WOOD. There is another critical difference between this and 

the Acid Rain Program that I think needs to be pointed out. The 

Acid Rain Program was enacted by Congress. 

Mr. SHIMKUS. Yes. 

Ms. WOOD. It was not done in a rulemaking by EPA. 

62 

Mr. SHIMKUS. Well, thank you. And I will just end on this. Mercury thermometers are not dangerous, but breaking the thermometers and drinking the mercury might be hazardous to your health 

because I think everyone here, based upon our age, probably used 

mercury thermometers. 

And I yield back. 

Mr. WHITFIELD. Thank you. 

At this time, recognize the gentleman from Iowa, Mr. Loebsack, 

for 5 minutes. 

Mr. LOEBSACK. Well, thank you, Mr. Chair. 

I am a former college professor, I have really enjoyed this a lot, 

but I am not a constitutional law scholar. I did comparative politics 

and international politics, but I really do appreciate the back-andforth and all the rest, but eventually we are going to have to make 

some decisions here as a legislative body. There is no question 

about that. 

Just one quick note. This isn’t new in terms of the EPA taking 

it upon itself, if you will, or trying to implement some kind of legislation. I understand the arguments just how far they are going, 

whether they are going too far or not. As you all know, long ago, 

you know, Ted Lowey talked about how, you know, regulatory 

agencies often go much further than Congress ever intended them 

to go, and we are going to continue the debate whether the EPA 

is going too far or not. There is no question about that. 

In the meantime, I would—and, Professor Tribe, if you would refrain from responding unless I ask you to do so. Professor Revesz, 

would you like to respond to Professor Tribe and his response to 

you on the 2 amendments issue? Just take a minute, if you would. 

Mr. REVESZ. Yes. I think as I have already said, you know, it is 

often the case there are conflicting House and Senate versions of 

bills and in conference, the conference decides to go with one of the 

versions. That is the version that is then voted on by both chambers, signed by the President, and becomes law. That is the standard way that conferences work. 

Mr. LOEBSACK. Yes. 

Mr. REVESZ. Here, that is not what happened. It wasn’t that 

there were conflicting House and Senate versions, and the conferees chose the House version. The House version then became the 

bill that was voted on by both chambers and signed by the President. That is not what happened. What happened was that both 

the House version and the Senate version made it into the bills 

that were voted by both Houses, they made it into the statutes-atlarge, they were signed by the President, and they are both duly 

enacted laws of the United States. 

Mr. LOEBSACK. All right, thank you, Professor Revesz. 

Professor Tribe, what is the legal way to address these problems? 

In your testimony, you mentioned a legal way to address these 

problems. What are we talking about when you say the legal way, 

and what are some examples of that? 

Mr. TRIBE. It seems to me that an act of Congress, or a series 

of congressional enactments, is the only legal way. 

Mr. LOEBSACK. Yes. 

63 

Mr. TRIBE. I mean Congress has the power, did have the power 

to pass for the United States what California has done within California, a cap and trade plan, but it didn’t succeed. 

Mr. LOEBSACK. Yes. 

Mr. TRIBE. Congress could fund alternative energy sources, put 

a huge amount of emphasis, as the government already is doing to 

some extent, on solar, on wind, on geothermal, but it really would 

take an act of Congress. It is just not enough for an agency to do 

it on its own. And here, even if there were, as Professor Revesz 

thinks, two laws that Congress did pass, assume he is right for the 

moment and—because both of them made it into the statutes-atlarge, an agency would have to reconcile them, as he says, but you 

can follow both at one, that is, each of them precludes the EPA 

from regulating certain things. The Senate version focused on the 

pollutant, the House version focused on the source. You could obey 

both. There is no need to choose between them, and choosing between them is not an exercise of delegated power. 

Mr. LOEBSACK. And you are someone who recognizes the importance of climate change, the reality of climate change, you said, 

and you have the—— 

Mr. TRIBE. No, I think—— 

Mr. LOEBSACK. And you have been environmental—— 

Mr. TRIBE [continuing]. Me personally—— 

Mr. LOEBSACK [continuing]. Very environmentally-minded over 

the years. If you could, you mentioned cap and trade, are there 

other kinds of things that Congress could do? 

Mr. TRIBE. Well, you know, if I were just to be very imaginative, 

and I am only speaking for myself here, not for anybody else. 

Mr. LOEBSACK. That is what I am asking you to do, right. 

Mr. TRIBE. A lot of people think that the best solution is to pay 

countries not to do so much deforestation—— 

Mr. LOEBSACK. Yes. 

Mr. TRIBE [continuing]. And that would take an expenditure of 

money. It is not the standard thing that comes to mind, it is way 

beyond the fence, but I think if Congress were able, I hate to say 

this, to get its act together, if Congress really could act effectively, 

there are a lot of things it could do. 

Mr. LOEBSACK. Yes. 

Mr. TRIBE. Now, there is a problem. A lot of my friends tell me, 

look, don’t be an idealist, don’t be utopian. Congress isn’t going to 

do anything so why are you so hot about the EPA violating the law 

and the Constitution? Well, it is just, I guess, the way I was 

brought up. I think the law and the Constitution matter. 

Mr. LOEBSACK. Yes, Professor Revesz? 

Mr. REVESZ. Could I—yes. So under the Clean Air Act, Congress 

made a decision in 1970 not to define some limited number of pollutants that could be regulated, because Congress understood that 

as science evolved, other pollutants would become serious. And, 

therefore, the Clean Air Act uses a term air pollutant. Typically, 

air pollutant, dangerous to human health or welfare. EPA was basically required by the Supreme Court, in Massachusetts v. EPA, 

to acknowledge that greenhouse gases were air pollutants, subject 

to regulation under the Clean Air Act. This is not some power grab 

by this Administration, this has been now a process that has been 

64 

going on for almost 10 years, and the Supreme Court said yes, 

when Congress said air pollutants, it meant something pretty 

broad. It is a broad definition, and greenhouse gases are air pollutants. And then EPA was asked to determine whether greenhouse 

gases endangered public health, and actually, the Bush EPA administrator made the initial endangerment determination. It didn’t 

become effective at the end of the Bush Administration, and then 

this Administration made it again. And so now greenhouse gases 

are air pollutants, endanger public health, and that puts them at 

the core of what the Clean Air Act is designed to deal with. 

Mr. LOEBSACK. Thanks to all of you. 

Thanks, Mr. Chair. 

Mr. WHITFIELD. Gentleman’s time has expired. 

At this time, recognize the gentleman from Ohio, Mr. Latta, for 

5 minutes. 

Mr. LATTA. Well, thank you, Mr. Chairman. And thank you very 

much for our witnesses today. We appreciate your testimony, and 

it is very informative. 

If I could start, Professor Tribe, last year the Supreme Court 

cautioned the EPA against interpreting the Clean Air Act in a way 

that would bring about an enormous and transformative expansion 

of the EPA’s regulatory authority without clear congressional authorization. In your opinion, does the proposed Clean Power Plan 

comply with this directive? 

Mr. TRIBE. I think that what the court said in the case that you 

are quoting, which was Utility Air Regulatory Group v. EPA, would 

apply many times over to this plan, and in particular, in that very 

case the court addressed the point that Professor Revesz just made. 

Yes, air pollutant in the dictionary definition part of the Clean Air 

Act is a very broad term, and it does encompass greenhouse gases, 

but when the court, in Mass v. EPA, in 2007, found a specific provision for regulating greenhouse gases in connection with tailpipe 

emissions, what UARG, the decision last year, said is you can’t rewrite clear statutory terms to extrapolate from the fact that something which is a greenhouse gas for purposes of a particular regulatory context can, therefore, be regulated under a different statutory provision which, it is very clear, prohibits the regulation under 

111(d) of greenhouse gases or any other air pollutant from a source 

that has already been forced to spend a lot of money under 112 in 

order to meet the requirements of 112 with respect to the 188 hazardous air pollutants. 

Mr. LATTA. Well, OK. Professor Tribe, also then, the Clean Air 

Act places limits on the EPA’s authority to use the Section 111(d) 

to regulate existing sources that are already subject to regulation 

for hazardous air emissions under Section 112. Does this prohibit 

the EPA from regulating coal-fired utilities under Section 111(d)? 

Mr. TRIBE. From regulating? I am sorry, I didn’t hear you—— 

Mr. LATTA. From regulating coal-fired utilities—— 

Mr. TRIBE. Under 111(d). 

Mr. LATTA [continuing]. Under 111(d). 

Mr. TRIBE. It certainly prohibits them as long as those utilities 

are being regulated under 112 for the hazardous pollutants. Greenhouses gases cannot be regulated under 111. 

65 

Mr. LATTA. Well, with that then, especially from the testimony 

I have been hearing this morning, should the EPA’s interpretation 

of these statutory provisions be entitled to deference by the courts, 

and if not, why not? 

Mr. TRIBE. Well, two reasons. First of all, what it is doing is not 

interpretation, it is revision. It is picking a statute that Congress 

did not enact, and that is not something to which the courts would 

ever defer. Secondly, the principle of deference under a case called 

Chevron only kicks in where there is an ambiguity, and here there 

isn’t an ambiguity. And besides, deference is trumped by a principle called constitutional avoidance, that is, the Supreme Court 

has said, and the D.C. Circuit has said, that when an ambiguous 

statute, and I maintain this is not ambiguous, would cause constitutional problems if you defer to the agency’s interpretation of it, 

then you don’t defer, so that even if deference were otherwise available, here it would be trumped by the serious constitutional problems that I have outlined, haven’t had time to talk about in detail, 

but my statement in written form explains why, for example, even 

though the property is not being totally destroyed, this is a violation of the Fifth Amendment, and explains a number of other 

things. So given those constitutional problems, which I don’t think 

have been solved—— 

Mr. LATTA. Well, and—— 

Mr. TRIBE [continuing]. Deference—— 

Mr. LATTA [continuing]. If I can just follow up with one question 

here because I am short on time. The Clean Air Act as a whole, 

and Section 111(d) in particular, are based on principles of cooperative federalism and are designed to give states autonomy and flexibility, and implementing emission control programs does the proposed rule strike an appropriate balance between the EPA and the 

states? 

Mr. TRIBE. Well, I think that the EPA is not striking a constitutionally appropriate balance. It is basically saying, yes, you have 

some choice to meet this severe limit, but it is like saying your 

money or your life, and you can choose whether to pay me in cash 

or by check or by Bitcoin, that is, there is no power to command 

the states to do any of this stuff. And saying that, well, this is just 

optional, it is like cooperative federalism, completely confuses what 

happens normally under the Clean Air Act with what is happening 

here. Normally, the national goal is set and the Federal Government works with the states to find a way to implement it locally. 

That is not what is going on here. What is going on here is radically different. 

Mr. LATTA. Thank you. 

Mr. Chairman, my time has expired. 

Mr. WHITFIELD. Gentleman’s time has expired. 

At this time I will recognize the gentleman from Texas, Mr. 

Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman, and ranking member for 

holding the hearing. I want to thank both our panels of witnesses 

to be here today. 

I know there is some disagreements about the EPA Clean Power 

Plan, but as a lawyer, I am always interested in hearing the arguments from our professors. Besides this hearing, the EPA Clean 

66 

Power Plan has been subject to a lot of debate. Whether EPA has 

the authority to regulate power plants was ultimately decided by 

the courts, and it is this issue I find most disappointing. I have 

been in Congress for some time, and I would like to see a solution 

on our climate issues offered by this body, and not necessary because of the Supreme Court ruling. We should work together and 

control carbon emissions. That doesn’t mean eliminating traditional 

fuels, and it certainly doesn’t mean dismantling the EPA. It means 

a reasonable approach from a legislative body that would reach required compromise, and that is what we have been sent here to do, 

and I look forward to both panels. 

Professor Tribe, your testimony, a portion that jumped out at me 

is on page 11 where you say it makes far more sense to address 

climate change by legislation. I couldn’t agree with you more, but 

without congressional action, the federal agencies are acting under 

the existing authority given by the Supreme Court. Professor Tribe, 

in your testimony on page 14, you address EPA’s reference to the 

Chevron USA case. It is my understanding Chevron created a twopart test to determine regulatory authority. There are many attorneys in Washington and D.C. and around the country making large 

sums of money advising clients on which version of the House or 

Senate Amendment the Clean Air Act are law. If the Supreme 

Court agrees to hear this case, is it your argument that Congress 

spoke directly to the question at issue, or do you believe the court 

will rule on the agency’s interpretation? 

Mr. TRIBE. Well, I don’t think the court would accept the agency’s interpretation. I think here the statute is too clear, and the 

court in the UARG case made as clear as it could possibly have 

made it that the fact that greenhouse gases may be a terrible problem doesn’t give a blank check to any agency to rewrite the law. 

Mr. GREEN. OK. 

Mr. REVESZ. If I can just for a minute—in that case, EPA was 

trying to regulate 86 percent of the carbon dioxide emissions of certain stationary sources. The court in that case allowed EPA to regulate 83 percent of those emissions. Justice Scalia indicates that in 

his opinion. It only deprived the EPA of the authority to regulate 

the last 3 percent, and that was because that statute had a specific 

numerical provision that would have required EPA to either regulate a much larger number of sources than EPA wanted to do, or 

else disregard the number. And as a result of that problem, the Supreme Court deprived EPA of the authority to regulate the last 3 

percent of those emissions, but allowed EPA to regulate 83 percent 

of the emissions of these stationary sources. 

So EPA ended up getting most of what it sought—the vast majority of what it sought out of that case, and the statutory problem 

that arose was a very specific statutory problem under that particular provision that has no bearing on other provisions that don’t 

have those numerical limits. 

Mr. GREEN. Professor Revesz, one of the other things, since I 

only have a minute and a half, would a strict reading of the House 

version exclude many if not all potential regulated sources, and you 

have written extensively on environmental law and regulatory policy, is Congress, while we don’t interpret the law, it is our job and 

67 

the courts to do that, we have the responsibility for conflicting 

issues in the laws that we wrote. Do you agree with that? 

Mr. REVESZ. Absolutely. And it often happens. This isn’t an example of Congress doing something wrong. I mean it often is the 

case that statutes get passed and they have ambiguous provisions 

that require agency interpretation. This is the bread and butter of 

what the federal courts then to do is to determine whether the 

agency interpretations are entitled to deference, and whether they 

should be upheld. 

Mr. GREEN. And that is the federal court’s job. Let me give you 

an example of one of the legislation that we have worked on passing. Congressman Olson and Congressman Mike Doyle and I have 

introduced legislation, and it has actually passed the House, to resolve conflicting language in the Federal Power Act, and that is our 

job to be able to do that, to do the legislating if there is an issue 

that the courts may not be addressing in our opinion is what the 

law is. 

Professor Tribe, I am sorry, I don’t give you any more than 10 

seconds, but—— 

Mr. TRIBE. Well, I agree with that allocation of responsibility. I 

also think that measuring the law by percentages is not exactly 

right. I saw those talking points too—— 

Mr. GREEN. Yes. 

Mr. TRIBE [continuing]. The EPA wanted to win, and they said 

why don’t you point out we won 83 rather than 86. That wasn’t the 

point. The point was that their approach to the law was totally rejected by the court. 

Mr. GREEN. OK. 

Mr. REVESZ. No, there were two issues. EPA won on one issue 

and lost on one issue. It was not totally rejected by the court. 

Mr. WHITFIELD. Gentleman’s time has expired. 

Mr. GREEN. Thank you, Mr. Chairman. 

Mr. WHITFIELD. At this time, I will recognize the gentleman from 

West Virginia, Mr. McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. And thank you to the 

panel for being here. It is always enlightening to hear some of 

these discussions. I know ultimately the decision is going to be 

made by the courts, but it helps us to understand a little bit of 

these issues, particularly between 112 and 111(d), but I don’t think 

the American public gives a hoot. They really don’t. They just want 

to make sure that Johnny has a job, and their electric rates are 

going to be reasonable for them to be able to continue. And I see 

us getting caught up. We start chasing these rabbits, that they get 

us distracted from where we need to be. 

I will be the first to tell you that I—do I think climate change 

is occurring? Absolutely. I think it is. But we have taken this simplistic route to go this direction, and so what I want to do is get 

back more to the fundamental. You all were chasing this rabbit all 

the way down. You are arguing over 112 and 111(d), and you are 

talking about phantoms and ghosts, I think. Don’t care. What are 

we going to do? What are we doing here with this fight? I would 

like to get back to the more basic where we are, because under the 

United Nations it said that 96 percent of the CO2 emissions are 

naturally occurring. Only 4 percent of all the CO2 emissions of the 

68 

world are anthropogenic, manmade. See, I can use the term like 

you all. Only 4 percent. And the United Nations goes on to say that 

all coal-fired powerhouses in America, if you shut off every one of 

them shut down in America, under the United Nations, said you 

only reduce the CO2 emissions by 2⁄10 of 1 percent. That is not my 

statistic, that is from the United Nations, 2⁄10 of 1 percent. 

So what I am doing, I am the engineer in the room here on this. 

So now we are getting to the point, under this rule, they want to 

reduce it 30 percent, so we are talking about a rule that reduces 

30 percent of 2⁄10 of 1 percent. We are talking about a reduction of 

CO2 emissions in the globe of 6⁄100 of 1 percent. Forget the argument over 112 or 111(d), we are going to spend billions of dollars, 

we are going to raise rates, jobs are going to be lost—to save 6⁄100

of 1 percent of the CO2 emissions. That doesn’t make logical sense. 

From an engineering perspective, there is something wrong when 

we start chasing a rabbit over here, when we are putting our economy at risk over 6⁄100 of 1 percent. 

Professor, could you respond to that? Are we chasing the right 

rabbit here? 

Mr. TRIBE. Well, my grandchildren ask a similar question, which 

shows how wise you are, because I think my grandchildren are 

smart as whips. Grandpa, why are you worried about this 111 and 

112 stuff? Is the world going to be destroyed? And then I tell them, 

well, there is this agency and it says if you do what it wants, they 

are not going to save the world, in fact, maybe by the year 2100, 

they will prevent the oceans from rising as much as, well, two 

sheets of your paper. But they think that by making a start, it is 

good, better than nothing. Well, your grandpa spends his life teaching about the Constitution, and so I sort of put that in the balance. 

There are a lot of details there, they look like rabbits going into 

rabbit holes, but that matters because in the long run, all those 

rabbits add up to something that this country has built. And then 

they ask a different question. They say, well, if we make a start, 

isn’t that good? And then I try to give them the old proverb, you 

can’t leap across a chasm in two steps, you know. Jumping halfway 

or even 1 percent of the way might do a lot more harm, like splat 

on the bottom of the chasm, than not doing this at all and looking 

for something else. What would you do, Grandpa? And then I say 

I am not an expert in that stuff. 

Mr. MCKINLEY. Ms. Wood? 

Ms. WOOD. I wanted just to expand for a second on what Professor Tribe was saying about needing to make a start and wanting 

to build on something. I think it is important to recognize here that 

if these sources are not regulated under Section 111(d), they are 

regulated under Section 112, and that is what is prohibiting the 

111(d). Under 112, these sources have to put on maximum available control technology, maximum. So it is not as though these 

sources are not going to be controlled. And more importantly, in 

terms of when you start talking about carbon dioxide, I think it is 

also important to note that EPA has said that the carbon benefits 

from that maximum available control technology are estimated to 

be $360 million annually. So it is not as though there isn’t a start 

being made. 

69 

Mr. MCKINLEY. Right. And my time has run out, but I would 

rather us be focusing on something more practical than this ideological—why aren’t we doing energy efficiency, why aren’t we looking at more research into clean coal technology, but to simply go 

after it and start doing this and costing us jobs I think is incredibly 

naive. 

Thank you, and I yield back. 

Mr. WHITFIELD. Gentleman’s time has expired. 

At this time, recognize the gentleman from Kentucky, Mr. 

Yarmuth, for 5 minutes. 

Mr. YARMUTH. Thank you very much, Mr. Chairman. Thanks to 

the witnesses. 

After listening to this discussion, I am not sure I am happy or 

sad that I dropped out of law school years ago. I think I am happy. 

But I want to go back to—you mentioned the Massachusetts v. 

EPA case, and I—what we were debating the Waxman-Markey bill 

several years ago, 2009, and so forth. That was kind of the motivating factor, I think, for many of us at that point, that if the Supreme Court had said that we have to regulate carbon dioxide, 

wouldn’t it be better for Congress to act and create a mechanism 

for dealing with it than trusting the EPA to be flexible enough to 

deal with states like my own, and Congressman McKinley’s as well. 

So I am curious because I have heard some difference of opinion, 

and I don’t want to start another debate, on whether that decision 

actually mandated, made it compulsory for EPA to regulate CO2 or 

just basically made it permissive. You are shaking your head, Ms. 

Wood, do you want to answer that? 

Mr. REVESZ. Well—— 

Mr. YARMUTH. Or either one. 

Mr. REVESZ. Yes, that decision held that—EPA in that case was 

arguing that greenhouse gases were not air pollutants for the purposes of Section 202 of the Clean Air Act. The Supreme Court held 

that they were, in fact, air pollutants for the purposes of Section 

202 of the Clean Air Act. It did not mandate regulation because 

regulation is mandated only if the air pollutants endanger public 

health or welfare. So the next step was for EPA to make the determination, the court did not make it as was appropriate, to make 

the determination whether greenhouse gases endanger public 

health and welfare, which is a statutory term. As I indicated earlier, Stephen Johnson, who was the EPA Administrator at the end 

of the Bush Administration, made that endangerment finding, but 

the Administration ran out of time. It wasn’t approved during the 

Bush Administration, and it was, therefore, made anew by the 

Obama Administration. And that was challenged in the D.C. Circuit. Many groups challenged the endangerment finding and said 

that that was—and the agency had acted inappropriately in making that finding. The D.C. Circuit upheld the agency’s decision. 

Those same groups then petitioned the court for certiorari, and the 

court, while granting cert on other issues in that case, and that 

ended up being the Utility Air Regulatory Group case, denied certiorari on the endangerment finding. 

So now it basically is the law, or at least the agency has said 

that greenhouse gas emissions endanger public health. And now 

Massachusetts v. EPA dealt with Section 202 of the Clean Air Act. 

70 

The definition of air pollutant and of harming public health is very 

similar across many sections of the Clean Air Act and, therefore, 

that case has now led to all these other rules. These rules are basically based on exactly the same legal principle. And EPA is proceeding accordingly with the Supreme Court—— 

Mr. YARMUTH. They are doing their job as they see it, based on 

what the Supreme Court said—— 

Mr. REVESZ. Right. 

Mr. YARMUTH [continuing]. About CO2. 

Mr. REVESZ. What the Supreme Court said in Mass v. EPA, that 

greenhouse gases are air pollutants. Well, the D.C. Circuit said, in 

the case that became UARG in the Supreme Court, is the endanger 

public health, and then—— 

Mr. YARMUTH. In fact, there has been a considerable amount of 

at least scientific evidence that there is a connection between CO2

and elevated levels of asthma and so forth in communities. I know 

that is true in my community as well. 

I want to get to a question real quick with Ms. Wood. In your 

issue about whether or not we regulate the product or go outside 

the fence, or so forth, if under a state’s plan, the state utilities, 

power companies, offered financial incentives for conservation to its 

customers, would that fit within your conclusion of being something 

that would be consistent with your interpretation of what EPA can 

regulate, even though in this case it would be voluntary, the states 

would be doing it, not EPA, but EPA would have to approve the 

plan? 

Ms. WOOD. I think the key difference here—— 

Mr. YARMUTH. Yes. 

Ms. WOOD [continuing]. Is in how the targets are set versus the 

flexibility that you could use to meet that target. And I think this 

is a key distinction that needs to be made. And the issue isn’t 

whether a power company could do what you are saying to meet 

the target, the question is should those types of things be considered in determining what the target is. And to that, my answer is 

no, the Clean Air Act doesn’t permit that. 111 has always been understood to begin and end at the source. 

Now, in the Clean Air Mercury Rule that EPA did several years 

ago, they did have flexible cap and trade mechanism to meet that 

limit, but the target itself and the limit itself was based on technology that could be applied at every unit. So you started with activated carbon injection, and you figured out what the rate would be 

at each unit, but then you allowed flexibility in terms of how you 

would meet that. 

So in your example, I think that would be permissible in terms 

of meeting the target, but it would not be permissible for setting 

the target. 

Mr. YARMUTH. OK, appreciate that. 

I yield back. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, recognize the gentleman from Virginia, Mr. Griffith, 

for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. Appreciate you having 

this hearing very much. 

71 

I rarely disagree with my colleague from West Virginia, but in 

this case I do. The process and the procedures by which we get our 

laws and pass our laws may not always make sense and be practical in the minds of some, but it is what has allowed our republic 

to exist for the length of time it has, over 200-and—I guess we are 

closing in on 220-some-plus years, and it is extremely important. 

Professor Revesz, I love these things, and I am going to go down 

a different rabbit hole than the one we have been going over, although I am coming back to that one because I love that one too. 

The proposal that you make is a parliamentary procedure impossibility. It cannot happen. Doesn’t matter what the issue is. Jefferson is very clear in the Manual of Parliamentary Practice. When 

there are differences between the two Houses, they get together in 

a conference and they work those differences out. If both Houses 

adhere to their position, the bill itself dies. It is not for you to say 

today that the bill should die if there is some confusion because 

there are two different versions. There are not two different 

versions, there is one version. It could not have passed out of both 

Houses, gone through a Conference Committee, and gotten to the 

President’s desk unless there was one version, and one version exclusively. 

And then we get to the point that Professor Tribe made, and it 

is an honor for me to be in your presence. We are not always going 

to agree. There are a lot of things we are going to disagree on politically, but your defense of the Constitution I am 100 percent behind and—— 

Mr. TRIBE. Thank you. 

Mr. GRIFFITH [continuing]. Agree. And even when the rules in 

the Constitution are against me on what I believe ought to happen, 

I respect that those bodies and those rulings must be followed. 

And so we get to that because I think that if there was some 

kind of a disagreement and suddenly it is found 25, 30 years later, 

that creates a problem, and I would submit—I don’t know about 

the 1995 ruling. I would ask you quickly if you could tell me about 

that. You said that it had already been determined in ’95, ’08, and 

’11, and I know ’08 and ’11. 

Mr. TRIBE. Right. Well, in 1995, the EPA itself interpreted the 

Section 111(d) as I have, and as I think the courts would. 

Mr. GRIFFITH. OK. And then we get to 2008, and you didn’t make 

this point, although I am sure you are aware of it, and I find this 

language fascinating and brought this up to the EPA months ago. 

That decision, if you read it, part of it says this requires vacation 

of CAMR’s regulations for both new and existing EGUs, electric 

generation units. 

Mr. TRIBE. Yes. 

Mr. GRIFFITH. EPA promulgated the CAMR regulations for existing EGUs under Section 111(d). This is a court opinion by the Circuit Court in D.C. This is what I am saying here. For existing 

EGUs under Section 111(d). But under EPA’s own interpretation of 

the section, it cannot be used to regulate sources listed under 112. 

Mr. TRIBE. Right. 

Mr. GRIFFITH. The judge found that they had conceded, and he 

goes on to say, EPA thus concedes that if EGUs remain listed 

under Section 112 as we hold, then the CAMR regulations for existVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
72 

ing sources must fail. The EPA appealed that ruling, but not on 

that point. 

Now, what is significant about that, and the question I have for 

you, and I am going back to first year of law school for myself, is 

the EPA now precluded, under either the theory of res judicata or 

collateral estoppel, having conceded the point in the 2008 case and 

not appeal to the Supreme Court, and having been a party in that 

case, albeit not a party in the 2011 case—— 

Mr. TRIBE. So—— 

Mr. GRIFFITH [continuing]. Have they conceded the point, and 

are they now thrown out on their backsides because they have already conceded this point, and to bring it back up is a waste of 

time, as Mr. McKinley said? 

Mr. TRIBE. I think, because that case was New Jersey v. EPA, 

it is only New Jersey that could make that collateral estoppel argument. Other people confronted by an EPA that says we have now 

changed our minds, like Robert Jackson once said, the matter does 

not appear to me now as it appears to have appeared to me then, 

other people are not going to be able to estop the EPA. But the 

EPA is free to make these arguments, I just think they are wrong 

and will lose. 

Mr. GRIFFITH. All right. And you think they will lose also in looking at 2011, although they were not a party to that, you were correct in referencing footnote 7 that said that the Supreme Court 

specifically said in their opinion, previously cited approvingly by 

Professor Revesz, that there is an exception, EPA may not employ 

7411(d), which is what we are talking about, if existing statutory 

sources of the pollutant in question are regulated under the National Ambient Air Quality Standard program, 7408 through 7410, 

or the Hazardous Air Pollutants Program, 7412, which is what we 

are talking about is 111 and 112, am I not correct? 

Mr. TRIBE. Correct, and that use of the word or supports the 

court’s reading. The courts have been consistent in accepting this 

reading all this time, and it is amazing, though it is not illegal as 

such, for the EPA to scratch its head and say how are we going 

to win this case, we have to invent a new statute. 

Mr. GRIFFITH. And they have reached pretty deep to find something that they could hang their hat on. 

Mr. TRIBE. They reached very deep, to something that Senator 

Durenberger when it was first proposed said I can’t imagine this 

being used very often. It has only been used 5 times. It is a technical little—well, it is a mouse hole, and they are pulling an elephant out of it. 

Mr. GRIFFITH. Thank you. I have to yield back. I wish I had more 

time. 

Mr. WHITFIELD. Gentleman yields back. Thank you. 

At this time, recognize the gentleman from Maryland, Mr. Sarbanes, for 5 minutes. 

Mr. SARBANES. Thank you, Mr. Chairman. And thanks to the 

panel. 

I don’t know that I have a whole lot to add or more to ask, but 

we have talked about phantoms and we have talked about ghosts, 

and we are now getting to a dead horse in terms of beating it over 

this issue of the interpretation. I gather that the crux of this is 

73 

whether the EPA’s pursuit of the Clean Power Plan is warranted 

or authorized under Section 111(d), and that then sets to this question of whether it is seeking to balance and interpret the conflict 

between these two amendments is appropriate or not appropriate. 

Because you all have been debating this most of the time we 

have been here, I am assuming that while there are other parts of 

your argument, and briefs, that you point to, that you view that as 

probably being the issue upon which a court’s review of this question is going to turn. Is that fair? 

Mr. TRIBE. Well, I have tried to encapsulate the essence of it, but 

what I submitted is over a 50-page document, and I do think courts 

will pay attention to the several different parts of the argument. 

One, that even if Congress did give this power to the EPA, it would 

violate basic principles of federalism, and that is one reason that 

a court would not interpret Congress’ having done so. Two, that 

there are powerful issues about the statute itself, and the EPA’s 

authority to go beyond a statute. And three, separation of powers 

issues that arise out of the EPA’s recognition that because the statute as written doesn’t quite do what they want to do, they have 

created a magical mystery tour through the parliamentary procedure to say, well, there are two statutes. And although I have suggested, both here and in my written testimony, that if there really 

were two, which doesn’t happen, they could follow them both by 

both outlawing the regulation of pollutants that are covered by 112, 

and outlawing the regulation under 111(d) of sources under 112. 

Mr. SARBANES. Professor Revesz, do you—— 

Mr. REVESZ. Yes, if I can answer your question more directly. 

The debate we have been having here is replicated in hundreds of 

pages of briefs before the D.C. Circuit. All of these issues are being 

aired in great detail on both sides. Most of the positions that I have 

made here are made by the U.S. Department of Justice, by many 

states. Other states are taking the opposite position. Some industry 

groups are agreeing with my interpretation of the Constitution of 

the statue, other industry groups are on the other side. All of this, 

there are hundreds and hundreds of pages of briefs on all of the 

issues we have been talking about. 

If I can just take a moment to respond to an issue that Mr. Griffith raised. There is clearly only one version of the statute. There 

has to be only one version. That one version includes arguably inconsistent provisions. They are arguably consistent, and arguably 

inconsistent, but they were both voted on by both chambers and 

signed by the President. And the CAMR case is different because 

in the CAMR case, the problem was that EPA had initially sought 

to regulate mercury emissions under Section 112, then in Bush Administration decided to regulate under 111(d), but it was trying to 

regulate the same mercury emissions, the same hazardous air pollutant. Everyone concedes that EPA cannot invoke Section 111(d) 

to regulate a hazardous air pollutant that is being regulated under 

Section 112. But here the issue is the greenhouse gases are not 

hazardous air pollutants regulated under Section 112, so the 

CAMR case is actually an opposite to this problem, but I am sorry, 

I took up a little bit of your time. 

Mr. SARBANES. No, actually, I was going to ask you to add whatever you think is left on this question. Can you real briefly, in 43 

74 

seconds, just give me a little bit more of your perspective on why 

the Takings issue is not determinative here? 

Mr. REVESZ. Well, because first, this is a regulation, it is not a 

physical Takings, so a regulation would have to deprive a property 

owner of almost all of the value of the property. And if there is a 

property owner for whom that is the case, the proper remedy is not 

to invalidate this regulation, but it is for that property owner to 

sue separately at a later time for compensation. 

Mr. SARBANES. Thank you. 

Mr. TRIBE. Could I—— 

Mr. SARBANES. Sure, Professor Tribe. You have—— 

Mr. TRIBE [continuing]. Add one word? 

Mr. SARBANES [continuing]. One more second. 

Mr. TRIBE. We have never suggested striking down the law. 

Compensation is all we have talked about, but ever since The Steel 

Seizure Case, the Supreme Court has said that an agency, and 

even the President is not allowed to impose a bill on the American 

taxpayers for compensation unless Congress, which has the power 

of the purse, has clearly authorized the action that is going to require the compensation. That is all we have been talking about 

under that part of our—— 

Mr. REVESZ. But there is no compensation required here. 

And one last point. On footnote 7, as we have now, I think, indicated, footnote 7 is subject to interpretations, and there are literally dozens of pages in the D.C. Circuit briefs on either side of 

that issue. I think it is pretty clear what footnote 7 means. Obviously, Professor Tribe thinks is it clear on the other side, but there 

are two interpretations of footnote 7 of the American Electric 

Power case that are out there. 

Mr. WHITFIELD. Thank you. Gentleman’s time has expired. 

At this time, recognize the gentleman from Missouri, Mr. Long, 

for 5 minutes. 

Mr. LONG. Thank you, Mr. Chairman. And thank you all for 

being here today. 

When we started this hearing, I didn’t have this document in my 

hand. And I represent the Seventh District in Missouri, which is 

Springfield, Joplin, Branson, Missouri, and we have a lot of successful businesses that germinated there. Bass Pro Shops started 

from nothing and has become what it is today. O’Reilly Automotive, 

which is across the United States, very successful company. We 

have a great medical community there, a lot of successful businesses, and a lot of people that just want to raise their kids in a 

good part of the country. Have a good job, raise their kids, have 

a nice place to raise their family. And I saw in my notes today, my 

little handy-dandy pocket card here, that the city of Springfield 

was coming to see me today, and I thought that is great. They 

think enough of me to come and talk to me about some issues that 

they have pressing. I am glad they came to Washington to see me, 

but they didn’t come to Washington to see me, they came for a conference. And the reason they came to this conference, there were 

two cities of the United States that were invited to the conference 

to speak on this. One was Richmond, Virginia, and the other was 

Springfield, Missouri. And the reason is they have done such a 

75 

good job, such a forward-thinking job with these different issues 

that we are discussing here today. 

I want to read you just a little snippet of what we have, and then 

kind of ask you all’s suggestion on something. But this is from 

Mayor Bob Stephens, Mayor of Springfield, Missouri. Affordability 

and unfunded environmental mandates. And like I say, you can 

think what you want about things, but I stepped off in a side room 

here and got this in our meeting, I couldn’t run back to my office 

and meet him over there, so I was required to meet him here due 

to time constraints. Affordability and unfunded environmental 

mandates. As you know, the city of Springfield, Greene County, 

and Springfield City Utilities have been working cooperatively to 

develop a proposed integrated plan framework that would foster a 

more holistic approach to the various unfunded EPA environmental 

mandates that all communities are facing; wastewater, storm 

water, drinking water, air quality, and solid waste. Our integrated 

plan framework attempts to consider all of these issues together instead of each one separately, and to focus resources where the community can achieve the biggest bang for the buck. We appreciate 

your efforts to ensure that future unfunded environmental mandates must be affordable for the community and the citizens. 

Now, one of the things that they did in this report that they are 

in here in Washington, and were honored enough to be thought of 

highly enough for the conference to be one of two cities, is they did 

the math. I know you all are constitutional scholars and such, but 

I don’t know how your math is, but the math that they did was 

over the next 15 to 20 years, these unfunded mandates from the 

Environmental Protection Agency are only going to cost each individual in my district a little over $46,000 per person over the next 

15 to 20 years. 

So I guess I will start here with Professor, is it Revesz? Do you 

have any suggestions what I tell the folks back home about these? 

Mr. REVESZ. Well, it is a little hard for me to comment on a document that I haven’t seen, but I can tell you from my experience, 

one of my areas of expertise is a cost benefit analysis of environmental regulation, and I actually care a lot about having the benefits of environmental regulation exceed the cost, and I am a big 

proponent of the use of cost benefit analysis to justify environmental regulation, which sets me apart from actually the vast majority of environmental law professors in this country who don’t 

like it as much as I do. But I can tell you that often, these early 

cost estimates turn out not to be accurate, and—— 

Mr. LONG. They are usually low, aren’t they? 

Mr. REVESZ. No, actually, empirical studies show that initial cost 

estimates tend to be higher than the ultimate costs are, and there 

is a good reason for that. As initial estimates are generally made 

on the basis of sort of current end-of-the-pipe technology, but there 

is a great ingenuity in American business, and businesses figure 

out ways of doing things more effectively and more cheaply, and for 

that reason, in the end, costs end up being lower than are predicted. 

There is a lot of debate on cost estimates. There is huge variance, 

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view by serious experts, and I would take well-conducted cost estimates very seriously. But—— 

Mr. LONG. So we—— 

Mr. REVESZ [continuing]. I would caution—— 

Mr. LONG. I hate to interrupt you but I am about out of time, 

but Johnny Morris, the owner of Bass Pro Shops, has a saying, we 

all live downstream. We all do live downstream. We want to have 

a clean environment to raise our family, and whether it is in the 

Ozarks or Washington, D.C., or the state of Washington, we all 

want a good clean environment, but unless you own Bass Pro 

Shops or you own O’Reilly Automotive, or one of these businesses, 

and our median income is under the $46,000 a year, it is pretty 

tough to explain to the folks back home that you have to put a cup 

in the storm waters that pass through Springfield, and dip it and 

make it palatable, and some of these ridiculous regulations. 

I think I am over my time. I was going to yield my time back 

but I don’t have any, Mr. Chairman. Thank you. 

Mr. WHITFIELD. The gentleman yields back. 

At this time, recognize the gentleman from New York, Mr. 

Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. And welcome to our panelists. 

Since 1970, the Clean Air Act has had several key features that 

have helped make it one of the most successful environmental laws 

in the world. Science-based, health-protective standards keep our 

eye on the prize: healthy air for everyone. Cooperative federalism 

allows EPA to set the clean air goals, and allows states to decide 

how best to achieve them. EPA retains backstop enforcement authority, ensuring that every citizen in the United States receives a 

minimum level of protection, even if their state fails to act. Some 

have claimed that this arrangement violates the Tenth Amendment, and I quote, ‘‘If a state fails to formulate a plan, EPA will 

mandate a federal plan. This commandeering violates the Constitution under New York v. U.S.’’ 

Professor Revesz, does the Clean Air Act state plan/federal plan 

provisions violate the Constitution? 

Mr. REVESZ. It does not, and the reason is that states are not required to do anything. States are given the option to come up with 

state implementation plans, and if they don’t, EPA can impose federal implementation plans on the sources of pollution. And because 

EPA imposes those directly on the pollution sources and not on 

state institutions, there is no Tenth Amendment problem. 

The cooperative federalism arrangement under Section 111(d), as 

I indicated earlier, is exactly the same arrangement that has been 

in place since 1970 for meeting the national Ambient Air Quality 

Standards. EPA sets the reduction requirements in the National 

Ambient Air Quality Standards to define the maximum permissible 

concentration of pollution in the ambient air. The states can then 

decide how to allocate that reduction requirement among their 

sources through state implementation plans. And generally, they 

do, but sometimes they don’t. And when they don’t, EPA imposes 

federal implementation plans. And this system has been going on 

for decades. So the reason there isn’t a Tenth Amendment problem 

is because EPA does not actually require the states to do these 

state implementation plans, it merely gives them the option to do 

77 

them. And 111(d) is exactly the same situation. Through its—the 

Clean Power Plan—the proposed rule in the Clean Power Plan, 

EPA has set a reduction requirement that applies to each state. 

Each state can now decide what to do. Each state is not forced in 

any way to do what EPA has suggested they do in the regulation. 

They can do whatever they want as long as they meet the reduction requirement. And if they choose not to do anything, and some 

states have said they won’t, EPA can then impose a federal implementation plan. And the fact that some states have already said 

that they will not do it shows that there is no compulsion. 

Mr. TONKO. Professor, would it be fair to say that ‘‘the existence 

of a backup federal plan takes the Clean Air Act outside the commandeering world,’’ just as the Supreme Court said in the radiation case of New York v. U.S.? 

Mr. REVESZ. Yes, that is exactly right. And the New York case 

was problematic because there, the federal statute was requiring 

states to either take title to certain waste or adopt certain regulations—— 

Mr. TONKO. Well, I—— 

Mr. REVESZ [continuing]. Which is not the case here. 

Mr. TONKO. Thank you. And I ask about these two statements 

because they were both made by Professor Tribe, and I sensed a 

bit of conflict there. Do you see any conflict between the two statements? 

Mr. REVESZ. Well, there certainly is conflict between the two 

statements you mentioned now and Professor Tribe’s position in his 

written submissions and in his testimony today. 

Mr. TONKO. Thank you. And Professor Revesz, we are all hearing 

about these legal questions, about the EPA’s ability to regulate 

greenhouse gases emitted from power plants. As you know, power 

plants are the largest source of uncontrolled CO2 emissions in the 

U.S. I am not an attorney, but I thought the overall question of 

whether EPA had the authority under the Clean Air Act to regulate greenhouse gases was considered by the Supreme Court. I believe there were three separate cases: Massachusetts v. EPA; 

American Electric Power v. EPA; and Utility Air Regulatory Group 

v. EPA, and that the court ruled in favor of EPA regulation of 

greenhouse gases. In fact, the court in the Utility Air Regulatory 

Group case, talking about EPA regulation of power plants said that 

‘‘the Act speaks directly to emissions of carbon dioxide from the defendant’s plants.’’ So I just thought we should remember that and 

put it all in context. And any comments that you have in response—— 

Mr. REVESZ. No, I—— 

Mr. TONKO [continuing]. To those cases? 

Mr. REVESZ. I totally agree, in the Utility Air Regulatory Group 

case that was decided last year, one of the issues was whether best 

available control technology could include the regulation of greenhouse gases, and the Supreme Court held that it could, and the 

reason that it could is because greenhouse gases were regulated air 

pollutants that endanger public health and welfare. 

Mr. TONKO. Thank you very much. 

With that, I see my time is up and I yield back. 

Mr. WHITFIELD. Gentleman’s time has expired. 

78 

I know that Mr. Tribe was trying to respond. Did you want to 

make a comment? 

Mr. TRIBE. Right. I don’t know whether you call it a point of personal privilege or whatever, but since I was quoted, the context 

was a statement I made in October of 2012. I was talking about 

something that bears no resemblance to the plan that was announced, proposed by the EPA on September 2014. I may have 

some ability to foresee the future, but not that much. 

It is true that the existence of an otherwise unproblematic 

backup plan can take something out of the normal commandeering 

world, but here we have something that is much more like what 

the U.S. Supreme Court decided in NFIB v. Sebelius, was impermissible pressure on the states because preexisting help that the 

states are getting from the Federal Government to deal with air 

pollution, in places like Springfield, can be yanked when the state 

is recalcitrant and does not succumb to the Federal Government’s 

demand that it meet certain goals. 

In addition, the backup plan here, the reason I called it a phantom earlier is something that Professor Revesz said at page 13 of 

his prepared statement, he says it remains to be seen what a backstop federal implementation plan will look like. Now, what kind of 

alternative is it to tell a state either achieve these goals, and you 

can do it in any of several ways but none of them are voluntary, 

or we will do something to you and we won’t tell you quite what? 

Mr. WHITFIELD. OK. 

Mr. TRIBE. It is not just putting a bullet to their head, it is making them play Russian roulette. 

Mr. WHITFIELD. Thank you, Mr. Tribe. 

Mr. REVESZ. If I could—— 

Mr. WHITFIELD. You want a personal privilege, Professor? 

Mr. REVESZ. Yes, I would like that. That is the way that the 

Clean Air Act has worked for 45 years. Under the National Ambient Air Quality Standards, EPA can set state limitation plans. If 

they don’t, the Federal Government can impose a federal implementation plan. The Federal Government does not say upfront 

what that federal implementation plan would look like—— 

Mr. WHITFIELD. Well—— 

Mr. REVESZ [continuing]. It waits until the states either submit 

a state implementation plan or not. Here, EPA is actually doing 

something it has never done before, which is favorable to the 

states. It has said we are going to give you early guidance and we 

are going to do it sometime in the next few months so you actually 

have some information, which is a lot more information than states 

have had under the kind of bread and butter of the Clean Air Act 

for the last 45 years. 

Mr. WHITFIELD. And we have another panel coming up after you 

all that will be getting into this also. 

At this time, I would like to recognize the gentlelady from North 

Carolina, Mrs. Ellmers, for 5 minutes. 

Mrs. ELLMERS. Thank you, Mr. Chairman. And thank you to our 

panelists for being here today on this subject. 

I would like to, you know, focus in, you know, we are talking 

about our states, and in North Carolina, North Carolina is going 

to be negatively impacted by the increased utility bills. I know we 

79 

have already discussed whether or not that will take place over 

time, but as it plays out I do believe that will be the case, and obviously, this interpretation of Section 111(d) of the Clean Air Act. 

With that, I would like to ask Professor Tribe and Ms. Wood, the 

EPA maintains that the rule is very flexible. How would you describe the rule in just a few words, because I know we have kind 

of gone over this subject a bit, and I have a very particular question I would like to ask all of you in the remainder of my time? 

Mr. TRIBE. Well, I would say that the flexibility is an illusion. In 

fact, the Attorney General of Michigan, in comments filed with the 

EPA in November of last year, warned that the plan really takes 

meaningful freedom away from the states—— 

Mrs. ELLMERS. Yes. 

Mr. TRIBE [continuing]. And has just a patina—— 

Mrs. ELLMERS. Yes. 

Mr. TRIBE [continuing]. Of flexibility. 

Mrs. ELLMERS. Yes. 

Mr. TRIBE. It is like the example I gave, your money or your life, 

but you can pay—— 

Mrs. ELLMERS. But you can pay—— 

Mr. TRIBE [continuing]. By cash or by check. 

Mrs. ELLMERS [continuing]. You can choose any vehicle as long 

as you choose a black one, that kind of thing. 

Mr. TRIBE. Right. Very much like that. 

Mrs. ELLMERS. Ms. Wood, and to that one, do you feel it is flexible, but then also as a Clean Air Act practitioner, how would North 

Carolina or any other state be able to actually implement this rule? 

Ms. WOOD. Yes. The flexibility is exactly as Professor Tribe described it, it is illusory, and the example I like to use in describing 

the flexibility is it is as if I came to you, the State of North Carolina, and I said I want you to give me change for a dollar. You can 

do it any way you want. It can be 100 pennies, it can be four quarters, I don’t care, you just do it, North Carolina, the way you want. 

Well, the problem is North Carolina only has 60 cents, and so there 

really isn’t flexibility there. 

Mrs. ELLMERS. Right. So in other words, with the—got it. 

Now, to that point, I want to go into something very specific because I think, there again, I know we have been debating law and 

the interpretation. I am a nurse and I am much more practical 

when it comes to these things. So what I would like to know is, 

based on this 111(d) provision, in building block number four, 

which is relating to the increased energy efficiency, how would this 

be enforced? 

And I will start with you, Professor Tribe, and then just go to 

each one of you. 

Mr. TRIBE. I would rather defer, if I could, because she is—— 

Mrs. ELLMERS. That is fine. That is fine. Ms. Wood. 

Mr. TRIBE. She is more of an expert in the intricacies than I am. 

Mrs. ELLMERS. OK. 

Mr. WOOD. That gets to the essence of the problem of this rule 

which is that it goes beyond the source, as I have talked about 

today. There is no mechanism in the Clean Air Act for you to go 

and require people to reduce their electric consumption. 

80 

Mrs. ELLMERS. And basically, what we are talking about here is 

we are not talking about the state now or penalizing the state, we 

are talking about individuals. We are talking about individual 

households, we are talking about individuals who may or may not 

be complying with these regulations. 

Ms. WOOD. Exactly. So either you are going to hold the individuals directly responsible, which isn’t permissible under the Clean 

Air Act, or you are somehow going to try to force the electric utility 

companies to make—— 

Mrs. ELLMERS. To—— 

Ms. WOOD [continuing]. Their customers do it. 

Mrs. ELLMERS [continuing]. Enforce. Correct. 

Professor Revesz, would you like to comment on this? 

Mr. REVESZ. Sure. As I indicated earlier, I mean the product 

here, what is being regulated is electricity delivered in usable form 

to consumers. 

Mrs. ELLMERS. To consumers. 

Mr. REVESZ. Consumers. Now, I don’t think EPA is arguing that 

consumers should use less electricity, or take the bus one day a 

week or work at home, or anything like that. 

Ms. WOOD. That is absolutely building block four. 

Mrs. ELLMERS. To the point. 

Mr. REVESZ. That is an interpretation of building block four, and 

we can disagree with that but I don’t think we will resolve it in 

the next 52 seconds. 

Also, we shouldn’t lose sight of the fact that nothing is being imposed on any state here. 

Mrs. ELLMERS. OK, but there again, now—— 

Mr. REVESZ. These are very—— 

Mrs. ELLMERS [continuing]. Now I am just reclaiming my time. 

We have already determined it is not the state we are talking 

about. We are talking about the individuals are the users of this 

energy, the individuals. My question is how would you enforce this? 

Mr. REVESZ. States in their plans can come up with reductions 

any way they choose. They don’t have to do anything in particular. 

They can have trading schemes, they can enter into compacts with 

other states and have multistate schemes, they have a million different options in how they can do this. They don’t have to do it this 

way. 

Mrs. ELLMERS. But building block number four talks about the 

individual use. 

Mr. REVESZ. The building blocks are used to determine the state 

reduction requirements. They are not imposing any requirement on 

any state or on anyone else, they are just a way of determining to 

what extent states can reduce their carbon dioxide emissions. 

Mrs. ELLMERS. Thank you. 

And I yield back the remainder of my time. 

Mr. WHITFIELD. Gentlelady yields back. 

At this time, I recognize the gentleman from Texas, Mr. Flores, 

for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. And I want to thank the 

panel for joining us today. This has been a fascinating discussion, 

particularly with respect to government overreach. 

81 

Professor Tribe, the question of Takings has come up in the 

course of this conversation today. Professor Revesz, a few minutes 

ago, indicated that it wasn’t a problem, but you indicate that the 

rule’s impact raises Fifth Amendment or Takings concerns. Can 

you tell us what you mean by that, can you expand? 

Mr. TRIBE. What I mean I think is best illustrated by decisions 

that involve not only the Takings and Compensation Clauses, but 

the Due Process Clause. As the Supreme Court has held in a number of cases, including one where the EPA initially promised confidential treatment to pesticide makers and then pulled the rug out 

from under them, and another in which the United States Government offered companies more favorable accounting treatment if 

they would bail out failing S and Ls, and then reneged, in cases 

like that, the Supreme Court has found a doctrinal basis either in 

the Contract Clause or in the Due Process Clause or in the Takings 

Clause for saying that even though you haven’t wiped somebody off 

the map entirely, you have left them with some value, if you lead 

them to take a course of action and then pull the rug out from 

under them, fairness requires some kind of compensation. And in 

particular, the way the coal companies have been led on here is 

well known, this was something that was encouraged by the government, and in particular, when they were forced to invest billions 

of dollars in meeting the requirements under 112 with respect to 

the hazardous pollutants, they were pouring money down a hole, 

and they were not told, guess what, it is all gone, because the state 

that you live in has no choice other than to put you out of business. 

Mr. FLORES. Well, that sort of brings me to my next question related to 111(d). This seems to be on shaky legal ground already. It 

is already the subject of lawsuits that haven’t been finalized yet. 

And so, Ms. Wood, what happens if the states start implementing 

the final rule only to have the courts strike the rule down, and 

what do these states do, what if they have already started signing 

the contracts, people started breaking ground on investments, or 

making capital commitments for investments, what happens next? 

Ms. WOOD. Yes. There are two sets of harm that can happen 

here; one is to the states and the other is to the power plants—— 

Mr. FLORES. Correct. 

Ms. WOOD [continuing]. Themselves. And when you are looking 

at the states, they are having to start now to prepare these plans. 

In the litigation that is pending, the state of Alabama, for example, 

submitted an Affidavit that said that this was by far the most complex undertaking that the state of Alabama Environment Department had undertaken in 40 years. So it is a lot of capital being expended to come up with these plans. 

Most states are going to need to enact legislation and put in 

place regulations. So if at the end of that time period, this is all 

found to be unlawful, well, all of that effort will have been lost, but 

more importantly to the extent legislation and regulations have 

been put in place, all of that is going to have to be reversed, and, 

you know, that is also going to be time-consuming. And then as you 

said, power plants need to start planning now and so they can 

enter into contracts and could have financial—— 

82 

Mr. FLORES. Right, but it goes unsaid here but is obvious is that 

the consumers and the taxpayers and ratepayers all bear the cost 

to that. 

Continuing on Section 111(d), it is the basis for the Clean Power 

Plan that the EPA has come up with, but this provision as I understand it has seldom been used in EPA’s 44-year history. The Supreme Court also recently said it is skeptical when an agency 

claims to discover in a long, long exigent statute, an unheralded 

power to regulate a significant portion of the U.S. economy. 

And so, Ms. Wood, another question for you. Isn’t it correct that 

in the 1990 amendments to the Clean Air Act, only one section of 

111(d) regulation has been promulgated that still exists? 

Ms. WOOD. Yes, that is correct. As Professor Tribe has talked 

about, there was one version of Section 111(d) that was actually 

promulgated. It is the House version, it is what is shown right now 

in the United States Code, and it precludes regulation of source 

categories under 111(d) if they are already regulated under 112. 

Mr. FLORES. Well, and that was sort of my next question, as 

these have always had very limited reach. 

Ms. WOOD. Yes, very limited reach. It really was designed by 

Congress to be a catch-all for something that slipped through the 

cracks. These sources are not slipping through the cracks, they are 

being regulated under 112 and having to install maximum achievable control technologies. 

Mr. FLORES. Right. So there has never been an expansive use of 

111(d) like this that we are proposing. 

So, Professor Tribe, would you like to comment? 

Mr. TRIBE. I agree. 

Mr. FLORES. And you have 2 seconds. 

Mr. TRIBE. It has only been used for four pollutants and five 

sources. They are very specialized and localized, like municipal 

waste landfills or sulfuric acid plants, which give off acid mist, and 

the idea that it is nothing new, just business as usual is the most 

fantastic account I have heard. 

Mr. FLORES. OK. Thank you very much. I yield back. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, recognize the gentleman from Mississippi, Mr. 

Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. And thanks to each of 

you for being here. You have been very informative, and it is a 

challenging issue to every one of our states, a very expensive issue 

and proposition that is here. And the discussion on the Constitution is certainly very intriguing. And yesterday I saw in the vault 

at National Archives the original handwritten letter that Thomas 

Jefferson wrote following the Louisiana Purchase, congratulating 

Congress on this new acquisition, which had not been approved yet. 

And him being a strict constructionist, he was obviously concerned 

about people calling it unconstitutional, and he said it was extraconstitutional. So, it is amazing how we have progressed in 200 

years, and how we look at things. 

But, Professor Tribe, EPA and proponents of this regulatory approach say Section 111(d) serves as a catch-all that provides regulatory authority to ensure there are no gaps in air pollutant regulaVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
83 

tions. And I know we have touched on it, but what are your 

thoughts about this gap-filling argument? 

Mr. TRIBE. Well, it is the job of Congress to fill gaps in the law, 

and it tried to fill the little cracks, as Ms. Wood suggested, not in 

a huge gap, when it passed 111(d); little things that just weren’t 

covered because they were not among the 188 hazardous pollutants 

that are regulated under 112 at the source. But the idea that when 

an agency is not satisfied with the coverage of a law, it can sort 

of squeeze the law so that the hole in the legal ozone layer is sort 

of closed up is just totally fantastic. 

Mr. HARPER. Well, Professor Tribe, following that line, have you 

identified any evidence that Congress intended to provide EPA 

powers to expand its own regulatory authority when EPA identifies 

the need to do so, and how would that be possible under the Constitution? 

Mr. TRIBE. Well, I think it wouldn’t be possible, and I have found 

no such evidence. 

Mr. HARPER. OK, thank you. 

Ms. Wood, I think everybody agrees that EPA has the authority 

under certain circumstances to set standards that people comply 

with by installing certain equipment, for example, catalytic converters have been added to cars to meet environmental regulations. 

How is EPA’s proposed 111(d) rule different than that? 

Ms. WOOD. Yes. Well, it is different in the ways that I have discussed, which is it is going beyond the source of pollution, and the 

bulk of the reductions that EPA is claiming from this rule are not 

actually coming from the source, they are coming from other areas. 

This is the first time in its history that EPA has ever tried to 

apply any part of 111 in this manner. Rather than being a standard of performance, in other words saying how a source should perform and at what rate it should emit, it is really a standard of nonperformance. Let us try to figure out ways where these plants don’t 

have to run. It is completely backwards and upside-down. Nothing 

has ever been done like this, and in fact, if you think about it, if 

you are looking for the best system of emission reduction, which is 

what EPA does, not running it or shutting it down would always 

be best, and yet that is never what they have found before. 

Mr. HARPER. Thank you very much. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. WHITFIELD. The gentleman yields back. 

And that concludes our questions, and I want to thank the three 

of you for taking time to be with us and discuss this very important 

issue with a lot of profound impacts down the road. So, Professor 

Tribe, thank you. Ms. Wood, Professor Revesz, thank you. We look 

forward to continuing to work with you on this issue and others. 

And with that, we will release the first panel. 

Mr. TRIBE. Thank you, Mr. Chairman. 

Ms. WOOD. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Thank you so much. Thank you. 

And I would like to call up the second panel now, who have been 

very patient. And on this panel, we are going to really zero-in on 

the practical impacts at the state level, and what their thoughts 

are about this proposed rule. 

84 

And we have four witnesses: Mr. Craig Butler, Ms. Kelly 

Speakes-Backman, Mr. Art Graham, and Mr. Donald van der 

Vaart. So if you all would take your seats. And just like the first 

panel, I will introduce each one of you right before you give your 

opening statement. I do think it is important that everybody understand that today is Mr. Art Graham’s birthday, so he is a fun-loving guy and that is why he is here today—to celebrate his birthday. 

But our first witness is Mr. Craig Butler, who is the Director of 

the Ohio Environmental Protection Agency. Mr. Butler, thank you 

for being with us, and you are recognized for 5 minutes for a statement. And at the end of that time, we will have questions for you. 

STATEMENTS OF CRAIG BUTLER, DIRECTOR, OHIO ENVIRONMENTAL PROTECTION AGENCY; KELLY SPEAKES-BACKMAN, 

COMMISSIONER, MARYLAND PUBLIC SERVICE COMMISSION, 

AND CHAIR, BOARD OF DIRECTORS, REGIONAL GREENHOUSE GAS INITIATIVE, INC.; ART GRAHAM, CHAIRMAN, 

FLORIDA PUBLIC SERVICE COMMISSION; AND DONALD VAN 

DER VAART, SECRETARY, NORTH CAROLINA DEPARTMENT 

OF ENVIRONMENT AND NATURAL RESOURCES 

STATEMENT OF CRAIG BUTLER 

Mr. BUTLER. Good morning, Mr. Chairman, Chairman Whitfield, 

members of the committee. I do appreciate the opportunity to testify before the subcommittee. 

My name is Craig Butler. I am director of the Ohio Environmental Protection Agency, and I have been asked to provide testimony on Ohio’s comments and interpretation of the Clean Power 

Plan. 

As reflected in our detailed comments, and extensive comments 

to U.S. EPA, the proposal seeks to overhaul the Nation’s power 

generation, transmission, distribution systems, by reducing coalbased electricity, and instituting federally-mandated reliance on 

energy efficiency, renewable energy under the guise of global climate protection. 

It is no secret, as we have heard today, that many states including Ohio, that the Clean Power Plan is encumbered with significant legal problems and should not go forward. While I am not 

here and won’t discuss those concerns in detail, be assured that 

Ohio will continue to pursue these challenges either independently 

or joining with other states to prevent the likely illegal rulemaking 

from moving ahead. 

U.S. EPA’s request for comment on more than over 500 different 

aspects of the proposed rule as it was published in the Federal Register, combined with the inability to answer basic questions 

throughout that comment period, clearly highlights that the plan 

has not been well designed and was rushed out the door to meet 

a predetermined schedule. Nonetheless, Ohio felt a strong obligation to dissect the proposed rule from a very technical standpoint. 

We took it very seriously. We partnered with our Public Utilities 

Commission of Ohio, and conducted an extensive outreach effort to 

interested parties during the comment preparation. Our detailed 

review produced more than 180 pages of technical comments. 

85 

One major flaw is how U.S. EPA inexplicably ignores efficiency 

improvements already made to our coal-fired power plants, and instead orders sweeping new changes or improvements, regardless of 

feasibility. For example, U.S. EPA plan requires an achievement of 

4 percent or 6 percent efficiency improvement at all coal plants. We 

know this was established without any site-specific assessment in 

Ohio. In reality, Ohio’s coal fleet will have recognized a 5.4 percent 

heat rate improvement between 1997 and 2016, and as a result of 

additional reductions, may be very costly or if not impossible. In 

fact, carbon emissions will be reduced by 47 percent between 2005 

and early 2016 from our power plants, yet U.S. EPA’s allocation allocates no credit in the Clean Power Plan for pre-2012 ‘‘early adopters’’ of energy efficiency improvements, increasing cost to achieve 

new state regulatory targets and threatening more closures of coal 

plants in Ohio. 

Ironically, after coal-fired units are required to make new costly 

upgrades, their ability to recover the costs in the marketplace is 

minimized by utilization restrictions as a result of the remaining 

EPA building blocks requiring natural gas plants to achieve a 70 

percent utilization rate. It is nonsensical to force costly upgrades 

on one hand, and only deny the same units the ability to run and 

pay for them. 

In another example, we believe U.S. EPA has misapplied the economic feasibility analysis to predict the reliability on the bulk 

power system. It is not clear if U.S. EPA may have consulted with 

the Department of Energy, North American Electric Reliability 

Corporation, Federal Energy Regulatory Commission, or power providers to identify and use well-known technical modeling software 

to specifically design to analyze how changes in the transmission 

will be affected. However, these organizations currently responsible 

for maintaining the grid and stability and reliability have warned 

of outages and voltage collapse if the plan is implemented as proposed. To Ohio, this signals that U.S. EPA failed to consult these 

organizations in a meaningful way while formulating this plan, and 

does not fully understand the implications of the plan. 

As Ohioans discuss this issue across the state, we hear one overriding concern: maintaining our affordable, reliable power is critical 

to both the pocketbooks of Ohioans and continued economic development within our state. Ohio has been a manufacturing hub in 

the heart of this country since the Industrial Revolution. Fueled by 

electricity, which remains 9 percent below the national average, 

Ohio is home to a broad range of energy-intensive industries, and 

is competitive on the national and global market. The Clean Power 

Plan, with all its legal and technical flaws, presents a direct threat 

to these benefits to the Ohio consumer. 

One stunning statistic I will share with you is the Public Utilities Commission conducted the detailed analysis of the Clean 

Power Plan and indicates that 39 percent higher electricity rates 

in calendar year ’25 that will cost Ohioans $2.5 billion. In the last 

4 years, Governor Kasich has supported an energy policy that is inclusive of all sources in generation. From our world-class energy 

summit in 2011, where we discussed developing a broad portfolio 

of the cost-effective sources, to recent legislative activity to include 

combined heat and cogeneration in our qualifying energy sources, 

86 

we have and will continue to embrace the often overused but certainly relevant all-of-the-above strategy. We do it because it is important to affordable, reliable energy and to protect the environment. 

I will close by saying Ohio is willing and is very prepared to participate in a full national debate on carbon, the need or not, frankly, to regulate carbon emissions from power plants, and how Ohio 

is and remains committed to being a good steward of the environment. However, the Clean Power Plan is a seriously flawed proposal and should not be used to set unprecedented national policy. 

U.S. EPA should reconsider this misguided approach. 

Thank you. 

[The prepared statement of Mr. Butler follows:] 

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Mr. WHITFIELD. Thank you, Mr. Butler. 

And our next witness is Ms. Kelly Speakes-Backman, who is the 

Commissioner at the Maryland Public Service Commission, and 

Chair of the Regional Greenhouse Gas Initiative. Thank you for 

being with us, and you are recognized for 5 minutes. 

STATEMENT OF KELLY SPEAKES-BACKMAN 

Ms. SPEAKES-BACKMAN. Mr. Chair and members of the committee, thank you very much for inviting me—— 

Mr. WHITFIELD. Your microphone is on, and move it up closer 

please. 

Ms. SPEAKES-BACKMAN. Thanks. I think it is with this chair. 

Thank you very much for inviting me to testify this morning. I 

am grateful for this opportunity to comment on the proposal’s costs, 

feasibility, and impact on consumers and electrics reliability. 

As an economic regulator first and foremost, my primary objective is to ensure that the environmental goals of my state are realized in the most cost-effective way possible, while maintaining grid 

reliability. To this end, I am pleased that the EPA has allowed 

states to work within the current construct of our electric grid markets by encouraging a regional approach to compliance. As one of 

the nine states participating in RGGI, the experience of my state 

as well as recent analyses completed by several independent grid 

operators indicates that a regional path to compliance is the most 

efficient and cost-effective path forward. 

Together, our nine states continue to successfully implement the 

Nation’s first fully-operational carbon market. The RGGI program 

caps emissions by first determining a regional budget of carbon dioxide allowances, then distributing a majority of the CO2 allowances through regional auctions, so that states may capture the allowance value for reinvestment in strategic energy programs. 

Our nine states represent 16 percent of the U.S. economy, and 

generate a total gross domestic product of $2.4 trillion U.S. The 

states work together within the current electricity markets to create a unified system for auctioning and trading carbon allowances 

so that our environmental goals are achieved through a least-cost, 

market-based solution. Although we have collaborated effectively 

for the better part of a decade, the RGGI region remains diverse 

in many aspects. We comprise three separate regional transmission 

organizations, we have different political landscapes, and dissimilar 

generation profiles. For example, in Maryland, our generation remains predominantly coal. As part of RGGI, and coupled with other 

state energy initiatives, however, we have been able to diversify 

our fuel mix and reduce our carbon footprint. Since 2005, in-state 

generation from renewables, nuclear, and natural gas as a percentage of total generation mix has increased from 36 percent to 55 

percent, while in-state generation from coal has decreased 56 percent to 44 percent. Over our entire RGGI region, the power sector 

carbon pollution has decreased by 40 percent, while our regional 

economy has grown by 8 percent. That is from 2005 to 2013. Nonhydro renewable generations has increased by 47 percent, while 

our regional dependency on coal and oil has decreased. Our carbon 

intensity of the power sector has decreased at twice the rate of the 

rest of the country. 

102 

So we believe that market forces, state policies, and programs, 

such as RGGI, are driving these cost-effective pollution reductions, 

while simultaneously supporting our local economies. Our energy 

efficiency, demand response, and renewable initiatives, as well as 

policies to encourage fuel switching and to less carbon-intensive 

fuels, all work in tandem to reduce pollution and establish longterm solutions for a reliable energy infrastructure. Many of the 

complementary strategic energy initiatives are funded using proceeds from these RGGI allowance auctions, creating a virtuous 

cycle of benefits that also serves to minimize ratepayer impact. 

I could go through the rest of my written statement, but I would 

very much prefer to just leave you with five points that we have 

learned as part of RGGI, and I would be happy to take questions 

afterwards. The five lessons that we have learned and what we 

hope will be helpful to other states as they are crafting their plans, 

either state or regional, include the formation of—one of the lessons stems from the formation of our intra and interstate agency 

relationships as part of the regional cooperative effort. These relationships and resources have spilled over into other initiatives such 

as distributed generation, electric vehicles, and compliance with 

other EPA and state environmental regulations. Two is the pooling 

of staff resources and budgets. Basically, we can do a lot more with 

a lot less. We have been able to complete the necessary regional 

electric sector modeling in a timely fashion with built-in peer review. The third is a regional mechanism stimulates active and productive stakeholder engagement. The fourth, regional consistency 

does not require the states to implement identical programs. We in 

Maryland have one way of using these proceeds. Those in New 

York, those in Massachusetts, those in the other states participating in RGGI base their investments on their own state policies 

and priorities. And fifth, lastly and the most important lesson that 

we have learned by the RGGI states as it applies to the Clean 

Power Plan, is that participation in a regional compliance effort 

will likely provide other states with the most flexibility moving forward. Initial hurdles surrounding the structure of the mechanism 

are not, in fact, insurmountable as demonstrated by us and in the 

RGGI states. Using this regional construct, the regional emission 

cap is the only enforceable mechanism included in the compliance 

plan. States retain jurisdiction over their own energy efficiency and 

renewable energy programs, and can continue to offer these initiatives as complimentary measures that help mitigate the cost of 

compliance for their ratepayers. 

Thank you very much for your time this morning. 

[The prepared statement of Ms. Speakes-Backman follows:] 

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Mr. WHITFIELD. Thank you. 

Our next witness is Mr. Art Graham, who is chairman of the 

Florida Public Service Commission. Mr. Graham, thanks for being 

with us, and you are recognized for 5 minutes. And happy birthday, 

as I said earlier. 

STATEMENT OF ART GRAHAM 

Mr. GRAHAM. Thank you, Mr. Chairman. Thank you for the 

birthday wishes. And thank you and the subcommittee for allowing 

me the opportunity to come and speak today. 

My testimony is my perspective as a utility regulator. I believe 

the EPA’s Clean Power Plan, the CPP, threatens the affordability 

and reliability of Florida’s electric power. I am going to get straight 

to what I feel is the most troubling aspect of the CPP. That would 

be both the fairness and the cost. 

In Florida, we have below-average CO2 emissions because of the 

following. We shifted a lot of our generations to low-emission natural gas early on. We offered incentives to harvest the available 

heat rate improvements over the past 30 years, and through energy 

efficiency programs that have already reduced consumption by 

9,330 gigawatt hours. Now, all these things allowed us to realize 

a 25 percent decrease in CO2 emissions from 2005 to 2012, but yet 

none of these things are recognized by the current plan. However, 

in the current plan 34 states have higher CO2 emission rates than 

Florida, but only 15 states have higher reduction percentage required by the CPP. 

The second concern I want to express this morning is the cost of 

compliance. EPA’s responsibility is economic protection, which is 

very important. I think it is very important. But my responsibility 

is protecting the consumer from excessive costs and the reliability 

of the power grid, which I think is equally as important. The costs 

of implementing the CPP aren’t certain at this early stage, but the 

utility customers will certainly pay for EPA’s dramatic shift away 

from economic planning and least cost operation. How much is not 

exactly known, but the cost analysis I will talk to you about this 

morning from our Florida Office of Public Counsel, and you will get 

some idea from there. 

OPC’s job is to represent the utility customers’ interest. They 

took a very conservative approach and applied EPA’s own cost assumptions. The specifics are in my written testimony that I submitted earlier. 

So briefly, under building block one, applying the approximate 

midpoint of EPA’s cost range to achieve approximately 6 percent 

improvement, Public Counsel identified a cost of $1.15 billion. 

Under building block two, Public Counsel’s conservative methodology precluded costs associated with this building block, but the 

issues were as follows. Codifying costs for the EPA’s overstatement 

of gas plant capacity, the cost for required new gas transportation 

infrastructure, i.e., pipelines, the cost for replacing generating 

units into retirement long before the end of their useful life, i.e., 

the stranded costs. I can tell you these are all big-ticketed items. 

Under building block three, using a U.S. Energy Information Agency’s most recent costs for utility scale solar, replacing 10 percent 

of the conventional capacity would cost Florida $16.8 billion. Under 

112 

building block four, for Florida EPA’s 10 percent reduction equals 

5,745 megawatts of avoided capacity. Our demand site program 

costs $1.48 million per megawatt of avoided capacity. So EPA’s assumption will cost us over $8.5 billion. 

Now, Florida’s Office of Public Counsel limited itself to costs that 

can be cleanly calculated, applying EPA’s numbers with the most 

basic government data. Counting only the most obvious and easily 

qualified costs, the expense to Florida ratepayers start at almost 

$27 billion. That works out to about $2,800 per utility customer. 

However, the complete cost is much, much higher. 

In short, if EPA wants to reduce the carbon emission by 30 percent from the 2005 levels, well, then let us use the 2005 levels as 

our baseline. It makes no sense that EPA won’t recognize what 

states have done since 2005. It is unfair to punish early efforts 

with bigger and more expensive requirements. 

And I have some more, but I don’t want to run over. 

[The prepared statement of Mr. Graham follows:] 

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Mr. WHITFIELD. OK, Mr. Graham, thank you very much, and we 

will have an opportunity to ask questions as well, and then we 

have your full statement for the record. 

At this time, I would like to introduce Donald van der Vaart, who 

is the Secretary for North Carolina Department of Environment 

and Natural Resources. Thanks very much for being with us, and 

you are recognized for 5 minutes. 

STATEMENT OF DONALD VAN DER VAART 

Mr. VAN DER VAART. Thank you. Chairman Whitfield, Ranking 

Member Rush, and members of the subcommittee, thank you for inviting me to testify this afternoon. 

I have the privilege of serving Governor McCrory as Secretary of 

the Department of Environment and Natural Resources, and I am 

grateful for the opportunity to share my views on this very important topic. I would also like to recognize Representatives Hudson 

and Ellmers, two distinguished North Carolina members who sit on 

this committee. 

The Clean Air Act specifically provides that states, not the EPA, 

have the primary responsibility for implementing programs that 

protect the resources of this Nation. It is an indisputable fact that 

states like North Carolina have been very successful over the past 

30 years implementing programs that protect public health and 

welfare, while providing for economic development. 

Before I comment on the specific issues of state resources, I 

would like to note the issues that are omitted from my comments. 

First, my comments will not address the scientific uncertainty of 

the impact of human activity and greenhouse gases have on climate. My comments do not discuss the accuracy, or the lack thereof, of the IPCC models relied upon by the EPA to develop this rule, 

or the divergence between the models’ predictions and actual temperatures over the past 15 years. Although these issues are critical 

in any decision to regulate greenhouse gases, my comments are 

limited to separate but equally important aspects of any final 

111(d) rulemaking process: that is, state resources, state and utility 

planning efforts, and the legal frailty of the proposed rule. 

I will address the state resources and advocate for what North 

Carolina calls the legal trigger approach to Section 111(d) implementation. Given the certain litigation that will ensue if the proposed rule under 111(d) is promulgated, states such as North Carolina are at risk of investing unnecessary time and resources, developing and enacting state 111(d) plans prior to the resolution of litigation. North Carolina recommends that the EPA amend the rule’s 

submittal deadlines to require states to submit a 111(d) plan only 

after the conclusion of the judicial review process. Traditionally, 

when the EPA promulgates a new rule that sets forth requirements 

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

must take action, usually in the form of legislation and rulemaking, to avoid sanctions directly or avoid sanctions on its 

sources. The state then submits a demonstration to the EPA for approval, which can take anywhere from a few months to many 

years, during which time the states implement their rules. If the 

rule is struck down, however, the state is forced to uproot its earlier work and begin a new planning process; legislation, ruleVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
131 

making, implementation and enforcement, and the process must 

often be amended again when EPA revises its illegal rule in an attempt to satisfy the courts. 

This is not just an academic concern. There are several recent 

cases where this study in futility has occurred. The EPA’s attempts 

to address economic inequity in regional energy markets through 

interstate pollution rules, such as the NOx SIP Call, the Clean Air 

Interstate Rule, and the Cross-State Air Pollution Control Rule, all 

prime examples. There is universal agreement that the 111(d) rule 

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

to energy what the Affordable Care Act is to healthcare. This fundamental change to America’s electricity model will come at the 

hands of a rule that few consider legally firm. The EPA acknowledges in the rule that it is structured to survive even if portions 

of the rule are struck down. In my more than 20 years of implementing air quality rules, I am not aware of any rule where the 

EPA has made an a priori acknowledgement of legal infirmity. 

Despite the rule’s uncertain future, state plans would need to 

move forward to allow, for example, switching from a cost-based 

energy dispatch model to a carbon dioxide dispatch model. Under 

the EPA’s current proposal, legislative changes, utility resource 

planning, and regulatory execution must proceed while 111(d) is 

under judicial review. EPA’s acknowledgement of the legal frailty 

of their creative interpretation of the Clean Air Act not only argues 

for the legal trigger, but it also calls Chevron deference into question. In this rule, like many other EPA rulemakings, the EPA characterizes statutory language as ambiguous to invoke Chevron deference. Unfortunately, the EPA’s legal track record is so poor that 

one can only wonder if Chevron deference should be withdrawn because the agency has abused its public trust. 

Simply stated, if the EPA wants to upend the world’s greatest 

power system by forcing a round peg into the square hole that is 

Section 111(d), it should have the prudence to allow the final rule 

to be reviewed by the courts before requiring states to undertake 

such a profound effort. 

Thank you for the opportunity to have testified. 

[The prepared statement of Mr. van der Vaart follows:] 

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Mr. WHITFIELD. Thank you, Mr. van der Vaart. And thank all of 

you for taking time to give us your views on this important issue. 

I will recognize myself for 5 minutes for questions. 

In my opening statement, I described this proposed regulation as 

being characterized as extreme, a power grab, radical, unprecedented, and even unlawful. I think you can come to the logical conclusion that this is being implemented to implement the President’s international agreements. 

And I would ask each of you, the EPA has given the states 13 

months to come up with a state implementation plan if this regulation is adopted. Is that an unusually short period of time from your 

personal experience with EPA? Mr. Butler? 

Mr. BUTLER. Mr. Chairman, it is a very short time frame, frankly, one which we don’t believe we could ever meet. 

Mr. WHITFIELD. OK. 

Mr. BUTLER. And I know some states are different. 

Mr. WHITFIELD. OK, so it is very short. You don’t think you can 

meet it. 

What about you, Ms. Speakes-Backman? 

Ms. SPEAKES-BACKMAN. Well, thank you for the question. I would 

say that for my state and for the other eight participating RGGI 

states, since EPA has explicitly allowed our construct to exist, we 

already are practicing what they are asking for. 

Mr. WHITFIELD. So you are saying you could meet the—— 

Ms. SPEAKES-BACKMAN. Absolutely. 

Mr. WHITFIELD [continuing]. Proposed regulation. 

Mr. Graham? 

Mr. GRAHAM. I agree it is short, and I don’t think we can do it 

either. We would have to have several special sessions. 

Mr. WHITFIELD. OK. What about you, Mr. van der Vaart? 

Mr. VAN DER VAART. The plan that we anticipate submitting we 

could meet. It is not the plan the EPA is seeking. 

Mr. WHITFIELD. OK. Now, this has been described as a real takeover of the electric system in America—generating system. Why 

would EPA, from your personal view, would they want a 13-month 

time period to allow states to implement something this complicated? What would be the reason for that? Mr. Butler, do you 

have any idea? 

Mr. BUTLER. Mr. Chairman, I think it is—as I had pointed out 

in mine, and you had in your testimony, I think the President has 

a goal that he is trying to meet, and is asking the states to help 

him meet that goal, but a very short time frame. 

Mr. WHITFIELD. OK. Why do you think, Ms. Speakes-Backman? 

Ms. SPEAKES-BACKMAN. I can’t say exactly why because I don’t 

agree with the premise, necessarily, that it is a takeover, sir. 

Mr. WHITFIELD. OK, what about you, Mr. Graham, do you have 

any idea why? 

Mr. GRAHAM. Mr. Chairman, I would agree with you and Mr. 

Butler on that. 

Mr. WHITFIELD. OK. Mr. van der Vaart? 

Mr. VAN DER VAART. I believe that this fictitious sense of urgency 

is not about emission reductions. We are meeting emission reductions, thanks in large part to the free market and the low cost of 

natural gas. 

139 

Mr. WHITFIELD. Yes. 

Mr. VAN DER VAART. I believe the urgency has to do with the fact 

that they sense that the veil of legal authority has been stripped 

from this rule, and it will soon meet its demise. 

Mr. WHITFIELD. Yes. 

Mr. VAN DER VAART. They want to force—— 

Mr. WHITFIELD. Yes. 

Mr. VAN DER VAART [continuing]. Utility companies to begin their 

planning process—— 

Mr. WHITFIELD. Yes. 

Mr. VAN DER VAART [continuing]. Which is a lot longer than 13 

months, so that they can get this ball rolling. 

Mr. WHITFIELD. And, you know, in our first panel, you listened 

to the constitutional arguments and so forth. How many of you actually believe that the average citizen out there has any basic understanding of the impact of this regulation and what it would be? 

Do you think the average citizen even has any insight into this, 

Mr. Butler? 

Mr. BUTLER. Mr. Chairman, we did an extensive outreach and— 

as we prepared our comments, and we took a lot of public comment 

on this, but irrespective of that, I think in general, the public does 

not understand any of the technical details of any of the legal construct here—— 

Mr. WHITFIELD. Right. 

Mr. BUTLER [continuing]. That is under debate, nor, frankly, 

what the potential cost might be because we have not, frankly, 

been able to understand the plan well enough or know—— 

Mr. WHITFIELD. You probably don’t understand what the cost implications are. 

Mr. BUTLER. Right. 

Mr. WHITFIELD. Do you think the average citizen understands 

the potential impact of this? 

Ms. SPEAKES-BACKMAN. I believe that public sentiment is increasingly aware of climate change and the issues—— 

Mr. WHITFIELD. I am not talking about climate change, I am asking you—— 

Ms. SPEAKES-BACKMAN. And—— 

Mr. WHITFIELD [continuing]. Do they understand the impact, in 

your opinion, of the consequences of this? 

Ms. SPEAKES-BACKMAN. The impact in our RGGI states is less 

than 1 percent for the overall—— 

Mr. WHITFIELD. So you think they do understand—— 

Ms. SPEAKES-BACKMAN [continuing]. So that—— 

Mr. WHITFIELD. OK, Mr.—— 

Ms. SPEAKES-BACKMAN [continuing]. Impact is not necessary—— 

Mr. WHITFIELD. Mr. Graham, what about you, do you think they 

understand? 

Mr. GRAHAM. I don’t think they have any idea. We have reached 

out quite a bit and got very little feedback. I think the power generators—— 

Mr. WHITFIELD. Yes. 

Mr. GRAHAM [continuing]. Have an idea of what this is going to 

cost—— 

Mr. WHITFIELD. OK. 

140 

Mr. GRAHAM [continuing]. But I think the financial impact, and 

we really haven’t put out—— 

Mr. WHITFIELD. OK. 

Mr. GRAHAM [continuing]. What we propose that some of the 

numbers are until we get the final plan coming back. 

Mr. WHITFIELD. Do you think they understand, Mr. van der 

Vaart? 

Mr. VAN DER VAART. No, sir. 

Mr. WHITFIELD. OK. Now, Mr. Graham, you talked about you 

viewed this as unfair and very costly. Is that your honest opinion 

of the impact of this regulation on the state of Florida? 

Mr. GRAHAM. Without a doubt. What gets me, and you see in all 

of the EPA’s data, that they said they want to decrease 30 percent 

of the CO2 emissions from the 2005 numbers. Now, one of the 

things that Florida has already done from 2005 to 2012, we have 

already jumped ahead of a lot of this stuff. We switched a lot of 

things over to natural gas. We are, right now, about 65 percent 

natural gas. We have done a lot of other improvements since then, 

and for you not to take into account, because they are using 2012 

as the baseline. 

Now, the problem we run into there is that was an all-time low 

for natural gas, so we are using so much more natural gas, so the 

carbon emission that they are putting out there is so much lower 

than it was, like I said, back in ’05. And so I think—— 

Mr. WHITFIELD. OK. 

Mr. GRAHAM [continuing]. It is unfair that we are not getting 

that credit. 

Mr. WHITFIELD. Thank you. My time has expired. 

At this time, recognize the gentlelady from Florida, Ms. Castor, 

for 5 minutes. 

Ms. CASTOR. Thank you, Mr. Chairman. Thank you to the panel. 

Mr. Graham, it recently came to light that Florida Governor Rick 

Scott has an unwritten policy that bans the use of the terms climate change and global warming. A number of state employees and 

scientists from the Florida Department of Environmental Protection, the Department of Health, the water management districts, 

the Florida Department of Transportation, have all come forward 

and said this is the case. I read your testimony. Nowhere in your 

testimony does it use the term climate change or global warming. 

Is that a product of Governor Scott’s unwritten policy? 

Mr. GRAHAM. Absolutely not. I was told to come here and talk 

about what the financial impact is going to be of implementing 

111(d), and so that is why that was in my written testimony. 

Ms. CASTOR. Well, and I find your testimony very curious because the Florida Public Service Commission has not been on the 

side of consumers, and they have not, your words, you say the 

Clean Power Plan threatens affordability for consumers, and the 

commission will protect consumers from excessive costs, but let me 

give you a few examples of the costs that Florida has heaped on 

our customers. The PFC recently gutted energy efficiency initiatives, even though efficiency can meet demand at a much lower 

cost, at a fraction of the cost of building new power plants, and can 

help customers reduce energy use, put money back into their pocket, create jobs at the same time. I mean we would see larger savVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00146 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
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ings on bills, but that is not the business model in Florida. So those 

stunning rollbacks in energy efficiency, especially at a time when 

we have to be looking for ways to save on carbon pollution and save 

money. 

Here is another example. The Public Service Commission has 

really worked over the past years to stifle renewable energy in 

Florida, and especially solar. You recently stated at a Public Service Commission hearing that Florida, sunshine state, branding is 

nothing more than a license plate slogan. Well, I hope everyone 

was watching the weather over this past winter. Florida is the sunshine state. We rely on tourism. 

You cited a national renewable energy lab report, but, in fact, 

that report from July 2012 said Florida is indeed ranked third in 

the nation for total estimated technical potential for rooftop solar 

voltaics in the U.S. That same report said Florida clearly has the 

best solar resource east of the Mississippi River, but the commission has scrapped solar rebates, also going to cost us money, especially with the new requirements of the Clean Power Plan. 

And then the best example is what the Public Service Commission and the legislature has done to increase bills, especially if you 

are a Duke Energy customer. And my colleagues might not be 

aware, but Florida had adopted an advance recovery fee that allowed the utilities to collect costs in advance for building power 

plants. And in fact, even when Duke Energy had to scrap a power 

plant and had to put another one on mothballs, without creating 

one kilowatt hour of energy, customers in my neck of the woods, 

in central Florida, are on the hook for $3 billion, and that is modest, in costs. $3 billion, not one, not one kilowatt in energy. 

So when I hear you talk about affordability, and that you are 

really concerned about the consumers, the record simply does not 

support that in the state of Florida. 

I want to give you time to respond, but we have an obligation, 

we have a shared obligation, to confront these issues. And I am 

sorry, I am going to give you a little time to recover, but think 

about the state of Florida, what consumers are going to have to pay 

in storm water damage, costs to re-nourish beaches, what if we 

have a more powerful storm, that comes out of property taxes. You 

are looking at it in a very constrained way; a utility concentric 

way, and that is not reality in our state. Go ahead. 

Mr. GRAHAM. Thank you. We cut back a lot on the energy efficiency programs because we have done so much so far. As you 

heard me say earlier, since we started this program, we have 

achieved 9,330 gigabytes worth of—— 

Ms. CASTOR. Mr. Graham, that is simply not the case. There is 

report after report after report that says the state of Florida is so 

far behind. Now we are down to about zero in our energy efficiency 

goals because the business model is backwards. It is not a model 

that helps address the modern challenges. It is all about how much 

energy you can sell. And utilities now need to be compensated for 

helping consumers save money. And I really recommend that you 

take this obligation seriously and think about the cost to consumers from here on out. 

Thank you. 

Mr. WHITFIELD. Ms. Castor’s time has expired. 

142 

At this time, recognize the gentleman from Texas, Mr. Barton, 

for 5 minutes. 

Mr. BARTON. Well, thank you, Mr. Chairman. I had meetings in 

my office so I have been listening to the hearing on the television 

in my office, and I want to commend all four of our panelists. I 

thought your testimony was excellent. 

I am going to start off with a basic question for each one of you. 

We will start with you, Mr. Butler. 

Are the requirements in this Clean Power Plan necessary for 

Ohio to meet any pending nonattainment areas in your state? 

Mr. BUTLER. No, sir. No. 

Mr. BARTON. OK. Ms. Backman, from Maryland. 

Ms. SPEAKES-BACKMAN. Speakes-Backman. Yes, sir. The programs that we already have in place in Maryland have us in good 

stead to meet the goals of the Clean Power Plan. 

Mr. BARTON. So it is not necessary in Maryland, OK. 

Gentleman from—— 

Mr. GRAHAM. No, sir. 

Mr. BARTON [continuing]. North Carolina. 

Mr. GRAHAM. It is not necessary. 

Mr. BARTON. And from Florida. 

Mr. VAN DER VAART. Florida—— 

Mr. BARTON. Florida. North Carolina. I have you backwards. 

Mr. VAN DER VAART. But the same answer, no. 

Mr. BARTON. So this is not a necessary thing under the Clean Air 

Act amendments to meet any standards for nonattainment. In fact, 

is it a true statement that nothing in this Clean Power initiative 

sets a standard of emission reduction in your state? Is that a true 

statement? There is not a target you have to meet in terms of parts 

per million or anything like that? 

Mr. BUTLER. It is not, sir. 

Mr. BARTON. It is not. Is it a true statement that what this is 

is social planning imposed on your state by the Federal Government? We will start with you, Mr. Butler. 

Mr. BUTLER. We believe it is an unprecedented act—unprecedented action that, frankly, has not—does not have any congressional intent behind it. 

Mr. BARTON. OK. Now, Ms. Speakes-Backman, I was impressed 

with what you said in your testimony. It sounds like Maryland is 

part of a regional group that has voluntarily come together, set 

your own goals, and increased your renewable energy portfolio, and 

done quite a bit of good things, but you did that because the compact or the coalition that your state is a part of made a voluntary 

decision to do that. Is that not correct? 

Ms. SPEAKES-BACKMAN. Yes, sir. We voluntarily decided to take 

control of our environment, of the reliability issues that we were 

facing, and with cost increases to our ratepayers. 

Mr. BARTON. And I have no problem with that. I think that is 

good and I am glad Maryland is doing it, but how would you feel 

if we passed a law here that said Maryland had to use triple the 

amount of Texas=produced natural gas in that? Would you like 

that? Clean-burning Texas natural gas, I might add. 

Ms. SPEAKES-BACKMAN. Well, seeing, sir, that we use plenty of 

Pennsylvania clean natural gas—— 

143 

Mr. BARTON. I understand, and I am not here to—— 

Ms. SPEAKES-BACKMAN. But—— 

Mr. BARTON [continuing]. Knock Pennsylvania, but my point 

is—— 

Ms. SPEAKES-BACKMAN. But, sir, I think the issue—I think the 

question that you are asking me is about being forced to use one 

particular type of fuel or another, which is not necessarily how this 

Clean Power Plan is structured. This Clean Power Plan is structured—— 

Mr. BARTON. Well, in the case of Texas, if Texas decides to try 

to comply with this, we have to shut down 45 percent of our existing coal-fired power plants; two of which are in my old congressional district. Those two power plants are the economic linchpins 

in their counties. These are rural counties in south central Texas. 

One power plant has been there over 40 years, the other power 

plant has been there 25 years. I mean they are the economic mainstay in those particular counties, and they would be shut down. 

They would be shut down for no environmental reason. No environmental positivism. None. 

As the gentleman from West Virginia or Virginia pointed out, 

you know, 6⁄10 of 1 percent decrease in CO2 over a 30 or 40-year 

period. I mean it is crazy. 

The chairman asked a question about why the 13-year—month 

period to—13-month period to comply, and you all were very polite 

about giving non-answer answers, but I think the reason is because 

the Obama Administration is going to be out of office, and they 

want this thing put in while they are still in office. Now, that is 

speculation on my point, but it is informed speculation. 

Again, I have no problem with what any of your states are doing, 

and I am extremely impressed with what Maryland is doing. I 

think that is a good thing. I believe in states’ rights. New York 

doesn’t want to allow hydraulic fracturing, so they don’t. Pennsylvania allows it, but with different reporting requirements than 

Texas. I believe in federalism, it is a good thing, but I don’t believe 

in this new Clean Power Plan initiative that is imposing a social 

policy on the states, with no environmental benefit and no real optout provision. 

With that, Mr. Chairman, I yield back. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, recognize the gentleman from New Jersey, Mr. 

Pallone, for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

Commissioner Speakes-Backman, I wanted to ask you a question 

about the Regional Greenhouse Gas Initiative. 

Ms. SPEAKES-BACKMAN. Any time, sir. 

Mr. PALLONE. I wasn’t here for your testimony. I had to go to another committee hearing, but in your testimony you state that 

through 2013, RGGI states reinvested over $950 million of auction 

proceeds and energy efficiency, clean and renewable energy and 

other strategic energy programs. And you note that these proceeds 

have helped low-income families pay their energy bills, supported 

energy efficiency upgrades, and helped families and businesses install solar, wind, and geothermal systems at their properties. In 

144 

fact, under RGGI, just last week, the sale of 15.3 million carbon dioxide allowances netted $82 million and set a record high price. 

So the question is, the RGGI program seems to be the most effective and efficient way for states to meet the standards set forth in 

the EPA’s Clean Power Plan. Can you tell me about the environmental and economic benefits this is providing to the state of Maryland? 

Ms. SPEAKES-BACKMAN. Yes, sir. Thank you for the question. And, yes, in fact, there were an additional $82 million just last Friday announced in our just last previous auction. 

In Maryland specifically, we have reinvested the auction proceeds in consumer benefit programs. It has helped more than 

215,800 low-income Maryland families to pay their energy bills. It 

has supported energy efficiency upgrades at 11,800 low-to-moderate 

income households, helped 5,206 families, and 201 businesses in 

Maryland to install solar, wind, and geothermal systems. 

Mr. PALLONE. So I mean obviously, the program has been tremendously effective in Maryland and other participating states, 

and these states are going to have a leg up when it comes to meeting the EPA standards. 

Now, I am just mentioning this in part because that is why I am 

so disappointed that, in my home state of New Jersey, our governor, Chris Christie, has withdrawn our state from the program, 

as you know. And not only is this going to hinder New Jersey’s 

ability to meet the EPA standards, it is actually costing the state 

money. According to an analysis by Environment Northeast, since 

New Jersey withdrew from the RGGI program in 2011, the state 

has passed up more than $114 million in potential revenue, and 

the state could miss out on an additional $387.1 million through 

2020, and those figures don’t even account for the record price for 

allowances hit at the RGGI auction last week, which you mentioned. That is money that could be used to use support energy efficiency upgrades and job creation, like it is doing in Maryland and 

other participating states. So I know he is not with us here today, 

but I have called on Governor Christie to reconsider his decision to 

withdraw from RGGI because I think New Jerseyans deserve to 

reap the benefits of this successful, economically-efficient program, 

which is reducing carbon emissions and creating jobs in the northeast. 

Now, I have about a minute and a half. I know that—if you 

wanted to respond to some of the questions that were asked before 

that maybe you didn’t have time for, you could use the time to do 

that, unrelated to my question. 

Ms. SPEAKES-BACKMAN. Thank you very much, sir. 

May I just add that the car analogy in the panel before was so 

interesting to me in that, you know, what can be done in—for the 

car is a catalytic converter, but to me, when I think about a massbased regional program such as RGGI, and taking that same analysis, it is like having a catalytic converter but then you put a variable toll on the roads that is outside the box. Right? It is outside 

the car system. And putting a toll on those roads, you can take the 

money and you can reinvest that in R & D so that you can further 

improve the equipment that is put on the car to reduce emissions. 

But in addition, you can take those revenues and further control 

145 

traffic by putting the tolls on certain roads that are busy. You can 

do things like improving those roads themselves. There are ways 

to reinvest and to make this a positive. 

I don’t think it is mutually exclusive to help your environmental 

goals and to build your economies. 

Mr. PALLONE. All right, thank you so much. 

Thank you, Mr. Chairman. 

Mr. LATTA [presiding]. Thank you very much. And before I recognize myself for 5 minutes, I would like to ask unanimous consent 

from the committee to enter a letter dated December the 1st, 2014, 

from Director Butler of the Ohio EPA to the respondent and also 

the executive summary. And these documents were submitted to 

the U.S. EPA as part of their comments to oppose the Clean Power 

Plan. 

Without objection, so ruled. 

[The information appears at the conclusion of the hearing.] 

Mr. LATTA. If I could start, Director Butler, and also to all of our 

panel, thanks very much for being here. Again, it has been very informative. 

But, Director, if you would, would you expand on the reference 

you made to the differences in the 2005 and 2012 baselines, and 

how this would affect Ohio by not taking into consideration the 

early action that many have taken to improve that efficiency? 

Mr. BUTLER. Mr. Chairman, thanks for the question. And I think 

Mr. Graham made a couple of very relevant points in his testimony 

to this fact as well. 

Ohio has many utilities that are very early adopters in making 

sure that their plants run as efficiently as possible. Frankly, the 

hundreds of millions of dollars that they have invested will be left 

on the cutting room floor, if you will, if the Clean Power Plan, 

which talks about a 2005 implementation date, is passed. In reality, that date of looking to develop a plan is all based on the year 

2012. So any emission reductions or, frankly, efficiency improvements that have been made prior to 2012 will not count. We think 

that that not only disincentivizes our utilities from doing that 

work, but it, frankly, also makes it much more difficult for them 

to comply, if not exceptionally more expensive for them to comply 

going forward with meeting the new bucket 1 requirements of having a 4 to 6 percent energy efficiency improvement. 

Further, we have talked to our utilities as part of our dialog and 

comments on the Clean Power Plan. They think it is fundamentally 

very difficult, if not impossible, to reach that 4 or 6 percent efficiency improvements at our existing utilities. Our fleet has gotten 

much more efficient, ironically because many of those units were 

shut down because of the mercury standard, others were improved 

because they wanted to be more efficient and generate more power 

into the grid. But those costs were heavy, and they think that a 

1 to 2 percent improvement would be all that they could develop 

to comply with the Clean Power Plan. 

Mr. LATTA. Thank you. If I could continue, Director, could you 

also explain the issues you foresee with the costs and the efficiency 

related to the EPA’s building block number two, which will result 

in the natural gas-fired units used for base load power in coal-fired 

plants into peaking power? 

146 

Mr. BUTLER. Mr. Chairman, I think the earlier reference about 

the Clean Power Plan fundamentally is changing the electric distribution market from really one that is based on cost, to one based 

on environmental impact, and that is a serious, serious problem. In 

addition, just the discontinuity between the way EPA has set up 

the Clean Power Plan bucket one on efficiencies at power plants 

versus bucket two where they are wanting to see natural gas generation run at a 70 percent rate. I think we see two fundamental 

problems. One is we will see significant closures and—as we already have of our coal-fired fleet, and we will see some, but I don’t 

know yet how much natural gas generation come online. There is 

a disconnect on how those work, so we are really concerned, as 

many others are, about the power grid being able to supply power. 

Fundamentally, we also find an inconsistency here. While EPA 

is requiring or suggesting that the power plants become more efficient, and invest hundreds of millions of dollars to do that, that 

they not be allowed to run to recover those costs because they are 

then driving gas to take over that capacity. 

Mr. LATTA. Well, when we look at Ohio, right now, is Ohio about 

71 percent coal-fired? 

Mr. BUTLER. Yes, sir. 

Mr. LATTA. And when you look down the road at what the EPA 

is ordering, and it was already discussed, I think, by the chairman, 

the question really comes then to, with all these costs being put 

onto these power plants, who is going to pay for that in the long 

run? 

Mr. BUTLER. Right. Mr. Chairman, we are very concerned because we think all of those costs get passed onto the consumers of 

Ohio. 

Mr. LATTA. Especially when you have put out in your discussions 

with the EPA, have they even talked about what the consequences 

are? Do they look at what it would do to a state like Ohio with 71 

percent coal generated, especially for our business communities and 

the people that work in those factories and businesses? 

Mr. BUTLER. Mr. Chairman, I believe they probably do think 

about Ohio, although we were very concerned, frankly, dismayed, 

when U.S. EPA—they do talk about they have had some extensive 

outreach across the country, and they did attend listening sessions 

across the country. We, frankly, invited, as did our states in West 

Virginia and Kentucky, to come to any three of our states and hold 

a listening session to see and hear from the general population that 

were actually going to be very much impacted by this Clean Power 

Plan, and they elected not to come to any of our three states. 

Mr. LATTA. So you put on an invitation and they just did not 

come. 

Mr. BUTLER. Yes, sir. 

Mr. LATTA. Thanks very much. 

My time has expired, and the chair will now recognize Mr.—— 

VOICE. Mrs. Capps. 

Mr. LATTA [continuing]. The gentlelady from California, Mrs. 

Capps, for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman, for holding this hearing. 

And I want to thank all of our witnesses for your testimony. 

147 

It is so clear that the power sector is responsible for a major portion of carbon dioxide emissions in the United States, but it is also 

clear that these emissions are causing our planet’s climate to 

change at an unprecedented rate. We need to act today to curb 

these emissions and prepare for the consequences that are forecast. 

Fortunately, and, Ms. Kelly Speakes-Backman, you spoke to this, 

that the Regional Greenhouse Gas Initiative, or RGGI, has really 

impressively reduced emission rates, and has done so while also 

improving the regional economy and fostering job creation. My colleague from New Jersey asked you about that, and unfortunately, 

apparently, his state of New Jersey has backed away from it, but 

I hope that this momentum will build. I think it is clearly possible 

to increase energy efficiency, reduce emissions, and provide affordable energy for local residents. 

So in addition to carbon emissions, the power sector generates so 

many other harmful pollutants, including sulfur dioxide, nitrous 

oxide and mercury, to name a few. In addition to exacerbating the 

impacts of climate change, these pollutants have direct impacts on 

human health, leading to increased rates of respiratory problems, 

contributing to heart attacks, strokes, and even premature death. 

This has been documented, and is being documented. The benefits 

of reducing carbon dioxide and these other pollutants under the 

Clean Power Plan will likely have benefits that far outweigh the 

cost of implementation, especially in the health sector. 

And I wanted to ask you how this implementation of RGGI has 

affected the benefit of human health in your area. 

Ms. SPEAKES-BACKMAN. Thank you for the question. As you 

know, in Maryland especially, we are a little bit downwind of some 

of the coal plants that are in the Midwest, and they have directly 

affected the health and the costs of that health to our citizens. And 

so as part of the effort that our state has undergone to try to mitigate those health issues, as well as to mitigate the reliability issues 

that we have had from frequent storms, increasing frequency and 

severity of storms, the costs our ratepayers have had to incur in 

order to build up resilience against such storms, there are lot of 

costs aside from the work that is going to be done under the Clean 

Power Plan that need to be taken into account when you are doing 

a full cost benefit scenario. 

Mrs. CAPPS. Yes. Thank you. Significant reductions in sulfur dioxide and nitrous oxide and mercury has benefitted over the long 

haul, but they are offset by downwind and other aspects that tell 

us that we are not fully where we want to be yet. 

Mr. Butler, I wanted to turn to you, if I could. In August of last 

year, the waters off Lake Erie, off the coast of Toledo, experienced 

a harmful algae bloom that impacted drinking water for about 

400,000 people. Am I correct? 

Mr. BUTLER. Yes, ma’am. 

Mrs. CAPPS. The science is increasingly clear that harmful algal 

blooms will become more severe a frequent in the future due to climate change. This means more human health costs, more taxpayer 

dollars spent on clean-up, unless we take action to reduce carbon 

emissions. In your testimony, you focused exclusively on the financial costs of implementing the Clean Power Plan, but, you know, 

in the constraints of time perhaps you weren’t able to reach any 

148 

of the benefits. Would you agree that human health benefits such 

as fewer harmful algal blooms and cleaner air, should all be considered in doing a full assessment of the Clean Power Plan? 

Mr. BUTLER. Mrs. Capps, if you have an opportunity, in our extensive comments, we submitted U.S. EPA, and then were brought 

into the record today—— 

Mrs. CAPPS. Great. 

Mr. BUTLER [continuing]. You will see an extensive summarization of our issues related to this issue about suggesting that 

there will be significant human health improvements by regulating 

carbon. 

Mrs. CAPPS. Yes. 

Mr. BUTLER. We do not believe that is the case, and do not believe that the science proves it. Now, however, in a lot of reductions 

that come along, we have improved our sulfur dioxide and ozone 

emissions in Ohio and in our downwind states. I mean we do not 

deny the fact that there have been many, many, many improvements to public health, but I think it is not appropriate to tie that 

back to CO2 emissions—— 

Mrs. CAPPS. Perhaps that needs to be—— 

Mr. BUTLER [continuing]. Close to the Clean Power Plan. 

Mrs. CAPPS. Perhaps we need to do more studies along that 

health. The EPA’s proposal, I believe, the Clean Power Plan, is an 

important step forward in combatting climate change, will ultimately lower. How this is impacted, as your colleague sitting next 

to you indicated, it takes some time and I believe we should go further into studying the effects of changes that are being made more 

thoroughly as they relate to regional and other factors. And this is 

all about the health of our constituents. 

And I know I am out of time, so I support this plan, and I am 

going to yield back now. 

Mr. WHITFIELD. At this time, I recognize the gentleman from Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

The gentlelady just referenced it in her comments about her concerns about global warming and the health concerns, and then she 

went on to say that maybe we need to take some more time, we 

need more studies on the health. Mr. Butler, it is my understanding that, in fact, the EPA has not done any science on this 

particular regulation and how much it would change climate 

change, but that using the normal EPA modeling procedures, the 

American Coalition for Clean Coal Electricity did run an analysis 

on how much the rule would reduce climate change, and the American Coalition for Clean Coal Electricity found that atmospheric 

CO2 concentrations would only be reduced by less than 1 percent 

in 2050, the increase in global average temperature would only be 

reduced by 16⁄1000 of a degree Fahrenheit in 2050, sea-level rise 

would only be reduced by .3 mm or 1⁄100 of an inch. This is the 

equivalent of a piece of paper, or a couple of pieces of paper. And 

so taking that all into consideration—well, first let me say, do you 

know of any other studies out there, other than the one that I have 

referenced, that indicate there is going to be some huge change to 

what sometimes is referred to as global warming, but more comVerDate Nov 24 2008 11:23 Jun 10, 2016 Jkt 037690 PO 00000 Frm 00154 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-20 CHRIS
149 

monly, particularly in the east, is referred to as climate change, 

since warming hasn’t happened? 

Mr. BUTLER. Yes, Mr. Griffith, I am unaware of any additional 

studies. We did a very extensive search when we did our comments 

on the Clean Power Plan, and the ones that you referenced are 

many of the studies that we also took a look at as part of our review of the Clean Power Plan. 

Mr. GRIFFITH. OK, but you don’t have any direct numbers from 

the EPA themselves? 

Mr. BUTLER. We do not. 

Mr. GRIFFITH. And notwithstanding the fact that they haven’t 

taken the time, that Mrs. Capps referenced, maybe to look at this 

matter and the health studies, et cetera, and whether or not this 

would affect anything, this rule is coming down your state’s throat 

any day now, isn’t it? 

Mr. BUTLER. Yes, sir, it is. We are very concerned about the resources that it will take on our state levels to, on the one had have 

these discussions and perhaps even legal issues around the implementation, but at the same time go down the path of having to 

commit our state resources to develop an implementation plan that, 

at the end of the day, one, may not be necessary, two, that may 

change significantly from where we started. 

Mr. GRIFFITH. Right. And so your folks are being forced to go forward, even though there are all kinds of legal implications going 

on. And as you could probably tell from the previous panel and the 

debate there, I am very well versed, and I believe the EPA does 

not have authority. We will stay tuned to see what the courts say, 

but I don’t think you can change the law just because you find 

some reference in the closet that says that maybe there was a different interpretation, because if either side adheres to their position, there is no bill. Senate said it receded. 

Without getting into all that legal argument, Secretary van der 

Vaart, your state is going to have to comply even though the legalities and the fight over the legalities may continue, you have to go 

ahead and get a plan out there. Isn’t that true? 

Mr. VAN DER VAART. Well, that is right, and I think that that is 

why I am here. There are a lot of things we can say. I applaud 

Maryland and the rest for doing what they want to do. North Carolina has made major reductions since the 2005 date. America generally has dropped its carbon dioxide emissions from 2010 to 2013 

by 10 percent, and it was all done without the benefit of a federal 

action. It was done primarily by the revolution that is our natural 

gas production here in America. 

But yes, the concern we have is developing legislation, developing rules, our utility regulatory system has to be altered—— 

Mr. GRIFFITH. And you will spend a lot of money going down that 

path, and then the Supreme Court comes out a year and a half, 2 

years, 3 years from now and all of a sudden, it all has to start over 

again. 

Chairman Graham, your power plants are facing that same problem, but even if this thing goes forward, a number of them are 

going to have to be shut down before their useful life ends, isn’t 

that correct? 

150 

Mr. GRAHAM. That is correct. We are about 20 percent coal in 

Florida. Like I said, we switched to a lot of natural gas early on, 

and they are talking about closing down about 90 percent of our 

coal plants. 

Mr. GRIFFITH. And so you are going to be hurting, and also that 

means that you are going to have some stranded costs, and that 

means the increased cost we pay will go on to your ratepayers, isn’t 

that correct? 

Mr. GRAHAM. It is almost like they paid for the plant twice. They 

paid for the plant, and they have all this useful life left, and then 

we have to shut it down. 

Mr. GRIFFITH. And the beauty of natural gas and some of the energy revolution is that we can attract jobs back to the United 

States but we have to have affordable energy, and this plan doesn’t 

do much for the environment, and it damages our ability and our 

reputation in the world to have affordable energy. Isn’t that true? 

I don’t have time for an answer, but I assume that it is with most 

of you. Ms. Speakes-Backman, I agree you would disagree, but I 

recognize that, and yield back. 

Mr. WHITFIELD. Gentleman’s time has expired. 

At this time, recognize the gentleman from New York, Mr. 

Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. And thank you to our panelists for appearing before the subcommittee. 

And Commissioner Speakes-Backman, let me address my comments first and foremost to you. Welcome, and thank you for your 

service as chair of the RGGI Board of Directors. As you have noted, 

New York is a member of RGGI. In my last workstation before 

service here in the House, I was president and CEO of NYSERDA, 

New York State Energy Research and Development Authority, 

which got me a seat at the RGGI table. And so I am very thankful 

for your leadership and for carrying forth with the mission of that 

plan. 

As a participant in RGGI, New York has been able to accomplish 

a great deal. Greater energy efficiency, cleaner air, expanded deployment of renewable energy technologies, and these are just a 

few of the benefits, many that are arising. 

EPA’s proposal is just that at this stage; a proposal. I support its 

goals. As a proposal, I am sure it will evolve and change, perhaps, 

before the final rule is released. There, however, seems to be a 

number of utilities and states that are claiming the goals of the 

proposal cannot be achieved without severe economic hardship, and 

sacrificing our electricity reliability. You seem to take a different 

view. Why are you convinced that these predictions are wrong? 

Ms. SPEAKES-BACKMAN. Well, thank you for your participation in 

RGGI as a state, and thank you for the question. 

I do take a different position, and in fact, I take the position that 

RGGI, coupled with our other state policies, has helped us to improve reliability. So specific to the reliability issue, which is very 

near and dear to my heart, and it is actually part of my legal obligation as a commissioner of the Maryland Public Service Commission, we have implemented RGGI within the construct of existing 

markets, and that includes the North American Electric Reliability 

Corporation’s oversight of bulk system reliability. It includes 

151 

FERC’s retaining its authority over the market’s design. It includes 

also reliable dispatch of least cost resources remaining with our 

grid operation system. So this is not an upending of the systems. 

We have been doing this for 8 years, and we have had fewer reliability issues because we have been able to support programs such 

as demand response and energy efficiency to help reduce the load 

in specifically load pocket areas. 

Mr. TONKO. Thank you. And also there are those who would 

argue that sound stewardship of our environment and economic recovery, the growth of our economy, cannot go hand-in-hand. Are 

there any stats that you can cite in terms of perhaps job growth 

in the energy areas that have enabled us to strengthen our economy and provide for cutting-edge new opportunities with innovation as it relates to the energy arena? 

Ms. SPEAKES-BACKMAN. Yes, sir. I can speak specifically to the 

state of Maryland with respect to jobs. I would have to look up that 

number, but I believe it is in my written testimony, sir, but we 

have created jobs and we have improved our economy, while we 

have reduced by 40 percent our carbon dioxide from power plants. 

And I am sorry, I don’t have that number at my fingertips. 

Mr. TONKO. Well, I am certain that you also—other participants 

at the RGGI table representing that array of states, but I think it 

can be documented that we have grown a new culture of job activity, all while strengthening the environmental outcome, and—— 

Ms. SPEAKES-BACKMAN. Absolutely. 

Mr. TONKO [continuing]. The sense of environmental justice that 

has been produced by RGGI accompanies that of social and economic justice. So, I think that there is this whole silo effort to look 

at certain impacts, needs to be looked at in a fuller array, a broad 

view that provides for a strong context of a better future for all of 

the states involved. 

Ms. SPEAKES-BACKMAN. Absolutely, sir. I just recalled the number. In the first 3 years of our program alone of RGGI, we have 

created 16,000 job years in our region. 

Mr. TONKO. How many, sorry? 

Ms. SPEAKES-BACKMAN. 16,000 job years in our region. Based on 

the further reductions that we made through a program review in 

2014, an independent analysis by the Analysis Group has shown 

that we will add yet another 130,000 job years to our region. 

Mr. TONKO. Thank you very much. 

And with that, I see my time is up. 

Mr. WHITFIELD. Gentleman’s time has expired. 

Mr. TONKO. I yield back. 

Mr. WHITFIELD. At this time, I recognize the gentlelady from 

North Carolina, Mrs. Ellmers, for 5 minutes. 

Mrs. ELLMERS. Thank you, Mr. Chairman. And thank you to our 

panel, especially to you, Secretary van der Vaart, for being here 

from North Carolina. 

As your position as secretary of DNR North Carolina, and as an 

attorney, can you reflect a little bit about the discussion that took 

place on panel 1 about the ambiguities that exist between the 

rule—the 111 and the 112, especially focusing back to 1990 when 

it was first put forward? 

152 

Mr. VAN DER VAART. Yes, ma’am. Yes, ma’am. That is a good 

point. The previous discussion, I would warn you all, maybe appears to me, at least, setting up a straw man, the question of 

whether the codified versus the statute at large language actually 

controls. The fact of the matter is, it doesn’t matter. Even if you 

take the statute at large, there is no ambiguity, and the reason is 

in 1990, the Clean Air Act, under Section 112 was fundamentally 

changed from a pollutant-based program to a source category-based 

program. And, therefore, the language in the statute at large is entirely consistent with what happened at that point. 

Mrs. ELLMERS. Yes. 

Mr. VAN DER VAART. And I am afraid that the previous discussion, for one reason or another, may have missed that. And so it 

is very good that you keep that in mind. Thank you. 

Mrs. ELLMERS. And then getting back to some of the—there 

again, the discussion that took place in the first panel, one of my 

questions is really about implementation of this, and especially 

when it comes to 111, in the building block number 4, and there 

again, Secretary, from your perspective, how can this possibly be 

enforced, or can you foresee a way that the EPA would actually be 

able to enforce this on North Carolinians? 

Mr. VAN DER VAART. That is a very good question, and we have 

thought very hard about it. Another misunderstanding that many 

people have about the Clean Air Act is that somehow 108 and 110 

are implemented similarly to 111. That is not the case. When a 

state fails, for whatever reason, to submit an approvable plan 

under 110, 108, to protect NAAQS, the state itself is subject to 

sanctions including highway funds removal. That is not the case in 

111. 

Mrs. ELLMERS. Yes. 

Mr. VAN DER VAART. If we do not submit an approvable plan, 

there is no downside for North Carolina as such as the government, 

however, the Federal Government will then enforce directly to the 

source. And so, Representative Ellmers, you are giving me a specter of what happens to my grandma when she—— 

Mrs. ELLMERS. Yes. 

Mr. VAN DER VAART [continuing]. Doesn’t screw in a CFL bulb in 

her house. Is she going to be thrown in jail by the feds? Am I going 

to be thrown in jail because I am somehow missing my obligation, 

or is the utility executive somehow going to get thrown in jail, 

when really maybe the EPA should be thrown in jail. So—— 

Mrs. ELLMERS. Well, there again, it is part of that ongoing discussion of comparing apples to oranges and kind of alternative 

universes when we are talking about this issue. 

My final question for you, Secretary van der Vaart, is, there 

again, looking towards our North Carolinians, is it economically 

feasible and fiscally responsible for us to foresee a future where we 

go from a cost-based energy dispatch model to a carbon dioxidebased dispatch model? 

Mr. VAN DER VAART. We can put a man on the moon. We can certainly do this, but it will be at a cost, and unfortunately, the people 

who are going to bear that cost are the ones least able to afford 

it. It is going to be our lower and middle class folks, it is going to 

mean the job losses for high-paying manufacturing jobs because 

153 

electricity prices is fundamental to siting of new manufacturing. So 

yes, we can do it. Is it legal? Absolutely not. And, in fact, as you 

heard, it is already been going on in a more cost-effective manner 

by the states themselves. 

Mrs. ELLMERS. Yes. 

Mr. VAN DER VAART. So what we have here is a Federal Government attempt to upend, as I said, the world’s greatest electricity 

system through a little-known codicil in the Clean Air Act. 

Mrs. ELLMERS. Thank you, sir. 

And I will just close out by saying that North Carolina has made 

such strides, and thank you, a lot of it is due to your leadership 

and moving forward on clean energy. And I believe North Carolina, 

and so many other states that have taken these steps already, need 

and deserve that credit. So thank you all to the panel. 

And thank you, Mr. Chairman. I yield back the remainder of my 

time. 

Mr. WHITFIELD. Gentlelady yields back. 

At this time, recognize the gentleman from Ohio, Mr. Johnson, 

for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. I appreciate it. And, 

Director Butler, thank you for joining us today from the great state 

of Ohio. 

Lot of concerns there about the things that we have talked about 

this morning. Director Butler, it seems as if the Administration is 

ignoring the lawsuit that many states, including Ohio, are currently engaged in with the EPA, and instead they are solely focused on the implementation of the rule. Given all the legal issues 

surrounding EPA’s 111(d) proposal, would you support the EPA 

setting aside the implementation planning until legal challenges 

are resolved? 

Mr. BUTLER. Mr. Johnson, thanks for that question. I think Professor Tribe is far more eloquent than I am on these issues in the 

previous panel, but I think to your point, I think that is the exact 

request that we would have and have made to U.S. EPA to have 

them consider. I look at it from a state resource application. We 

will likely be, if the Clean Power Plan evolves as a final plan, much 

like the draft plan, and it still has what we believe are its legal 

flaws, will be challenging that law with many other states. That 

will not, unless things change, relieve us from the obligation to be 

developing at the same time in a parallel path, expending state resources to develop a plan of implementation in a very tight time 

schedule that, as you have heard, we don’t think we can meet. 

Those are scarce state resources, frankly, we cannot and should not 

have to expend. So directly to your question, I have advised and 

asked U.S. EPA, because there is no compelling deadline relative 

to this issue about carbon, that we set this implementation issue 

aside and have our requisite debate about the legal issues, and 

then go from there. 

Mr. JOHNSON. Well, let us expound on that a little bit. States like 

Ohio, and others that we have talked to here today, are implementing a number of new and older EPA regulations ranging from 

the Mercy and Air Toxics Rules, to particulate matter standards, 

to new ozone rules. So can you expand a little bit, doesn’t this put 

strain on state resources, and what happens if, on top of all of this, 

154 

states also have to implement a final 111(d) rule that eventually 

could get thrown out in court? And the reason I say that is because 

we have seen that scenario before. The brick industry invested 

hundreds of millions of dollars into complying with a set of standards that the courts threw out, and then they got virtually no credit by the EPA for all that investment that they did, and the EPA 

certainly was not standing there ready to give them their money 

back. 

Secretary van der Vaart, if they do get thrown in jail, they had 

better not call me for bail money because I am not going to be at 

the table. 

How do you feel about that, Mr. Butler? 

Mr. BUTLER. Yes. Mr. Johnson, I—thanks for that question. I 

think we have seen—we always are trying to comply with our delegated programs and certainly our air programs. We have made tremendous success in air quality in Ohio. We have seen an unprecedented number of regulatory requirements come down the road. 

So you mentioned the mercury rule. Not only does that, you 

know, add to the time commitment and planning and implementation for compliance, it is, frankly, having to shut down 1⁄4 of our 

coal generation fleet in the state of Ohio. So we are concerned 

about that. Today, ironically, as we sit here is the same day that 

we are required to submit our comments on the proposed new 

ozone standard, and we are just on the cusp of, frankly, getting to 

the point of being statewide full compliance of the 2008 ozone 

standard. I would love to, frankly, declare victory on that and say— 

but no, we are in a position now where we are having to decide 

whether or not we need to drop that standard further, and whether 

or not the science is supportive of that. We are, in addition, in the 

midst of looking at both the particulate matter and SO2 rules, and 

whether or not, frankly, we move down the path of having additional ozone transport regulations. And the list goes on. 

So that puts an incredible strain on us as state regulators and 

implementers, and is, frankly, just an additional cost that we are 

requiring to our legislature to pass on to customers. 

Mr. JOHNSON. Well, thank you. 

Secretary van der Vaart, do you have a comment on that as well? 

Mr. VAN DER VAART. Well, I would just like to emphasize again, 

America is moving toward cleaner energy. It is moving that direction because of the free market and our revolution in natural gas 

exploration and production. We are all states doing what we think 

is right in cleaning up the environment, and I think it is not a time 

to rush to judgment when we have such a flawed proposal. 

Mr. JOHNSON. Thank you very much. 

Mr. Chairman, I yield back. 

Mr. WHITFIELD. The gentleman’s time has expired. 

And I want to thank all four of you for joining us today to discuss 

this significant issue. 

I would like to also include the following documents in the 

record. Comments submitted to EPA on the proposed 111(d) rule by 

the Florida Public Service Commission, and the Florida Office of 

Public Counsel. 

[The information appears at the conclusion of the hearing.] 

155 

Mr. WHITFIELD. And we will keep the record open for 10 days. 

I was going to come down and say hello to each one of you personally, but we have a vote on the floor and it is almost 15 minutes 

gone now, so I am going to rush out, but we look forward to working with you. Thank you very much. 

And that adjourns today’s hearing. 

[Whereupon, at 1:39 p.m., the subcommittee was adjourned.] 

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