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IMPLICATIONS OF THE SUPREME COURT STAY 

OF THE CLEAN POWER PLAN 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JUNE 9, 2016 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 
(III) 

C O N T E N T S 

Page 

JUNE 9, 2016 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Boxer, Hon. Barbara, U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 75 

WITNESSES 

Dykes, Katie, Deputy Commissioner for Energy, Connecticut Department of 

Energy and Environmental Protection ............................................................... 4 

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

Revesz, Richard, Lawrence King Professor of Law and Dean Emeritus, Director, Institute for Policy Integrity, New York University School of Law .......... 15 

Prepared statement .......................................................................................... 17 

Wood, Allison, Partner, Hunton & Williams LLP ................................................. 43 

Prepared statement .......................................................................................... 45 

Bondon, Jack, Representative, 56th District, Missouri House of Representatives ....................................................................................................................... 57

Prepared statement .......................................................................................... 59 

McInnes, Michael, CEO, Tri-State Generation and Transmission Association, 

Inc., on behalf of the National Rural Electric Cooperative Association .......... 69 

Prepared statement .......................................................................................... 71 

(1) 

IMPLICATIONS OF THE SUPREME COURT 

STAY OF THE CLEAN POWER PLAN 

THURSDAY, JUNE 9, 2016 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m. in room 406, 

Dirksen Senate Office Building, Hon. James M. Inhofe (chairman 

of the committee) presiding. 

Present: Senators Inhofe, Barrasso, Capito, Crapo, Boozman, 

Wicker, Fischer, Rounds, Sullivan, Carper, Cardin, Whitehouse, 

Gillibrand, and Markey. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. The hearing will come to order. 

We are going to do something a little bit differently. I just talked 

to Senator Boxer. She is stuck in traffic and said to go ahead and 

start without her, so we will do that. 

I will do my opening statement, and what we will do is I will introduce all of our witnesses. Thank you very much, all of you, for 

being here today. This will be a well attended hearing. I am going 

to be asking something very special of you guys, and that is do as 

I do, and that is stay within your 5-minute limit because we will 

have a full panel here, and we have a vote at 11:15, so we want 

to accommodate both of those if that is all right. 

So we are here today to talk about the status of the Clean Power 

Plan in the wake of a historic decision by the U.S. Supreme Court 

to stay the rule. 

The stakes are high when it comes to the Power Plan. An agency 

charged with protecting human health and environment is attempting to restructure the entire energy system on imagined legal 

authority in a manner that will cost billions of dollars, is based on 

unreasonable assumptions, will increase energy bills, puts grid reliability at risk, and has no impact on the environment. 

If the EPA can convince the courts to uphold their approach to 

regulating the utility industry through the means Congress never 

authorized, then they will take these same arguments and use 

them to restructure every industrial sector in this country in a 

manner that appeases the political obligations of the President. 

Neither the Clean Air Act nor the regulatory system was meant 

to operate this way, and the President knows that. That is why he 

first attempted to progress his climate agenda—as was tried before 

he was President, going back as far as 2002—to do this through 
2 

legislation, and what the President is very famous for is doing 

things that he can’t do through legislation through regulation. That 

is what this is all about. 

So without the requisite support of Congress, the President has 

tasked unelected bureaucrats who are insulated from the consequences. So that is where we are today. 

Republicans are not the only ones who rightfully question the 

agency’s persistent attempts to blur legal lines. Democrats, leading 

environmentalists, Governors, well respected economists, attorneys 

general, State air officials, economic directors, utilities, manufacturers, American businesses, unions, labor unions, and many more 

have joined the charge. Some have testified before this committee, 

including the former chief counsel of the Sierra Club, that the 

Clean Power Plan is legally unsound. President Obama’s own law 

professor testified before the House that what the President and 

his EPA are doing is akin to ‘‘burning the Constitution.’’ 

And the latest institution to join the charge is the Supreme 

Court of the United States. On February the 9th, 2016, the Supreme Court issued a historic stay, which puts the Clean Power 

Plan on hold until the completion of judicial review and accordingly 

extends all related deadlines. This is the relief that was requested 

and the relief that was granted, which even the EPA acknowledged 

when the Agency thought a stay would never happen. 

Yet EPA is attempting to downplay the significance of the stay 

and argue against the clean legal precedence as a last-ditch effort 

to scare States into spending scarce resources complying with a 

rule that could very well be overturned. It is important to note that 

a key consideration of the Court when assessing a stay is whether 

the parties requesting the relief will prevail on the merits. While 

a stay is not a final decision, it makes clear that the highest court 

in the country has serious reservations on the legal soundness of 

the rule. 

Like much of the Clean Power Plan, how the stay actually plays 

out is up to the States. We have a chart here. If you look at the 

States in red are the ones that have stopped their work altogether, 

the yellow is the ones who have slowed down their work, and then 

the green are those States, only 11 States, that have continued 

their work. 

So, my message to the States and stakeholders and impacted entities is simple and clear: the highest court in the country, the Supreme Court of the United States, put a hold on the Clean Power 

Plan and all associated deadlines because it has serious concerns 

over the legal legality of this rule. As such, no State should fear 

any penalty for heeding the Court’s decision. 

So, I thank the witnesses for being here. We are going to start, 

and we are going to try to adhere to our deadlines. But as soon as 

Senator Boxer gets here I will interrupt this proceeding and recognize her for her opening statement. 

We have witnesses today: Ms. Katie Dykes, Deputy Commissioner for Energy, Connecticut Department of Energy and Environmental Protection. Nice to have you here, Katie. 

Professor Richard Revesz, Lawrence King Professor of Law and 

Dean Emeritus, Director, Institute for Policy Integrity, New York 

University School of Law; Mrs. Allison Wood, Partner, Hunton & 
3 

Williams; Mr. Michael McInnes, CEO of Tri-State Generation and 

Transmission Association, Incorporated, on behalf of the National 

Rural Electric Cooperative Association; and Representative Jack 

Bondon from the State of Missouri, around the Kansas City area, 

I believe. 

It is nice to have all of you here. 

We will start on this side with you, Ms. Dykes. And do try. I will 

be rude if you don’t adhere to your 5 minutes. Thank you. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE STATE OF OKLAHOMA

We are here today to talk about the status of the Clean Power Plan in the wake 

of a historic decision from the Supreme Court of the United States to stay the rule. 

The stakes are high when it comes to the Power Plan. An agency charged with 

protecting human health and the environment is attempting to restructure the entire energy system on imagined legal authority in a manner that will cost billions 

of dollars, is based on unreasonable assumptions, will increase energy bills, puts 

grid reliability at risk, and have no impact on the environment. 

If EPA can convince the Courts to uphold their approach to regulating the utility 

industry through means Congress never authorized, then they will take these same 

arguments and use them to restructure every industrial sector in this country in 

a manner that appeases the political obligations of a President. 

Neither the Clean Air Act nor the regulatory system was meant to operate this 

way, and the President knows it. That is why he first attempted to progress his climate agenda and the predecessor of his Clean Power Plan through Congress in the 

form of cap-and-trade legislation. The problem the President ran into is that capand-trade is a bad deal for this country, and elected officials who are accountable 

to their constituencies will not support it. 

Without the requisite support of Congress, the President and his EPA have tasked 

unelected bureaucrats who are insulated from the consequences of progressing on 

all pain, no gain regulation and their legal allies to craft creative arguments to support it. The result of this is an oft repeated mantra from the EPA that the Clean 

Power Plan is built on a ‘‘solid legal foundation.’’ While the agency often makes eloquent, compelling legal arguments, they tend to be wrong. 

Republicans are not the only ones who rightfully question the agency’s persistent 

attempts to blur legal lines. Democrats, leading environmentalists, Governors, well 

respected economists, attorneys general, State air officials, economic directors, utilities, manufacturers, American businesses, unions, and many, many more have all 

joined the charge. Some have testified before this committee, including the former 

chief counsel of the Sierra Club, that the Clean Power Plan is legally unsound. 

President Obama’s own law professor testified before the House that what the President and his EPA are doing is akin to ‘‘burning the Constitution.’’ 

And the latest institution to join the charge: the Supreme Court of the United 

States. 

On February 9, 2016, the Supreme Court issued a historic stay, which puts the 

Clean Power Plan on hold until completion of judicial review and accordingly extends all related deadlines. This is the relief that was requested, and the relief was 

granted, which even the EPA acknowledged when the agency thought a stay would 

never happen. 

Yet EPA is attempting to downplay the significance of the stay and argue against 

clear legal precedence as a last-ditch effort to scare States into spending scarce resources complying with a rule that could very well be overturned. It is important 

to note that a key consideration of the Court when assessing a stay is whether the 

parties requesting the relief will prevail on the merits. While a stay is not the final 

decision, it makes clear that the highest court in this country has serious reservations on the legal soundness of the rule. 

Like much of the Clean Power Plan, how the stay actually plays out is up to the 

States. Over half of the States—29 to be exact—have completely stopped work associated with the Power Plan, and 7 have slowed work. For the 11 States that continue to work on the CPP, a closer look reveals that their decision is more a matter 

of politics than prudent reason. 

My message to States, stakeholders and impacted entities is simple and clear: the 

highest court in this country, the Supreme Court of the United States, put a hold 

on the Clean Power Plan and all associated deadlines because it has serious con-
4 

cerns over the legality of this rule. As such, no State should fear any penalty for 

heeding the Court’s direction. 

I thank the witnesses for their time and look forward to their statements. 

STATEMENT OF KATIE DYKES, DEPUTY COMMISSIONER FOR 

ENERGY, CONNECTICUT DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION 

Ms. DYKES. Thank you. 

Good morning, Chairman Inhofe and members of the committee. 

I appreciate the opportunity to be able to be with you and speak 

here today. My name is Katie Dykes. I serve as the Deputy Commissioner for Energy at the Connecticut Department of Energy and 

Environmental Protection. This year I also have the privilege of 

serving as the Chair of the Board of Directors of the Regional 

Greenhouse Gas Initiative, or RGGI for short. 

The EPA has recognized multi-State, mass-based trading programs like RGGI as a compliance option for the Clean Power Plan, 

so I think it is relevant to share a little bit of the successes we 

have been having from implementing this program over the past 

several years. 

The RGGI program caps covered emissions from new and existing power plants by determining a regional budget of carbon allowances. The nine States participating in RGGI distribute a majority 

of our carbon allowances through quarterly auctions, and we reinvest the proceeds. Collectively the nine RGGI participating States 

represent 16 percent of the U.S. economy and generate a total GDP 

of $2.4 trillion. 

Connecticut is proud to be a charter member of RGGI, and we 

are pleased that EPA has recognized our approach as an option for 

Clean Power Plan compliance. Participation in RGGI has enabled 

our State to make significant reductions in carbon pollution already. Since 2005 the RGGI States collectively have reduced carbon 

emissions by 45 percent from the electric sector, and we are on 

track to meet a 50 percent reduction by 2050. We have done all 

this while growing our GDP by 8 percent and while maintaining 

system reliability of the electric system. 

In Connecticut we have embarked on a clean energy transition 

in our State and our region because we are experiencing the 

threats of climate change. I will be delighted to share some of the 

examples that we see already, the hundreds of millions of dollars 

that we have been asking ratepayers to invest to address hardening our electric system, restoring power as a result of massive 

storms that rolled through our State and our region in 2011 and 

2012. We have coastal substations that are facing the possibility of 

inundation by flood waters now that they are within the 100-year 

flood zone, and that is not because we moved those substations. So 

this is a real reliability threat for us. 

But we are also pursuing this because it provides tremendous 

benefits to our electric grid and our economy. Investments in energy efficiency save customers money. Renewables enhance reliability by diversifying our generation fuel mix and help to moderate electricity market prices. Independent reports by the Analysis 

Group have found that the RGGI program produced $1.4 billion in 

net benefits to the RGGI region between 2012 and 2014, creating 
5 

14,000 job-years and $460 million in consumer energy bill savings. 

That is net economic benefits from reducing carbon emissions. 

In spite of litigation uncertainty around the Clean Power Plan, 

Connecticut is one of several States that believe that having more 

information from EPA about how we might comply with the Clean 

Power Plan if it is upheld will better inform our decisionmaking. 

In April we were proud to join 13 other States in a letter to EPA 

requesting additional information and assistance related to the 

final CPP. Specifically we asked EPA to provide a final model rule 

or rules. We asked EPA to provide additional information about the 

Clean Energy Incentive Program, tracking systems for allowances 

or credits, and so on. 

We asked for this information to assist not only with our continued preparation for CPP compliance, but also to assist us with 

near-term immediate decisions that we need to make and that we 

are making about grid planning, about our own State obligations 

related to our State statutory mandate to reduce carbon emissions 

by 80 percent by 2050, how to comply with the revised ozone standards, and many other regulatory requirements that we have within 

our State. 

We are making decisions today using the best information that 

we have available. As energy planners we engage in modeling, we 

consult forecasts, and we make assumptions around the possibilities related to environmental compliance obligations, even when 

they may be uncertain due to litigation. And that extends not just 

to the Clean Power Plan, but also deciding decisions, nuclear relicensing, a whole host of administrative decisions that need to be 

factored into planning. 

Finalization of a model rule and other information that we have 

requested from EPA would not impose any new requirements on 

States or other parties, but it will provide us critical information 

about what kind of State plans will be approvable should the CPP 

be upheld. Given the interconnected nature of the electric grid, it 

is important for us in Connecticut to have information about how 

we might comply, how our sister States in RGGI might comply, as 

well as States outside of RGGI, so that we can continue with our 

planning. 

Connecticut and the other RGGI States have some of the most 

aggressive Clean Power Plan targets in the country, but we are 

well placed to meet them because we have taken proactive action, 

and we encourage others to do the same. 

Thank you so much. 

[The prepared statement of Ms. Dykes follows:] 
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Senator INHOFE. Right on target. Thank you very much. I appreciate you. 

Professor Revesz. 

STATEMENT OF RICHARD REVESZ, LAWRENCE KING PROFESSOR OF LAW AND DEAN EMERITUS, DIRECTOR, INSTITUTE FOR POLICY INTEGRITY, NEW YORK UNIVERSITY 

SCHOOL OF LAW 

Mr. REVESZ. Mr. Chairman and members of the committee, I am 

very grateful to have been invited to testify and will address three 

issues today. 

First, the State does not prevent EPA from continuing work related to the implementation of the Clean Power Plan. Before the 

Supreme Court’s stay, EPA had issued a proposed rule outlining 

Model Trading Rules, which will provide a framework for States 

that want to use emissions trading programs to achieve the Plan’s 

emissions limits. 

EPA has said that it plans to finalize the Model Trading Rules 

this summer. EPA is also at work on other implementation related 

matters, including a proposal for a Clean Energy Incentive Program, which will provide States with an optional framework for rewarding early investments in renewable energy and demand-side 

energy efficiency. 

Even though these implementation related activities do not create enforceable obligations for States or sources opponents of the 

Clean Power Plan claim that EPA is required to cease work on 

them. But there is ample precedent for EPA continuing to work on 

implementation related matters during a stay of a regulation. Indeed EPA has done so under the last three Presidential administrations, both Republican and Democratic. In arguing that EPA 

must put its pencil down, opponents confuse the effects of a stay 

with those of an injunction, which the Supreme Court did not 

issue. 

In addition to being legal EPA’s continued work on implementation related matters will have a number of salutary effects. For one 

it will aid the many States that during the pendency of the stay 

are voluntarily preparing to comply with the Clean Power Plan. 

EPA’s guidance will also inform the plans of electric utilities and 

provide more energy predictability to the industry. Finally, if the 

plan is ultimately upheld the finalization of the Model Trading 

Rules will make the development and submission of implementation plans easier for all States. 

Second, a decision on the proper timeline for compliance will be 

made when the stay is lifted and should then take into account the 

public’s interest in timely emissions reductions and developments 

in the electric power sector. 

Opponents of the Clean Power Plan have also argued that the 

stay has resulted in automatic tolling of all deadlines in the Clean 

Power Plan, not just the September 2016 and September 2018 

deadlines for the submission of plans but also the deadlines for 

sources to reduce their emissions, which begin 2022 and end in 

2030. The litigation will undoubtedly be resolved long before these 

performance deadlines, and the Supreme Court stay does not say 

anything about how they should be treated. 
16 

Nonetheless earlier this year the U.S. Chamber of Commerce released a white paper arguing if the Clean Power Plan is upheld by 

the courts, EPA is required to move all of its deadlines into the future by at least the amount of time between the stay’s issuance and 

its expiration. The Supreme Court stay does not mention any such 

tolling, and by its terms is explicitly limited to the duration of judicial review and is silent on what will happen after that. 

Here too there is history under administrations of both parties 

that makes clear that tolling decisions are made when a stay is lifted, not when it is put in place. And the tolling period is not necessarily equal to the period during which the stay was in effect. 

If the Clean Power Plan is upheld any court considering a request to toll deadlines would surely give substantial weight to the 

public benefit of adhering as closely as possible to the original 

timetable that EPA developed to best serve the rule’s objectives. 

The court would also likely take into account developments in the 

electric power sector, such as faster-than-expected growth in renewable generation, which may make it possible for States and 

sources to comply with the plan more quickly than foreseen when 

the Clean Power Plan was promulgated and therefore make tolling 

not necessary. 

Third, the Clean Power Plan is a reasonable exercise of EPA’s 

rulemaking authority and is consistent with both the Clean Air Act 

and the Constitution. 

None of the three main arguments made by opponents of the 

Plan are persuasive. Opponents argue the Clean Power Plan represents an enormous and transformative expansion of EPA’s regulatory authority because the rule’s guidelines are not based on 

technological changes that each regulated source can implement 

independently and assume generation shifting from high emitting 

to low emitting electricity generators. But here too there is precedent for each of these aspects under other regulations conducted by 

EPA under administrations of both parties. 

And the other two arguments that EPA is precluded from regulating the greenhouse gas emissions of power plants because it regulates the mercury emissions of power plants and the constitutional argument about commandeering are similarly erroneous, and 

in my written testimony I explore these issues in detail. 

Thank you very much. 

[The prepared statement of Mr. Revesz follows:] 
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Senator INHOFE. Thank you, Professor Revesz. 

Ms. Wood. 

STATEMENT OF ALLISON WOOD, PARTNER, 

HUNTON & WILLIAMS LLP 

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

committee to offer testimony on the implications of the Supreme 

Court stay of EPA’s Clean Power Plan. My name is Allison Wood, 

and I am a partner in the law firm of Hunton & Williams. I have 

practiced environmental law for almost 18 years, and for over the 

past decade my practice has focused almost exclusively on climate 

change. 

I represent several electric utility clients in the litigation involving the Power Plan, including in connection with the electric utility 

industry’s application to the Supreme Court for a stay. I am not 

representing anyone with regard to this testimony, however; I am 

testifying in my own personal capacity. 

A stay of an administrative action such as the Power Plan maintains the status quo during the time that the court considers the 

legality of the action. During the stay, the Power Plan has no legal 

effect. Any and all obligations are effectively void, and neither 

States nor regulated entities can be penalized for refusing to comply with any requirement or deadline in the Power Plan. 

Stays are very rarely granted by any court. The Supreme Court 

only grants a stay where, one, there is a reasonable probability 

that four justices would consider the issue one on which they would 

grant review; two, there is a fair prospect that a majority of the 

Court would vote to strike down the rule at issue; and three, there 

is a likelihood that irreparable harm will result without a stay. To 

grant the stay of the Power Plan, five justices had to find that all 

of these things were present. 

If the Power Plan is ultimately found to be unlawful, which a 

majority of the Supreme Court has indicated is a fair prospect, 

then the Power Plan would cease to exist and would have no legal 

effect whatsoever. Questions have arisen, however, regarding what 

happens with the deadlines and obligations in the Power Plan if it 

is found to be lawful. Typically all of the deadlines are tolled and 

are then extended by the period of time of the stay. 

So for example if the stay were in effect for 500 days, you would 

then extend all of the deadlines in the Power Plan by at least 500 

days. This is exactly what has happened with other EPA rules that 

were the subject of a judicial stay. 

Tolling all of the deadlines in the Power Plan was explicitly 

sought in some of the applications before the Supreme Court. Even 

for those stay applications that were not explicit, however, the solicitor general of the United States noted to the Supreme Court on 

behalf of EPA that the request to toll all of the deadlines was inherent. The Supreme Court granted every stay application without 

any qualification, meaning that the Court gave the applicants—including those who were explicit in their request—the relief that 

they sought. 

Statements that insinuate that not all of the deadlines will be 

tolled have a deleterious effect on States and regulated entities 

who become fearful that if they do not continue to plan and work 
44 

toward compliance with the Power Plan that they will not have 

enough time to do so if the rule is ultimately upheld by the courts. 

This fear effectively negates the relief provided by the stay. 

States and regulated entities should be able to rest secure in the 

knowledge that if the Power Plan is ultimately upheld that all of 

the deadlines will reset and that they will not have any less time 

to prepare than they would have had in the absence of the stay. 

That is what status quo means. 

Some States have decided to continue to work on the Power Plan 

for a variety of reasons, which they are free to do. States that do 

not want to work on the Power Plan, however, should not be forced 

to do so, something that EPA has acknowledged. 

The problem is that in trying to provide additional tools to the 

States that want to continue to work EPA ends up forcing States 

and regulated entities that do not want to work during the stay to 

do so. For example if EPA issues a proposed rule, which it is planning to do with the Clean Energy Incentive Program, States and 

regulated entities need to comment on the proposal or risk not having any say in the design or implementation of aspects of the 

Power Plan. In addition with any final rule EPA may issue, such 

as the Model Trading Rules, the States and regulated entities have 

to decide whether to litigate those rules or waive their right to judicial review. 

The providing of tools to States that want to continue to work 

cannot force action by those States and regulated entities that do 

not want to act during the stay. 

Thank you again for the opportunity to testify today. 

[The prepared statement of Ms. Wood follows:] 
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Senator INHOFE. Thank you very much, Ms. Wood. 

Representative Bondon. 

STATEMENT OF JACK BONDON, REPRESENTATIVE, 

56TH DISTRICT, MISSOURI HOUSE OF REPRESENTATIVES 

Mr. BONDON. Good morning, Mr. Chairman, esteemed members 

and Senators of the committee. My name is Jack Bondon, and I 

serve the people of Missouri’s 56th Legislative District, including 

my home town of Belton and parts of southern Kansas City, in the 

Missouri State House of Representatives. 

Thank you for inviting me today to share my perspective as a 

State legislator on the implication of the Supreme Court’s stay on 

the Clean Power Plan. 

My State of Missouri benefits in many ways by having affordable 

electricity prices. In fact our electricity prices are more than 10 

percent below the national average. Currently Missouri relies on 

coal for nearly 80 percent of its electricity. But at the same time 

Missourians recognize the need for an affordable, sustainable, and 

reliable mix of energy sources. To achieve the right mix for our 

State Missouri released our own State comprehensive energy plan 

last fall, in October 2015, that includes a renewable efficiency provision and a renewable portfolio standard. 

In addition in 2014 the Missouri legislature passed a bill, signed 

by our Governor Nixon, which establishes how Missouri should set 

its own CO2 standard for power plants. In short Missouri has taken 

the lead in deciding its own energy future. 

Unfortunately, the Clean Power Plan would substitute the EPA’s 

energy preferences for the well thought out choices made by Missourians. Not only will the Plan override Missourians’ choices 

about their electricity mix, it will almost certainly increase our 

electricity prices. A quick, rough calculation using the EPA’s own 

$37-per-ton estimate equates to a cost of over $6 billion by 2020, 

which could increase electricity prices in Missouri by double digits. 

Now, I am a legislator, too. I understand there are many interested parties to this discussion—the energy sector, economists, 

ecologists, scientists, State agencies, and more. But I don’t work for 

them. I work for the people that I serve, and I look at the Clean 

Power Plan from their perspective—the perspective of the ratepayer, the consumer, the single parent, the retiree on a fixed income, the small business owner struggling to make payroll for their 

employees. I am their voice in Jefferson City, and I am their voice 

here today. 

Missouri is home to more than 1.2 million low-income and middle-income families, about half of our State’s households, that already spend 18 cents of every dollar they take home on energy, and 

my constituents tell me they cannot afford to pay higher utility 

prices. 

In Missouri opposition to the Clean Power Plan has been a bipartisan effort. Attorney General Chris Koster, a Democrat, joined 26 

other States in challenging the Clean Power Plan, and legislatively 

I introduced a bill that would suspend all State activity on the 

Clean Power Plan until the issue has been resolved by the courts. 

To further demonstrate our legislature’s opposition to the Clean 

Power Plan, Missouri’s fiscal year 2017 budget strictly prohibits 
58 

the use of any funds to implement the Plan. The final vote approving that piece of the budget was bipartisan in the House and unanimous in the Senate. 

In addition to introducing legislation, I authored a letter which 

was cosigned by 16 of my fellow House colleagues, inquiring Governor Nixon as to whether the Missouri Department of Natural Resources intends to continue to take steps to implement the Clean 

Power Plan while the stay is in effect, and I have not yet received 

a response. 

In summation I believe that the Clean Power Plan is bad for the 

people that I represent, and, in Missouri many of my colleagues on 

both sides of the aisle agree. So I am pleased that the Clean Power 

Plan has been stayed by the Supreme Court, and it is my hope that 

the Plan will be withdrawn or overturned. 

With that, Mr. Chairman, esteemed Senators, thank you for the 

opportunity to testify before you today, and I look forward to your 

committee’s discussion. 

[The prepared statement of Mr. Bondon follows:] 
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Senator INHOFE. Thank you, Representative Bondon. 

Mr. McInnes. 

STATEMENT OF MICHAEL MCINNES, CEO, TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., ON BEHALF 

OF THE NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION 

Mr. MCINNES. Mr. Chairman, members of the committee, I am 

Mike McInnes. I am the CEO at Tri-State Generation and Transmission Association. Thanks for the opportunity to come and discuss the effects of the Clean Power Plan on my organization, on our 

consumers, and the implications of the Supreme Court stay. 

Tri-State is a wholly member-owned generation and transmission 

cooperative serving in Colorado, Nebraska, Wyoming, and New 

Mexico. We are owned and governed by our members and operate 

on a not-for-profit basis. To serve our members we have more than 

5,300 miles of high voltage transmission system and generation 

sources that include coal, natural gas, hydroelectric, wind, and 

solar power. 

Despite significant investments in renewables, energy efficiency, 

and distributed generation projects, which is projected to make up 

about 25 percent of energy that we will distribute to our members 

in 2016, Tri-State relies heavily on coal and natural gas generation 

to maintain reliability and to control costs. Our reliance on coal 

and our business model force us to be active in the regulatory and 

legal arenas, which is what I am here to discuss. 

As a cooperative Tri-State operates differently and has different 

risks compared to investor owned and municipal utilities, a fact 

that EPA ignored in the proposed Clean Power Plan and why TriState and other cooperatives were active in the rulemaking process 

and challenged the rule in court. 

Let me just give you a couple of examples. Cooperatives have different financial goals. Our primary goal and contractual obligation 

is to provide reliable, affordable, and responsible power to our 

members. This is different than investor owned utilities whose rate 

of return is tied to equity, which gives them an incentive to build 

new infrastructure. The more new infrastructure they build, the 

more returns they receive. These incentives do not exist for TriState and other cooperatives. 

Our costs are spread over fewer customers. Tri-State and its 

members have fewer consumers per mile than other types of utilities, which means we have fewer consumers over which to spread 

those costs. Typically, cooperatives have 1 to 11 customers per mile 

of infrastructure, as compared to investor owned and municipals, 

which have over 35. 

When Tri-State needed generation, coal was our only option. In 

the late 1970s and early 1980s, when the cooperatives were growing, in that same period the Power Plant and Industrial Fuel Act 

was passed by Congress, and construction of natural gas and oil 

plants wasn’t allowed. We had to choose between nuclear and coal. 

We chose coal because it was proven, and it was affordable. On the 

positive size our fleet is relatively new compared to other utilities. 

Cooperative plants have longer remaining useful life. Tri-State 

has invested hundreds of millions of dollars in our plants to im-
70 

prove efficiency and add-on pollution control upgrades. Because of 

these investments and the fact that our plants are a little newer 

they still have significant remaining life, and we face large stranded costs if we are forced to shut them prematurely. 

Since the EPA failed to address these issues and other legal 

issues we raised during the rulemaking process our board of directors felt it necessary to challenge the rule in court that resulted in 

the current stay. While the rule is stayed Tri-State has continued 

discussions with State regulators to ensure that our concerns are 

heard. The five States we operate in have taken different approaches to the stay—two States are continuing to develop the Plan 

a little bit slower; three of them have taken the approach to ‘‘put 

the pencils down.’’ 

Several State regulators justify moving forward based on EPA’s 

gentle threat that deadlines may remain the same if the rule is ultimately upheld. We feel it is wasteful to spend taxpayer and ratepayer money developing a plan for an unknown target. There are 

so many variables that could change: a new rule, a modified rule, 

a new President withdraws the rule or proposes a new one; markets could change, new technology could be developed. So any plan 

developed today will likely have to be redone. And as we realized 

with the Clean Power Plan early investments don’t always receive 

credit in the future. 

I am often asked, if you don’t support the Clean Power Plan, 

what would you suggest? We are already achieving reductions in 

carbon emissions as a result of maintaining highly efficient power 

plants and investing in renewable projects, and we continue to support research and development. 

In the end although Tri-State and other cooperatives are different, we do have a desire to protect the environment while continuing to provide affordable and reliable energy to our members. 

We simply believe a different approach is needed to mitigate CO2

emissions. 

Thank you. 

[The prepared statement of Mr. McInnes follows:] 
71 
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74 
75 

Senator INHOFE. Well, thank you very much, Mr. McInnes. 

Let me compliment all five of you; you stayed within your 5 minutes. Maybe we can do the same thing up here. 

I was just notified that Senator Boxer is not going to be able to 

be here. At this time I will go ahead and submit her statement, 

without objection, for the record. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA

This committee is once again holding a hearing on the Clean Power Plan—the 

rule that targets carbon pollution from the Nation’s biggest source of climate pollution—power plants. The Clean Power Plan, which was finalized in August 2015, is 

an historic step forward in the effort to address climate change. 

Unchecked climate change poses a threat to the health and safety of children and 

families. That is why it is urgent that we take action to reduce dangerous carbon 

pollution from all sources, including power plants. 

Climate change is happening all around us. The predictions scientists made about 

climate change—higher temperatures, more extreme weather events, severe 

droughts, increased wildfires, decreasing polar ice, and rising sea levels—have become our reality. Here are just a few examples. 

• 2015 was the hottest year on record, and 15 of the 16 warmest years on record 

have occurred in the 21st century. 

• Earlier this year, scientists reported that sea levels are rising many times faster 

than they have in the last 2800 years. 

• The 2015 wildfire season was the costliest on record, with $1.71 billion spent. 

The American public understands the need to act. A League of Conservation Voters poll found that 70 percent of voters want their State to cooperate and develop 

a plan to implement these new standards. And a Yale University poll found 70 percent of voters support setting strict carbon dioxide emission limits on existing coalfired power plants to address climate change and improve public health. 

And we know that the Clean Power Plan will have significant public health benefits. By fully implementing the Clean Power Plan, we can avoid: 

• 3,600 premature deaths; 

• 1,700 heart attacks; 

• 90,000 asthma attacks; and 

• 300,000 missed work days and school days by 2030. 

We know that the EPA has the authority to regulate carbon pollution. In its 2007 

landmark decision, Massachusetts v. EPA, the U.S. Supreme Court found very 

clearly that carbon pollution is covered under the Clean Air Act—and it has upheld 

this authority in two subsequent opinions. 

It is disappointing that the Supreme Court, in a narrow 5 to 4 decision, decided 

to stay implementation of the Clean Power Plan. But it is important to remember 

that the Clean Power Plan has not been overruled and will be reviewed on the merits. 

Despite this delay, many States are moving toward clean energy because the 

American people want it. On April 28th, 14 States, including my State of California, 

sent a letter asking EPA to continue working with them to provide information and 

technical assistance related to the Clean Power Plan. EPA says it will respond to 

and meet the needs of States that ask for help in a manner that is consistent with 

the stay. EPA will continue to provide information, tools, and support States but 

will not enforce requirements associated with the Clean Power Plan. This is the 

right approach and is consistent with the long standing practice in both Republican 

and Democratic administrations. 

The Clean Power Plan will have its day in court. Until then, States that understand the threat posed by climate change, see the opportunities for clean energy, 

and want to protect the health of their citizens should have the right to do so—and 

receive EPA’s help. 

Those people who want to stop all progress on reducing dangerous carbon pollution are ignoring the will of the American public. The American people want action 

because they know that moving to clean energy will be beneficial for the health of 

our families and our economy. 

Senator INHOFE. Representative Bondon, I am going to read a 

quote, and I want to make sure that Senator Capito hears this 
76 

quote, too. EPA Administrator McCarthy recently stated, ‘‘I can’t 

find one single bit of evidence that we have destroyed an industry 

or significantly impacted jobs other than in a positive way.’’ 

Is that true in your district? 

Mr. BONDON. Well, I would take exception to that, Senator. Missouri is home to two large coal companies, Peabody Coal and Arch 

Coal, both out of St. Louis, Missouri, who have recently filed for 

bankruptcy. Now, there certainly are a number of reasons why a 

company does that, but the uncertainty created by the Clean Power 

Plan and the future of moving away from coal has real impact to 

their employees. 

Senator INHOFE. They filed bankruptcy, and this happened after 

they were aware of the rule? 

Mr. BONDON. That is correct. 

Senator INHOFE. What is going to happen to those jobs, then, if 

they go under? 

Mr. BONDON. Well, they are trying to figure out how to reorganize right now. But almost certainly some people will lose their job. 

Senator INHOFE. Mr. McInnes, along the same line, yesterday, an 

environmental organization released a report concluding the judicial stay is economically unjustified because the coal industry will 

not experience any irreparable harm. 

What is your response to that? 

Mr. MCINNES. Mr. Chairman, I am not sure how a statement like 

that could be made. As you have just asked about, the coal industry has almost collapsed; there is no ability to make future plans 

based on that. And I would say that whether or not the industry 

has been, or a specific instance, certainly the continued onslaught 

of regulations against generation resources has increased costs to 

the point that plants are uncompetitive. 

Senator INHOFE. Very good. 

Now, Ms. Wood, you spent a long time during your opening statement talking about the most controversial parts of this whole 

thing, and that is tolling. Is there anything you want to add to 

that? 

Ms. WOOD. Senator, I guess the one thing I would add is, when 

you look at any instance of where an environmental rule has been 

stayed, the timelines have always been tolled. To the extent they 

were not done on a day-for-day basis with the period of the stay 

it is not that they were shorter than the stay; they would be longer. 

So, for example with the cross-State air pollution rule, that was 

stayed for a little more than 2 and a half years. But then all of the 

deadlines were extended by 3 years. And the reason for that was 

because a lot of those deadlines started on, say, January 1st, so 

just adding the days on would have pulled it off the calendar. But 

you didn’t shorten them; you lengthened it. And saying that this 

rule won’t be tolled or couldn’t be tolled at the end of the day I 

think is just a scare tactic to make people work. 

Senator INHOFE. Thank you for that clarification. 

Mr. McInnes, Tri-State has made a significant investment in pollution control technology due to other EPA air rules. Now, what is 

the purpose of these investments if the Clean Power Plan forces 

the premature closure of these plants, and how would your members recover their costs? 
77 

Mr. MCINNES. In this instance, there are no investors to share 

the costs; the owners of these generation facilities will pay that entire cost. And on that point we have some of the most controlled 

resources in the country because of these upgrades that we have 

made, and now to have to walk away from those before they have 

lived their useful lives will be a significant burden on our customers. 

Senator INHOFE. Thank you. 

Representative Bondon, you and I talked about this. Although 

the rule is now stayed, how has the Clean Power Plan already impacted coal plants and utilities in your State? In other words, is the 

damage already done? 

Mr. BONDON. Well, I believe that the coal industry sees the writing on the wall, and to that extent I do believe that there is some 

damage already done. But more than that, Senator, the State of 

Missouri took this into its own hands; we created our own State 

comprehensive energy plan to try to create that energy mix in the 

future. And to the extent that the Clean Power Plan has interfered 

with our State plans, it has thrown a lot of uncertainty into the 

mix. 

Senator INHOFE. All right, I appreciate that. I have another question, but I am going to stay within my 5 minutes and give it to one 

of the other members up here to respond to. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman, and thank you for 

this hearing. 

First, let me make an observation. I listened to the Chairman’s 

opening statement, and to say the least, we have some different 

views as to the impact here. It seems to me that when we complain 

about regulations, a lot of times it would be better if Congress did 

its responsibility and did its work. This is going to be the first Congress which will not have a legacy of passing legislation to help 

protect our environment. Instead, what we seem to do is always 

have bills that prevent the Administration from moving forward 

rather than looking at ways that we can help build upon the environmental legacy of this country. 

Senator INHOFE. I don’t very often do this. Let me interrupt. 

We’ll extend your time. 

Senator CARDIN. Thank you. 

Senator INHOFE. We passed the most significant environmental 

bill in 25 years just 2 days ago. 

Senator CARDIN. I will be glad to yield to the Chairman. 

Senator INHOFE. No. The TSCA bill. 

Senator CARDIN. Oh, well, Mr. Chairman, some of us have different views on that. And I applaud you for that. It is always good 

when we move together. That deals with chemicals. And I think it 

is important that we have laws that work. I regret, though, that 

we did prevent the States from fully being able to fill the void until 

the Federal Government actually has an effective regulation. That 

was part of the problem, I think, on that issue. But that is the system working. 

We have not done that with the Clean Water and defining the 

Waters of the U.S. Instead, we have seen the Supreme Court deci-
78 

sions many years ago, and we have been blocked from trying to get 

constructive legislation to deal with clean water. 

In the clean air issues we have not been able to pass additional 

legislation. The President’s regulation, the Administration’s regulation on clean air really yields to the States to figure out how it is 

best for them to comply with the national standard, and States are 

able to do that. 

Before the President’s or before the Administration’s Power Plan 

Rule, Maryland, along with other States, entered into RGGI. They 

were moving forward in trying to deal with the issues. 

I guess my point is this—that rather than looking at ways to 

stop the Administration from moving forward with regulations, it 

would be good if Congress just passed laws as to how we can meet 

our obligations for clean air. Maryland has done its job; it did its 

job without the Federal Government telling us what we had to do. 

But the problem is we are downwind, so we can only do certain 

things. We need an effective national strategy on this, and that is 

what the Administration’s regulations are attempting to do. 

And I would welcome my colleagues working with me, as we did 

in TSCA, in figuring out how we can provide a greater legacy on 

the clean air and clean water, but we haven’t done that. And the 

Administration is carrying out its responsibilities. The Supreme 

Court decision is a stay. We will see where the courts end up, and 

we will see how the Supreme Court rules on the merits of the regulation. But a stay is a stay, and States are still moving forward. 

I guess my question is to either Ms. Dykes or Professor Revesz. 

If Maryland needs advice from the EPA as to how to move forward 

on its efforts to deal with clean air, as I understand it, the Supreme Court decision does not prevent a State from continuing to 

move forward in its efforts, and the Administration can provide 

that guidance so that they can do what they think is right for the 

health of their citizens, and under federalism, provide some help 

for our Nation in developing the right policies for clean air. 

Mr. REVESZ. That is correct, Senator. 

Ms. DYKES. And while I am not here to speak for my sister RGGI 

State of Maryland, we were pleased to be signing on to the letter 

to EPA in April along with our counterparts in the State of Maryland requesting that assistance. 

Senator CARDIN. So my concern, Mr. Chairman, is that if you are 

saying that if you interpret a stay to say that we can’t move forward, first of all, that is not what a stay does. But second, that is 

preventing us from doing what we think is right. Maryland was 

able to move forward in reducing its carbon footprint on its generation of electricity. We were able to do that in a way that benefited 

the people of Maryland, benefited our economy, and I think provides a model for what can be done in a sensible way to deal with 

clean air. 

The good news about the Administration’s regulation, as I understand it, is that our regional effort is taken into consideration in 

meeting our goals and that Maryland has the flexibility to determine how it meets its goals; it is not mandated under regulation. 

Am I correct on that? 

Ms. DYKES. That is the hallmark of the Clean Power Plan and 

of the RGGI program, that mass-based, multi-State programs pro-
79 

vide tremendous flexibility to States to determine exactly how they 

will meet their goals, and a number of the measures that we have 

used to achieve the success in RGGI has depended on not only our 

RGGI program, but also renewable portfolio standards, energy efficiency programs, which I think some of the witnesses here have 

mentioned that although their States may not be working on Clean 

Power Plan, they are working on advancing those types of measures, which will only contribute to their ability to comply. 

Senator CARDIN. Thank you. 

Mr. Chairman, I will yield back the last 18 seconds. 

Senator INHOFE. Thank you, Senator Cardin. 

Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. I want to thank our 

witnesses today for their great testimony. 

I just want to make a few comments before I ask my question 

specific to my State of West Virginia. First of all, when I hear that 

no irreparable harm has been done because of some of the regulatory measures that have been taken, come and visit the State of 

West Virginia. No joblessness? We have lost over 20,000 jobs in the 

coal mining industry. We have suffered irreparable harm, and I 

keep repeating it in this committee meeting, but I am going to keep 

repeating it because the folks of West Virginia are seriously hurting. 

We have also—I just asked my staff to find out, from 2006 to 

2014, our per-kilowatt hour cost of electricity in a cheap State 

much like Missouri in terms of cheap energy has already gone up 

47 percent. This is without the Clean Power Plan. But we are one 

of the 29 States that has chosen not to move forward for obvious 

reasons, but an official from the Department of Environmental Protection has stated that based on his experience, ‘‘I have determined 

that implementing this will be extremely complicated and time consuming.’’ I think everybody on the panel would admit that it is 

complicated and time consuming. 

Since 2014 the State has devoted five employees with 27 hours 

or more of implementing and trying to understand this section 

11(d) rule, and they estimate that to move forward would be another 9 senior staff employees with another 7,100 hours of effort. 

This is in the middle of a budget crisis in our State, due in large 

part to the impact of the coal industry. We are over $360 million 

in the hole. What is going to happen is we are losing our teachers, 

but we are also losing our DEP employees. Our State can no longer 

afford the measures that are going to be required. So we have 

stopped, to wait and see what happens. 

So, Representative Bondon, you talked about the impact monetarily in a large way of what you think this would be, $6 billion 

by 2030, and then we talk about cost-benefit analysis. You know, 

we hear that if the Clean Power Plan goes forward there will be 

a minuscule result in terms of what effect it would have on the 

global environment in terms of temperature change. So we have to 

look at that as a cost-benefit analysis. 

And I would like to say one thing in response that I forgot to say 

in the beginning, whether Congress has acted or not. Congress did 

act. I led the way with a Congressional Review Act that basically 

said the majority of the Senate and the majority of the House do 
80 

not agree with the Clean Power Plan. Went to the President’s desk, 

which he promptly vetoed, to nobody’s surprise. 

So would you have a comment on the cost-benefit, where you see 

this for your State and maybe the Nation? 

Mr. BONDON. Yes, Senator, and thank you for the question. As 

I mentioned in my testimony, a rough estimate, but the best that 

we could come up with using the EPA’s own $37 per ton estimate, 

with the mass-based reduction goals that would have to happen in 

Missouri, it would cost, on the low end, $6 billion. 

Now, it is very, very hard to figure out how that would be distributed across the State because some of the IOUs, some of the 

munis, some of the co-ops have different mixes and they would 

have to change at different rates. So to put it toward an individual 

customer is hard to do. But some of the best estimates that I have 

is that it would be a double-digit increase in utility prices. 

Senator CAPITO. Right. 

Mr. BONDON. And I think, Senator, to your larger point, we have 

to ask ourselves where is the balance. 

Senator CAPITO. Right. 

Mr. BONDON. How do we strike the balance between moving into 

cleaner energy and more reliable energy versus the cost that it is 

going to take to do that, and when our consumers and our constituents are able to afford that. 

Senator CAPITO. Right. Thank you. 

Ms. Wood, in a recent letter from EPA Acting Administration 

McCabe, she stated that, ‘‘During the pendency of the stay, States 

are not required to submit anything to EPA, and EPA will not take 

any action to impose or enforce obligations.’’ I know there is a bit 

of a disagreement on what this really means. Is this the case as 

the EPA continues its work, in your opinion, on the Clean Energy 

Incentive Program and Model Trading Rules? 

Ms. WOOD. Thank you, Senator. Before I answer your question, 

I wanted to just commend your State for its leadership in the litigation challenging this rule. Your citizens are very lucky to have 

Attorney General Patrick Morrisey and Solicitor General Elbert 

Lin leading the State effort. I think in large part due to them is 

why we have the stay that we have. 

In terms of is what EPA is doing, does it impact those States 

that don’t want to act? Yes, it does. And it will impact those manhours that you were talking about in your State because when EPA 

publishes its proposed rule on the Clean Energy Incentive Program, West Virginia is going to have a choice to make, which is either comment on that part of that rule or forego that opportunity. 

And if at the end of the day the rule is ultimately upheld, and 

West Virginia decided not to comment on it, then they have lost a 

valuable right. Yet by forcing them to read and digest and comment on a rule would be more man-hours devoted to a plan that 

the Supreme Court thinks has a fair prospect of being struck down. 

Senator CAPITO. Thank you. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Whitehouse. 

Senator WHITEHOUSE. Senator Carper is not before me? OK, very 

well, then. Thank you. 
81 

Mr. Chairman, this hearing marks an anniversary. Exactly 30 

years ago this week, in June 1986, Senator John Chafee, Republican of Rhode Island, then Chairman of the EPW Subcommittee on 

Environmental Pollution, convened a 2-day, five-panel hearing on 

ozone depletion, the greenhouse effect, and climate change. His 

opening remarks warned of, and I will quote him here, ‘‘the build 

up of greenhouse gases which threaten to warm the Earth to unprecedented levels. Such a warming could, within the next 50 to 75 

years, produce enormous changes in a climate that has remained 

fairly stable for thousands of years.’’ He went on to say, ‘‘There is 

a very real possibility that man, through ignorance or indifference, 

or both, is irreversibly altering the ability of our atmosphere to perform basic life support functions for the planet.’’ 

The contrast is stark between what Senate Republicans and their 

witnesses were saying 30 years ago and what the GOP is saying 

today. Thirty years ago Senator Chafee declared, ‘‘This is not a 

matter of Chicken Little telling us the sky is falling. The scientific 

evidence is telling us we have a problem, a serious problem.’’ 

Thirty years ago Senator Chafee said, ‘‘By not making policy 

choices today, by sticking to a wait and see approach, by allowing 

these gases to continue to build in the atmosphere, this generation 

may be committing all of us to severe economic and environmental 

disruption, without ever having decided that the value of business 

as usual is worth the risks. Those who believe that these are problems to be dealt with by future generations are misleading themselves,’’ he said. ‘‘Man’s activities to date may have already committed us to some level of temperature change.’’ 

Thirty years ago Senator Chafee knew there was much yet to 

learn about climate change. Scientists will agree that there still is. 

He said then that we have to face up to it anyway. He said, ‘‘We 

don’t have all the perfect scientific evidence. There may be gaps 

here and there. Nonetheless, I think we have got to face up to it. 

We can’t wait for every shred of evidence to come in and be absolutely perfect. I think we ought to start to try and do something 

about greenhouse gases, and certainly to increase the public’s 

awareness of the problem and the feeling that it is not hopeless. 

We can do something.’’ 

Senator Chafee was an optimist. He used to say, ‘‘Given half a 

chance, nature will rebound and overcome tremendous setbacks. 

But we must, at the very least, give it that half a chance.’’ But he 

also knew, Mr. Chairman, that nature’s tolerance is not unlimited. 

At those hearings 30 years ago, Senator Chafee warned, ‘‘It seems 

that the problems man creates for our planet are never-ending. But 

we have found solutions for prior difficulties, and we will for these 

as well. That is required is for all of us to do a better job of anticipating and responding to today’s new environmental warnings before they become tomorrow’s environmental tragedies.’’ 

That was 30 years ago. Of course, all of this predated the Supreme Court’s Citizens United decision, which has allowed the fossil fuel industry to effect a virtual hostile takeover of the Republican party, rendering that party today the de facto political wing 

of the fossil fuel industry and producing hearings like today’s, after 

30 years. 

Senator INHOFE. Thank you, Senator Whitehouse. 
82 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

Mr. Chairman, I believe my job as a United States Senator is to 

look at policies that are before us, look at the issues that are before 

us, and try to determine what that best policy would be. And I 

think good policy requires balance. Good policy has to look at the 

issue, but it also has to look at the impacts of what is being presented to us. 

Under the Clean Power Plan, the State of Nebraska is facing a 

40 percent reduction in its carbon emissions rate, and that makes 

the State of Nebraska rank as one of the 10 biggest losers. I was 

on that list as well. Nebraska is a public power State, 100 percent 

public power. So our ratepayers, which means our families in the 

State of Nebraska, are going to be harmed by this policy. 

Iowa is a leader in wind energy, a leader in this country. Yet 

under the Clean Power Plan, you know what? They don’t get any 

credit for having that wind power. You tell me how that makes 

good policy. It does not. 

Nebraska’s families are going to face affordability and reliability 

uncertainties. In fact, our DEQ in Nebraska, the employees there 

have already expended 2,000 hours on interpreting and preparing 

for the implementation of this Plan. That consumes vital State resources that I believe should be devoted to addressing pressing 

issues in our State that are affecting the citizens of our State. 

Mr. McInnes, in your testimony you discuss the location and population density challenges that Tri-State must overcome in order to 

supply members with that reliable and affordable energy, and you 

certainly, as a cooperative, understand public power; you understand the cost to families. And you serve in the panhandle of Nebraska, which is extremely rural. In some counties there is less 

than 1 person per square mile. My county is one of those. 

Mr. McInnes, can you tell me, on average, how many consumers 

per mile your member systems in Nebraska serve? 

Mr. MCINNES. Thank you, Senator. I will follow the lead of Ms. 

Wood and congratulate you and your State for being public power. 

I believe electricity is important to modern society, should be supplied to everyone at cost base. Those members that we serve in the 

panhandle of Nebraska average 1 to 2 consumers per mile of infrastructure. 

Senator FISCHER. And how does that compare nationwide to the 

average density? 

Mr. MCINNES. If you look at the nationwide, it is somewhere 

more in the high 20s. But as you get in the urban areas, that can 

exceed 35 or 40. 

Senator FISCHER. Right. So as I believe public power, whether it 

is cooperatives or the public power MPPD, OPPD, LES in the State 

of Nebraska, and many of our rural electric cooperatives, in my 

opinion, you are providing a public service because it gets more expensive when you have to provide to rural areas, correct? 

Mr. MCINNES. It certainly does. And we only have to look at history. When the IOUs were unwilling to go out into the rural areas, 

and that was what formed the public power districts and cooperative. 
83 

Senator FISCHER. Right. And under this Clean Power Plan, if you 

have to shut down one of your plants that you built because of policies at the Federal level when you built those plants and built 

those coal-fired plants, it was a decision that impacted your choice, 

if you have to shut them down or curtail any of them, how is that 

going to affect the cost to Nebraska families? 

Mr. MCINNES. Interestingly enough, Senator, because we serve in 

multiple States, if one of the States—and it has been mentioned 

here several times today that each State can go whichever way 

they want to—if the State of New Mexico makes us shut down one 

of our resources, it is going to affect the consumers in Nebraska because we serve on a postage stamp rate across our four States. 

Senator FISCHER. And the power plants in general, they run 

most efficiently and with the highest environmental controls at 

peak operation, and it is my understanding that curtailing production is going to decrease that efficiency, it is going to increase emissions. Is it true that Tri-State you won’t be able just to ramp down 

your coal plants; you are going to have to shut them down in order 

to comply with the Clean Power Plan? And since you still need to 

supply your customers, won’t you need to ensure that you have another baseload resource in order to maintain that? And I think it 

is educational to people to explain what a baseload resource is. 

Mr. MCINNES. Thank you, Senator. What you have said is certainly true. Baseload facilities are designed for that very thing, to 

operate all the time, and those are the backup. As you get into 

what we call peak loads, when people come home at night, turn on 

their TVs, coffee pots, that sort of thing, we can use other resources. And there are certainly limits to which you can take them 

as you back them down, and they will have to be shut down at 

some point. 

Senator FISCHER. Thank you very much, sir. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Fischer. 

Senator Wicker, Senator Carper has graciously said that you can 

go ahead and go first. 

Senator WICKER. Well, Senator Carper is a gracious colleague, 

and I appreciate that. 

Let me say this about the process, Mr. Chairman, and I want to 

measure my words. Senator Whitehouse is a friend of mine; we 

work together on the Ocean Caucus. We work together on treaties 

and have gotten them ratified together. 

It is insulting for a member of this Senate to come in here and 

to suggest that this hearing, the very holding of this hearing somehow demonstrates that Members of the Congress are wholly owned 

by the fossil fuel industry. And I resent that, and I think it is beneath my friend from Rhode Island to have done so. He has left 

the room, but I am going to say it anyway, because I know that 

he will be able to hear this. 

Presumably it is improper for Senator Capito, for example, to 

raise the question in light of the 40 percent increase in power rates 

for her constituents, what difference is this going to make if it is 

implemented anywhere? What difference does it make on world 

temperatures? Supposedly, it is improper for us to even have a 

hearing and ask those questions. 
84 

This hearing today complies with the procedures that we have always had. There are two minority witnesses; there are three majority witnesses; questions being asked on both sides. So I resent the 

implication that somehow this hearing shouldn’t be held at all and 

that it indicates we are wholly owned. 

Now, let me ask you this, Ms. Wood. If the State of Maryland 

needs advice about implementing a voluntary plan that they have, 

they can go to the EPA for advice without the necessity of the 

Clean Energy Incentive Program, or CEIP, is that correct? 

Ms. WOOD. Yes, that is correct. 

Senator WICKER. Now, Ms. Wood, is CEIP a separate regulation, 

or was it part of the Clean Power Plan rule as it was finally submitted to the Congress and to the public for implementation? 

Ms. WOOD. It was part of the final rule. I believe, without having 

seen it, that the proposed rule might be flushing it out, but it is 

part of the final rule. 

Senator WICKER. OK. And if EPA wants to go back, now that 

there is a stay, and implement a separate Clean Energy Incentive 

Program, then they can do so by implementing a new rule and 

sending it through all the process, is that correct? 

Ms. WOOD. Absolutely, as long as it wasn’t connected to the 

Clean Power Plan. In other words, if they wanted to have a separate program that achieved what the Clean Energy Incentive Program does, they could. 

Senator WICKER. But for now it has been stayed. 

Ms. WOOD. Yes. 

Senator WICKER. Now, let me also ask you, Ms. Wood, with regard to the effect of the stay application on the deadlines throughout, it is a fact that EPA actually conceded your point in their 

pleadings, is that not correct? 

Ms. WOOD. Yes, the Solicitor General of the United States conceded that point. 

Senator WICKER. In his opposition to the stay, and this is on 

page 6 of your testimony, the Solicitor General of the United States 

noted that the stay applicants explicitly or implicitly asked this 

court to toll all relevant deadlines set forth in the rule. That is the 

statement of the Administration’s principal lawyer with regard to 

the effect of the stay. 

Ms. WOOD. Yes, it is. 

Senator WICKER. And he went on to say a request for such tolling 

is inherent in the applications that do not explicitly address this 

subject, is that correct? 

Ms. WOOD. Yes, that is correct. 

Senator WICKER. So it is not only your position, it is the position 

of the chief lawyer of the Administration that all of the deadlines 

are tolled. 

Ms. WOOD. Yes. 

Senator WICKER. And there is precedent to back you and the solicit general up in this regard, is that correct? 

Ms. WOOD. Yes. 

Senator WICKER. Thank you very much. 

Let me just ask, in the few seconds I have remaining, Mr. 

McInnes and Representative Bondon, the President went before the 

voters in 2008 and said we can have clean coal. He said that, didn’t 
85 

he? I think you nodded, Representative Bondon, but you gave an 

affirmative answer. 

As a matter of fact, the plan that Missouri has put forward, as 

a matter of fact, attempts to make that promise come true by using 

coal, by eliminating particulate emissions into the environment, 

and actually fulfilling the promise that the President has now gone 

back on, to have clean coal as a reliable source of power, is that 

correct? 

Mr. BONDON. That is correct, and that is our hope as a State. 

Senator WICKER. Thank you very much. 

Mr. BONDON. Thank you, Senator. 

Senator INHOFE. Thank you, Senator Wicker. 

Again, Senator Carper has agreed to let Senator Barrasso go 

ahead of him. 

Senator Barrasso. 

Senator BARRASSO. Thanks, Senator Carper. Thanks, Mr. Chairman. 

Ms. Wood, there is a belief by some environmental advocates in 

the EPA that this Supreme Court stay on the Clean Power Plan 

doesn’t include all the aspects of the so-called Clean Power Plan. 

The advocates in the EPA seem to believe that the Court somehow 

meant to allow the EPA to continue working on aspects of the rule 

despite the Court’s ordering that the rule itself be stayed at the request of the States and the utilities, and it seems to me that these 

advocates and the EPA want to debate what the meaning of the 

word ‘‘is’’ is. 

As you say in your written testimony, the stay preserves the status quo. New work on aspects of the so-called Clean Power Plan 

is not preserving the status quo to me it means except in the minds 

of this out of control EPA. The idea that the Supreme Court would 

issue a stay in this case really is extraordinary, and the justices 

wouldn’t take such an action if there weren’t really serious concerns. 

David Doniger, Senior Natural Resources Defense Council attorney, a liberal group, said in January of this year that if the Supreme Court issued a stay on the Clean Power Plan, he said it 

would be an extraordinary step. In fact, in an Energy and Environmental Daily article in January, he said it is extraordinary to get 

a stay from the D.C. Circuit; it is extra, extra, extraordinary to get 

one from the Supreme Court. 

So we all know the Supreme Court made that extra, extra, extraordinary step, and they did it for a good reason. So could you 

share with us why you think the Supreme Court took this extraordinary step to block the EPA’s Clean Power Plan rule with a stay 

to preserve the status quo? And how do you believe the Michigan 

v. EPA case may have played a role in this? 

Ms. WOOD. Thank you, Senator. You are correct that this was an 

extraordinary step. To my knowledge, the Supreme Court has 

never stepped in before and stayed an EPA rule before the lower 

court had ruled on the merits of it. So it was an extraordinary step. 

I think there were really two primary reasons why the Supreme 

Court took the step. The first is that there are many legal infirmities with the rule, and those were laid out for the justices to see. 

And the other is accompanying the stay applications were 84 dec-
86 

larations from a wide number of sectors, from States, from electric 

utilities, from coal producers, from business interests, talking about 

how they were going to suffer irreparable harm in the absence of 

a stay. 

So when you talk about the Michigan v. EPA case and how that 

may have played in, that was a rule, the mercury and air toxic 

standards NAAQS rule, where power plants were required to put 

on very, very costly control equipment. That rule had not been 

stayed. It eventually worked its way up to the Supreme Court. The 

Supreme Court struck the rule down, but by that point almost all 

of the plants had already spent the money and put the controls on. 

And indeed, EPA Administrator McCarthy then made the statement that, you know, this really wasn’t a loss for EPA. 

Senator BARRASSO. I appreciate your comments. 

Mr. McInnes, in your testimony you mention the integrated test 

center in Wyoming. Could you spend a little time describing the 

center, how the center is going to help develop technologies that 

can make burning coal cleaner for everyone; it can protect coal jobs 

not just in Wyoming, but in other States, and make sure that coal 

is not a stranded asset for our Nation? 

Mr. MCINNES. Thank you, Senator. Tri-State has been involved 

with the concept of this center for a number of years. In fact, our 

board had indicated a desire to significantly invest in that prospect 

for that very reason. This test center will find a home at the Basin 

Electric Cooperative Dry Fork Station near Gillette, Wyoming. The 

purpose of this test center is to try and find ways that carbon can 

be utilized. If it is an issue, then let’s see if we can find some way 

to use it productively and still allow the all-of-the-above fuel selection that I think we need in this country. 

The purpose of the test center will be to provide a place for those 

entrepreneurs who want to come test these technologies, see if they 

can improve better ways of capturing and ways of commercialization of these carbon emissions. In fact, it is going to be the home 

of the XPRIZE carbon prize, so we are very excited to be a participant in that. We look forward to being able to continue utilizing 

coal as a resource. 

Senator BARRASSO. Well, thank you very much for that and for 

your commitment. 

I would mention, Mr. Chairman, that at the opening ceremonies 

for that Dry Fork Station in Wyoming there was bipartisan joining 

in the celebration and participation. Both Senator Heitkamp from 

North Dakota and I were there, along with Senator Enzi. 

Thank you very much, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Barrasso. 

Senator Carper, you have been patient, and you have been very 

generous. I have counted the time that we have gone over, and it 

is about 3 minutes, so feel free to take what time you need. 

Senator CARPER. Thanks so much, Mr. Chairman. 

I just want to start off today welcoming all of our witnesses. It 

is good of you to come. 

I want to take a minute and just commend Senator Inhofe for his 

leadership. When a major environmental laws signed 40 years ago 

by then President Gerald Ford, something called the Tax Exemptions Control Act, which he held as maybe one of the foremost envi-
87 

ronmental pieces of legislation of a generation. I think he was 

proud to sign it into law. 

It turned out not to be that good. And instead of actually regulating toxic substances in our environment, out of the hundreds of 

toxic chemicals, potentially harmful chemicals could have been regulated by EPA, I think over 46 were regulated; in the last 20 years 

maybe none. And under this man’s leadership—— 

Senator INHOFE. Would you yield just for a moment? When Senator Cardin made the statement that nothing is coming out for a 

period of 2 years out of this committee that would be environmental progress, you and I shared the podium at a news conference 

yesterday where several declared that the action that we took in 

passing the TSCA bill on chemicals could go down as the most significant environmental improvement in 25 years. So that is the reason I was making that correction. 

And I appreciate very much working so closely with you and with 

many of the more progressive members of your party in making 

that become a reality. We did a good job in this committee. 

Senator CARPER. We did a great job, and thank you for your leadership. 

Senator Markey stood up at the press conference. An interesting 

array of Democrats and Republicans from fairly well to the left and 

fairly far out there to the right who had banded together and 

worked with Environmental Defense Fund, National Wildlife Federation, and chemicals groups and business groups to come up with 

that. That was very, very good, and compromise is going to actually 

be good for our environment and be good for the health of our citizens. 

I said at the close of the press conference maybe if we could take 

on an issue as complex and as difficult as toxic substances control, 

maybe we could actually make progress in some other areas, and 

one of the areas that we need to make progress is the area that 

we have been talking about here today. 

I have been working on Senator Inhofe on this committee for 

about 15 years. We worked very closely together on something 

called Diesel Emissions Reduction Act, which I think is another 

good piece of environmental legislation that George Voinovich and 

I, former Governor and former Senator from Ohio, worked on before he retired. So my hope is that those two good examples of 

areas where we could work together. 

The issue of multi-pollutants, something that is near and dear to 

our hearts in Delaware, we are the lowest lying State in America, 

lowest lying State in America. I was a Naval flight officer in the 

Vietnam war and moved to Delaware, got an MBA and ended up 

getting elected as the State treasurer, Congressman, Governor, and 

now Senator, so I have been around the State for a while and love 

the place, and the people have been great to let me serve them. 

We have a bunch of beaches. I am told we have more five-star 

beaches in little Delaware, 26 miles of coastline with the Atlantic. 

I am told we have more five-star beaches than any State in America. Tourism is really important for us. Agriculture is really important for us. Chemical industry is important for us. Financial services is important for us. 
88 

But if you drive south in Delaware on State Route 1 past Dover 

and head on down almost to the town of Milford and make a left 

turn, head east, you drive out toward Prime Hook Beach. It used 

to be you would drive east toward Prime Hook Beach, and you go 

through Prime Hook National Wildlife Refuge, and then you get to 

the Delaware Bay. And there is a place to park cars or your boat, 

trailers or whatever, and people put their boats in the water. 

And they don’t do that anymore. And the reason why they don’t 

do that anymore is because where they get to where the boat ramp 

and everything and the parking lot used to be, it is water; and 

somewhere under that water is what used to be a parking lot. And 

you can stand there by the edge of the water and look off an area 

about 1 o’clock looking east toward New Jersey, and you see what 

looks like part of a concrete bunker sticking up out of the water. 

I was born in 1947. I have a photograph from 1947 that shows 

that concrete bunker not almost submerged in water, but 500 feet 

west of the waterline. West, toward Maryland. 

Now, for a State that really depends a lot on tourism and our 

beaches, Maryland is a similar situation, Virginia and others, this 

really gets our attention. Something is happening here. With apologies to Stephen Stills, something is happening here, and what it is 

is pretty clear to me, pretty clear to us in Delaware. 

When I was Governor, I used to say that I could literally shut 

down my State’s economy and we would still be out of compliance 

with respect to clean air standards, and it was because all the bad 

stuff was being put up from States like my native West Virginia, 

Ohio, Indiana, Illinois, Tennessee, and so forth. Bad stuff they put 

up in the air creates cheap energy for themselves. They use these 

smokestacks that go up 500 feet in the air. The currents just bring 

the stuff to the East Coast and those of us—Ben Cardin here in 

Maryland and others—we are at the end of America’s tailpipe because the bad stuff would just come to us. 

And it wasn’t really fair because we would have to clean up our 

emissions more and more and more all the time, and at the same 

time the States we competed with for jobs would end up with cheap 

energy, and we would have expensive energy. They would have 

cleaner air, better health, and we would have dirtier air, and it just 

wasn’t fair. It just wasn’t right. 

I remember getting involved in a discussion with a bunch of utility CEOs maybe 10 years ago. I worked for years on Clear Skies 

legislation. Remember George W. Bush had a proposal they called 

Clear Skies, and Lamar Alexander and I worked on legislation. We 

called it Really Clear Skies. It involved sulfur dioxide, nitrogen 

oxide, mercury, and CO2, multi-pollutant legislation. And we 

worked on it for years, worked on it with George Voinovich for 

years. 

I remember meeting with a bunch of utility CEOs—gosh, it 

might have been 10 years ago, 8 years ago. They came from all 

over the country to my office to talk with me about Really Clear 

Skies, and they said, here is what we need, Senator, here is what 

we need you to do. 

A guy from a utility down south, he was kind of a curmudgeon 

guy, pretty plain spoken. He said, here is what you need to do, 

Senator. You need to tell us what the rules are going to be, you 
89 

need to give us a reasonable amount of time and some flexibility, 

and get out of the way. That is what he said. You need to tell us 

what the rules are going to be, give us some flexibility, a reasonable amount of time, and get out of the way. 

I have known Gina McCarthy for a good while. She is not a hairon-fire kind of person. Before she came here, she worked, I think, 

not for one Republican Governor, I think for two. And one of the 

reasons why the Administration asked her to do this job—it is a 

tough job at EPA, as you know—is because she is able to work with 

people of both parties, with the business community, try to find the 

reasonable middle. And I honestly believe she has worked hard to 

do this. 

And I think in crafting the Clean Power Plan, I think what they 

actually tried to do at EPA is take the advice of that curmudgeon, 

the old utility CEO from 10 years ago, and put into a proposal 

something that meets those four criteria. 

I would just ask Katie, if you would, just react to all that. It is 

a lot to throw at you, but sort of react to what I have just said. 

And I appreciate the chance to go on for a little bit here, Mr. 

Chairman. 

Katie, please. 

Ms. DYKES. Well, I can say that we are really proud in Connecticut to be part of RGGI, including with Delaware, and the experience that we have shown in that program really demonstrates 

that States can comply with the Clean Power Plan without challenging the cost and the reliability of their grid. 

All of the things that have been said about the Clean Power Plan 

are things that were said about RGGI when we were standing up 

that program many years ago. People said that it would drive up 

rates, and yet in Connecticut we have seen some of the lowest rates 

ever in the last decade, just announced coming into play this summer. 

And part of that is because of RGGI and the cap that we placed 

on carbon, but also it is because we have seen the writing on the 

wall and harnessed these economic trends that are already driving 

lower carbon reductions. We are retiring the last coal plant in Connecticut. It just announced its retirement a couple months ago, and 

that is because the economics of natural gas, the incredible efficiency of new combined cycle gas power plants and the low cost of 

domestically produced natural gas make that generation a source 

of carbon reduction and lower costs, lower electric rates for our citizens. 

So we see the benefits of compliance. We have seen $1.3 billion 

in net benefits from implementing this program, and we are excited 

to share the lessons that we have learned in our States with others. 

Senator CARPER. Thanks so much. 

Mr. Revesz, would you just react briefly to what I have said? 

Just very briefly. 

Mr. REVESZ. Excuse me, Senator? 

Senator CARPER. Would you just react briefly to what I have just 

said? 

Mr. REVESZ. Yes, Senator. I completely agree and was very 

moved by what you said concerning Delaware’s inability to meet 
90 

the national ambient air quality standards were it not for reductions that have to take place in upwind States. There is nothing 

Delaware can do. There is nothing that any of the northeastern 

States can do unless States that are upwind from them take measures. 

Actually, administrations of both parties over a long period of 

time have been working on this. Finally, the Supreme Court upheld 

the Transport Rule after prior rules had been struck down by the 

D.C. Circuit. And now the efforts to bring those emissions under 

control are under strong legal footing. 

And it is important to emphasize that administrations of both 

parties have been working on this. The Clinton administration had 

a NAAQS rule, the administration of President George W. Bush 

had the Clean Air Care program, and then the Obama administration had CSAPR, the Transport Rule. And finally those rules are 

under strong legal footing. 

These rules are enormously important for the health of Americans, and EPA has done these rules paying attention to both the 

costs and the benefits. Each rule has a regulatory impact analysis 

that shows that the benefits of these rules significantly exceed the 

costs. I don’t mean to de-emphasize the costs. There are costs, but 

the benefits are much greater than those costs. 

Senator CARPER. Thanks so much. 

Mr. Chairman, could I just—— 

Senator INHOFE. Can I come back to you? 

Senator CARPER. That would be great. Thanks so much. 

Senator INHOFE. Let’s do it that way. 

Senator CARPER. Thanks so much for all this time. 

Senator INHOFE. And we will hear from Senator Sullivan now. 

Senator Sullivan. 

Senator SULLIVAN. Thank you, Mr. Chairman. Thank you for 

calling this hearing. I think it is a really important hearing. 

Thanks for the witnesses. I know it is a very distinguished panel. 

You know, one of the things that comes up very frequently in 

this committee is the commitment that we all have to clean air, 

clean water. My State of Alaska has a lot of water and a lot of air 

and a very pristine environment, so we are certainly a State that 

is very committed to that. Matter of fact, we have some of the 

cleanest water and cleanest air in the country, in the world. 

But one of the things that I have always been concerned about 

is that we also need to abide by the law or the Constitution, especially Federal agencies. And in my view the EPA is creating a 

record on their major rules that they have been promulgating as 

not abiding by the law, and a number of us have been concerned 

about it. We raise it. I think everybody should be raising it on both 

sides of the aisle; not just Republicans, Republicans and Democrats, because part of our oversight jurisdiction here is making sure 

that agencies do what is required by the law. 

And as all of you know, being legal professionals and experts in 

your field, Federal agencies cannot just undertake actions because 

they feel like it; they have to have a statutory or constitutional authority to act. Would everybody on the panel agree with that very 

basic premise of administrative law? 

[Affirmative nods.] 
91 

Senator SULLIVAN. Is that a nod from everybody? I am showing 

that everybody is nodding. 

I want the EPA officials to make sure they see this because it 

is a pretty uncontroversial statement but sometimes doesn’t always 

seem to make it over to the agency. 

So it is not just me or others saying that. If you look at the history in the last couple years, Utility Air Regulators v. EPA, they 

lost that Supreme Court case; EPA v. Michigan, they lost that Supreme Court case; the WOTUS rule right now has been stayed; and 

pretty incredibly, the Clean Power Rule has been stayed. 

My team did a little bit of research, and we asked CRS. They 

said looking at a review of treaties on the Supreme Court practice 

and Supreme Court previous decisions, this is the first time of any 

Supreme Court case that they have ever found where the Supreme 

Court of the United States placed a stay or injunction of a Federal 

regulation before a lower court had ruled on the merits where the 

lower court had not granted a stay previously. First time in the Supreme Court’s history. 

So my question to you is, why do you think they did that? Very, 

very dramatic. And I am going to give you a little hint of why I 

think they may have done that. It is not just the track record 

where they lose in every case, but not too long before that case was 

announced Gina McCarthy was asked on TV show if she thought 

she was going to win the EPA v. Michigan case. And that was a 

Supreme Court case. 

Of course, it is normal for an Administrator to say, of course we 

are going to win, we did a good job. But then she went on, and she 

should have just stopped, because then she went on to say publicly, 

which is a statement I still find stunning from a Federal official, 

to say, ‘‘But even if we don’t win, the rule was promulgated 3 years 

ago. Most of them are already in compliance,’’ meaning the American people and private sector companies. ‘‘Investments,’’ hundreds 

of millions, ‘‘have been made, so we’ll catch up. We’re still going to 

get to the toxic pollution of these facilities.’’ 

So she is saying even if we don’t win, we win. Even if we lose 

in court, we win anyways because we promulgated this, and the 

poor sucker companies have had to abide by it even if they are 

going to get the rule overturned. 

So I would like your views. Ms. Wood, I will start with you. Why 

do you think the Supreme Court took really historic action to stop 

the Supreme Court? And, again it is not just Republicans talking 

about this. Lawrence Tribe, when he was asked and was arguing 

against this rule, was very critical, saying it was unconstitutional 

and was quoted as saying burning the Constitution should not be 

part of our national energy policy. 

Do you think the EPA has been burning the Constitution? 

Ms. WOOD. I think that the historic nature of the stay—and you 

are correct that it is historic—does definitely stem from all of the 

things that you have noted, which is the fact that the Michigan v. 

EPA case, billions had been spent to put on control equipment for 

a rule that was then found unlawful. 

Senator SULLIVAN. And the Administrator seems to view that as 

part of her strategy. Even if we lose later, it took 5 years to get 
92 

to the Supreme Court, everybody had to comply anyway, so who 

cares about the rule of law. 

Ms. WOOD. Right. And at least in that rule, if that was her strategy, it worked, and the Supreme Court may have been very dismayed by that. And the statements that she made were part of the 

stay briefing. And also as you note, and as Professor Tribe had 

noted, there are a lot of legal infirmities with this rule that I am 

sure got the attention of the Supreme Court. 

Senator SULLIVAN. Any other members just want to comment on 

why they think the Supreme Court took this historic action? 

Mr. REVESZ. Senator, I think EPA’s record before the Supreme 

Court is not nearly the one that you characterized. 

Senator SULLIVAN. They are zero for three in the last Supreme 

Court. 

Mr. REVESZ. No. They won EME Homer City Generation v. EPA, 

the Cross-State Air Pollution Rule. 

Senator SULLIVAN. What year was that? 

Mr. REVESZ. That was in 2014. 

Senator SULLIVAN. OK. 

Mr. REVESZ. The UR case, they lost one issue; they won one 

issue. The one issue they won on affected the vast bulk of the emissions. 

Senator SULLIVAN. Utility Air Regulators, they lost that big time. 

Mr. REVESZ. No, the Utility Air Regulators case, the UR case, 

Utility Air Regulator case, there were two issues in that case. 

Senator SULLIVAN. Justice Scalia said they were violating the 

separation of powers. 

Mr. REVESZ. On one issue. And that issue affected 50 percent of 

the emissions. 

Senator SULLIVAN. Well, a pretty big deal. 

Mr. REVESZ. And they won on 87 percent of the emissions, or 

some number in the high eighties. 

Senator SULLIVAN. The WOTUS rule, they are losing that. 

Professor, why do you think the Supreme Court took this historic 

action against the EPA? They have never done this before. It is a 

big, big deal. Why do you think they did it? Do you think it had 

anything to do with Gina McCarthy’s outrageous statement? 

Mr. REVESZ. I don’t know why they did it, Senator. It is an important rule. But I wanted to address the issue of the track record. 

The WOTUS rule, the recent decision last week was a procedural 

decision; it did not affect the merits of the case at all. 

Senator SULLIVAN. They stayed the entire rule. Why do you think 

31 States in the United States are suing the EPA? 

Mr. REVESZ. Well, some States are hurt by the rule; other States 

are supporting the rule. There are States on both sides. 

Senator SULLIVAN. Thirty-one States. That is a lot of States. 

Mr. REVESZ. Senator, the numbers are somewhat in flux. It is 27, 

it is 29. There are quite a number of States on the other side as 

well. 

Senator SULLIVAN. Not 31. 

Mr. REVESZ. That is true. As I said, some States would like to 

see this issue not addressed at all; others would like to see it addressed—— 
93 

Senator SULLIVAN. But don’t you think it has to be legal? Everything the EPA has to do has to be based in statute or the Constitution. 

Ms. Woods, do you think what the EPA is doing is based in statute or the Constitution? 

Mr. REVESZ. I do, Senator. 

Senator SULLIVAN. No, I asked Ms. Woods. Sorry. 

Ms. WOODS. No, I don’t think it is, and five justices on the Supreme Court appear to agree with me. Also, just to follow back, I 

represented the Utility Air Regulatory Group in that case, Utility 

Air Regulatory Group v. EPA, and I absolutely count it as a victory 

for my client. 

Senator SULLIVAN. Absolutely. 

Ms. WOODS. And in the EME Homer case, that was a split victory between EPA and the people challenging that rule, and I 

would like to note that it went back down to the D.C. Circuit to 

look at the ‘‘as applied’’ challenges to those States, and it was 

thrown out in 13 States by the D.C. Circuit. 

Senator SULLIVAN. Thank you. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Sullivan. 

What I would like to do is go back for a short time for Senator 

Carper and then get to Senator Markey, if that is acceptable. 

Senator CARPER. I will be Senator Markey’s warm-up act here. 

I would say to Senator Sullivan it is always good to have you 

here in these deliberations. 

Sometimes EPA can’t win for losing. When it comes to enforcement of the Clean Air Act, they get sued because they are not 

doing enough. When it comes to enforcement of the Clean Air Act, 

they get sued because they are not doing enough. When it comes 

to updating ambient air quality standards, they get sued because 

they are not going far enough fast enough. They get it coming and 

going. They get it coming and going. They have a hard job to do 

because they are going to get sued either way. 

I think they are trying to do their job, and I am just reminded 

that we need to do our job. It shouldn’t be left up to the agencies 

to try to find a way through regulations to a policy that protects 

our health, protects our environment, but also provides certainty 

and predictability that businesses need. 

One of the things I know we all agree on is the major job that 

we have here is to provide certainty and predictability for businesses so that they can go forward, be successful, not at our harm, 

but in order to have a strong economy. And the question always before this committee has been can we have cleaner air, cleaner 

water, and also have a strong economy. I think we can have both. 

The other thing it would be nice to do is actually—if the Supreme Court had a full complement of justices, and my hope is that 

somehow before the end of this year they can have a starting lineup. It is like trying to have a baseball team and not have a shortstop, or have a baseball team and not have a right fielder. So I 

think they need the full team on the field. 

Thank you very much. 

Senator INHOFE. Thank you, Senator Carper. 
94 

Senator Markey, before you ask your questions, we have been 

talking about the great environmental success that you and I, Senator Carper, and others on this committee had 2 days ago, so this 

is very significant, I think, that we recognize that we have made 

some great progress. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

And TSCA is an historic achievement. We all came together. We 

all stood together to produce that historic environmental bill. And 

I look forward to the day where we all stand together on climate 

science and stand together on the new energy policy for the future 

and hope that that day may be arriving in the near future, perhaps 

after a Supreme Court decision on the Clean Power Plan. But my 

ability to prognosticate the future is more limited than my ability 

to talk about the past and the proud past that we just had yesterday. 

Senator INHOFE. Well, yes. Let me just interrupt for a moment 

here and say that Senator Whitehouse, in his time this afternoon, 

was talking about one of our colleagues said 30 years ago, and I 

was thinking to myself it was 7 years ago that Al Gore said there 

would be no more ice on the North Cap in 5 years. I can remember 

in my other committee that I had, the Armed Services Committee, 

it was 20 years ago because I was sitting there when they said in 

10 years we would no longer need ground troops. So I think it is 

better to kind of look into the future and evaluate the present. 

Senator MARKEY. I agree with you. Predicting the future is a 

very perilous terrain for politicians. We work toward creating the 

future without knowing exactly how it is going to play out. And 

how the Supreme Court acts is obviously something in the future. 

In 2007 in the most important environmental decision that has 

ever been decided, Massachusetts v. EPA, it was a 5 to 4 decision, 

which, by the way, makes the case for not having a 4 to 5 Supreme 

Court; otherwise perhaps we might not have had a 5 to 4 decision. 

But Justice Kennedy voted in the majority, 5. So that is where we 

are going to be today, predicting the future, where these justices 

are going to be and even who will be on the Supreme Court. We 

don’t even quite know that when that case might be argued. So as 

Yogi Berra used to say, making predictions is a very hard thing to 

do, especially about the future. 

So my view is that we should just look at the case as it sits before us and just look back a little bit in time because many of the 

complaints that come from members about the impact on the coal 

industry, well, in the Waxman-Markey bill, we built in $200 billion 

for carbon capture and sequestration. We built in billions of dollars 

for coal miners if they needed it; that is, if carbon capture and sequestration was not possible. We built all that money in, $200 billion. 

You know what Peabody Coal said? You know what Alpha Coal 

said? Do you know what Arch Coal said? They said no, we don’t 

want it. That was the money that could have been there for carbon 

capture and sequestration. They said no. The Edison Electric Institute endorsed Waxman-Markey, but the coal industry exercised 

their veto power in the Senate, rejecting $200 billion for carbon 

capture and sequestration, rejecting the money for the coal miners. 
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So as we hear today the concern about the coal miners, just remember that. It was Peabody Coal that made that decision. All of 

their stocks, of course, now are down in single digits or lower, in 

the negative. 

But that is a little bit of history. I just want to say that it was 

an attempt to solve this issue, work together on that issue in a way 

that dealt with all of the interests, all of the parties. It wasn’t 

going to be all or nothing, 100 percent versus zero; it was going to 

be something that tried to deal with the legitimate need to create 

a bridge for each and every technology to make it to this cleaner 

energy future. 

But it was Peabody Coal that said no. And it is Peabody Coal 

that is funding the brief at the Supreme Court. Peabody Coal funding the brief in the Supreme Court. Just remember that. Same 

company. Same interest. Same money. Same short-term perspective. So that is what we are talking about. 

And nothing, to use one of my father’s terms, nothing frosts me 

more than having these very same people still arguing that it can’t 

be done and we can’t make the transition, even as we are going to 

have 16,000 new megawatts of solar and 9,000 new megawatts of 

wind installed in the United States this year. It is going to be the 

vast majority of all new electricity in the country. 

But we weren’t leaving coal behind, I just want to say that. Carbon capture and sequestration is a technology that could have been 

invested in by public monies that Peabody Coal said they did not 

want. So I just don’t want to hear the crocodile tears from Peabody 

Coal and Arch Coal and Alpha Coal. 

So, Professor Revesz, the stay issued by the Supreme Court does 

not prohibit the EPA from working on activities related to the 

Clean Power Plan; it only prohibits it from enforcing the requirements; is that correct? 

Mr. REVESZ. That is correct, Senator. 

Senator MARKEY. Thank you. Now, during the stay, the EPA is 

allowed to issue guidance and tools to help States that have decided to continue their plans; is that correct? 

Mr. REVESZ. That is also correct. And it has also been the practice of administrations of both parties in the three last Presidential 

administrations when stays like this were issued. 

Senator MARKEY. And critics have accused the EPA that by not 

announcing the effects the stay will have on all of the complying 

States forces States to continue work toward the Clean Power Plan 

using time and resources toward a rule that may be overturned. 

However, whether or not to change the compliance deadlines, and 

by how much has traditionally been decided on a case-by-case basis 

and not issued until the ruling; is that correct? 

Mr. REVESZ. That is correct. It has always been issued when the 

stay was lifted at the end of the litigation. 

Senator MARKEY. So from my perspective, the EPA has been very 

flexible in its dealings with the States. I know that there are some 

States that perhaps don’t like this idea. I am sure there were 

many, many States that weren’t happy with Brown v. Board of 

Education. Might have even been 31 States that were unhappy 

with Brown v. Board of Education; and they would have sued to 

overturn if they could get away with it. And I am sure there are 
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many other decisions in history that 31 States might have sued to 

say we don’t want to move to the future; we don’t want to change 

the way in which we do business. 

But it doesn’t mean that that case is going to get overturned in 

the Supreme Court. It doesn’t mean that enough justices aren’t 

going to come together to look at the accuracy of the argument 

being made by the Administration that they are upholding existing 

law and acting under existing law. That is what the Supreme 

Court did in 1954. That is what this Court also will have to decide. 

And I just think it is premature and not a good use of our time 

to be projecting what the Supreme Court is actually going to decide. This is just a discussion of the law. And I think that the law, 

as it is being interpreted by the Administration, is right on the 

money. 

So, Professor, I am just going to give you a final minute. Just tell 

us how we should be viewing this issue now, going forward over 

the next year. What is the perspective that we should have, in your 

opinion, in viewing this historic case as it moves to the Supreme 

Court? 

Mr. REVESZ. Thank you, Senator. I think we should understand 

that there is a lot of strength in the Administration’s position that 

the arguments that EPA is using unprecedented regulatory techniques, so, for example, that the rule is assuming there will be 

some fuel shifting going on or that the rule is imposing certain obligations that a plant cannot meet within the four walls of its plant, 

that all of those techniques have been used in the past not only by 

Democratic administrations but also by Republican administrations. They are part and parcel of all of these efforts that Senator 

Carper referenced concerning the effort to control interstate emissions. Those are all the standard toolkit of EPA. 

There is another big argument about why EPA shouldn’t be able 

to regulate the greenhouse gas emissions of power plants under 

section 111(d) because it is regulating the hazardous emissions of 

power plants under section 112. What EPA is doing in this case is 

essentially consistent with the approaches of administrations of 

both parties going back to 1990, going back to 25 years. 

And on the constitutional side, Professor Tribe was mentioned 

several times. He made three arguments very forcefully at a House 

hearing. I was a Democratic witness at that hearing. Two of those 

arguments aren’t even being made anymore by the opponents of 

the Clean Power Plan. 

Senator INHOFE. OK, we are going to have to cut this off. 

I would like say, Senator Markey, they will all be glad to know 

that we have just been saved by the bell. 

[Laughter.] 

Senator INHOFE. There is a vote that is underway and—— 

Senator MARKEY. Thirty seconds, if I may? 

Senator INHOFE. Thirty seconds, and that is it, and then I have 

an idea. Go ahead. 

Senator MARKEY. And I look forward to that. 

Senator INHOFE. See, if you guys don’t know, we really like each 

other. 

Senator MARKEY. We do. We are good friends. We are good 

friends. 
97 

Senator INHOFE. Really. And he has every right to be wrong. 

[Laughter.] 

Senator MARKEY. You know what my father used to say? If two 

people agree upon absolutely everything, then you don’t need one 

of those people. So we need each other on climate science. We need 

each other to have this debate. 

So, again, Waxman-Markey, EEI endorsed, General Electric, DuPont, Applied Materials, Timberland, Dow Corning, Alcoa, Johnson 

& Johnson. We had this broad base of support. General Motors, 

Chrysler, all the auto industry, they all endorsed Waxman-Markey. 

The outlier was the coal industry, the people paying for this brief 

before the Supreme Court, Peabody Coal. It is the same culprit. It 

is the same rear view look at history, and we were trying to give 

them a bridge to the future so they did not have to go into bankruptcy. 

Do you think they wish they could go back to 2009 again and 

grab that money? You know they would. OK? They made a big historic mistake. The Supreme Court will not make a historic mistake. 

Senator INHOFE. Thank you, Senator Markey. 

Now I am going to take the Chair’s prerogative and ask Ms. 

Wood. You have heard this back and forth. Do you have any comments to make about the legal characterization of what we are in 

the middle of right now? One minute, and then we are out of here. 

Ms. WOOD. One thing I would note is that Peabody Energy is 

only one of 149 different entities that are challenging the Power 

Plan. And I think the thing that we need to remember is going 

back to the administrative law principle that we all agreed to, 

which is that EPA can only act within the bounds of the statute. 

And five justices on the Supreme Court have indicated in a historic 

stay that they think that EPA is not acting within the bounds that 

you all, Congress, have set for them to operate. 

Senator INHOFE. That is good. 

We are adjourned. 

Again, thank you, all the witnesses, for enduring this. 

[Whereupon, at 11:18 a.m. the committee was adjourned.] 

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