II 

112TH CONGRESS 

1ST SESSION S. 228 

To preempt regulation of, action relating to, or consideration of greenhouse 

gases under Federal and common law on enactment of a Federal policy 

to mitigate climate change. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 31, 2011 

Mr. BARRASSO (for himself, Mr. INHOFE, Mr. BLUNT, Mr. ENZI, Mr. VITTER, 

Mr. ROBERTS, Mr. MORAN, Mr. THUNE, Mr. CORNYN, Mr. HATCH, and 

Mr. LEE) introduced the following bill; which was read twice and referred 

to the Committee on Environment and Public Works 

A BILL 

To preempt regulation of, action relating to, or consideration 

of greenhouse gases under Federal and common law on 

enactment of a Federal policy to mitigate climate change. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Defending America’s 

5 Affordable Energy and Jobs Act’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 


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1 (1) the climate of the Earth is dynamic, and 

2 changes in climate are caused by a complex com3 bination of factors; 

4 (2) greenhouse gases are globally dispersed, and 

5 any attempt by a country to reduce the greenhouse 

6 gas emissions of the country must be undertaken in 

7 coordination with the international community, in8 cluding the developing world, in order to have any 

9 significant impact; 

10 (3) regulating the emission of greenhouse gases 

11 under Federal regulatory mechanisms in existence as 

12 of the date of enactment of this Act is divorced from 

13 any intent expressed by the Congress during the en14 actment of the authorizing statutes governing those 

15 mechanisms; 

16 (4) any action to control emissions of green17 house gases in the United States would result in 

18 substantial impacts to major sectors of the economy 

19 of the United States and interstate commerce and 

20 should therefore be explicitly authorized and pre21 scribed by Congress; 

22 (5) the consequences of poorly designed Federal 

23 or State regulation of greenhouse gases— 

24 (A) are well-documented; and 


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1 (B) consist of lower economic growth, re2 ductions in new and existing employment, and 

3 reduced economic competitiveness; and 

4 (6) substantial policy options, short of regu5 latory authority, exist to spur technology innovation 

6 to promote energy security and produce cleaner en7 ergy sources. 

8 (b) PURPOSES.—The purposes of this Act are— 

9 (1) to ensure that the consequences of ill-suited 

10 regulations are not imposed on the economy of the 

11 United States; and 

12 (2) to allow sufficient time for Congress to de13 velop and authorize an appropriate mechanism to 

14 address the energy needs of the United States and 

15 the potential global challenges posed by a changing 

16 climate. 

17 SEC. 3. DEFINITIONS. 

18 In this Act: 

19 (1) ADMINISTRATOR.—The term ‘‘Adminis20 trator’’ means the Administrator of the Environ21 mental Protection Agency. 

22 (2) GREENHOUSE GAS.—The term ‘‘greenhouse 

23 gas’’ means any of the following: 

24 (A) Carbon dioxide. 

25 (B) Methane. 


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1 (C) Nitrous oxide. 

2 (D) Sulfur hexafluoride. 

3 (E) Any hydrofluorocarbon. 

4 (F) Any perfluorocarbon. 

5 (G) Nitrogen trifluoride. 

6 (H) Any other substance subject to regula7 tion, action, or consideration due to the con8 tribution of the substance to climate change. 

9 (3) STATIONARY SOURCE.—The term ‘‘sta10 tionary source’’ has the meaning given the term in 

11 section 302 of the Clean Air Act (42 U.S.C. 7602). 

12 SEC. 4. REGULATION OF GREENHOUSE GASES. 

13 (a) REGULATION, ACTION, AND CONSIDERATION FOR

14 EFFECTS OTHER THAN CLIMATE CHANGE.— 

15 (1) IN GENERAL.—Except as provided in para16 graph (2), the President or the head of a Federal 

17 department or agency may not promulgate regula18 tions providing for the control of emissions of a 

19 greenhouse gas, enforce or implement any law (in20 cluding a regulation) enacted or promulgated as of 

21 the date of enactment of this Act that provides for 

22 the control of emissions of a greenhouse gas, take 

23 action relating to or take into consideration the cli24 mate effects of emissions of a greenhouse gas, con25 sider climate effects in implementing or enforcing 


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1 any law (including a regulation), or condition or 

2 deny any approval based on climate effects unless 

3 the law, regulation, action, or consideration is— 

4 (A) determined by the President or head of 

5 a Federal department or agency, as applicable, 

6 after notice and opportunity for comment, to be 

7 necessary to protect the public health from im8 minent and substantial harm caused by direct 

9 human exposure to the relevant greenhouse gas 

10 in a concentration that is substantially greater 

11 than current and projected future average con12 centrations of that greenhouse gas in the global 

13 atmosphere; and 

14 (B) based solely on effects other than ef15 fects relating to atmospheric concentrations of 

16 greenhouse gases, including climate change. 

17 (2) EXCEPTION.—The limitation under para18 graph (1) does not prohibit— 

19 (A) regulation of, action with respect to, or 

20 consideration of a greenhouse gas under title VI 

21 of the Clean Air Act (42 U.S.C. 7671 et seq.) 

22 other than for the potential or actual effect of 

23 the greenhouse gas on climate change; or 


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1 (B) voluntary incentive programs to pro2 mote the development or deployment of tech3 nologies that reduce greenhouse gas emissions. 

4 (3) EXCLUSIVE AUTHORITY; CAFE REGULA5 TIONS; CHALLENGES TO RULES.— 

6 (A) EXCLUSIVE AUTHORITY.—The author7 ity of the Secretary of Transportation under 

8 chapter 329 of title 49, United States Code— 

9 (i) does not include any authority with 

10 respect to greenhouse gases; and 

11 (ii) is unaffected by this section. 

12 (B) CAFE REGULATIONS.—Notwith13 standing any provision to the contrary in this 

14 Act, the requirements set forth in the final rule 

15 entitled ‘‘Light-Duty Vehicle Greenhouse Gas 

16 Emission Standards and Corporate Average 

17 Fuel Economy Standards; Final Rule’’ (75 Fed. 

18 Reg. 25324 (May 7, 2010)), shall remain in ef19 fect without further modification or revision. 

20 (C) CHALLENGES TO RULES.—Nothing in 

21 this subsection affects— 

22 (i) any challenge to the final rule de23 scribed in subparagraph (B) that— 

24 (I) as of the date of enactment of 

25 this Act, is pending in court; or 


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1 (II) is filed after that date of en2 actment; or 

3 (ii) any pending or future challenge to 

4 any current or future rules promulgated 

5 under the authority referred to in subpara6 graph (A). 

7 (4) CERTAIN PRIOR AGENCY ACTIONS.— 

8 (A) IN GENERAL.—Except as provided in 

9 paragraph (3), each rule promulgated and ac10 tion taken by the Administrator before the date 

11 of enactment of this Act to regulate greenhouse 

12 gases for effects relating to atmospheric con13 centrations of greenhouse gases (including cli14 mate change), including each rule and action 

15 referred to in subparagraph (B), shall have no 

16 force or effect. 

17 (B) RULES AND ACTIONS.—The rules and 

18 actions referred to in subparagraph (A) in19 clude— 

20 (i) the final rule entitled 

21 ‘‘Endangerment and Cause or Contribute 

22 Findings for Greenhouse Gases under sec23 tion 202(a) of the Clean Air Act’’ (74 Fed. 

24 Reg. 66496 (Dec. 15, 2009)); 


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1 (ii)(I) the memorandum from Stephen 

2 Johnson, Administrator of the Environ3 mental Protection Agency, to Regional Ad4 ministrators of the Environmental Protec5 tion Agency, with the subject line stating 

6 ‘‘EPA’s Interpretation of Regulations that 

7 Determine Pollutants Covered by Federal 

8 Prevention of Significant Deterioration 

9 (PSD) Permit Program’’ and dated Dec. 

10 18, 2008; and 

11 (II) the final action on reconsideration 

12 of that memorandum entitled ‘‘Reconsider13 ation of the Interpretation of Regulations 

14 That Determine Pollutants Covered by 

15 Clean Air Act Permitting Programs’’ (75 

16 Fed. Reg. 17004 (April 2, 2010)); 

17 (iii) the final rule entitled ‘‘Prevention 

18 of Significant Deterioration and Title V 

19 Greenhouse Gas Tailoring Rule’’ (75 Fed. 

20 Reg. 31514 (June 3, 2010)); 

21 (iv) the final rule entitled ‘‘Action To 

22 Ensure Authority To Issue Permits Under 

23 the Prevention of Significant Deterioration 

24 Program to Sources of Greenhouse Gas 

25 Emissions: Finding of Substantial InadVerDate Mar 15 2010 00:28 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S228.IS S228

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1 equacy and SIP Call’’ (75 Fed. Reg. 

2 77698 (December 13, 2010)); 

3 (v) the final rule entitled ‘‘Action To 

4 Ensure Authority To Issue Permits Under 

5 the Prevention of Significant Deterioration 

6 Program to Sources of Greenhouse Gas 

7 Emissions: Federal Implementation Plan’’ 

8 (75 Fed. Reg. 82246 (December 30, 

9 2010)); 

10 (vi) the interim final rule entitled 

11 ‘‘Determinations Concerning Need for 

12 Error Correction, Partial Approval and 

13 Partial Disapproval, and Federal Imple14 mentation Plan Regarding Texas Preven15 tion of Significant Deterioration Program’’ 

16 (75 Fed. Reg. 82430 (December 30, 

17 2010)); 

18 (vii) the final rule entitled ‘‘Limitation 

19 of Approval of Prevention of Significant 

20 Deterioration Provisions Concerning 

21 Greenhouse Gas Emitting-Sources in State 

22 Implementation Plans; Final Rule’’ (75 

23 Fed. Reg. 82536 (December 30, 2010)); 

24 (viii) the final rule entitled ‘‘Action To 

25 Ensure Authority To Implement Title V 


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1 Permitting Programs Under the Green2 house Gas Tailoring Rule’’ (75 Fed. Reg. 

3 82254 (December 30, 2010)); 

4 (ix) the final rule entitled ‘‘Action to 

5 Ensure Authority to Issue Permits Under 

6 the Prevention of Significant Deterioration 

7 Program to Sources of Greenhouse Gas 

8 Emissions: Finding of Failure to Submit 

9 State Implementation Plan Revisions Re10 quired for Greenhouse Gases’’ (75 Fed. 

11 Reg. 81874 (December 30, 2010)); 

12 (x) the final rule entitled ‘‘Determina13 tions Concerning Need for Error Correc14 tion, Partial Approval and Partial Dis15 approval, and Federal Implementation 

16 Plan Regarding Texas Prevention of Sig17 nificant Deterioration Program’’ (75 Fed. 

18 Reg. 82365 (December 30, 2010)); 

19 (xi) any final rule providing for a 

20 waiver under section 209 of the Clean Air 

21 Act (42 U.S.C. 7543) with respect to 

22 greenhouse gases or establishing any other 

23 requirements with respect to greenhouse 

24 gases pursuant to section 177 of that Act 

25 (42 U.S.C. 7507); 


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1 (xii) the final rule entitled ‘‘Manda2 tory Reporting of Greenhouse Gases’’ (74 

3 Fed. Reg. 56260 (October 30, 2009)) and 

4 the definition of the term ‘‘emissions data’’ 

5 in section 2.301 of title 40, Code of Fed6 eral Regulations (or a successor regula7 tion); 

8 (xiii) any final action taken by the 

9 Administrator with respect to State imple10 mentation plans, Federal implementation 

11 plans, and policy guidance regarding con12 struction or operating permits or permit 

13 requirements for stationary sources emit14 ting greenhouse gases that is issued or 

15 taken before, on, or after the date of en16 actment of this Act; and 

17 (xiv) any guidance, regulations, inter18 pretive regulations, or policy regarding the 

19 emissions of greenhouse gases or climate 

20 change impacts of greenhouse gases pro21 mulgated or issued by the Administrator 

22 under any Federal law (including a regula23 tion). 

24 (5) REGULATION UNDER OTHER PROVISIONS.— 


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1 (A) IN GENERAL.—Neither the regulation 

2 referred to in paragraph (3)(B) nor any other 

3 provision of law (including a regulation) or ac4 tion relating to greenhouse gases shall— 

5 (i) have any impact on the regulation 

6 of stationary sources under title I of the 

7 Clean Air Act (42 U.S.C. 7401 et seq.); or 

8 (ii) be considered to be the regulation 

9 of pollutants under that Act (42 U.S.C. 

10 7401 et seq.) for any purpose (other than 

11 for the regulation of greenhouse gas emis12 sions for light-duty motor vehicles from 

13 model years 2012 through 2016, as re14 quired by the rule described in paragraph 

15 (3)(B)), including for the purpose of 

16 issuing permits or establishing regulatory 

17 standards. 

18 (B) REQUESTS FOR WAIVERS.—Section 

19 209(b) of the Clean Air Act (42 U.S.C. 

20 7543(b)) is amended by adding at the end the 

21 following: 

22 ‘‘(4) REQUESTS FOR WAIVERS.—Notwith23 standing any other provision of this Act or any other 

24 law— 


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1 ‘‘(A) no request for a waiver of the appli2 cation of this section by any State for stand3 ards to control emissions of any air pollutant 

4 that is a greenhouse gas (as defined in section 

5 3 of the Defending America’s Affordable En6 ergy and Jobs Act) from new motor vehicles or 

7 new motor vehicle engines of model year 2017 

8 or later may be granted by the Administrator; 

9 and 

10 ‘‘(B) no grant of any waiver by the Admin11 istrator before the date of enactment of this 

12 paragraph shall be considered by the Adminis13 trator, the requesting State, or any court as 

14 waiving the application of subsection (a), or any 

15 other provision of this section, to standards 

16 adopted by the State for control of emissions of 

17 any air pollutant that is a greenhouse gas (as 

18 defined in section 3 of the Defending America’s 

19 Affordable Energy and Jobs Act) from new 

20 motor vehicles or new motor vehicle engines of 

21 model year 2017 or later.’’. 

22 (6) IMPACTS ON STATE LAWS.— 

23 (A) IN GENERAL.—Any provision of a 

24 State implementation plan designating green25 house gases as pollutants that are subject to 


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1 regulation or as regulated pollutants, or other2 wise authorizing or requiring limitations on the 

3 emission of greenhouse gases under State law— 

4 (i) shall not be federally enforceable; 

5 (ii) shall not be deemed to be Federal 

6 law; and 

7 (iii) shall be deemed to be stricken 

8 from the State implementation plan. 

9 (B) AUTHORITY OF STATES.— 

10 (i) IN GENERAL.—Subject to clause 

11 (ii), nothing in this section affects any 

12 State law (including a regulation) or the 

13 authority of any State to adopt a law or 

14 promulgate a regulation. 

15 (ii) AUTHORITY OF ADMINIS16 TRATOR.—Notwithstanding clause (i), the 

17 Administrator shall have no authority to 

18 approve or make federally enforceable any 

19 provision of a State implementation plan 

20 requiring the control of greenhouse gas 

21 emissions. 

22 (iii) AMENDMENT OF EXISTING

23 LAWS.—If, as a result of the regulations 

24 referred to in paragraph (4), a State 

25 adopted any law (including a regulation) 


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1 designating greenhouse gases as pollutants 

2 that are subject to regulation or as regu3 lated pollutants, or authorizing or requir4 ing limitations on the emission of green5 house gases under State law, the State 

6 may amend the adopted law to remove any 

7 restrictions on greenhouse gas emissions. 

8 (C) FEDERALIZATION OF SIP REQUIRE9 MENTS.—The Administrator shall have no au10 thority to approve or make federally enforceable 

11 any provision of a State implementation plan 

12 requiring the control of greenhouse gas emis13 sions. 

14 (7) PRESIDENTIAL FINDINGS AND CONCLU15 SIONS.—Except as authorized by this subsection or 

16 another Act of Congress, the President or the head 

17 of a Federal department or agency may not examine 

18 or make findings or conclusions, such as those con19 tained in the final rule referred to in paragraph 

20 (4)(B)(i), for purposes of promulgating or issuing 

21 policy, guidance, or regulations to address the im22 pacts of greenhouse gas emissions on climate 

23 change. 

24 (8) JUDICIAL REVIEW.— 


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1 (A) IN GENERAL.—In addition to any 

2 other remedies available, any person affected by 

3 a regulation, action, or consideration concerning 

4 the control of emissions of a greenhouse gas 

5 that fails to meet the criteria described in para6 graph (1) may challenge the regulation, action, 

7 or consideration. 

8 (B) JURISDICTION.—The United States 

9 Court of Appeals for the District of Columbia 

10 Circuit shall have exclusive jurisdiction over any 

11 review of any Federal, State, or other regula12 tion, action, or consideration challenged under 

13 subparagraph (A). 

14 (b) ACTIONS AT LAW.—No cause of action, whether 

15 based on common law or civil tort (including nuisance) 

16 or any other legal or equitable theory, may be brought or 

17 maintained, and no liability, money damages, or injunctive 

18 relief arising from such an action may be imposed, for— 

19 (1) any potential or actual contribution of a 

20 greenhouse gas to climate change; or 

21 (2) any direct or indirect effect of potential or 

22 actual atmospheric concentrations of a greenhouse 

23 gas. 

24 (c) ALLOWANCES.—No State shall have authority— 


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1 (1) to require any entity to procure, hold, or 

2 surrender allowances for the emission of greenhouse 

3 gases that takes place outside of the State; or 

4 (2) to otherwise— 

5 (A) regulate or tax, directly or indirectly, 

6 greenhouse gas emissions produced outside of 

7 the State; or 

8 (B) to otherwise limit the importation of 

9 products or electricity into the State based on 

10 greenhouse gas emissions occurring outside the 

11 State. 

Æ 


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