Late last week, the House Energy & Commerce subcommittee approved H.R. 910, which, if adopted into law, would not only put an immediate halt to EPA’s regulation of greenhouse gases (GHGs) under the Clean Air Act (CAA), but would also invalidate every GHG regulation EPA has previously promulgated. The bill states that the EPA “Administrator may not, under [the CAA], promulgate any regulation concerning…the emission of a greenhouse gas to address climate change.” This is the prospective bar.
The retrospective invalidation provision states that carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride, and even water vapor (which EPA had not previously sought to regulate) are not “air pollutants” as defined under section 302(g) of the CAA. This effectively overrides the U.S. Supreme Court’s holding in Mass. v. EPA, 549 U.S. 497 (2007), that carbon dioxide is a “pollutant” under the CAA. Not leaving anything to chance, H.R. 910 lists twelve EPA rules that “are repealed and shall have no legal effect” including, among others, the Prevention of Significant Deterioration (PSD) and Title V GHG Tailoring Rule, 75 Fed. Reg. 31514 (June 3, 2010).
Other repealed provisions would include EPA’s finding that GHGs endanger public health (the “Endangerment Finding”, 74 Fed. Reg. 56260 (Dec. 15, 2009)), which was a statutory prerequisite to EPA’s regulation of GHG emissions from motor vehicles, and EPA’s GHG Mandatory Reporting Rule (Oct. 30, 2009), which was intended to pave the way for a comprehensive federal statute – or possibly industry-specific control/efficiency rules – by creating an inventory covering about 85% of the GHGs emitted in the U.S..
With Democratic support from states with heavily energy-dependant economies, the bill should have the votes to pass in the House although approval by the Senate is much less likely. The key questions are whether the Senate will approve such a measure and, even if it does pass such legislation, whether the bill would achieve the two-thirds majority necessary for an override after the likely Presidential veto. The Senate counterpart to H.R. 910 is S. 482 (introduced by S. Inhofe), and two other bills – one broader (S. 228, introduced by Senator Barasso) and one narrower (S. 231, introduced by Senator Rockefeller) – are also in play in the Senate.
Stay tuned . . .
Mark Erman, Esq.
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