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Bills To Bar EPA GHG Rules Include Sweeping Preemption Of State Efforts

Posted on InsideDefense.com: February 4, 2011
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New GOP bills to prohibit EPA from regulating greenhouse gases (GHGs) under the Clean Air Act include sweeping provisions preempting states from issuing GHG rules, including ending California's ability to get a GHG waiver to set strict mobile source rules, and creating major hurdles to existing and future state and regional climate programs.

The bills' House and Senate Republican sponsors counter that even if the bills became law, states would be largely free to continue their own localized GHG programs, stressing that their focus is on halting federal climate control rules.

But one state source notes that roughly half of all states have restrictions on adopting programs more stringent than the federal government, so the bills rescinding EPA authority to impose GHG limits would create "a de facto preemption program . . . that would make it difficult if not impossible for states to move forward."

Among the bills is broad legislation introduced Jan. 31 by Sen. John Barrasso (R-WY) that would bar EPA from regulating GHGs under any major environmental law, and a discussion draft bill on blocking EPA Clean Air Act GHG rules by Sen. James Inhofe (R-OK) and Reps. Fred Upton (R-MI) and Ed Whitfield (R-KY) floated Feb. 2.

Barrasso's bill would have the broadest impact in terms of preempting either state or federal regulations to cut GHGs, barring any federal agency from regulating GHGs; revoking the Clean Air Act process that allows California to seek air law waivers to set stricter mobile source emission rules than federal requirements; and prohibiting states from limiting GHGs on electricity or other products they purchase from outside their borders.

Additionally, critics say the bill would undercut the Northeast Regional Greenhouse Gas Initiative (RGGI) by forcing participating states to change their laws in order for the program to continue. RGGI is an effort by 10 Northeast states to establish the first regional cap-and-trade program to cut GHG emissions.

The Inhofe-Upton-Whitfield measure, the Energy Tax Prevention Act of 2011, would overturn EPA's GHG regulatory authority and terminates the California waiver process but would not impose the GHG border limitation on states.

The state source criticizes both legislative measures for scrapping the California motor vehicle waiver process for GHGs. "The only reason we've gotten to the point today where we have a good federal vehicle GHG program is because states like California and others who followed California have the authority . . . to adopt more stringent standards than the federal government, if needed. It may be at some future time California will need that authority because an administration that does not support tightening vehicle standards might not strengthen them."

Barrasso in a Jan. 31 statement on the unveiling of his bill, the Defending America's Affordable Energy & Jobs Act, said it "does not preempt states from enacting greenhouse gas or climate change mandates."

David Hawkins of the Natural Resources Defense Council (NRDC) told reporters on a Feb. 3 conference call that the senator's statement is ironic, given that Barrasso and many newly elected Republicans are criticizing the federal government for having too much power. "The irony is this piece of legislation, if enacted, would be having the federal government interfere with states' ability to protect citizens against the threat of global warming. . . . If somebody wants to identify a bill that tramples on states' rights, the Barrasso bill is a good example."

Preemption Language Is 'Sneeky'

One environmentalist adds the preemption language is "sneaky" because the legislation allows under-the-radar preemption "by prohibiting EPA from granting a waiver under section 209(b) of the Clean Air Act. While it leaves EPA's current light duty vehicle standards in place, the effect of the bill is to prevent California, and therefore any state, from adopting greenhouse gas standards for model years after 2016."

The environmentalist rejects Barrasso's recent statement that the bill would not block state climate rules. "If Barrasso intended to retain any state authority to regulate greenhouse gases, he failed. The bill expressly says that states cannot regulate any greenhouse gas emissions outside its borders in any way, or limit importation of electricity or other product based on greenhouse gas emissions," according to the environmentalist.

Additionally, the state source says both the Barrasso bill and the Inhofe-Upton discussion draft "eviscerate many important elements of the Clean Air Act and should be rejected. They take away states' authority to regulate GHGs from vehicles, [and] they stop EPA in its tracks in regulating important GHG programs that would create a serious problem in state and local government if this ever were passed."

The source says the Barrasso bill "totally disrupts" regional GHG programs such as RGGI because it would force states to change their laws or rules to remove EPA's role in the Clean Air Act Title V permit program from the GHG trading program. The industrial facilities participating in RGGI "have Title V permits and this bill would force these states to go out of their way to pass new laws and regulations to remove EPA from the Title V component of their program" in order for them to continue, the source explains.

The source says lawmaker statements that the bills do not preempt states are flat-out wrong. "They're assuming people aren't going to analyze this, but you can push back."

One Republican Senate aide defends the bills, noting that the state approaches that would be barred by the legislation are programs that the lawmakers believe are being driven to force national climate standards, rather than only affect state policy. The California waiver in particular has "national impacts," given that the state's auto market is so large and that other states can choose to adopt any California vehicles rules EPA approves.

Additionally, the Senate source says when the California waiver was approved it was intended only to deal with "localized specific issues around major metropolitan areas. . . . It doesn't even apply to climate change. There is nothing California can do that will have a material effect on global warming."

As far as limiting the existing California program to limit GHGs on imported electricity, the source says that prohibition is based on "principles of federalism and other things we are trying to get across."

The source, however, says the bills do allow regional programs such as RGGI and that "states are free to do whatever they want within their own borders. We are completely fine with that. It's just when they are imposing their view of the world on states that don't agree" is where we want to limit them. The source adds that action on the Inhofe-Upton draft bill will begin with hearings in the House Energy & Commerce Committee.

Environmentalists meanwhile are ramping up their attacks on all of the anti-GHG bills, noting that narrower measures to impose a two-year delay on EPA's authority are not necessarily a better choice than the broader legislation to permanently prohibit EPA climate rules.

"We don't view [the two-year delay] bills as a timeout. It's actually a stop-work order on any regulatory procedures, it stops all action in place," said Sierra Club's Melinda Pierce on the Feb. 3 call with reporters. "I worry that people who talk about a delay or a timeout diminish what a threat this would be."

Hawkins of the NRDC added, "We've already had a decade of delay. All of these bills have one thing in common -- to stop EPA from going forward and that is unacceptable."

The environmentalist source calls all of the bills "bad news. The difference is like asking whether you want to be executed by firing squad or guillotine." -- Dawn Reeves