House GOP leaders grill EPA on Clean Power Plan authority

House of Representatives

House Energy and Commerce Committee Chairman Fred Upton, R-Mich., Energy and Power Subcommittee Chairman Ed Whitfield, R-Ky., and Oversight and Investigations Subcommittee Chairman Tim Murphy, R-Pa., sent a May 13 letter to EPA Administrator Gina McCarthy regarding EPA actions on the Clean Power Plan.

The U.S. Supreme Court earlier this year stayed the Clean Power Plan, which calls for 32 percent greenhouse gas reductions from existing power plants by 2030, while appeals of the plan are argued at the U.S. Court of Appeals for the D.C. Circuit.

“The rationale for this extraordinary action was to save the states and other stakeholders from taking actions, expending resources and incurring costs in response to a rule that may not be legal," said the May 13 letter about the Supreme Court stay. "Yet from the very first weeks following the order, EPA has been taking steps that circumvent the court’s stay and potentially undermine the relief provided by the stay in the first place."

Recently, EPA has been moving forward with new rulemakings relating to the implementation of the currently stayed rule. The GOP leaders wrote: “To the extent EPA proceeds with any such actions to implement the stayed rule, it deprives states and other stakeholders the benefits of the stay by compelling participation in regulatory processes that inappropriately assume the validity of a rule that may ultimately be struck down.”

In light of these recent developments, the members added: “The agency’s decision to move forward with a shadow regulatory structure to implement the Clean Power Plan presents several obvious concerns. Continuing to develop a suite of derivative rules and guidance raises questions about whether EPA is complying fully with the court’s stay order, about what legal authority the agency has to proceed with such actions, about how these actions affect the equities of states and stakeholders, as well as about the agency’s stewardship and use of taxpayer resources.”

The letter said that for example, about two weeks before, EPA staff advised the committee that details of the plan's Clean Energy Incentive Program to the Office Management and Budget for interagency review. That program would reward states that comply with the plan through renewable energy and demand-side management development. The GOP leaders expressed "significant concern" that this program is moving forward while the larger Clean Power Plan is stayed.

They also said EPA is moving forward with its Model Trading Rules and other initiatives under the plan. They also said EPA officials have indicated that, if the stay is lifted, plan compliance deadlines may not be "tolled," or essentially rolled back, to account for the delays caused by the court cases. That would force states into very tight timelines to meet those deadlines, the members said.

They want to know what legal basis EPA has for moving forward with these programs while the Supreme Court stay is in place.

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