EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Congressional research reportApr 22, 2016

Ask Donna

What actually matters in this document.

Text

EPA Regulation of Greenhouse Gases:

Congressional Responses and Options

/name redacted/

Specialist in Environmental Policy

April 22, 2016

Congressional Research Service

7-....

www.crs.gov

R41212

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Summary

In August 2015, the Environmental Protection Agency (EPA) promulgated standards to limit

emissions of greenhouse gases (GHGs) from both new and existing fossil-fueled electric power

plants. Because of the importance of electric power to the economy and its significance as a

source of GHG emissions, the EPA standards have generated substantial interest. The economy

and the health, safety, and well-being of the nation are affected by the availability of a reliable

and affordable power supply. Many contend that that supply would be adversely impacted by

controls on GHG emissions. At the same time, an overwhelming scientific consensus has formed

around the need to slow long-term global climate change. The United States is the second largest

emitter of greenhouse gases, behind only China, and power plants are the source of about 30% of

the nation’s anthropogenic GHG emissions. If the United States is to reduce its total GHG

emissions, as the President has committed to do, it will be important to reduce emissions from

these sources.

Leaders of both the House and Senate in the 114th Congress have stated their opposition to GHG

emission standards, so Congress has considered several bills to prevent EPA from implementing

the promulgated rules. Such legislation could take one of several forms:

a resolution (or resolutions) of disapproval under the Congressional Review Act;

freestanding legislation;

the use of appropriations bills as a vehicle to influence EPA activity; or

amendments to the Clean Air Act.

Following promulgation of the power plant GHG standards, Congress passed and sent to the

President S.J.Res. 23 and S.J.Res. 24, joint resolutions disapproving the standards for both new

and existing power plants under the Congressional Review Act. The President vetoed both

resolutions on December 18, 2015.

Earlier, the House passed H.R. 2042, which would delay the compliance date of GHG emission

standards for electric generating units and would allow a state to opt out of compliance if the

governor determines that the rule would have an adverse effect on rate-payers or have a

significant adverse effect on the reliability of the state’s electricity system. The Senate

Environment and Public Works Committee has reported a bill with similar (and additional)

provisions, S. 1324, but as of this writing the full Senate has not acted on it.

This report discusses elements of the GHG controversy, providing background on stationary

sources of GHG emissions and providing information regarding the options Congress has at its

disposal to address GHG issues.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Contents

Introduction ..................................................................................................................................... 1

Regulation of Stationary Source GHGs .......................................................................................... 4

Potential GHG Emission Standards Under Section 111 ............................................................ 5

Congressional Options .................................................................................................................... 7

Congressional Review Act ........................................................................................................ 7

Freestanding/Targeted Legislation ............................................................................................ 9

H.R. 2042 and Other Bills in the 114th Congress ................................................................ 9

H.R. 3826 in the 113th Congress ....................................................................................... 10

Bills in the 112th Congress ................................................................................................ 10

Appropriations Bills ................................................................................................................ 10

Comprehensive Amendments to the Clean Air Act .................................................................. 11

Conclusion ..................................................................................................................................... 12

Figures

Figure 1. Sources of U.S. Greenhouse Gas Emissions .................................................................... 5

Contacts

Author Contact Information .......................................................................................................... 14

Acknowledgments ......................................................................................................................... 14

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Introduction

Since 2007, the Supreme Court has ruled on two separate occasions that the Clean Air Act

authorizes the Environmental Protection Agency (EPA) to set standards for emissions of

greenhouse gases (GHGs). In the first case, Massachusetts v. EPA,1 the Court held that GHGs are

air pollutants within the Clean Air Act’s definition of that term and that EPA must regulate their

emissions from motor vehicles if the agency found that such emissions cause or contribute to air

pollution which may reasonably be anticipated to endanger public health or welfare. In the second

case, American Electric Power, Inc. v. Connecticut,2 the Court held that corporations cannot be

sued for GHG emissions under federal common law, because the Clean Air Act delegates the

management of carbon dioxide and other GHG emissions to EPA: “... Congress delegated to EPA

the decision whether and how to regulate carbon-dioxide emissions from power plants; the

delegation is what displaces federal common law.”3

GHGs are a disparate group of pollutants4—the most significant of them being carbon dioxide

(CO2). According to a widely held scientific consensus, these gases trap the sun’s energy in the

Earth’s atmosphere and contribute to climate change.

In 2009, the House passed comprehensive legislation that would have limited numerous elements

of EPA’s existing authority over GHGs, substituting economy-wide cap-and-trade systems to

reduce GHG emissions.5 Companion legislation emerged from committee in the Senate, but failed

to reach the floor.6 Since then, Congress has made no serious effort to revive the legislation.

Instead, in the 112th-114th Congresses, attention to the issue has focused on various bills to repeal

or limit EPA’s authority over GHG emissions without providing a substitute.

Meanwhile, EPA has taken action, using its existing Clean Air Act (CAA) authority:



In April 2010, then-EPA-Administrator Lisa Jackson signed final regulations that

required auto manufacturers to limit emissions of GHGs from new Model Year

(MY) 2012-2016 cars and light trucks.7

Effective in January 2011, EPA began requiring new and modified major

stationary sources to undergo pre-construction review under the Prevention of

Significant Deterioration/New Source Review (PSD/NSR) program with respect

to their GHG emissions in addition to any other pollutants subject to CAA

regulation that they emit. This review requires affected new and modified sources

to obtain permits and install Best Available Control Technology (BACT) to

address their GHG emissions.

At the same time, EPA began requiring large existing stationary sources of GHG

emissions (in addition to new sources) to obtain operating permits under Title V

549 U.S. 497 (2007).

564 U.S. 410 (2011).

Ibid. at 426.

The six pollutants or groups of pollutants commonly identified as GHGs are carbon dioxide (CO 2), methane (CH4),

nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs).

H.R. 2454, the American Clean Energy and Security Act.

S. 1733, the Clean Energy Jobs and American Power Act.

The regulations, which took effect with the 2012 model year, appeared in the Federal Register on May 7, 2010, at 75

Federal Register 25324. Related information is available on EPA’s website at http://www.epa.gov/otaq/climate/

regulations.htm.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options



of the Clean Air Act (or have existing permits modified to include their GHG

emissions).

In September 2011, EPA promulgated GHG emission standards for MY20142018 medium- and heavy-duty trucks.8

In October 2012, EPA promulgated a second round of GHG emission standards

for cars and light trucks, applicable to MY2017-2025 vehicles.9

In July 2015, EPA proposed a second round of GHG emission standards for

medium- and heavy-duty trucks, applicable to MY2021-2027 trucks and engines,

and MY2018 and later trailers.10

In August 2015, EPA promulgated emission standards for new11 and existing12

fossil-fueled electric generating units (EGUs) under Section 111 of the Clean Air

Act.

EPA’s potential regulation of GHG emissions (particularly from stationary sources) has led many

in Congress to suggest that the agency delay taking action or be stopped from proceeding. In each

Congress since the 111th, bills have been introduced to rescind or limit EPA’s greenhouse gas

authority.

Early on, EPA attempted to respond to congressional and stakeholder concerns by clarifying the

direction and schedule of its actions. The agency provided three clear responses to

implementation issues as it was taking the first regulatory actions described above:



The first came on March 29, 2010, when the Administrator reinterpreted a 2008

memorandum concerning the effective date of the stationary source permit

requirements.13 Facing a possibility of having to begin the permitting process on

April 1, 2010 (the date the first GHG standard for automobiles was finalized), the

March 29 decision delayed for nine months (to January 2, 2011) the date on

which EPA would consider stationary source GHGs to be subject to regulation,

and thus subject to the permitting requirements of PSD/NSR and Title V.14

U.S. Environmental Protection Agency, U.S. Department of Transportation, “Greenhouse Gas Emissions Standards

and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles; Final Rules,” 76 Federal Register

57106, September 15, 2011.

U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, DOT, “2017 and Later

Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards,” Final

Rule, 77 Federal Register 62624, October 15, 2012, at http://www.epa.gov/otaq/climate/regs-light-duty.htm#new1.

U.S. Environmental Protection Agency, U.S. Department of Transportation, “Greenhouse Gas Emissions Standards

and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2; Proposed Rule,” 80

Federal Register 40138, July 13, 2015.

U.S. Environmental Protection Agency, “Standards of Performance for Greenhouse Gas Emissions From New,

Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units; Final Rule,” 80 Federal Register

64510, October 23, 2015.

U.S. Environmental Protection Agency, “Carbon Pollution Emission Guidelines for Existing Stationary Sources:

Electric Utility Generating Units; Final Rule,” 80 Federal Register 64661, October 23, 2015.

The reinterpretation memo appeared in the Federal Register, April 2, 2010, at 75 Federal Register 17004.

The term “subject to regulation” is the key Clean Air Act term that determines when affected sources would be

subject to the permitting requirements of NSR and Title V. By interpreting the term to refer to January 2, 2011, rather

than the date of the final regulations implementing the mobile source endangerment finding (April 1, 2010), EPA

effectively delayed the impact of that rulemaking on stationary sources for nine months. For a further discussion of the

term, “subject to regulation,” see CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New

Motor Vehicle Greenhouse Gas Emissions.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options



On May 13, 2010, the Administrator signed the GHG “Tailoring” Rule, which

provided for a phasing in of Title V and PSD/NSR permitting requirements, so

that only a limited number of very large sources would initially have to meet

requirements.

On November 10, 2010, EPA released a package of guidance and technical

information to assist local and state permitting authorities in implementing PSD

and Title V permitting for greenhouse gas emissions.15

The EPA Administrator and the President also repeatedly expressed their preference for Congress

to take the lead in designing a GHG regulatory system. However, EPA simultaneously stated that,

in the absence of congressional action, it must proceed to regulate GHG emissions: the April 2007

Supreme Court decision in Massachusetts v. EPA16 compelled EPA to address whether GHGs

were air pollutants that endanger public health and welfare, and if it found they were, to embark

on a regulatory course prescribed by statute. Having made an affirmative decision in response to

the endangerment question,17 EPA proceeded with regulations.

Thus, EPA and many Members of Congress have been on a collision course. EPA is proceeding to

regulate emissions of GHGs under the Clean Air Act, as it maintains it must. Opponents of this

effort in Congress continue to explore approaches to alter the agency’s course.

The President has made clear that he intends to take action to control GHG emissions. In his

second inaugural address, he promised to “respond to the threat of climate change.” He has

reiterated his determination to address the issue in multiple State of the Union addresses. In June

2013, he directed EPA to propose18 New Source Performance Standards for greenhouse gas

emissions from new fossil-fueled power plants by September 20, 2013, and to propose guidelines

for existing power plants by June 1, 2014. EPA met both of these deadlines19 and finalized the

power plant rules in August 2015—leaving Congress to consider whether and how best to

respond.

This report discusses elements of this controversy, providing background on stationary sources of

greenhouse gas pollution and identifying options Congress has if it chooses to address the issue.

The report discusses four sets of options: (1) resolutions of disapproval under the Congressional

Review Act; (2) freestanding legislation directing, delaying, or prohibiting EPA action; (3) the use

of appropriations bills as a vehicle to influence EPA activity; and (4) amendments to the Clean

Air Act, including legislation to establish a new GHG control regime. The report considers each

of these in turn, but first provides additional detail regarding the sources of GHG emissions, the

U.S. EPA, Office of Air and Radiation, “PSD and Title V Permitting Guidance for Greenhouse Gases,” November

2010 (subsequently revised, March 2011), at http://www.epa.gov/nsr/ghgdocs/ghgpermittingguidance.pdf.

549 U.S. 497 (2007).

74 Federal Register 66496. The EPA decision is generally referred to as the “endangerment finding” (singular), but

the Federal Register notice consists of two separate findings: a Finding That Greenhouse Gases Endanger Public

Health and Welfare, and a Finding That Emissions of Greenhouse Gases from CAA Section 202(a) Sources Cause or

Contribute to the Endangerment of Public Health and Welfare. [CAA Section 202(a) sources are new motor vehicles or

new motor vehicle engines.]

Actually, he directed EPA to re-propose the standards. The NSPS were first proposed on April 13, 2012. As

discussed below, EPA received more public comments on the rule than any rule in its 40-year history up to that time,

and had not completed action on the original proposal.

The re-proposed standards were signed September 20, and were published in the Federal Register, January 8, 2014,

at 79 Federal Register 1430. The proposed guidelines for existing power plants were signed on June 2, 2014, and were

published in the Federal Register, June 18, 2014, at 79 Federal Register 34830.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

requirements of the Clean Air Act, and a brief description of the two rules that would limit power

plant GHG emissions.

Although this report focuses on Congress and the Executive Branch, there is, of course, a third

branch of government, the judiciary, which continues to be involved in the issues discussed here.

The courts have upheld EPA’s regulations related to GHG emissions from motor vehicles.20 The

Supreme Court has issued a stay, however, of the Clean Power Plan, EPA’s August 2015

regulations governing GHG emissions from existing fossil-fueled power plants.21 Challenges to

both EPA power plant rules are proceeding in the U.S. Court of Appeals for the D.C. Circuit, with

the potential for appeals thereafter to the Supreme Court.

Regulation of Stationary Source GHGs

Stationary sources are the major sources of the country’s GHG emissions. As shown in Figure 1,

64% of U.S. emissions of greenhouse gases comes from stationary sources (the remainder comes

from mobile sources, primarily cars and trucks, and from agriculture, which has elements in both

the stationary and mobile source groups). If EPA (or Congress) is to embark on a serious effort to

reduce greenhouse gas emissions, stationary sources, and in particular large stationary sources

such as power plants, will have to be included.

The substantial amount of greenhouse gas emissions emanating from stationary source categories

is even more important from a policy standpoint: reducing greenhouse gas emissions from these

sources is likely to be more timely and cost-effective than attempts to reduce emissions from the

transport sector. A relatively small number of stationary sources (a few thousand power plants, for

example) account for a large percentage of total emissions, making regulation easier to administer

and enforce. By contrast, there are more than 200 million sources in the fleet of cars and trucks.

EPA has no legal authority to impose more stringent standards on these existing vehicles. Even

for new vehicles, standards have to be phased in: the manufacturers can’t be expected to develop

new vehicle designs and engines for every model simultaneously. The fleet of vehicles turns over

slowly. Thus, although new vehicles will be required to reduce GHG emissions by about 50% in

Model Year 2025 and later vehicles, it will be 2040 or later before the full effect of that

requirement is felt.

Existing power plants and other stationary sources—although not easily modified—are somewhat

more amenable to changes than mobile sources: fuel sources can be switched; processes can be

made more efficient, reducing fuel consumption; and demand for power can be modified through

a variety of measures.

Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (2012).

See Order in Pending Case, West Virginia v EPA (S. Ct. No. 15A773, February 9, 2016), available at

http://www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-order.pdf.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Figure 1. Sources of U.S. Greenhouse Gas Emissions

(percentage of total anthropogenic emissions, 2014)

Source: CRS, based on data from U.S. EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks, April 2016.

Percentages do not add to 100% because of rounding.

Notes:

1. Of the 26% emitted by transportation sources, 60% came from light duty vehicles (cars, SUVs, vans, and

pickups) and 23% came from medium- and heavy-duty trucks.

2. “Other” includes a wide variety of sources: industrial fuel combustion and processes (44% of the “Other”

total); residential fuel combustion (15%); commercial fuel combustion (10%); natural gas systems (9%);

substitution of ozone depleting substances (7%); landfills (6%); coal mining (3%); and other(6%).

3. Estimates for oil and gas production and distribution and for agriculture are subject to substantial uncertainty.

Potential GHG Emission Standards Under Section 111

Section 111 of the Clean Air Act provides authority for EPA to impose performance standards on

stationary sources of air pollution directly in the case of new (or modified) stationary sources

(Section 111(b)), and through the states in the case of existing sources (Section 111(d)).22 Because

power plants and other stationary sources are the largest sources of GHG emissions, EPA has

begun the process of regulating their emissions through the two authorities.

New Source Performance Standards (NSPS) are emission limitations imposed on designated

categories of new (or substantially modified) stationary sources of air pollution. A new source is

subject to NSPS regardless of its location or ambient air conditions. The authority to impose

performance standards on new and modified sources refers to any category of sources that the

Administrator judges “causes, or contributes significantly to, air pollution which may reasonably

be anticipated to endanger public health or welfare” (Sec. 111(b)(1)(A))—language similar to the

endangerment and cause-or-contribute findings EPA promulgated for new motor vehicles in

December 2009.

In establishing these standards, Section 111 gives EPA considerable flexibility with respect to the

source categories regulated, the size of the sources regulated, the particular gases regulated, along

with the timing and phasing-in of regulations (Section 111(b)(2)). This flexibility extends to the

If a state fails to adopt a “satisfactory” plan to control emissions from existing sources, EPA may impose standards.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

stringency of the regulations with respect to costs, and secondary effects, such as non-air-quality,

health and environmental impacts, along with energy requirements (Section 111(a)(1)). This

flexibility is encompassed within the Administrator’s authority to determine what control systems

have been “adequately demonstrated” (Section 111(a)(1)). (For discussion of what is meant by the

term “adequately demonstrated,” see CRS Report R43127, EPA Standards for Greenhouse Gas

Emissions from New Power Plants.) Standards of performance developed by the states for

existing sources under Section 111(d) can be similarly flexible.

EPA first proposed NSPS for fossil-fueled electric generating units (EGUs) on April 13, 2012.23

After receiving more than 2.5 million public comments, the most on any proposed rule in EPA’s

40-year history up to that time24—and in response to a Presidential directive25—the agency

withdrew the 2012 proposal and proposed a somewhat modified version of the rule on January 8,

2014.26

In addition, the President directed the agency to propose guidelines for existing EGUs under

Section 111(d) by June 1, 2014, with final action one year later.27 The agency finalized both rules

on August 3, 2015.

The standards for new sources limit GHG emissions from both coal-fired and natural-gas-fired

EGUs. Gas-fired plants are able to meet the standard without add-on emission controls, but coalfired plants (which generate carbon dioxide (CO2) at a rate at least double that of new combined

cycle natural gas plants) would need to reduce CO2 emissions by roughly 20% as compared to the

best performing U.S. coal-fired power plants currently in operation in order to meet the NSPS

standard. Achieving this would require the installation of partial carbon capture and storage

systems at new coal-fired plants, an expensive technology not yet commercially demonstrated on

a large U.S. coal-fired EGU.

EPA states that this technology will soon be demonstrated by plants currently under construction,

and that the rule will provide the certainty needed to stimulate the technology’s further

development; but many view EPA’s rule as effectively prohibiting the construction of new coalfired power plants. As a result, many in Congress have expressed interest in blocking this EPA

regulatory action.

The standards for existing EGUs, which EPA calls the “Clean Power Plan” (CPP), would set

state-specific goals for CO2 emissions from power generation. In the CPP, EPA established

different goals for each state based on three “building blocks”: improved efficiency at coal-fired

power plants; substitution of natural gas combined cycle generation for coal-fired power; and

zero-emission power generation (from increased renewable or nuclear power). Two sets of goals

were promulgated: an interim set, which would apply to the average emissions rate in a state in

U.S. EPA, Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility

Generating Units, Proposed Rule, 77 Federal Register 22392, April 13, 2012.

The record for comments has since been eclipsed by the 4,379,241 comments EPA has received on the Clean Power

Plan.

Office of the Press Secretary, The White House, “Power Sector Carbon Pollution Standards,” Memorandum for the

Administrator of the Environmental Protection Agency, June 25, 2013, at http://www.whitehouse.gov/the-press-office/

2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards.

U.S. EPA, Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility

Generating Units, Proposed Rule, 79 Federal Register 1430, January 8, 2014.

U.S. Environmental Protection Agency, Carbon Pollution Emission Guidelines for Existing Stationary Sources:

Electric Utility Generating Units, Proposed Rule, 79 Federal Register 34830, June 18, 2014. http://www.gpo.gov/

fdsys/pkg/FR-2014-06-18/pdf/2014-13726.pdf.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

the 2022-2029 time period; and a final set for the years 2030 and beyond. Under the rule, the

states are required to develop plans to reach their goal using whatever combination of measures

they choose, but it would be difficult to reach the goals without reducing emissions from coalfired power plants. (For additional information on the Clean Power Plan see CRS Report R44341,

EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions.)

Congressional Options

As noted earlier, if Congress favors a different approach to GHG controls than those on which

EPA has embarked, including stopping the agency in its tracks, at least four sets of options are

available to change the agency’s course: the Congressional Review Act; freestanding legislation;

appropriations riders; and amendments to the Clean Air Act. Among the most widely discussed

options has been the Congressional Review Act.

Congressional Review Act28

The Congressional Review Act (CRA, 5 U.S.C. §§801-808), enacted in 1996, establishes special

congressional procedures for disapproving a broad range of regulatory rules issued by federal

agencies.29 Before any rule covered by the act can take effect, the federal agency that promulgates

the rule must submit it to both houses of Congress and the Government Accountability Office

(GAO). If Congress passes a joint resolution disapproving the rule under procedures provided by

the act, and the resolution becomes law,30 the rule cannot take effect or continue in effect. Also,

the agency may not reissue either that rule or any substantially similar one, except under authority

of a subsequently enacted law.

The CRA has been much discussed as a tool for overturning EPA’s regulatory actions on GHG

emissions. In the 111th Congress, on December 15, 2009, four identical resolutions were

introduced to disapprove the first of EPA’s GHG rules, the endangerment finding—one in the

Senate (S.J.Res. 26) and three in the House (H.J.Res. 66, H.J.Res. 76, and H.J.Res. 77). Of the

four, one (S.J.Res. 26) proceeded to a vote: on June 10, 2010, the Senate voted 47-53 not to take

up the resolution.

The path to enactment of a CRA resolution is a steep one. In the nearly two decades since the

CRA was enacted, only one resolution has ever been enacted.31 The path is particularly steep if

the President opposes the resolution’s enactment, which is the case with resolutions disapproving

EPA rules for GHG emissions. The Obama Administration has made the reduction of GHG

emissions one of its major goals; any legislation restricting EPA’s authority to act, if passed by

Congress, is likely to encounter a presidential veto. Overriding a veto requires a two-thirds

majority in both the House and Senate.

This section of this report, discussing the effect of the Congressional Review Act, the procedures under which a

disapproval resolution is taken up in the Senate, floor consideration in the Senate, and final congressional action, is

adapted from CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional

Review Act, by (name redacted). Additional input to this section was provided by Alissa Dolan, Legislative Attorney,

American Law Division of CRS.

The CRA applies to a “rule,” as defined in 5 U.S.C. §804(3).

For the resolution to become law, the President must sign it or allow it to become law without his signature, or the

Congress must override a presidential veto.

See P.L. 107-5 (2001) (disapproving of an Occupational Safety and Health Administration Rule regarding

ergonomics published at 65 Federal Register 68261).

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

The potential advantage of the Congressional Review Act lies primarily in the procedures under

which a resolution of disapproval is to be considered in the Senate. Pursuant to the act, an

expedited procedure for Senate consideration of a disapproval resolution may be used at any time

within 60 days of Senate session after the rule in question has been published in the Federal

committee to which a disapproval resolution has been referred has not reported it by 20 calendar

days after the rule has been received by Congress and published in the Federal Register, the panel

may be discharged if 30 Senators submit a petition for that purpose. The resolution is then placed

on the Calendar.

Under the expedited procedure, once a disapproval resolution is on the Senate Calendar, a motion

to proceed to consider it is in order. Several provisions of the expedited procedure protect against

various potential obstacles to the Senate’s ability to take up a disapproval resolution. The Senate

has treated a motion to consider a disapproval resolution under the CRA as not debatable, so that

this motion cannot be filibustered through extended debate. After the Senate takes up the

disapproval resolution itself, the expedited procedure of the CRA protects the ability of the body

to continue and complete that consideration. It limits debate to 10 hours and prohibits

amendments.32

The Congressional Review Act sets no deadline for final congressional action on a disapproval

resolution, so a resolution could theoretically be brought to the Senate floor even after the

expiration of the deadline for the use of the CRA’s expedited procedures. To obtain floor

consideration, the bill’s supporters would then have to follow the Senate’s normal procedures,

however.

Similarly, a resolution could reach the House floor through its ordinary procedures, that is,

generally by being reported by the committee of jurisdiction (in the case of CAA rules, the

Energy and Commerce Committee). If the committee of jurisdiction does not report a disapproval

resolution submitted in the House, a resolution could still reach the floor pursuant to a special rule

reported by the Committee on Rules (and adopted by the House), by a motion to suspend the rules

and pass it (requiring a two-thirds vote), or by discharge of the committee (requiring a majority of

the House [218 Members] to sign a petition).

The CRA establishes no expedited procedure for further congressional action on a disapproval

resolution if the President vetoes it. In such a case, Congress would need to attempt an override of

a veto using its normal procedures for considering vetoed bills.

In December 2015, Congress passed and sent to the President two resolutions of disapproval

under the CRA: S.J.Res. 23, which would disapprove the New Source Performance Standards for

power plants promulgated by EPA on August 3, 2015, and S.J.Res. 24, which would disapprove

the emission guidelines for existing power plants, also promulgated by EPA on August 3, 2015.

The President vetoed both resolutions on December 18. As of April, 2016, neither the House nor

the Senate has attempted to override the President’s vetoes.

For additional information on the Congressional Review Act, see CRS In Focus IF10023, The

Congressional Review Act (CRA), by (name redacted), (name redacted), and (name redacted)

These provisions help to ensure that the Senate disapproval resolution will remain identical, at least in substantive

effect, to the House joint resolution disapproving the same rule, so that no filibuster is possible on the resolution itself.

In addition, once the motion to proceed is adopted, the resolution becomes “the unfinished business of the Senate until

disposed of,” and a non-debatable motion may be offered to limit the time for debate further. Finally, the act provides

that at the conclusion of debate, the Senate automatically proceeds to vote on the resolution.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Freestanding/Targeted Legislation

To provide for a more nuanced response to the issue than permitted under the CRA, Members

have introduced freestanding legislation or legislation that amends the Clean Air Act in a targeted

way. More than a dozen bills (and several amendments) have been introduced in the 113th and

114th Congresses that would prohibit temporarily or permanently EPA’s regulation of greenhouse

gas emissions. These bills have faced the same obstacle as a CRA resolution of disapproval (i.e.,

being subject to a presidential veto); in addition, they would likely need 60 votes to be considered

on the Senate floor.

H.R. 2042 and Other Bills in the 114th Congress

On June 24, 2015, the House passed Representative Whitfield’s H.R. 2042, the Ratepayer

Protection Act of 2015, 247-180. The bill would delay the compliance date of GHG emission

standards for existing EGUs (including the date by which states must submit implementation

plans) until after the completion of judicial review of any aspect of the rule—a provision now

rendered largely moot by the Supreme Court’s issuance of a stay on February 9, 2016. It would

also allow a state to opt out of compliance if the governor determines that the rule would have an

adverse effect on rate-payers or have a significant adverse effect on the reliability of the state’s

electricity system.

A Senate bill, Senator Capito’s S. 1324, was reported by the Environment and Public Works

Committee on October 29, 2015. In addition to provisions similar to those of H.R. 2042, S. 1324

would prohibit EPA from regulating under Section 111(d) any category of existing sources

regulated under Section 112, the hazardous air pollutant section of the act. Power plants are

regulated under the Mercury and Air Toxics Standards, promulgated by EPA under Section 112 in

2012. The bill would also revoke the Clean Power Plan and NSPS for power plants, would

establish separate categories for coal-fired and natural-gas-fired units, and would prohibit EPA

from promulgating or implementing GHG emission standards for new, modified, or reconstructed

units in each of those categories until at least six power plants representative of the operating

characteristics of electric generation units at different locations across the United States have

demonstrated compliance with proposed emission limits for a continuous period of 12 months on

a commercial basis. Projects demonstrating the feasibility of carbon capture and storage that

received government funding or financial assistance could not be used in setting such standards.

Given the role of the U.S. Department of Energy in financing demonstrations of clean coal

technology and the cost of developing new emissions control technologies not required by

regulation, the bill would effectively prohibit EPA from promulgating New Source Performance

Standards for GHG emissions from EGUs. The agency’s now-promulgated NSPS sets a standard

that no coal-fired EGU in the United States currently meets, and it relies on technology that is

being implemented with financial assistance from the Department of Energy. A separate category

would be established for units burning low rank coals, with any NSPS for the category to be

based on similar requirements achieved by at least three units. Before issuing, implementing, or

enforcing a GHG emission rule for power plants, the Administrator would also be required under

the Senate bill to submit a report to Congress describing the quantity of GHG emissions that the

rule is projected to reduce as compared to overall domestic and global GHG emissions and meet

other, including state-specific, requirements.

Other bills introduced in the 114th Congress would exclude GHGs from the CAA definition of

“air pollutant” (H.R. 3880), impose requirements for cost-benefit analysis of GHG rules (H.R.

3015), and prevent EPA from using funds to enforce the Clean Power Plan or any cap-and-trade

program (H.R. 3626), among other provisions.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

H.R. 3826 in the 113th Congress

In the 113th Congress, more than a dozen bills addressing EPA’s GHG regulatory authority were

introduced.33 Among these, H.R. 3826, the Electricity Security and Affordability Act, passed the

House March 6, 2014, and was also included in House-passed H.R. 2, later in the that Congress.

It addressed the New Source Performance Standards proposed by EPA, rather than the standards

for existing power plants. It had provisions similar to those described above in S. 1324 in the

114th Congress, regarding the degree to which a system of emission reduction would have to have

been demonstrated before EPA could promulgate an emission standard based on its use. In

addition, it would have required that the standards not take effect unless Congress enacted new

legislation setting an effective date. Although the bill passed the House, it was not considered in

the Senate.

Bills in the 112th Congress

In the 112th Congress, attention focused on several bills that passed the House and/or were

considered in the Senate. Several of these bills would have delayed any action by EPA under the

Clean Air Act with regard to stationary sources for a period of two years. Three such bills were

voted on in April 2011 (as amendments to other Senate legislation)—S.Amdt. 215, S.Amdt. 236,

and S.Amdt. 277—and were not agreed to, by lopsided margins.

Legislation that received broader support in the 112th Congress, H.R. 910/S. 482, was introduced

by Chairman Upton of the House Energy and Commerce Committee and Senator Inhofe, thenranking Member of the Senate Environment and Public Works Committee. It would have

permanently removed EPA’s authority to regulate greenhouse gases. The House version passed,

255-177, April 7, 2011. In the Senate, Senator McConnell introduced language identical to the

bill as an amendment to S. 493 (S.Amdt. 183). The amendment was not agreed to, on a vote of

50-50, April 6, 2011.

The Upton-Inhofe-McConnell bill would have repealed a dozen EPA greenhouse-gas-related

regulations, including the Mandatory Greenhouse Gas Reporting rule, the Endangerment Finding,

and the PSD and Title V permitting requirements. It would have redefined the term “air pollutant”

to exclude greenhouse gases. And it stated that EPA may not “promulgate any regulation

concerning, take action related to, or take into consideration the emission of a greenhouse gas to

address climate change.” The bill would have had no effect on federal research, development, and

demonstration programs. The already promulgated light-duty motor vehicle GHG standards and

the GHG emission standards for Medium- and Heavy-Duty Engines and Vehicles would have

been allowed to stay in effect, but no future mobile source rules for GHG emissions would have

been allowed. Also, EPA would have been prohibited from granting another California waiver

(under Section 209(b) of the Clean Air Act) for greenhouse gas controls from mobile sources.

Appropriations Bills

A third option that Congress has used to delay regulatory initiatives is to place an amendment, or

“rider” on the agency’s appropriation bill to prevent funds from being used for the targeted

initiative. In comparison to a CRA resolution of disapproval or freestanding legislation,

addressing the issue through an amendment to the EPA appropriation—an approach that has been

discussed at some length since 2009—may be considered easier. The overall appropriation bill to

Bills in the 113th Congress included H.R. 2, H.R. 621, H.R. 1881, H.R. 2081, H.R. 3033, H.R. 3702, H.R. 3826, H.R.

3895, H.R. 4286, H.R. 4813, H.R. 5300, H.R. 5360, S. 163, S. 1905, and S. 2170.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

which it would be attached would presumably contain other elements that would make it more

difficult to veto.

This approach has been considered in every session of Congress since 2010. House

appropriations riders considered during this time would have



prohibited EPA (during the one-year period following enactment) from proposing

or promulgating New Source Performance Standards for GHG emissions from

electric generating units and refineries;

declared any statutory or regulatory GHG permit requirement to be of no legal

effect;

prohibited common law or civil tort actions related to greenhouse gases or

climate change, including nuisance claims, from being brought or maintained;

prohibited the preparation, proposal, promulgation, finalization, implementation,

or enforcement of regulations governing GHG emissions from motor vehicles

manufactured after model year 2016, or the granting of a waiver to California so

that it might implement such standards; and

prohibited EPA from requiring the issuance of permits for GHG emissions from

livestock and prohibited requiring the reporting of GHG emissions from manure

management systems.

Throughout this period, the only riders affecting EPA’s GHG regulatory authority that have been

enacted have dealt with the potential regulation of agricultural sources of GHGs. The FY2016

appropriation and every previous EPA appropriation since FY2010 have included such

provisions: Section 417, in Title IV of Division G of P.L. 114-113 provides that “none of the

funds made available in this Act or any other Act may be used to promulgate or implement any

regulation requiring the issuance of permits under title V of the Clean Air Act ... for carbon

dioxide, nitrous oxide, water vapor, or methane emissions resulting from biological processes

associated with livestock production.” Section 418 prohibits the use of funds to implement

mandatory reporting of GHG emissions from manure management systems.

Comprehensive Amendments to the Clean Air Act

The most comprehensive approach that Congress could take to alter EPA’s course would be to

amend the Clean Air Act to modify EPA’s current regulatory authority as it pertains to GHGs or to

provide alternative authority to address the GHG emissions issue. In the 111th Congress, this was

the option chosen by the House in passing H.R. 2454, the American Clean Energy and Security

Act (the Waxman-Markey bill) and by the Senate Environment and Public Works Committee in

its reporting of S. 1733, the Clean Energy Jobs and American Power Act (the Kerry-Boxer bill).

The bills would have



amended the Clean Air Act to establish an economy-wide cap-and-trade program

for GHGs,

established a separate cap-and-trade program for hydrofluorocarbons (HFCs),

preserved EPA’s authority to regulate GHG emissions from mobile sources while

setting deadlines for regulating specific mobile source categories, and

required the setting of New Source Performance Standards for uncapped major

sources of GHGs.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

While giving EPA new authority, both bills contained provisions to limit EPA’s authority to set

GHG standards or regulate GHG emissions under Sections 108 (National Ambient Air Quality

Standards), 112 (Hazardous Air Pollutants), 115 (International Air Pollution), 165 (PSD/NSR),

and Title V (Permits) because of the climate effects of these pollutants.34 The bills would not have

prevented EPA from acting under these authorities if one or more of these gases proved to have

effects other than climate effects that endanger public health or welfare.

The bills differed in the extent of their exemptions from the permitting requirements of the PSD

and Title V programs. H.R. 2454 would have prevented new or modified stationary sources from

coming under the PSD/NSR program solely because they emit GHGs.35 In contrast, the Senate

bill would have simply raised the threshold for GHG regulation under PSD from the current 100

or 250 short tons to 25,000 metric tons with respect to any GHG, or combination of GHGs.

Likewise, with respect to Title V permitting, H.R. 2454 would have prevented any source (large

or small) from having to obtain a state permit under Title V solely because they emit GHGs. In

contrast, the exemption under the Senate bill was restricted to sources that emit under 25,000

metric tons of any GHG or combination of GHGs.36

Amending the Clean Air Act to revoke some existing regulatory authority as it pertains to GHGs

while establishing new authority designed specifically to address their emissions is the approach

that was advocated by the Administration and, indeed, by many participants in the climate debate

regardless of their position on EPA’s regulatory initiatives. However, the specifics of a bill

acceptable to a majority would be challenging to craft.

Conclusion

In some respects, EPA’s greenhouse gas decisions are similar to actions it has taken previously for

other pollutants. Beginning in 1970, and reaffirmed by amendments in 1977 and 1990, Congress

gave the agency broad authority to identify pollutants and to proceed with regulation. Congress

did not itself identify the pollutants to be covered by National Ambient Air Quality Standards

(NAAQS); rather, it told the agency to identify pollutants that are emitted by “numerous or

diverse” sources, and the presence of which in ambient air “may reasonably be anticipated to

endanger public health or welfare” (CAA Section 108(a)(1)). EPA has used this authority to

regulate six pollutants or groups of pollutants, the so-called “criteria pollutants.”37 EPA also has

authority under other sections of the act—notably Sections 111 (New Source Performance

Standards), 112 (Hazardous Air Pollutants), and 202 (Motor Vehicle Emission Standards)—to

identify pollutants on its own initiative and promulgate emission standards for them.

Actions with regard to GHGs follow these precedents and can use the same statutory authorities.

The differences are of scale and of degree. Greenhouse gases are global pollutants to a greater

extent than most of the pollutants previously regulated under the act;38 reductions in U.S.

The Clean Air Act exemption provisions under H.R. 2454 were in Part C, Sections 831-835; under S. 1733, the

provisions were in Section 128(g).

This is subsequently the approach adopted by the Supreme Court in deciding Utility Air Regulatory Group v. EPA,

134 S. Ct. 2427 (2014).

For further information, see CRS Report R40896, Climate Change: Comparison of the Cap-and-Trade Provisions in

H.R. 2454 and S. 1733.

The six are ozone, particulate matter, carbon monoxide, sulfur dioxide, nitrogen dioxide, and lead.

An exception would be chlorofluorocarbons, regulated under Title VI of the act to protect the stratospheric ozone

layer. This also was a global problem, but in this case an international agreement, the Montreal Protocol, preceded EPA

action and the enactment of Clean Air Act authority.

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

emissions without simultaneous reductions by other countries may somewhat diminish but will

not solve the problems the emissions cause.39 Also, GHGs are such pervasive pollutants, and arise

from so many sources, that reducing the emissions may have broader effects on the economy than

most previous EPA regulations. These and other considerations have led many in Congress to try

to prevent EPA from using its general authority to control GHG emissions.

If the rules are to be overturned during the remainder of the Obama Administration, there are two

arenas in which to do so: the courts and the Congress. Opponents of the regulations have not

prevailed in either venue, thus far, although the Supreme Court has stayed EPA’s implementation

of the Clean Power Plan pending the resolution of court challenges to the rule.

In the courts, several of EPA’s early GHG-related actions, in 2009 and 2010, survived challenges

in 95 consolidated petitions for review in the D.C. Circuit.40 The Supreme Court agreed to review

only a narrow question raised by this ruling—whether EPA’s regulation of GHG emissions from

motor vehicles triggered CAA permitting requirements for GHG emissions from stationary

sources as well—leaving the remainder of the D.C. Circuit decision intact.41 When the Supreme

Court ruled on this one issue, in 2014, it gave EPA most of what it wanted, allowing it to require

such permitting for GHG emitters who would be subject to permit requirements anyway because

of other pollutants they emit.42

In contrast to this record, petitioners may have better chances in the litigation that has been filed

against EPA’s rules for new and existing power plants. That is one interpretation of the Supreme

Court’s unprecedented stay of the Clean Power Plan, issued in February 2016.

Until now, opponents in Congress have been unable to overturn most of EPA’s GHG actions. With

new congressional majorities in the 114th Congress, legislation to overturn EPA’s rulemaking has

had easier going than in previous Congresses. But the legislation still faces two important

obstacles: the filibuster rule in the Senate and the likelihood of presidential vetoes. Whether either

obstacle can be overcome depends on the specifics of the bills in question. While any

congressional action to overturn EPA’s GHG regulations will face challenges, most analysts

expect riders to appropriation bills to have the best odds of success.

However, the Administration is working in parallel internationally to obtain commitments to global GHG reductions.

Demonstrating timely and significant progress toward reduction of U.S. GHG emissions is considered essential by most

experts for success internationally.

Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012).

The early GHG-related EPA actions attacked in this case were: (1) the agency’s findings that GHGs in the

atmosphere may reasonably be anticipated to endanger public health and welfare and that GHG emissions from new

motor vehicles contribute to that threat; (2) the GHG emission standards for model year 2012-2016 light-duty vehicles;

(3) the “timing rule,” which required new and modified major stationary sources of GHGs to obtain permits as of the

date when regulation of GHG emissions from new motor vehicles (see number 2) took effect; and (4) the “tailoring

rule,” under which EPA focused state and EPA GHG permitting efforts, at least initially, on the largest stationary

source emitters of GHGs.

Utility Air Regulatory Group, Inc. v. EPA, 134 S. Ct. 2427 (2014).

Congressional Research Service

EPA Regulation of Greenhouse Gases: Congressional Responses and Options

Author Contact Information

(name redacted)

Specialist in Environmental Policy

[redacted]@crs.loc.gov, 7-....

Acknowledgments

This report was originally co-authored by (name redacted), Specialist in Energy and Environmental Policy,

who retired in 2012.

The section of this report on the Congressional Review Act drew upon CRS Report RL31160, Disapproval

of Regulations by Congress: Procedure Under the Congressional Review Act, by (name redacted).

Additional input was provided by Alissa Dolan, Legislative Attorney, American Law Division.

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.