The top Republican in the Senate is looking at unprecedented legislative tactics to try to stop the EPA from regulating carbon pollution from coal plants.
Senate Minority Leader Mitch McConnell (R-KY) took to the Senate floor on Thursday (video here) to tell his colleagues about a letter he had just written to U.S. Comptroller General Gene Dodaro, the head of the Government Accountability Office (GAO). The letter asks if McConnell and 41 Republican cosponsors can use the Congressional Review Act to reverse a proposed regulation — a rule that is not final — setting carbon standards for new power plants.
The Congressional Review Act (CRA) allows Congress to repeal a final rule issued by the Executive Branch within 60 legislative days of being published in the Federal Register. The proposed rule on carbon standards was published in the Federal Register last week. No senator has filed a CRA challenge to a rule that is not yet final. And even for finalized rules, the CRA has only succeeded once since its creation in 1996.
“We believe the EPA regulation in question clearly meets the definition for Congressional Review under this statute,” McConnell argued on the Senate floor. Essentially he claims that coal plant construction that starts after the proposed rule is published would be liable under the standard — this is what the GAO will have to consider. Chuck Young, Managing Director of Public Affairs at the Government Accountability Office (GAO), told Climate Progress that the agency had received the request. What happens next is that it will go through the same process that all Congressional requests go through before any decisions get made — that process takes a “couple weeks.”
The resolution will first go to the Senate Environmental and Public Works Committee, chaired by Senator Barbara Boxer, and though she likely will not act on it, McConnell can discharge it after 20 days. The Minority Leader can force a vote either on the proposed rule (if the GAO allows it) or whenever it does become final, and while a CRA vote only requires a majority vote to pass and some coal-state Democrats could find the vote awkward, President Obama will certainly veto the resolution. Congress has never overridden one of President Obama’s vetoes.
The grassroots successor to President Obama’s election campaign, Organizing for America, is building an “army” of supporters to ensure “Congressional Review Act rollbacks don’t pass,” as the groups climate campaign manager Ivan Frishberg put it in September.
McConnell’s bill, technically a Joint Resolution of Disapproval, has 41 cosponsors who have together taken $3,236,069 from the coal industry, and $25,989,935 in total from the fossil fuel industry. 29 of them deny the reality of climate change.
Senator McConnell and many of his colleagues oppose the carbon standards because they see them as just another sign of the Administration’s “War on Coal.” When President Obama announced Eastern Kentucky as one of five new Promise Zones for job program assistance and easier access to tax breaks, McConnell praised the designation but blamed the economic hardship on energy and climate policies. On the Senate floor, McConnell said that the Administration sees coal miners as “an obstacle to some left-wing fantasy.”
Yet utilities are using more coal, not less. In 2013, early estimates show that carbon emissions jumped 2 percent largely due to increased use of coal. And the rhetoric on a national campaign against coal jobs is equally wrong. As of 2012, coal mining job numbers are 15 percent higher under President Obama than they were under President Bush.
Even though many West Virginia residents still cannot drink their water because of a coal chemical spill, McConnell said families in coal states are under attack from measured carbon pollution rules:
So the Majority Leader and his Democratic caucus now have a choice: Are they going to stand with the coal families under attack in places like Kentucky and West Virginia and Colorado, or are they going to continue to stand with powerful left-wing special interests that want to see their jobs completely eliminated?
McConnell threatened to try this tactic back in September, “to ensure a vote to stop this devastating EPA rule.” That same month he introduced currently-stalled legislation that would prevent any head of a federal agency from regulating CO2 without the approval of Congress.
The problem with that logic is that federal regulation of carbon dioxide falls under the Clean Air Act, which Congress passed. The Supreme Court clarified that if EPA finds that greenhouse gas pollutants like carbon dioxide threaten the health or welfare of the American people, the Clean Air Act mandates that the EPA regulate those pollutants too. The EPA found exactly that in 2009, and these regulations have been slowly and carefully implemented for the last four years. In April 2012, EPA proposed emissions standards for carbon pollution from power plants, and in September 2013, the agency issued updated proposed standards that took into account 2.5 million public comments on the initial proposed rules. This leaves McConnell with little to try but legislative gambits like this one.
It’s not as if Congress has not been told of the consequences of unchecked carbon pollution. In addition to the nation’s top scientists, the military, and business leaders, just this week residents from the eroding village of Shishmaref in Alaska told members of the Bicameral Task Force on Climate Change how the rising, and warming Chukchi Sea threatens the existence of their town. High school senior Debra Hersrud asked the four lawmakers to address climate change on a national level, because “it seems unfair to be giving up my home and my culture for a problem that I don’t have the power to solve by myself.”
Concerned citizens can submit a comment on the proposed regulations on new coal-fired power plants here.