The Clean Power Plan, published in the Federal Register on Friday, is already the subject of a legal challenge by 24 states. But on Tuesday, legislators on the House Judiciary Committee will mark up a bill that could take a more roundabout way of subverting the EPA rule.
H.R 2834, sponsored by Rep. Tom Marino (R-PA), is a relatively straight-forward, if somewhat odd, bill. It takes the Clean Air Act — a comprehensive environmental protection law that the EPA says is responsible for reducing pollution from six common pollutants by nearly 70 percent since 1970 — and reorganizes it into its own part of the U.S. code. The intent, lawmakers say, is to make it easier for researchers to find the relevant parts of the Clean Air Act.
But the EPA, in a letter from its general counsel in July, says the codification will confuse existing case law.
“I am concerned that if H.R. 2834 were enacted, it would further complicate the already complex task of interpreting the Clean Air Act in regulatory proceedings and court cases,” wrote Avi Garbow.
As an example, Garbow noted that the codification picks one version of one section of the Clean Air Act — 111(d) — that would invalidate the Clean Power Plan, over another version that authorizes it.
One of the major legal arguments against the Clean Power Plan, which seeks to reduce carbon emissions from the electricity sector under the Clean Air Act, rests on a clerical error. There are actually two different versions of Section 111(d) — one enacted by the House and one by the Senate. The House version, which is the one in the Marino bill, says that the EPA can’t regulate additional pollutants from power plants, because it already regulates mercury from power plants in Section 112.
Supporters of the Clean Power Plan have argued that the House version is clearly a mistake, since regulating mercury pollution and carbon emissions represent hugely different hazards. Opponents of the plan, though, are expected to argue that the House version makes the Clean Power Plan unconstitutional.
“By selectively using one text and not including other language that had been enacted by Congress and signed into law by the President, the restated provision, if it were law, would exacerbate the confusion,” Garbow wrote.
For his part, Marino has not made any secret of opposing the Clean Power Plan. The representative has a Stop the EPA’s So-Called “Clean Power Plan”petition on his website.
“The ‘Affordable Care Act’ has never been affordable, and there’s nothing clean about the EPA’s ‘Clean Power Plan.’ This is simply a No Power Plan,” he is quoted as saying.
Marino’s office did not respond to ThinkProgress’s inquiry on Monday.
“It might be well-intentioned, but with the example of the Clean Power Plan, it’s clear that there could be some potential real-world impacts,” Greg Dotson, vice president for Energy Policy at Center for American Progress, told ThinkProgress.
On Tuesday, the Judiciary Committee approved H.R. 2834, 20-13. The vote was straight down party lines. An amendment, proposed by Rep. Jerrold Nadler (D-NY), which would have changed the language of Section 111(d) to adhere to the Senate version, failed in a 12-20 vote. That vote also was straight down party lines.