President Obama’s plan to address climate change, centered on new carbon emission standards for power plants, is being billed as one that he can implement on his own. But there are several significant hurdles the plan must overcome before taking effect.
Here are the three biggest:
No, the President doesn’t need Congress to approve new carbon emission standards, like he does for new legislation. But that doesn’t mean that Congress can’t have a significant impact on the process.
Using the Congressional Review Act, Congress can vote to prevent a new government agency rule from taking effect within 60 days of its introduction, with only a simple majority vote.
The Republican-controlled House has already voted to prohibit the Environmental Protection Agency (EPA) from regulating greenhouse gasses (GHG) in general, and would certainly reject any new carbon standards for power plants.
To date, the Democrat-controlled Senate has upheld the EPA’s authority to regulate GHGs – but it could also secure the simple majority needed to strike down new carbon standards. In a non-binding vote last March, 47 Senators voted to strip EPA of its authority to regulate GHGs – four votes shy of the 51 that would be needed to reject a new rule. And currently, there are at least four additional Senators who might oppose new carbon standards. The most likely include Senators Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), Tim Kaine (D-VA) and Jay Rockefeller (D-WV) – who have all expressed concern about such standards in the past. (You can read their wary responses to the President’s plan here, here, here, and here.)
The mid-term elections next year could change this. But because Democrats will be considerably more exposed in the elections than Republicans – that change could mean more opposition to the President’s plan – not less.
If Congress did vote to reject the new standards, President Obama would have to use his veto power to keep them alive – something he has vowed to do. But in such an outcome, Congress would likely redouble its effort to stop or slow them through other means, like the appropriations process.
Because the Clean Air Act was not written with carbon in mind, implementing new carbon emission standards for power plants requires making certain interpretations of the law as it is written – and those interpretations will make the standards vulnerable to legal challenges.
First, there are still questions as to whether the Clean Air Act actually gives the EPA the authority to regulate GHGs from existing power plants. In a somewhat rare occurrence, the House and Senate versions of the bill include different language on the issue. According to the DC-based law firm Van Ness Feldman: “The Senate language alone would allow EPA to regulate GHGs from existing power plants. The House language, on the other hand…if read literally, would preclude [it].”
The Obama Administration has obviously determined that the law does give them the authority to regulate existing plants. But whether the courts (specifically the United States Court of Appeals for the District of Columbia) will agree is still to be determined. A negative ruling by the Court on this issue would stop the new standards in their tracks.
In addition, further uncertainty surrounds what kind of standards the EPA is allowed to adopt. Regulations of this kind usually focus on reducing emissions at individual facilities, using the best available technologies. But because technologies that directly control carbon, like carbon capture and sequestration (CCS), are still not commercially viable, the Administration is likely to take a different approach – focusing instead on reducing emissions across the entire power sector. This approach would enable more emissions reductions, but it would also make the rules more vulnerable to legal challenges.
As Van Ness Feldman explains: “Virtually any program EPA adopts will be subject to legal uncertainty. There is little or no instructive judicial precedent on implementation of section 111(d). The extent to which a court would defer to EPA on its interpretations of the key statutory terms is unclear.”
The likelihood of Congressional attacks and legal challenges mean that the EPA’s new carbon standards would ideally be able to undergo some trial and error. But this is not a luxury the agency will have. As outlined in his official Presidential Memorandum, President Obama has set a very aggressive timeline for proposing and finalizing the rules – in order to get them on the books before he leaves office.
Carbon standards for new power plants are scheduled to be re-proposed by September 2013, and finalized shortly thereafter. (EPA recently sent the new proposal for inter-agency review.) Rules for existing plants are to be proposed by June 2014 and finalized one year later. In the final step, states would be required to submit their plans for meeting the regulations by June 2016 – six months before the President leaves office.
Hitches in the rulemaking process can take months to reconcile. If this type of delay were to occur in the rulemaking process for existing power plants, it could linger into 2017 – when a new President might be less motivated to finalize them.
As former EPA General Counsel Roger Martella recently told E&E Publishing: “There is no margin for error here. They cannot afford to miss these deadlines and still get this done, even a little bit, before the end of the administration.”
So while the President’s new plan to address climate change may not have to go through Congress, it doesn’t mean that implementing it will be smooth sailing. Just like most legislative efforts, it will still have to overcome its share of challenges.