Fact Sheet

Congressional Review Act Resolutions to Fight Administration’s Cap and Trade Assault


Protecting Jobs and Affordable Energy: Congressional Review Act Resolutions Will Fight Administration’s Cap and Trade Assault

The House and Senate have introduced resolutions under the Congressional Review Act to disapprove of two final rules issued by the Environmental Protection Agency (EPA) for new and existing power plants.  The resolutions:

  • Will protect ratepayers and American jobs. The Obama administration is pursuing a regulatory cap and trade scheme that will drive up electricity prices, cost jobs, threaten grid reliability, and make our country less competitive globally.
  • Will protect states and their citizens from being required to implement a highly complex, intrusive, and unworkable regulatory scheme that would require states to reorganize their electricity sectors to meet mandatory emissions “goals” set by EPA without Congressional approval.

BACKGROUND: On August 3, 2015, EPA announced two final rules to regulate carbon dioxide (CO2) emissions from fossil fuel-fired power plants. The rules were published in the Federal Register on October, 23, 2015, and would impose an unprecedented new regulatory structure throughout the U.S. electricity sector. EPA does not project that either rule will have any meaningful impact on global temperatures. The rules are summarized below.

Energy and Power Subcommittee Chairman Ed Whitfield (R-KY) has introduced resolutions of disapproval for both rules in the House, and companion resolutions have been introduced in the Senate. On October 23, 2015, twenty-six states filed legal challenges in the U.S. Court of Appeals for the District of Columbia challenging the final rule for existing power plants.

·       New Plants Rule (“111(b) Rule”): In this rule, EPA interprets section 111(b) of the Clean Air Act (CAA) to allow the agency to set CO2 standards for new coal-fired power plants premised on the installation of carbon capture and storage (CCS) technologies that are not commercially viable. While EPA maintains CCS is adequately demonstrated, there are no commercial-scale coal-fired power plants currently operating in the United States that could meet the standards. While coal-fired generation is currently the largest source of electricity in the United States, the rule would impose a de facto ban on construction of new coal-fired power plants, similar to what would have been imposed under the Waxman-Markey cap-and-trade legislation that the Senate failed to pass in 2010.

·       Existing Plants Rule (“111(d) Rule”): In this rule, EPA interprets section 111(d), a rarely invoked provision of the CAA, to require states to submit plans to the agency to meet mandatory CO2 “goals” set by EPA for each state’s electricity sector. Under the rule, EPA will judge the sufficiency of state plans that set forth how the state would meet the new mandates. The rule is accompanied by a proposed “Federal Plan” that would impose a regulatory cap-and-trade program on electric generating units in states that fail to submit a satisfactory state plan. The 111(d) rule signals that EPA’s preference is that states adopt or participate in state, regional, or nationwide cap-and-trade programs. To this end, the agency has proposed “Model Trading Rules” that would be presumptively approved for state plans. The rule would effectively put in place regulatory cap-and-trade requirements and renewable energy mandates similar to those contained in the Waxman-Markey cap-and-trade legislation.

JOINT RESOLUTIONS: The resolutions were introduced on October 26, 2015, and would provide for Congressional disapproval of each rule, and that the rule shall have no force and effect. Under the Congressional Review Act, the agency may not issue the same or a substantially similar rule unless authorized by subsequent legislation. To view the text of the House resolution related to the rule for new plants, H.J. Res. 71 click here. To view the text of the joint resolution relating to the rule for existing plants, H.J. Res. 72, click here.


·       111(b) Rule: Final Rule; Regulatory Impact Analysis; Rulemaking Documents; Docket

·       111(d) Rule: Final Rule; Regulatory Impact Analysis; State-Specific Fact Sheets and Table;  Proposed Federal Plan, Model Trading Rules, and Amendments to Framework Regulations; Draft EMV Guidance; Technical Documents for Final Rule; Legal Memorandum Accompanying Final RuleTechnical Documents for Proposed Rule; Legal Memorandum for Proposed Rule; Clean Power Plan Toolbox for States; Docket

·       Congressional Review Act: 5 U.S.C. §§ 801-808; see also CRA Overview (Dec. 2014); “The Congressional Review Act: Frequently Asked Questions” (April 2015).

·       Links to E&C Related Hearings and Additional Background Materials: “EPA’s CO2 Regulations for New and Existing Power Plants: Legal Perspectives” (Oct. 2015); “EPA’s CO2 Regulations for New and Existing Power Plants” (Oct. 2015); EPA’s Proposed 111(d) Rule for Existing Power Plants, and H.R. __, Ratepayer Protection Act (April 2015) and Press Release; EPA’s Proposed 111(d) Rule for Existing Power Plants: Legal and Cost Issues (March 2015); State Perspectives: Questions Concerning EPA’s Proposed Clean Power Plan (Sept. 2014); FERC Perspectives: Questions Concerning EPA’s Proposed Clean Power Plan and other Grid Reliability Challenges (July 2014); EPA’s Proposed Carbon Dioxide Regulations for Power Plants (June 2014); EPA’s Proposed GHG Standards for New Power Plants and H.R. __, Whitfield-Manchin Legislation (Nov. 2013). See also E&C Majority Staff Report entitled EPA’s Proposed CO2 Regulations for Existing Power Plants: Critical Issues Raised in Hearings and Oversight (Dec. 2014); House Committee Report on Ratepayer Protection Act (June 19, 2015).


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