Congressional Challenges Loom for Clean Power Plan Final Rule

HIGHLIGHTS:

• During the next several weeks, federal lawmakers are expected to undertake a series of actions to limit, amend, delay or repeal President Obama's Clean Power Plan (CPP) final rule.
• The rule, designed to cut carbon emissions from power plants by 32 percent from 2005 levels by 2030, is the cornerstone of the President's Climate Action Plan.

Before the end of the year, federal lawmakers are expected to undertake a series of actions to limit, amend, delay or repeal President Obama's Clean Power Plan (CPP) final rule. The final rule was formally published on Oct. 23 in the Federal Register, opening the flood gates to a myriad of challenges in Congress and the courts. The rule, designed to cut carbon emissions from power plants by 32 percent from 2005 levels by 2030, is the cornerstone of the President's Climate Action Plan.

In the upcoming weeks, lawmakers are expected to use every tool at their disposal to repeal the CPP. If unsuccessful, lawmakers may try measures to amend or delay implementation of the CPP with the hope that the courts overturn the regulation. Some of the options available to Congress include:

• Congressional Review Act
• appropriations amendments
• stand-alone legislation

At this point, however, we do not anticipate that members of Congress will be successful in their efforts to repeal the rule.

Congressional Review Act

The most immediate tool available to Congress is the Congressional Review Act (CRA). The CRA allows new major regulations to be overturned through a joint resolution of disapproval. As Senate Majority Leader Mitch McConnell (R-Ky.) said in an Oct. 23 statement, "I have vowed to do all I can to fight back against this administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle. The CRAs that we will file will allow Congress the ability to fight these anti-coal regulations."

Before any new major regulation can take effect, the CRA requires all federal agencies to submit to Congress for review a copy of the final regulation and supporting documentation. Once Congress receives the major regulation, it has 60 days – not including congressional breaks, weekends or holidays – to introduce a joint resolution of disapproval for that regulation.

A resolution of disapproval is an attractive political messaging tool, but is not expected to alter, stop or repeal the final CPP. Under the CRA, a resolution of disapproval requires a simple majority to prevail and is subject to special rules and procedures, which prevent a filibuster and expedite its consideration through both chambers. However, the joint resolution is subject to a presidential veto, which is virtually guaranteed.

In the history of Congress, a mere 43 CRA resolutions have been introduced in the House or Senate. Only one of those has successfully passed.

Appropriations Amendments

An appropriations amendment is another tactic congressional leaders will likely employ. These amendments use Congress's constitutional "power of the purse" to block funds from implementing a regulation. Appropriation amendments are a popular tool because they are included in measures to fund and operate the government, making a presidential veto much more difficult.

The government is currently operating under a continuing resolution that expires on Dec. 11, 2015. Congress and President Obama will have to agree to another funding measure before then to avoid a government shutdown. Lawmakers may utilize this opportunity to try and delay the CPP. However, any amendment would be only a temporary delay.

Appropriation amendments, if they survive a presidential veto, usually apply only to the fiscal year covered by the spending bill – in this case, 2016. However, nothing prevents Congress from including the rider in subsequent spending bills and further delaying the rule. This may give opponents of the rule enough time to resolve judicial challenges, which are expected to go well into next year.

Stand-Alone Legislation

Finally, lawmakers could utilize a variety of pieces of legislation to block or repeal the CPP. The House has already passed a bill, the Ratepayer Protection Act (H.R. 2042), which delays the rule until legal challenges are resolved and allows governors to opt out if they choose. This bill is awaiting further action by the Senate.

The Senate also has another measure, the Affordable Reliable Electricity Now Act (S. 1324), which also would delay the rule by requiring EPA to rewrite the rule to limit their impact on coal-fired power plants. S. 1324 was favorably reported by the Environment and Public Works Committee and also awaits further action by the entire Senate.

Ultimately, while these and additional measures, such as the REINS Act (H.R. 427), are available to Congress, none are likely to survive a presidential veto. In other words, it is doubtful that Congress will repeal this regulation before 2017 – well beyond the initial implementation of the rule.   

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.