On February 9, 2011, the Subcommittee on Energy and Power of the House Energy and Commerce Committee held hearings on a draft bill authored by full Committee Chairman Fred Upton (D. Mich.) that would revoke EPA authority to regulate greenhouse gases (“GHGs”) under the Clean Air Act (“CAA”).  Although the bill would retain in place the Agency’s 2010 rule requiring automakers to reduce GHG emissions from light-duty vehicles for model years 2012-16 and would allow EPA to finalize currently proposed rules that will require GHG emission reductions from medium and heavy-duty trucks, the bill would foreclose further GHG regulation of the automotive industry.  It would also revoke a series of rules that EPA adopted in 2010 to regulate GHG emissions from stationary sources under the “PSD” preconstruction permit program and the “Title V” operating permit program and would prevent EPA from adopting new GHG regulations.

Senator James Inhofe (R. Okla.) was the first witness and testified in favor of the bill.  EPA Administrator Jackson testified in opposition to the bill and made the case that GHG regulation under the CAA would likely only impose modest costs on business.  A number of business representatives from manufacturing, utilities and agriculture countered that view.  Attorney General Greg Abbott of Texas, who is engaged on behalf of his state in a series of lawsuits against EPA on GHG and other regulation, also testified in favor of the bill.  In general, the Republicans’ main message was pro-jobs, whereas the Democrats’ message was that the bill favored dirty air and polluters.

In his testimony, Peter Glaser, a partner in Troutman’s D.C. office and Chair of its Climate Change Practice, explained that the CAA was not designed to regulate GHGs.  As a result, EPA has had to engage in a series of increasingly “creative” legal interpretations to regulate GHGs under the statute in order to avoid, in EPA’s word, the “absurd” consequences of implementing the statute as written.  Glaser also said that EPA has never done a comprehensive assessment of the costs and benefits of regulating GHGs under the CAA, even though the decision to regulate was one of the most momentous and controversial decisions the Agency has taken in it 40-year history.

The bill should move to mark-up in the subcommittee and full subcommittee soon, and it is expected to pass the House.  Although Senator Inhofe will sponsor the bill in the Senate, its fate there is more uncertain.  It will compete with the other proposals that have emerged, including one by Senator Barrasso (R. Wyo.) to preempt any federal regulation of GHGs (not just under the CAA) and one by Senator Rockefeller to delay EPA GHG regulation for two years.

A copy of Peter Glaser’s testimony can be found here.

All of the testimony can be found here.