A bill authored by House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) to permanently strip the EPA of most authority to regulate greenhouse gas (“GHG”) emissions passed the House Energy and Power Subcommittee by voice vote on March 10, 2011.  H.R. 910, “The Energy Tax Prevention Act,” (the “Act”) was introduced on March 3, 2011 after February hearings on the draft bill at which Troutman Sander’s D.C. partner Peter Glaser testified. 

The Act essentially precludes EPA regulation of GHGs at stationary sources by amending the Clean Air Act (“CAA”) to expressly define GHGs as excluded from regulation.  It contains certain limited exceptions to the regulatory prohibition, including allowing EPA to implement already promulgated emissions standards for passenger cars and trucks for Model Years 2012-2016 and previously proposed standards for medium and heavy-duty trucks for Model Years 2014-2018, allowing EPA to carry out certain activities relating to its renewable fuel standard program, allowing some Federal climate change research, allowing implementation of Title VI of the CAA relating to stratospheric ozone protection, and allowing EPA to require certain reporting of GHG emissions by utilities.  The Act specifies, however, that the exceptions do not trigger regulatory obligations under the CAA’s Title V operating permit or Prevention of Significant Deterioration programs.  While the Act expressly repeals a series of GHG regulations adopted by EPA in 2010 and invalidates changes states made to their State Implementation Plans and Title V permit programs, it does not preclude states from enacting their own GHG regulatory regimes.

The legislation will go before the full House Energy and Commerce Committee for mark-up on Monday and Tuesday, March 14 and 15.  Passage of the Act by the full House is expected, despite attempts by Energy and Commerce ranking member Henry Waxman (D-Calif.) to defeat the measure and Waxman’s offer to meet “without preconditions” with Republicans to draft a new bipartisan bill.  Ed Whitfield (R-Ky.), who heads the Energy and Power Subcommittee, rejected Waxman’s calls to postpone passage of the Act but said bipartisanship may be possible later in the year on a comprehensive energy bill.  The prospects for the bill in the Senate are likely to be more difficult.