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Environmental Protection Agency Administrator Gina McCarthy confers with Sen. James Inhofe before the start of a hearing Jan. 16, 2014 in Washington, D.C. (Photo by Win McNamee/Getty Images) Environmental Protection Agency Administrator Gina McCarthy confers with Sen. James Inhofe before the start of a hearing Jan. 16, 2014 in Washington, D.C. (Photo by Win McNamee/Getty Images)  

Inhofe: EPA Admits It Currently Can’t Fully Enforce Its CO2 Rule

Environmental Protection Agency chief Gina McCarthy told senators Thursday that her agency did not have the authority to fully enforce its rules limiting carbon dioxide emissions from existing power plants.

McCarthy was pressed by Oklahoma Republican Sen. James Inhofe on how the EPA planned on getting states to reduce carbon dioxide emissions from power plants if the agency can’t fully enforce its own rules.

“There’s bigger questions like how EPA plans to enforce this rule, and to what extent the agency will be allowed to tweak a state’s plan if it is not making the progress that needs to be made during the decade-long compliance period,” Inhofe said during the hearing.

“Many smart people have been reading this rule for the last two months, and they are at a loss for what this will actually look like,” Inhofe added.

The EPA proposed a rule in June that would require states to develop plans to cut carbon dioxide emissions from their existing power plant fleets. States must submit emissions reduction plans or have the federal government impose its own plan.

EPA’s rule relies on four main pillars. To comply, states can improve efficiency of existing power plants; increase the dispatch of natural gas; use more green energy and reduce electricity consumption.

Inhofe highlighted that the EPA already has the authority to enforce the first pillar of its carbon dioxide rule — forcing existing power plants to become more efficient — but questioned McCarthy on whether or not the agency currently has the legal authority to enforce the other pillars.

Here is the back-and-forth between Inhofe and McCarthy:

Inhofe: “Under your authority today, could you [increase natural gas dispatch]?”

McCarthy: “Not unless this rule were passed…”

Inhofe: “No then… Under the existing authority could you currently require a state to unilaterally restrict electricity demand by one and a half percent?”

McCarthy: “No, sir.”

Inhofe: “Under existing authority could you currently mandate the use of renewables in a state?”

McCarthy: “We do not.”

Inhofe: “Under current law and policies, the EPA couldn’t enforce a state renewable portfolio standard, but under the ESPS rule they may be able to? Is that accurate?”

McCarthy: “That is one of the issues we’ve raised because the EPA often has things in state plans, some of which we enforce, some of which we don’t.”

Inhofe: “Under current law we think we cannot, but you may be able to under the ESPS when the time comes?”

McCarthy: “Actually, the one certainty I have is that we will be able to enforce the amount of carbon dioxide from fossil fuel facilities, if this rule goes as proposed.”

The point of Inhofe’s line of questioning was to highlight to legal uncertainty surrounding the EPA’s latest carbon dioxide rule. Republicans, coal companies and utilities have been questioning how the EPA would actually enforce emissions reductions within state borders.

A coalition of industries recently sent a letter to the EPA, questioning the viability of the agency’s carbon dioxide limits. The group, co-chaired by the National Association of Manufacturers and the U.S. Chamber of Commerce, said the structure of the carbon limits “raises significant legal and practical questions regarding the viability of the rule.”

“EPA has to date failed to answer such questions, and provided little to no information regarding what authority it is relying upon to institute such an expansive regime, and how it intends to proceed if it does not approve of individual state implementation plans,” reads a letter from the Partnership for a Better Energy Future to the EPA. “This is critical information that EPA should disclose in the interest of maximizing transparency and continued cooperation with states and stakeholders.”

Inhofe also pointed out that since it’s unclear whether or not the EPA currently has the authority to fully enforce the rule, it must expand its regulatory to do so. He pressed McCarthy on that point, which she denied.

Inhofe and McCarthy’s dialogue continues:

Inhofe: “What I’m trying to get to here: this rule would be a broad expansion of the authority the EPA has over states—that has broad political impacts and could dramatically reshape the entire sector of the economy. Isn’t that exactly what the Supreme Court ruled against in the UARG case? — the expansion of authority you would be having.”

McCarthy: “I don’t think that the Supreme Court indicated that we were expanding our authority in that case, but sir, questions have been raised about what we do with plans and what’s included and how that can be implemented, and we’re working through those issues with the states, but all the EPA is doing here is regulating pollution from sources that we regulate —”

Inhofe: “Sorry to interrupt, but you are proposing a rule that you do not have the authority… to enforce today.”

McCarthy: “No, I believe we have clear authority to do the rule as we’ve proposed it.”

Inhofe: “No, I’m talking about the authority you have under the current system.”

McCarthy: “I don’t think we’re expanding our authority with this rule, sir, no.”

Inhofe: “Well, it appears to me you are…”

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