For Rep. Fred Upton and congressional Republicans, there’s no clear path for attacking EPA regulations

Amanda Carey Contributor
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After the Supreme Court ruled in 2007 that the Environmental Protection Agency (EPA) could determine whether greenhouse gases posed a danger to society, no one was surprised that the agency quickly decided that yes, emissions like CO2 do pose health risks and thus can be regulated through the Clean Air Act.

After that, the EPA went ahead with issuing rules aimed at regulating greenhouse gases for large-scale emitters like coal plants and paper mills. But now Michigan Rep. Fred Upton, the new chairman of the House Energy and Commerce Committee, has promised to challenge the EPA rules.

One possible option Upton has mentioned several times is the Congressional Review Act (CRA). Passed in 1996, the CRA provides recourse for Congress to review, and if needed repeal, bureaucracy rules. It’s an expedited process, filibuster proof, and the minority in the Senate can introduce it.

“We are not going let this administration regulate what they have been unable to legislate,” said Upton earlier this week when asked about the CRA.

But since there is a 60-day window in which Congress can act that begins the day rules are published, the only EPA regulations that would be subject to congressional review are the ones that the agency announced on December 23, 2010. Those regulations would impose new greenhouse gas standards on oil refineries and power plants that rely on fossil fuels.

On the surface, that means the always-contentious “tailoring rule,” which exempts small polluters like farms and schools from having to comply with the regulations while requiring larger facilities to still apply for permits and show they are using the “best available control technology” to control pollution, would be left fully intact.

According to one industry insider, however, using the CRA to repeal the December 23 regulations would also essentially render the tailoring rule moot because there would then be no need for it. And if the EPA does not have the tailoring rule, the insider said, the EPA would have an awfully hard time regulating greenhouse gases.

In a Wall Street Journal op-ed published December 28, Utpon, along with Americans for Prosperity President Tim Phillips, argued that the best solution for fighting the EPA regulations announced December 23 is to overturn them outright – presumably through the CRA. An acceptable compromise, though, would be to simply delay implementation of the rules for two years.

Democratic Sen. Jay Rockefeller of West Virginia has been one of the most outspoken advocates of a two-year delay.

But that is when things will really start to get political, the same insider told The Daily Caller. The Obama administration would love nothing more than to postpone implementing the EPA regulations for two years because it allows them to avoid a strong backlash during the 2012 election.

But for Republicans like Upton, a two-year delay could open up the possibility for Democrats and moderate Republicans to decide to pass a law regulating greenhouse gases with the argument that the issue can’t be ignored during the two-year time frame.

Thus, Republicans who want to scale back the EPA’s authority would be caught in a catch-22. Either they could agree to just delay implementation, opening the door for legislative action, or they could pursue a full repeal per the CRA, pass the repeal, but then have President Obama choose to veto it rather than anger his liberal base.

There is one alternative, however, that has not gotten its due attention, and it was introduced in a bill on January 6 by Republican Rep. Marsha Blackburn of Tennessee. Blackburn’s proposal would amend the Clean Air Act to make carbon dioxide exempt from regulations.

The bill currently has about 50 co-sponsors, almost all of them being Republicans; Upton is not among them. A spokesperson for Blackburn told TheDC the Congresswoman is optimistic the bill will get broader, bipartisan support and make it past a presidential veto because both Democrats and Republicans can agree CO2 regulations should come from Congress and not unelected bureaucrats.

When asked about Blackburn’s bill, a spokesperson for Upton told TheDC that the Congressman “has repeatedly said he will use every resource – including the CRA when available – to protect American workers and our economy by rolling back job-killing [greenhouse gas] regulations.”

Upton told reporters earlier this week that the House Energy Committee likely won’t convene until January 19. At that point, the CRA, a two-year implementation delay, and Blackburn’s bill will likely all be on the table. Right now, it’s anyone’s guess as to which proposal will win out.