Clean Air Act Issues in the 115th Congress: In Brief

Summary

In the new Congress, review of regulations issued under the Obama Administration, with the possibility of their modification or repeal, is expected to be a main focus of Congressional action on Clean Air Act issues. Of particular interest are the Clean Power Plan (CPP) and related Environmental Protection Agency (EPA) rules to regulate greenhouse gas (GHG) emissions from power plants, promulgated on August 3, 2015. Other GHG emission standards affecting cars, trucks, and the oil and gas sector may also be reviewed.

Reducing GHG emissions to address climate change was a major goal of President Obama, but, for a variety of reasons, many in Congress have been opposed to it. In the absence of congressional action, President Obama directed EPA to promulgate GHG emission standards using existing Clean Air Act authority. This authority has been upheld on three occasions by the Supreme Court, but it remains controversial in Congress and among Cabinet appointees of the Trump Administration. With key figures in Congress and the new Administration having expressed opposition to GHG regulations, major changes in the GHG regulatory structure are possible.

The CPP has been a frequent topic in articles discussing the new Congress’s priorities; in the near term, however, the courts seem the more likely venue for action. Implementation of the CPP was stayed by the Supreme Court in February 2016, pending the completion of judicial review. Challenges to the rule had been filed with the D.C. Circuit Court of Appeals by more than 100 parties, including 27 states. These challenges have been consolidated into a single case, West Virginia v. EPA. The D.C. Circuit heard oral argument in the case in September 2016; as of this writing, the court has not issued a decision. There is general agreement that whatever decision the court hands down will be appealed to the Supreme Court, adding more time before completion of the judicial process.

EPA, under new leadership, could also take steps to modify the CPP. Like judicial review, this route could be time-consuming. Modifying the rule would likely require the agency to follow the administrative steps involved in proposing and promulgating a new rule. Following promulgation, the new rule would itself be subject to judicial review. A large group of stakeholders, including some states, might oppose major changes to the CPP.

The EPA and judicial processes could be short-circuited by Congress, through legislation overturning or modifying the CPP. The threat of a filibuster, requiring 60 votes to proceed, might prevent Senate action, however.

By contrast, four other Clean Air Act rules might be more easily overturned by Congress under the Congressional Review Act (CRA). The CRA established a special set of procedures, including fast-track procedures in the Senate available during a limited period of time, under which Congress may consider legislation to overturn regulations following their promulgation and submission to Congress. Rules received by Congress on or after June 13, 2016, including GHG emission standards for medium- and heavy-duty trucks, an update to EPA’s Cross-State Air Pollution Rule, and methane standards for landfills, are potentially eligible for review. If Congress passes a joint resolution disapproving a rule under procedures provided by the CRA, and the resolution becomes law, the rule cannot take effect or continue in effect. Also, the agency may not reissue either that rule or any substantially similar one, except under authority of a subsequently enacted law.

In addition to GHG rules, another EPA rule that could be subject to renewed interest in the 115th Congress is the National Ambient Air Quality Standard for ozone, which EPA promulgated in October 2015. Like the CPP, the ozone standard is reported to be a rule that President Trump has identified for repeal. More than a dozen bills to modify the rule or delay its implementation were introduced in the 114th Congress, two of which passed the House.