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EPA Regulation of Greenhouse Gases:
Congressional Responses and Options
James E. McCarthy
Specialist in Environmental Policy
Larry Parker
Specialist in Energy and Environmental Policy
April 11, 2011
Congressional Research Service
7-5700
www.crs.gov
R41212
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
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EPA Regulation of Greenhouse Gases: Congressional Responses and Options
Summary
As a direct result of the Environmental Protection Agency’s promulgation of an “endangerment
finding” for greenhouse gas (GHG) emissions in December 2009, and its subsequent
promulgation of GHG emission standards for new motor vehicles on April 1, 2010, the agency is
now proceeding to control GHG emissions from new and modified stationary sources as well,
including power plants, manufacturing facilities, and others. Stationary sources account for 69%
of U.S. emissions of greenhouse gases. If the United States is to reduce its total GHG emissions,
as President Obama has committed to do, it will be necessary to address these sources.
EPA’s regulations limiting GHG emissions from new cars and light trucks automatically triggered
two other Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First,
effective January 2, 2011, new or modified major stationary sources must undergo New Source
Review (NSR) with respect to their GHGs in addition to any other pollutants subject to regulation
under the CAA that are emitted by the source. This review requires affected sources to install Best
Available Control Technology (BACT) to address their GHG emissions. Second, major sources of
GHGs (existing and new) will have to obtain permits under Title V of the CAA (or have existing
permits modified to include their GHG requirements). Beyond these permitting requirements,
because stationary sources, particularly coal-fired power plants, are the largest sources of
greenhouse gas emissions, EPA is likely to find itself compelled to issue endangerment findings
and establish emission control standards for GHG emissions under other parts of the act. For
example, in December 2010, EPA reached settlement agreements with numerous parties under
which it will promulgate final decisions on New Source Performance Standards (NSPS) for
electric generating units by May 2012 and for petroleum refineries by November 2012.
EPA shares congressional concerns about the potential scope of these regulations, primarily
because a literal reading of the act would have required as many as 6 million stationary sources to
obtain permits. To avoid this result, on May 13, 2010, the agency finalized a “Tailoring Rule” that
focuses its resources on the largest emitters while deciding over a six-year period what to do
about smaller sources.
Many in Congress have suggested that EPA should delay taking action on any stationary sources
or should be prevented from doing so. There are at least 10 bills introduced in the 112th Congress
that would delay or prevent EPA actions on greenhouse gas emissions. In February, the text of
one bill, H.R. 153, was added to the Full-Year Continuing Appropriations Act (H.R. 1) during
floor debate on a 249-177 vote. H.R. 1 passed the House, February 19, but failed in the Senate,
March 9. On April 7, the House passed Representative Upton’s H.R. 910, which would repeal
EPA’s endangerment finding, redefine “air pollutants” to exclude greenhouse gases, and prohibit
EPA from promulgating any regulation to address climate change. In the Senate, similar
legislation failed to pass, April 6.
This report discusses elements of this controversy, providing background on stationary sources of
greenhouse gas pollution and identifying options Congress has at its disposal to address the
issues, including (1) resolutions of disapproval under the Congressional Review Act; (2)
freestanding legislation; (3) the use of appropriations bills as a vehicle to restrain EPA activity;
and (4) amendments to the Clean Air Act, including legislation to establish a new GHG control
regime.
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Contents
Introduction ................................................................................................................................ 1
Congressional Concerns ........................................................................................................ 1
Regulation of Stationary Source GHGs ....................................................................................... 2
Prevention of Significant Deterioration / New Source Review (PSD-NSR)............................ 4
Title V Permits...................................................................................................................... 5
Potential GHG Emission Standards Under Section 111 .......................................................... 6
Congressional Options ................................................................................................................ 7
Congressional Review Act .................................................................................................... 8
Freestanding Legislation ..................................................................................................... 10
S. 231/H.R. 199 ............................................................................................................ 10
H.R. 910/S. 482/S.Amdt. 183........................................................................................ 11
Other Amendments to S. 493......................................................................................... 11
Appropriations Bills............................................................................................................ 11
Amending the Clean Air Act ............................................................................................... 12
Conclusion................................................................................................................................ 13
Tables
Table 1. Selected U.S. Stationary Sources of Greenhouse Gases .................................................. 3
Contacts
Author Contact Information ...................................................................................................... 14
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Introduction
On April 1, 2010, Lisa Jackson, the Environmental Protection Agency (EPA) Administrator,
signed final regulations that will require auto manufacturers to limit emissions of greenhouse
gases (GHGs) from new cars and light trucks.1 These regulations have now triggered two other
Clean Air Act provisions affecting stationary sources of air pollution such as electric power
plants. First, effective January 2, 2011, new or modified major stationary sources have to undergo
New Source Review (NSR) with respect to their GHG emissions in addition to any other
pollutants subject to regulation under the Clean Air Act that they emit. This review requires
affected sources to install Best Available Control Technology (BACT) to address their GHG
emissions. Second, existing sources (in addition to new ones) have to obtain permits under Title V
of the Clean Air Act (or have existing permits modified to include their GHG requirements).
Congressional Concerns
EPA’s potential regulation of GHG emissions (particularly from stationary sources) has led some
in Congress to suggest that the agency delay taking action or be stopped from proceeding. In the
112th Congress, there are at least 10 bills introduced affecting EPA’s greenhouse gas authority, as
well as several amendments addressing the same issues.
EPA has attempted to respond to congressional concerns by clarifying the direction and schedule
of its actions. However, the agency has been limited to the degree it can delineate specifics as
many of the regulatory components, such as new New Source Performance Standards (NSPS) for
stationary sources, are in the early stages of the rulemaking process. EPA has provided three clear
responses so far to the congressional concerns outlined above:
• the first came on March 29, 2010, when the Administrator reinterpreted a 2008
memorandum concerning the effective date of the stationary source permit
requirements.2 Facing a possibility of having to begin the permitting process on
April 1, 2010 (the date the new GHG standard for automobiles was finalized), the
March 29 decision delayed for nine months (to January 2, 2011) the date on
which EPA would consider stationary source GHGs to be subject to regulation,
and thus, subject to the permitting requirements of PSD-NSR and Title V.3
• On May 13, 2010, the Administrator signed the GHG “Tailoring” Rule, which
provided for a phasing in of Title V and PSD-NSR permitting requirements, and
is discussed in detail below.
1 The regulations, which take effect with the 2012 model year, appeared in the Federal Register on May 7, 2010, at 75
Federal Register 25324. Related information is available on EPA’s website at http://www.epa.gov/otaq/climate/
regulations.htm.
2 The reinterpretation memo appeared in the Federal Register, April 2, 2010, at 75 Federal Register 17004.
3 The term “subject to regulation” is the key Clean Air Act term that determines when affected sources would be
subject to the permitting requirements of NSR and Title V. By interpreting the term to refer to January 2, 2011, rather
than the date of the final regulations implementing the mobile source endangerment finding (April 1, 2010), EPA
effectively delayed the impact of that rulemaking on stationary sources for nine months. For a further discussion of the
term, “subject to regulation,” see CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New
Motor Vehicle Greenhouse Gas Emissions, by Robert Meltz.
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• On November 10, 2010, the EPA released a package of guidance and technical
information to assist local and state permitting authorities in implementing PSD
and Title V permitting for greenhouse gas emissions.4
EPA Administrator Lisa Jackson and the President have repeatedly expressed their preference for
Congress to take the lead in designing a GHG regulatory system. However, EPA simultaneously
states that, in the absence of congressional action, it must proceed to regulate GHG emissions: a
2007 Supreme Court decision (Massachusetts v. EPA5) compelled EPA to address whether GHGs
are air pollutants that endanger public health and welfare, and if so to embark on a regulatory
course that is prescribed by statute. Having made an affirmative decision to the endangerment
question, EPA is now proceeding with regulations.
Thus, EPA and a number of Members and Senators appear to be on a collision course. EPA is
proceeding to regulate emissions of GHGs under the Clean Air Act, as it maintains it must, while
trying to focus those efforts on the largest emitters within a feasible timeframe. Opponents of this
effort in Congress are considering various approaches to alter the agency’s course.
This report discusses elements of this controversy, providing background on stationary sources of
greenhouse gas pollution and identifying options Congress has if it chooses to address the issue.
The report discusses four sets of options: (1) resolutions of disapproval under the Congressional
Review Act; (2) freestanding legislation delaying or prohibiting EPA action; (3) the use of
appropriations bills as a vehicle to restrain EPA activity; and (4) amendments to the Clean Air
Act, including legislation to establish a new GHG control regime. The report considers each of
these in turn, but first provides additional detail regarding the sources of GHG emissions, the
requirements of the Clean Air Act, and the significance of regulating emissions from stationary
sources.
Regulation of Stationary Source GHGs
When EPA finalized the regulation of greenhouse gases from new mobile sources, legal and
policy drivers were activated that are leading to regulation of stationary sources as well.
Stationary sources are the major sources of the country’s GHG emissions. Overall, 69% of U.S.
emissions of greenhouse gases come from stationary sources (the remainder come from mobile
sources, primarily cars and trucks). Relatively large sources of fossil-fuel combustion and other
industrial processes are responsible for more than half the country’s total emissions (see Table 1).
If EPA (or Congress) is to embark on a serious effort to reduce greenhouse gas emissions,
stationary sources, and in particular large stationary sources, will have to be included.
The substantial amount of greenhouse gas emissions emanating from stationary source categories
is even more important from a policy standpoint: reductions in greenhouse gas emissions from
these sources are likely to be more timely and cost-effective than attempts to reduce emissions
from the transport sector.
4 U.S. EPA, Office of Air And Radiation, “PSD and Title V Permitting Guidance for Greenhouse Gases,” November
2010 (subsequently revised, March 2011), at http://www.epa.gov/nsr/ghgdocs/ghgpermittingguidance.pdf.
5 549 U.S. 497 (2007). For more information, see CRS Report R41505, EPA’s BACT Guidance for Greenhouse Gases
from Stationary Sources, by Larry Parker and James E. McCarthy.
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Table 1. Selected U.S. Stationary Sources of Greenhouse Gases
(million metric tons of CO2-equivalent)
Source
2009 Emissions
% of Total GHGs
Electricity Generation (CO2, CH4, N2O)
Coal-fired
1756.5
26.5%
Natural gas-fired
373.4
5.6%
Fuel oil-fired
33.0
0.5%
Industrial fossil-fuel combustion (CO2, CH4, N2O)
Mostly petroleum refineries, chemicals, primary metals, paper, food, and nonmetallic mineral products
Coal-fired 84.0
1.3%
Natural gas-fired
365.3
5.5%
Fuel oil-fired
290.5
4.4%
Industrial Processes
Iron and steel production (CO
42.0 0.6%
2,
CH4)
Cement production (CO2)
29.4 0.4%
Nitric acid production (N2O)
14.6 0.2%
Substitution for ozone-depleting
119.3 1.8%
substances (HFCs)
Other
Natural gas systems (CO2, CH4)
253.4 3.8%
Landfills (CH4)
117.5 1.8%
TOTAL 3478.9
52.4%
Source: EPA, DRAFT Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009, February 15, 2011.
Two factors are driving the concerns about EPA’s decisions on mobile sources spilling over to
decisions on stationary sources: (1) the non-discretionary triggers within the CAA, discussed
above, that impose permitting requirements on stationary sources because of the mobile source
action; and (2) legal and policy linkages between mobile and stationary sources with respect to
greenhouse gases that are likely to force EPA to issue additional endangerment findings and
accompanying regulations on stationary sources. In particular, three potential impacts on
stationary sources have raised the most concern:
• mandatory permitting requirements under the Prevention of Significant
Deterioration / New Source Review (PSD-NSR) program (Sections 165-169);
• mandatory permitting requirements under Title V, the permit title of the Clean Air
Act; and
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• further endangerment findings that would require greenhouse gas reductions
under different parts of the act,6 particularly Section 111, New Source
Performance Standards.
Prevention of Significant Deterioration / New Source Review
(PSD-NSR)
Under Sections 165-169 of the Clean Air Act, any new or modified facility emitting (or
potentially emitting) over 100 or 250 tons of any regulated pollutant7 must undergo
preconstruction review and permitting, including the installation of Best Available Control
Technology (BACT). State permitting agencies determine BACT on a case-by-case basis, taking
into account energy, environmental, and economic impacts. BACT cannot be less stringent than
the federal New Source Performance Standard, but it can be more so.8 EPA issues guidelines to
states to assist them in making BACT determinations.9
PSD-NSR is required for any pollutant “subject to regulation” under the Clean Air Act, a
requirement that was fulfilled when the mobile source regulations EPA finalized April 1, 2010,
took effect January 2, 2011. Two aspects of invoking the New Source Review provision have
been raised. First, as noted above, PSD-NSR has specified thresholds for triggering its provisions:
a “major emitting facility” is defined as emitting or having the potential to emit either 100 tons or
250 tons annually of a regulated pollutant (Sec. 169(1)).10 With respect to greenhouse gases, this
is a fairly low threshold. EPA concludes that at 100 tons per year, even large residential and
commercial structures could be required to obtain permits. By comparison, the Waxman-Markey
bill (H.R. 2454) of the 111th Congress generally used 25,000 metric tons as a regulatory threshold.
The second administrative issue for PSD-NSR is the requirement that BACT be determined on a
case-by-case basis. Combined with a 100-ton or 250-ton threshold, this could mean a massive
6 For a further discussion of the act’s various endangerment finding provisions, see CRS Report R40984, Legal
Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse Gas Emissions, by Robert Meltz.
7 Except those pollutants regulated under Sections 112 (hazardous air pollutants) and 211(o) (renewable fuels).
8 The PSD program (Part C of Title I of the CAA) focuses on ambient concentrations of sulfur dioxide ( SO2), nitrogen
oxides (NOx), and particulate matter (PM) in “clean” air areas of the country (i.e., areas where air quality is better than
the air quality standards (NAAQS)). The program allows some increase in clean areas’ pollution concentrations
depending on their classification. In general, historic or recreation areas (e.g., national parks) are classified Class I with
very little degradation allowed, while most other areas are classified Class II with moderate degradation allowed. States
are allowed to reclassify Class II areas to Class III areas, which would be permitted to degrade up to the NAAQS, but
none have ever been reclassified to Class III. There are no PSD emission limitations for GHGs, nor is there a NAAQS
for GHGs. This presumably gives EPA and the states increased latitude in determining how much additional GHG
pollution can be allowed by a new or modified source.
9 See CRS Report R41505, EPA’s BACT Guidance for Greenhouse Gases from Stationary Sources, by Larry Parker
and James E. McCarthy.
10 Section 169(1) lists 28 categories of sources for which the threshold is to be 100 tons of emissions per year. For all
other sources, the threshold is 250 tons. It should be noted that a different threshold applies in the case of major
modifications, which are defined by regulation, not statute. For sulfur dioxide and nitrogen oxides, the threshold for a
major modification is an increase in emissions of 40 tons per year. Facilities exceeding that threshold are subject to
NSR.
Given that EPA has identified by regulation the de minimis emission increases for triggering NSR review for
modifications, it is possible EPA could set a substantially higher level for at least carbon dioxide emissions, and
perhaps other greenhouse gases, if it determined such thresholds were appropriate. In the final Tailoring Rule, the
agency set a threshold of 75,000 tons per year of CO2-equivalent for applying NSR to modifications.
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increase in state determinations of BACT: the resulting increased permit activity would be at least
two orders of magnitude, according to EPA.
EPA has addressed this threshold problem in the Greenhouse Gas Tailoring Rule, signed by the
Administrator May 13, 2010.11 The rule phases in the PSD-NSR requirements:
• in Step 1, from January 2, 2011, to June 30, 2011, there will be no new permitting
actions due solely to GHG emissions. Only sources undertaking permitting
actions anyway for other pollutants will need to address GHGs, with a threshold
of 75,000 tons per year (tpy) of CO2-equivalent (CO2-e) for applicability;
• in Step 2, from July 1, 2011, to June 30, 2013, new sources that are not subject to
major source permit requirements for any other air pollutant will require PSD-
NSR and Title V permits if they have the potential to emit 100,000 tpy or more of
CO2-e. Modifications of sources not otherwise subject to permit requirements
will have a permit threshold of 75,000 tpy;
• in Step 3, which would require a new rulemaking from EPA, the agency will
consider lowering the permit threshold, but not below 50,000 tpy of CO2-e,
beginning July 1, 2013;
• the agency will also complete a study within five years projecting the
administrative burden of requiring permits from smaller sources, considering
available streamlining measures, and will solicit comment on permanent
exclusion of certain sources from PSD, Title V, or both requirements in a
rulemaking to be completed by April 30, 2016.
EPA estimates that under Steps 1 and 2, 1,600 new or modified sources annually will be required
to obtain NSR permits for their GHG emissions. Without the Tailoring Rule, the estimate would
be that 82,000 facilities would have required permits.12
Title V Permits
When invoked by EPA’s mobile source action, Title V requires all new and existing facilities that
have the potential to emit a GHG pollutant in amounts of 100 tons per year or more to obtain
permits. This size threshold is even more stringent than the above NSR requirement. If not
modified, it would result in substantial numbers of smaller sources having to obtain a state permit
for the first time (most larger sources already have permits because they emit other pollutants
regulated under the act).
In the preamble to its Tailoring Rule, EPA estimated that more than 6 million sources would
potentially be subject to Title V if the threshold remained at 100 tons per year of emissions.13
Thus, like PSD-NSR, a major complication that Title V introduces is the potential for very small
11 The rule appeared in the June 3 Federal Register. See U.S. EPA, “Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule,” 75 Federal Register 31514. A six-page EPA Fact Sheet summarizing the rule is
available at http://www.epa.gov/nsr/documents/20100413fs.pdf.
12 U.S. EPA, Office of Air Quality Planning and Standards, “Summary of Clean Air Act Permitting Burdens With and
Without the Tailoring Rule,” p. 6, at http://www.epa.gov/nsr/documents/20100413piecharts.pdf.
13 75 Federal Register 31547, Table VI-1, p. 31547. All but 3% of these sources would be commercial establishments
and large residences, according to EPA.
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sources of greenhouse gases to need permits in order to operate (or continue operating).
Furthermore, Title V requires that covered entities pay fees established by the permitting
authority, and that the total fees be sufficient to cover the costs of running the permit program.
It should be noted that Title V permits are designed to help states and the EPA in enforcing a
source’s various Clean Air Act-related requirements; they do not impose any requirements
themselves. They simply put all the affected facility’s Clean Air Act requirements in one place to
make enforcement more efficient. Thus, for large facilities that already have Title V permits
because of their emission of other regulated pollutants, the addition of GHGs to that permit does
not represent a significant additional administrative burden. It is the potential for millions of
sources not currently required to have a Title V permit that would have to obtain one under GHG
regulations that represents the additional burden identified here, and is the impetus for EPA’s
Tailoring Rule described above. As a result of the Tailoring Rule, EPA estimates that 15,500
sources annually will need to obtain Title V permits.
Potential GHG Emission Standards Under Section 111
Because stationary sources, particularly coal-fired power plants, are a major source of greenhouse
gas emissions, EPA is likely to be compelled to issue further endangerment findings under
separate parts of the act, resulting in regulation of greenhouse gases from stationary sources.14
There are numerous paths such regulation might take: in the immediate future, the most likely
route to stationary source GHG regulations would be Section 111, New Source Performance
Standards (NSPS).
New Source Performance Standards are emission limitations imposed on designated categories of
major new (or substantially modified) stationary sources of air pollution. A new source is subject
to NSPS regardless of its location or ambient air conditions. Section 111 provides authority for
EPA to impose performance standards on stationary sources—directly in the case of new (or
modified) sources, and through the states in the case of existing sources (Section 111(d)). The
authority to impose performance standards on new and modified sources refers to any category of
sources that the Administrator judges “causes, or contributes significantly to, air pollution which
may reasonably be anticipated to endanger public health or welfare” (Sec. 111(b)(1)(A))—
language similar to the endangerment and cause-or-contribute findings EPA promulgated for
motor vehicles on December 15, 2009.
In establishing these standards, Section 111 gives EPA considerable flexibility with respect to the
source categories regulated, the size of the sources regulated, the particular gases regulated, along
with the timing and phasing in of regulations (Sec. 111(b)(2)). This flexibility extends to the
stringency of the regulations with respect to costs, and secondary effects, such as non-air-quality,
health and environmental impacts, along with energy requirements. This flexibility is
encompassed within the Administrator’s authority to determine what control systems she
determines have been “adequately demonstrated.” Standards of performance developed by the
states for existing sources under Section 111(d) can be similarly flexible.
14 For a discussion of the similarities and differences in the various endangerment findings contained in the Clean Air
Act, see CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New Motor Vehicle
Greenhouse Gas Emissions, by Robert Meltz.
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Much attention, including EPA’s, has been on this path. Section 111 gives EPA authority to set
NSPS for emissions of “air pollutants,” a term that now has been determined to include
greenhouse gases.15 Section 111(d), which broadens the NSPS authority to state plans for existing
sources of air pollutants, refers to any air pollutant that isn’t either a criteria air pollutant under
Section 108 or a toxic air pollutant under Section 112. Again, greenhouse gases would fit within
the boundaries of the term.
In addition, attention will be focused on Section 111 as any potential federally determined NSPS
for new sources would constitute the “floor” for state BACT determinations under PSD-NSR.
Thus, as states move to implement NSR for greenhouse gases, the pressure on EPA to set the
NSPS floor on those determinations may increase.
The potential schedule for Section 111 NSPS standards has been the subject of much speculation,
but for two major categories of sources (electric generating units and petroleum refineries) the
speculation has now ended. On December 23, 2010, EPA announced that it had reached
settlement agreements with numerous parties under which it will promulgate final decisions on
NSPS for electric generating units by May 2012 and for petroleum refineries by November 2012.
How quickly such standards could be applied to existing sources is an open question. EPA must
first propose and promulgate guidelines, following which the states would be given time to
develop implementation plans.16 Following approval of the plans, the act envisions case-by-case
determinations of emission limits, in which the states may consider, among other factors, the
remaining useful life of a source in setting an emission limit. Thus, it is likely to be several years
before existing power plants are subject to emission limits for GHGs.
Congressional Options
As noted earlier, if Congress would like to see a different approach to GHG controls than the one
on which EPA has embarked, at least four sets of options are available to change the agency’s
course: the Congressional Review Act; freestanding legislation; appropriations riders; and
amendments to the Clean Air Act. Among the most widely discussed has been the Congressional
Review Act.
15 GHGs would likely be considered a “designated pollutant” under Section 111. The term “designated pollutant” is a
catch-all phrase for any air pollutant that isn’t either a criteria air pollutant under Section 108 or a toxic air pollutant
under Section 112. Examples of these include fluorides from phosphate fertilizer manufacturing or primary aluminum
reduction, or sulfuric acid mist from sulfuric acid plants.
16 How much time the states would be given to submit plans is unclear. The statute says that the regulations shall
establish a procedure “similar to that” provided for State Implementation Plans under Section 110, which generally
give states three years to submit a plan, following which EPA reviews it to determine its adequacy.
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Congressional Review Act17
The Congressional Review Act (CRA, 5 U.S.C. §§ 801-808), enacted in 1996, establishes special
congressional procedures for disapproving a broad range of regulatory rules issued by federal
agencies. Before any rule covered by the act can take effect, the federal agency that promulgates
the rule must submit it to Congress. If Congress passes a joint resolution disapproving the rule
under procedures provided by the act, and the resolution becomes law,18 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.
After EPA promulgated the first of its GHG rules, the endangerment finding19 on December 15,
2009, four identical resolutions were introduced to disapprove it under the CRA—one in the
Senate (Senator Murkowski’s S.J.Res. 26) and three in the House (Representative Jerry Moran’s
H.J.Res. 66, Representative Skelton’s H.J.Res. 76, and Representative Barton’s H.J.Res. 77). If
enacted, these resolutions would have disapproved both the “endangerment” and “cause or
contribute” findings that EPA promulgated, with the result that the findings would have “no force
or effect.” These resolutions garnered substantial support: the Murkowski resolution had 40
Senate cosponsors, and the identical House measures had 3, 52, and 121 cosponsors respectively.
Nevertheless, the path to enactment of such a resolution is a steep one. The Obama
Administration has made the reduction of GHG emissions one of its major goals; as a result,
many have concluded that legislation restricting EPA’s authority to act, if passed by Congress,
would encounter a presidential veto. Overriding a veto requires a two-thirds majority in both the
House and Senate, and is seen by many as unlikely.
Opponents of the above resolutions noted at least two reasons for their opposition. First, a
successful resolution of disapproval for the endangerment and cause-or-contribute findings would
not overturn a rule that imposes regulatory controls, but rather EPA’s scientific findings that are
the prerequisite for any EPA regulatory action on GHGs. Such findings are under the purview of
the Congressional Review Act, but a disapproval resolution would put Congress in the position of
overruling a science-based conclusion resulting from a regulatory agency’s review and analysis of
available scientific evidence.
Second, since the endangerment and cause-or-contribute findings were made under the motor
vehicle section of the act (Section 202(a)), EPA argued that a resolution of disapproval would
make it impossible for the agency’s GHG standards for light duty vehicles to take effect. Section
202(a) only allows the Administrator to set standards for pollutants that she finds “may
17 This section of this report, discussing the effect of the Congressional Review Act, the procedures under which a
disapproval resolution is taken up in the Senate, floor consideration in the Senate, and final congressional action, is
adapted from CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional
Review Act, by Richard S. Beth. Additional discussion of the form of disapproval resolutions, statutory time frames,
other elements of the expedited procedures, and limitations of the expedited procedures can be found in that report.
18 For the resolution to become law, the President must sign it or allow it to become law without his signature, or the
Congress must override a presidential veto.
19 74 Federal Register 66496. While generally referred to as the “endangerment finding” (singular), the Federal
Register notice consists of two separate findings: a Finding that Emissions of Greenhouse Gases Endanger Public
Health and Welfare, and a Finding that Greenhouse Gases From Motor Vehicles Cause or Contribute to the
Endangerment of Public Health and Welfare.
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reasonably be anticipated to endanger public health or welfare.” Thus, the absence of an
endangerment finding would remove the prerequisite to the promulgation of standards.
The light-duty-vehicle GHG standards, promulgated April 1, 2010, are not particularly
controversial in and of themselves. They are the product of negotiations among nine auto
manufacturers; the states of California, Michigan, and Massachusetts; the United Auto Workers;
environmental groups; EPA; the Department of Transportation; and the White House. The nine
auto manufacturers, including GM, Ford, and Chrysler, support them because, in their absence,
states would be free to impose GHG standards themselves, leading to what auto industry
spokespersons termed a “patchwork” of regulatory requirements that would be more difficult for
the automakers to meet.20
The CRA is designed primarily to specify the procedures under which a resolution of disapproval
is to be considered in the Senate. Pursuant to the Congressional Review Act, an expedited
procedure for Senate consideration of a disapproval resolution may be used at any time within 60
days of Senate session after the rule in question has been published in the Federal Register and
received by both houses of Congress. The expedited procedure provides that, if the committee to
which a disapproval resolution has been referred has not reported it by 20 calendar days after the
rule has been received by Congress or published in the Federal Register, the panel may be
discharged if 30 Senators submit a petition for that purpose. The resolution is then placed on the
Calendar.
Under the expedited procedure, once a disapproval resolution is on the Calendar in the Senate, a
motion to proceed to consider it is in order. Several provisions of the expedited procedure protect
against various potential obstacles to the Senate’s ability to take up a disapproval resolution. The
Senate has treated a motion to consider a disapproval resolution under the Congressional Review
Act as not debatable, so that this motion cannot be filibustered through extended debate. After the
Senate takes up the disapproval resolution itself, the expedited procedure of the Congressional
Review Act protects the ability of the body to continue and complete that consideration. It limits
debate to 10 hours and prohibits amendments.21
On May 24, 2010, a unanimous-consent agreement was reached providing for a vote on S.J.Res.
26 under procedures similar to those provided by the Congressional Review Act, but on June 10,
the Senate voted 47-53 not to take up the resolution.
The Congressional Review Act sets no deadline for final congressional action on a disapproval
resolution, so a resolution could theoretically be brought to the Senate floor even after the
expiration of the deadline for the use of the CRA’s expedited procedures. To obtain floor
consideration, the bill’s supporters would have to follow the Senate’s normal procedures.
Similarly, a resolution could reach the House floor through its ordinary procedures, that is,
generally by being reported by the committee of jurisdiction (in this case, the Energy and
Commerce Committee). If the committee of jurisdiction does not report a disapproval resolution
20 For additional information on the motor vehicle standards, see CRS Report R40166, Automobile and Light Truck
Fuel Economy: The CAFE Standards, by Brent D. Yacobucci and Robert Bamberger.
21 These provisions help to ensure that the Senate disapproval resolution will remain identical, at least in substantive
effect, to the House joint resolution disapproving the same rule, so that no filibuster is possible on the resolution itself.
In addition, once the motion to proceed is adopted, the resolution becomes “the unfinished business of the Senate until
disposed of,” and a non-debatable motion may be offered to limit the time for debate further. Finally, the act provides
that at the conclusion of debate, the Senate automatically proceeds to vote on the resolution.
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submitted in the House, a resolution could still reach the floor pursuant to a special rule reported
by the Committee on Rules (and adopted by the House), by a motion to suspend the rules and
pass it (requiring a two-thirds vote), or by discharge of the committee (requiring a majority of the
House [218 Members] to sign a petition).
If either house passes a disapproval resolution, the CRA provides that the other house should
consider its own companion measure, but then vote on the measure received from the house that
acted first. This procedure facilitates clearing the measure for presentation to the President. Yet
the CRA establishes no expedited procedure for further congressional action on a disapproval
resolution if the President vetoes it. In such a case, Congress would need to attempt an override of
a veto using its normal procedures for considering vetoed bills.
Freestanding Legislation
To provide for a more nuanced response to the issue than permitted under the CRA, some
Members have introduced freestanding legislation. At least 10 bills (and several amendments)
have been introduced in the 112th Congress that would prohibit temporarily or permanently EPA’s
regulation of greenhouse gas emissions. These bills face the same obstacle as a CRA resolution of
disapproval, however (i.e., being subject to a presidential veto). Among those introduced,
attention has focused on two: Representative Upton’s and Senator Inhofe’s H.R. 910 / S. 482, and
Senator Rockefeller’s and Representative Capito’s S. 231 / H.R. 199.
S. 231/H.R. 199
S. 231, introduced by Senator Rockefeller, and H.R. 199, introduced by Representative Capito,
are similar bills that basically reintroduce Senator Rockefeller’s bill of the 111th Congress. S. 231,
entitled the EPA Stationary Source Regulations Suspension Act and H.R. 199, entitled the Protect
America’s Energy and Manufacturing Jobs Act of 2011, provide that during the two-year period
beginning on the date of their enactment, EPA could not take any action under the Clean Air Act
with respect to any stationary source permitting requirement or any requirement under the New
Source Performance Standards section of the act relating to carbon dioxide or methane.22 A stated
reason for the two-year delay would be to allow Congress to enact legislation specifically
designed to address climate change. By specifically identifying stationary sources and the two
specific pollutants as its objectives, the bill would allow EPA to proceed with GHG controls for
mobile sources (including, cars, trucks, ships, aircraft, and nonroad engines of all kinds—which
account for 31% of U.S. greenhouse gas emissions), and it would allow the agency to regulate
emissions of non-CO2 and non-methane greenhouse gases (including nitrous oxide,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, which together account for 6.8%
of GHGs, expressed as CO2-equivalents). The bill was designed to be more acceptable to
Members willing to consider a delay of EPA action, as opposed to overturning EPA’s scientific
conclusions or blocking EPA action altogether. The bill was offered as an amendment to S. 493
(S.Amdt. 215) on April 6, and was not agreed to, on a vote of 12-88.
22 The phrase “relating to carbon dioxide or methane,” presumably modifies both the permitting and regulation-setting
prohibitions.
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H.R. 910/S. 482/S.Amdt. 183
Chairman Upton of the House Energy and Commerce Committee and Senator Inhofe, ranking
Member of the Senate Environment and Public Works Committee, have introduced legislation to
permanently remove EPA’s authority to regulate greenhouse gases (H.R. 910/S. 482). The House
version was reported (amended) by the Energy and Commerce Committee April 1, 2011, and was
passed by the House, 255-177, April 7. In the Senate, Senator McConnell introduced language
identical to Senator Inhofe’s bill as an amendment to S. 493 (S.Amdt. 183). The amendment was
not agreed to, on a vote of 50-50, April 6. The Upton-Inhofe-McConnell bill’s provisions are
similar in many respects to a bill introduced by Senator Barrasso, S. 228. Like S. 228, the bill
would repeal a dozen EPA greenhouse-gas-related regulations, including the Mandatory
Greenhouse Gas Reporting rule, the Endangerment Finding, and the PSD and Title V permitting
requirements. It would redefine the term “air pollutant” to exclude greenhouse gases. And it states
that EPA may not “promulgate any regulation concerning, take action related to, or take into
consideration the emission of a greenhouse gas to address climate change.”
The bill would have no effect on Title VI of the Clean Air Act (ozone depletion), or federal
research, development, and demonstration programs. The current light-duty motor vehicle GHG
standards and the proposed GHG emission standards for Medium- and Heavy-Duty Engines and
Vehicles would be allowed to continue, but no future ones would be allowed.
The bill would not pre-empt state authority to regulate greenhouse gases, but would not allow
EPA to permit such regulations within a state SIP or to federally enforce them. Also, EPA would
be prohibited from granting another California waiver for greenhouse gas controls from mobile
sources.
Other Amendments to S. 493
In addition to the McConnell and Rockefeller amendments, two other amendments to S. 493 to
address EPA’s greenhouse gas authority were considered in the Senate on April 6. One was
Senator Baucus’s S.Amdt. 236; the other was S.Amdt. 277, authored by Senator Stabenow and
Senator Sherrod Brown. S.Amdt. 236 would have set thresholds (similar to EPA’s “Tailoring
Rule”) to exempt most sources of greenhouse gas emissions from having to obtain Clean Air Act
permits for those emissions. It would also have excluded agricultural sources from PSD-NSR
permitting requirements based on their GHG emissions. The Stabenow-Brown amendment would
have suspended EPA greenhouse gas requirements for stationary sources, including permits and
New Source Performance Standards, for a two-year period. It would have exempted GHG
emissions from agricultural sources from regulation. And it would have extended the tax credit
for Advanced Energy Projects, with an authorization of $5 billion. Both the Baucus and
Stabenow-Brown amendments were not agreed to, on votes of 7-93.
Appropriations Bills
A third option that Congress has used to delay regulatory initiatives is to place an amendment, or
“rider” on the agency’s appropriation bill that prevents funds from being used for the targeted
initiative. In its FY2011 budget submission,23 EPA requested $43 million for “additional
23 EPA’s appropriations are part of the Interior, Environment, and Related Agencies appropriation.
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regulatory efforts aimed at taking action on climate change,” $25 million “for state grants focused
on developing technical capacity to address greenhouse gas emissions under the Clean Air Act,”
and $13.5 million “for implementing new emission standards that will reduce Greenhouse Gas
(GHG) emissions from mobile sources” including “developing potential standards for large
transportation sources such as locomotives and aircraft engines, and analyzing the potential need
for standards under petitions relating to major stationary sources.”24 These are small sums in an
agency budget request of slightly more than $10 billion, but GHG regulations have been among
the most controversial questions at congressional hearings on the agency’s budget submission.
Thus, it was not surprising to see further discussion of amendments to the EPA appropriation or
report language limiting or delaying EPA’s GHG regulatory actions.
In comparison to a CRA resolution of disapproval or stand-alone legislation, addressing the issue
through an amendment to the EPA appropriation—an approach that was discussed at some length
in the fall of 2009, when Senator Murkowski and others drafted but ultimately did not introduce
amendments to the FY2010 Interior Appropriation—may be considered easier. The overall
appropriation bill to which it would be attached would presumably contain other elements that
would make it more difficult to veto.
Funding amendments might take several forms. Since it is the triggering of standards for
stationary sources (power plants, manufacturing facilities, and others) that has raised the most
concern, however, it seems fair to assume that any effort to delay or prevent EPA action under an
appropriations rider, like the freestanding legislation discussed above, would focus on these
sources. An example of this focus is Representative Poe’s H.R. 153. H.R. 153 would prohibit EPA
funding for implementing or enforcing a greenhouse gas cap-and-trade program or any other
greenhouse gas regulatory requirement on stationary sources issued or effective after January 1,
2011 (including permitting requirements under PSD and Title V). This bill would permit
continued regulation of mobile sources as it only affects stationary sources.
FY2011 appropriations for EPA and the rest of the government were provided through early
April, 2011, by a series of continuing resolutions, leaving the question of EPA appropriations and
potential riders affecting the agency’s GHG regulatory efforts for the 112th Congress to decide. In
February, language similar to H.R. 153 was added to the Full-Year Continuing Appropriations
Act, 2011 bill (H.R. 1) during floor debate on a 249-177 vote (H.Amdt. 101). However, the
Senate failed to pass the bill, 44-56, March 9.
Amending the Clean Air Act
The most comprehensive approach that Congress might take to alter EPA’s course would be to
amend the Clean Air Act to modify EPA’s current regulatory authority as it pertains to GHGs.
This was the option chosen by the House in passing H.R. 2454, the American Clean Energy and
Security Act (the Waxman-Markey bill) and by the Senate Environment and Public Works
Committee in its reporting of S. 1733, the Clean Energy Jobs and American Power Act (the
Kerry-Boxer bill) in the 111th Congress. The bills would have amended the Clean Air Act to
establish an economy-wide cap-and-trade program for GHGs, established a separate cap-and-
trade program for HFCs, preserved EPA’s authority to regulate GHG emissions from mobile
24 Testimony of Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, “Hearing on the President’s
Proposed EPA Budget for FY 2011,” Senate Environment and Public Works Committee, February 23, 2010, pp. 2-3.
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sources while setting deadlines for regulating specific mobile source categories, and required the
setting of New Source Performance Standards for uncapped major sources of GHGs.
At the same time, both bills contained provisions to limit EPA’s authority to set GHG standards or
regulate GHG emissions under Sections 108 (National Ambient Air Quality Standards), 112
(Hazardous Air Pollutants), 115 (International Air Pollution), 165 (PSD-NSR), and Title V
(Permits) because of the climate effects of these pollutants.25 The bills would not have prevented
EPA from acting under these authorities if one or more of these gases proved to have effects other
than climate effects that endanger public health or welfare.
With respect to exemption from the permitting requirements of the PSD program and Title V, the
bills differed in the extent of their exemptions. The H.R. 2454 provision would have prevented
new or modified stationary sources from coming under the PSD-NSR program solely because
they emit GHGs. In contrast, the Senate bill’s provision would have simply raised the threshold
for regulation under PSD from the current 100 or 250 short tons to 25,000 metric tons with
respect to any GHG, or combination of GHGs. Likewise, with respect to Title V permitting, the
H.R. 2454 provision would have prevented any source (large or small) from having to obtain a
state permit under Title V solely because they emit GHGs. In contrast, the exemption under the
Senate bill was restricted to sources that emit under 25,000 metric tons of any GHG or
combination of GHGs.26
Amending the Clean Air Act to revoke some existing regulatory authority as it pertains to GHGs
while establishing new authority designed specifically to address their emissions is the approach
advocated by the Administration and, indeed, by many participants in the climate debate
regardless of their position on EPA’s regulatory initiatives. However, the specifics of a bill
acceptable to a majority would be difficult to craft.
Conclusion
In some respects, EPA’s greenhouse gas decisions are similar to actions it has taken previously for
other pollutants. Beginning in 1970, and reaffirmed by amendments in 1977 and 1990, Congress
gave the agency broad authority to identify pollutants and to proceed with regulation. Congress
did not itself identify the pollutants to be covered by National Ambient Air Quality Standards
(NAAQS), for example; rather, it told the agency to identify pollutants that are emitted by
numerous and diverse sources, and the presence of which in ambient air endangers public health
and welfare. EPA has used this authority to regulate six pollutants or groups of pollutants, the so-
called “criteria pollutants.”27 EPA also has authority under other sections of the act—notably
Sections 111 (New Source Performance Standards), 112 (Hazardous Air Pollutants), and 202
(Motor Vehicle Emission Standards)—to identify pollutants on its own initiative and promulgate
emission standards for them.
25 The Clean Air Act exemption provisions under H.R. 2454 were in Part C, Sections 831-835; under S. 1733, the
provisions were in Section 128(g).
26 For further information, see CRS Report R40896, Climate Change: Comparison of the Cap-and-Trade Provisions in
H.R. 2454 and S. 1733, by Brent D. Yacobucci, Jonathan L. Ramseur, and Larry Parker.
27 The six are ozone, particulate matter, carbon monoxide, sulfur dioxide, nitrogen dioxide, and lead.
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Actions with regard to GHGs follow these precedents and can use the same statutory authorities.
The differences are of scale and of degree. Greenhouse gases are global pollutants to a greater
extent than most of the pollutants previously regulated under the act;28 reductions in U.S.
emissions without simultaneous reductions by other countries may somewhat diminish but will
not solve the problems the emissions cause.29 Also, GHGs are such pervasive pollutants, and arise
from so many sources, that reducing the emissions may have broader effects on the economy than
most previous EPA regulations.
EPA’s focus on Section 111 as the most likely vehicle for controlling GHGs from stationary
sources may reflect concerns both about potential economic effects and about implementation
difficulties with respect to controlling such pervasive pollutants. Indeed, in a 2008 Federal
Register notice, EPA made an argument that authority for a market-based control program may
exist under Section 111.30 Even if that argument fails to pass legal scrutiny, the section does
provide EPA with substantial authority to address economic and implementation issues in
tailoring its GHG response to the various realities surrounding stationary source controls.
Nevertheless, as noted here, the Administration’s position has been that a new market-based
program authorized by new legislation is the preferred option for controlling GHGs. New
legislation is also the preferred option of many in Congress, regardless of whether they agree or
disagree with EPA’s regulatory initiatives. Until the issue is resolved through legislative
negotiations or through legal or regulatory venues, EPA will likely proceed under existing
authorities of the Clean Air Act and the complex interplay of legal, regulatory, and legislative
events will continue.
Author Contact Information
James E. McCarthy
Larry Parker
Specialist in Environmental Policy
Specialist in Energy and Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
lparker@crs.loc.gov, 7-7238
28 An exception would be chlorofluorocarbons, regulated under Title VI of the act to protect the stratospheric ozone
layer. This also was a global problem, but in this case an international agreement, the Montreal Protocol, preceded EPA
action and the enactment of Clean Air Act authority.
29 However, the Administration is working in parallel internationally to obtain commitments to global GHG reductions.
Demonstrating timely and significant progress toward reduction of U.S. GHG emissions is considered essential by most
experts for success internationally.
30 U.S. Environmental Protection Agency, “Regulating Greenhouse Gas Emissions Under the Clean Air Act; Proposed
Rule,” 73 Federal Register 44514-44516, July 30, 2008. Whether EPA can set up a cap-and-trade program under the
Clean Air Act is the subject of considerable debate in the literature. See Lisa Heinzerling, Testimony Before the
Subcommittee on Energy and Air Quality of the Committee on Energy and Commerce, Hearing (April 10, 2008);
Robert R. Nordhaus, “New Wine into Old Bottles: The Feasibility of Greenhouse Gas Regulation Under the Clean Air
Act,” N.Y.U. Environmental Law Journal (2007), pp. 53-72; Inimai M. Chettiar and Jason A. Schwartz, The Road
Ahead: EPA’s Options and Obligations For Regulating Greenhouse Gases (April 2009); and Alaine Ginocchio, et al.,
The Boundaries of Executive Authority: Using Executive Orders to Implement Federal Climate Change Policy
(February 2008).
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