Senators yesterday took up the question of whether U.S. EPA can work on guidelines related to the Clean Power Plan while the program for reducing carbon dioxide emissions from power plants is frozen by the Supreme Court.

In the last few months, EPA has continued to work on an incentive program to credit states for early action on renewable energy and efficiency. The agency has also indicated it would release model rules to guide states on shaping emissions trading programs.

During a Senate Environment and Public Works Committee hearing, Republicans and their witnesses charged that EPA was attempting to bypass the high court stay.

After the hearing, EPW Chairman Jim Inhofe (R-Okla.) released a letter to EPA acting air chief Janet McCabe demanding answers on the agency’s lack of conclusive statements on how it would handle the Clean Power Plan’s compliance deadline if the courts were to uphold the rule.

The uncertainty has been a thorn on the side of EPA and its defenders. Inhofe asked for answers to a series of questions on EPA’s activities during the stay by a June 21 deadline.

“EPA is attempting to downplay the significance of the stay and argue against clear legal precedence as a last-ditch effort to scare states into spending scarce resources complying with a rule that could very well be overturned,” Inhofe said at the hearing.

The EPW Committee’s Democrats yesterday presented a united front in support of the Clean Power Plan and broader action to address climate change.

As usually occurs with congressional hearings related to climate change, emotions ran high at times.

After Sen. Sheldon Whitehouse (D-R.I.) called the Republican Party the “de-facto political wing of the fossil fuel industry,” Sen. Roger Wicker (R-Miss.) shot back that the comment was “beneath my friend.”

“It is insulting for a member of this Senate,” Wicker said, “to come in here and to suggest that this hearing … somehow demonstrates that members of the Congress are owned by the fossil fuel industry.”

Finalized last August, the Clean Power Plan is the centerpiece of the Obama administration’s domestic climate agenda and requires states to develop plans to lower power plant carbon dioxide emissions. In a 5-4 decision in February, the Supreme Court unexpectedly stayed the program until complex litigation was resolved.

EPA has said it would help states that voluntarily want to continue planning efforts, along with continuing to work on related rulemakings. In April, a group of 14 states asked EPA for more information and technical assistance on the Clean Power Plan.

“Many states and tribes have indicated that they plan to move forward voluntarily to work to cut carbon pollution from power plants,” EPA said in a recent statement, “and have asked the agency to continue providing support and developing tools that may support those efforts.”

‘So many variables’

At yesterday’s hearing, Republican witness Allison Wood, partner at the firm Hunton & Williams LLP, charged that EPA’s work on the related Clean Energy Incentive Program and model trading rules would compel states to take action that violates the spirit of the stay.

EPA will likely open up a public comment period on its proposed CEIP. States — even those like West Virginia that have decided to halt work on the Clean Power Plan — would have to expend resources on commenting or litigating those other rules, Wood argued.

“The problem is, they’re trying to provide additional tools to the states that want to continue to work — EPA ends up forcing states and regulated entities that do not want to work during the stay to do so,” she said.

Another majority witness, Michael McInnes, CEO of Tri-State Generation and Transmission Association Inc., a rural electric cooperative, urged states to halt all planning activities under the Clean Power Plan. Tri-State was among the many rule critics that requested a court stay of the program.

But McInnes told lawmakers that two of the five states in which Tri-State operates have decided to continue developing plans.

“We feel it is wasteful to spend taxpayer and ratepayer money developing a plan for an unknown target,” he said.

“There are so many variables that could change — a new rule, a modified rule, a new president withdraws the rule or proposes a new one, markets could change, new technology could be developed — so any plan developed today will likely have to be redone,” he said.

‘Without merit’

Environmentalists yesterday defended EPA’s activities during the stay.

“The attacks raised today by Senate Republicans are, as usual, without merit,” said Alejandra Nunez, staff attorney with the Sierra Club’s environmental law program.

“Despite the Supreme Court’s decision to stay the Clean Power Plan, it is entirely appropriate for the EPA to continue working on implementation of the rule in order to assist states, many of which have asked the agency to continue working with them on their planning,” she said.

Richard Revesz, a witness for the Democrats, told lawmakers it was both “legal and appropriate” for EPA to continue working on regulatory matters related to the Clean Power Plan such as the model trading rules.

Revesz, who directs New York University’s Institute for Policy Integrity, argued that those related activities don’t create enforceable obligations for states.

In previous administrations, EPA has continued working on implementation activities for Clean Air Act rules that had been stayed by courts, he said.

The agency, for example, issued regulations related to the Cross-State Air Pollution Rule during a stay issued by the U.S. Court of Appeals for the District of Columbia Circuit.

“Rather than coercing states into compliance,” Revesz said, “EPA’s continued implementation work will simply provide [states] with useful resources.”

Along with questioning EPA’s activities during the stay, Inhofe repeated criticisms of the broader Clean Power Plan.

He asked witnesses to respond to a recent statement by EPA Administrator Gina McCarthy that there was not “one single bit of evidence that we have destroyed an industry or significantly impacted jobs other than in a positive way” (ClimateWire, April 14).

Republican Missouri state Rep. Jack Bondon, who has sponsored legislation to halt state planning activities during the stay, said that he would “take exception to that,” citing the recent bankruptcy announcements by Peabody Energy Corp. and Arch Coal Inc., both of which are headquartered in Missouri.

“There are certainly a number of reasons why a company does that,” Bondon said. “But the uncertainty created by the Clean Power Plan and the future of moving away from coal will impact their employees.”

Sen. Ed Markey (D-Mass.) complained that the coal industry had rejected an offer of billions of dollars for carbon capture and storage technology via the 2009 cap-and-trade bill. He argued that the bill, which ultimately was unsuccessful, was an attempt to help coal companies stay alive in a way that works “for all the interests.”

“I just don’t want to hear the crocodile tears from Peabody Coal, Arch Coal,” Markey said. “We were trying to give them a bridge to the future. Do you think they wish they could go back to 2009 and grab that money?”