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Kentucky Rep. Whitfield’s Bill Would Allow States to ‘Opt Out’ of Carbon Dioxide Regulations

Petr Kratochvil,

A bill that environmental groups say would damage the Clean Air Act is advancing through the House of Representatives. The bipartisan bill is spearheaded by Kentucky Congressman Ed Whitfield.

The bill—called the Ratepayer Protection Act—passed the House Energy and Commerce Committee last Tuesday. According to Whitfield, the bill is a “commonsense solution to protect ratepayers from higher electricity prices, reduced reliability, and other harmful impacts of EPA’s proposed Clean Power Plan.”

The Clean Power Plan is the proposed regulation to set carbon dioxide emissions reduction goals for each state. It hasn’t been finalized yet, but all states will likely have to make some cuts. The EPA is regulating carbon dioxide under the Clean Air Act; in 2009, the Supreme Court ruled that CO2 is harmful to human health, and thus subject to EPA regulations.

The pending rule is the subject of numerous legal and legislative challenges, and Whitfield’s bill is the latest. It would do two main things: halt the implementation of the Clean Power Plan until all pending lawsuits against the regulation are resolved, and once that happens, allow any state that finds “significant adverse affects” on electricity prices or reliability to opt out.

“The bill does not repeal the Clean Power Plan nor does it preclude a state from moving forward with EPA’s agenda,” Whitfield said in a statement.“It simply creates a voluntary process to prevent the proposed rule from imposing unnecessary economic hardship.”

But David Doniger, Director of the Climate and Clean Air Program for the Natural Resources Defense Council, said the bill would “wreak havoc” with the Clean Air Act.

Doniger called the first part of the bill—halting implementation until all litigation is done—“unprecedented.”

“So this would just encourage lots of lawsuits,” he said. “There’s no other part of the Clean Air Act where everything is held up until litigation is finished.”

There is one recourse currently in the law: if a litigant can prove irreparably harm in the time it would take to pursue a lawsuit, they can request a “stay.”

Doniger said the second part of the bill would essentially eliminate the federal plan for carbon dioxide emissions reductions.

Whitfield’s bill passed the House Energy and Commerce Committee along party lines last week, and Doniger said he wouldn’t be surprised if it passes the House. But he expects a fight in the Senate, and doesn’t expect it to stand up to a presidential veto.

The bill has Democratic and Republican co-sponsors.

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