On Tuesday, December 1, 2015, the House will consider S. J. Res. 24, a joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of a rule submitted by the Environmental Protection Agency relating to “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” under a closed rule. S. J. Res. 24 was introduced on October 26, 2015 by Sen. Shelley Moore Capito (R-WV) and passed the Senate by a vote of 52 to 46 on November 17, 2015. The House Committee on Energy and Commerce ordered an identical joint resolution (H.J. Res. 72) reported by a vote of 28 to 21 on November 18, 2015.
S. J. Res. 24 provides that Congress disapproves the rule submitted by the Environmental Protection Agency (EPA) relating to “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.” The recently published rule establishes guidelines to regulate carbon dioxide (CO2) emissions from existing fossil fuel-fired power plants.
The Congressional Review Act (CRA) “is an oversight tool that Congress may use to overturn a rule issued by a federal agency.” Under the CRA, before a rule can take effect, an agency must submit a report to each house of Congress and the Comptroller General containing a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; and the proposed effective date of the rule. Congress then has specified time periods in which to take action on a joint resolution of disapproval. If both houses pass the resolution, it is sent to the President for signature or veto. If the President were to veto the resolution, Congress could vote to override the veto.
The Environmental Protection Agency’s final rule establishing CO2 emissions standards for existing fossil fuel-fired power plants, referred to by the agency as its ‘‘Clean Power Plan,’’ together with its rule for new fossil fuel-fired power plants, referred to by the agency as New Source Performance Standards, was issued pursuant to the President’s ‘‘Climate Action Plan’’ and an accompanying Presidential Memorandum. The two rules “would put in place an unprecedented regulatory structure throughout the U.S. electricity sector, effectively imposing renewable energy and cap-and-trade mandates similar to those in the Waxman-Markey cap-and-trade legislation that failed in 2010.”
Under the “Clean Power Plan,” the EPA would impose mandatory CO2 ‘goals’ for each state’s power sector and requires states to submit individual or multi-state plans to meet those goals. Each state is required to submit a plan to meet its mandatory goals to the EPA for approval. State plans are due by September 6, 2016, with a potential two-year extension. The plans are required to include emissions standards that are “quantifiable, verifiable, non-duplicative, permanent, and enforceable.” The state plan would need to be approved by the EPA Administrator and cannot be changed without EPA approval. If a state fails to submit a plan, or the EPA determines that a submitted plan is unsatisfactory, the agency would impose a federal regulatory cap-and-trade program, which has been proposed but not yet finalized by the agency.
The final rule for existing power plants “reflects an unprecedented attempt by the EPA to change the way electricity is generated, transmitted, and consumed in the United States by asserting new regulatory authorities over state electricity decision-making.” In practice, it would allow the EPA to “to force a massive shift in the United States from coal-fired generation to renewable energy, primarily wind and solar.” The rule has generated significant controversy, both because of questions regarding its legality and its “potential impacts on electricity prices and electric reliability, as well as jobs.” According to the EPA’s own estimates, the implementation costs of the new regulation will be in the billions of dollars annually, potentially reaching $8.4 billion in 2030. A recent analysis by NERA Economic Consulting estimates that for the period 2022 to 2033, energy sector expenditures would increase by $220 billion to $292 billion, and that 40 states could have double digit increases in retail electricity prices. The Attorneys General or state agencies of 27 states have challenged the regulation. S. J. Res. 24 disapproves the regulation and provides that it has no force or effect.
On June 24, 2015, the House passed H.R. 2042, the Ratepayer Protection Act, by a vote of 247 to 180. The bill, which the Senate has yet to consider, would postpone the dates by which states and operators of existing fossil fuel-fired power plants must comply with any final rule addressing emissions of carbon dioxide proposed by the EPA until after completion of judicial review.
According to the sponsor of the House companion disapproval resolution, “in my view, the discrepancy between what EPA is trying to do and what the Clean Air Act actually allows is so wide that these resolutions are necessary. These resolutions are necessary to protect ratepayers, the reliability of our electricity supplies, and our nation’s global competitiveness.”
For more information, click here for a report prepared by the majority staff of the Energy and Commerce Committee highlighting the issues surrounding the EPA’s rule on existing power plants.
 See CRS Report—“The Congressional Review Act: Frequently Asked Questions,” April 17, 2015 at 1.
 Id. at Summary.
 House Report 114-348 at 2.
 See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule, 80 Fed. Reg. 64662 (Oct. 23, 2015) at 64961-64964.
 Id. at 64946-64947.
 See “Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations; Proposed Rule,” 80 Fed. Reg. 64966 (Oct. 23, 2015)
 House Report 114-349 at 2.
 Id. at 4.
 Id. at 3. In developing these estimates, EPA assumes investments in demand side energy efficiency of $2.1 billion to $2.6 billion in 2020, $16.7 billion to $20.6 billion in 2025, and $26.3 billion to $32.5 billion in 2030 (RIA Tables 3-3 at p. 3-15). Id.
 A recent study by Energy Ventures Analysis analyzing wholesale electricity costs also projects that consumers would pay an additional $214 billion for electricity for the period 2022 to 2030.
 Alabama, Arkansas, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
 See Press Release—“Whitfield Advances Two Resolutions to Keep Electricity Affordable and Reliable,” November 18, 2015.
The Congressional Budget Office (CBO) estimates that implementing the House version of the resolution (H. J. Res. 72) would not have a significant effect on EPA’s workload or spending related to existing power plants and would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply.
For questions or further information please contact Jerry White with the House Republican Policy Committee by email or at 5-0190.