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House Passes Bill to Restrict EPA Power Sector Rules

The House of Representatives on Friday passed H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation Act (“TRAIN Act”).  The Act establishes an interagency federal panel to assess the cumulative impact of various EPA regulations and requires that the panel issue its report by next August.  The bill prevents EPA from proceeding with its recently promulgated Cross-State Air Pollution Rule (“CSAPR”) and finalizing its proposed Mercury and Air Toxics Standards (“MATS”) rule.  Instead, the bill:

  • Replaces CSAPR with EPA’s Clean Air Interstate Rule (“CAIR”).  CAIR was CSAPR’s predecessor and, like CSAPR, addresses interstate transport of nitrogen oxides and sulfur dioxide emitted by electric generating units (“EGUs”).  CAIR is currently in place but was scheduled to be replaced by CSAPR when the latter rule goes into effect on January 1.  Under the bill, CSAPR would not go into effect and CAIR would remain effective.  The bill would also authorize full interstate trading of emission allowances under CAIR, essentially reversing the North Carolina v. EPA court decision on this point.
  • Prevents EPA from issuing a new rule addressing interstate pollution transport for three years after the panel’s report comes out.  Any new transport rule would have to be implemented through a state implementation plan (“SIP”) process, with states given a minimum of three years to develop SIPs. 
  • Prevents EPA from issuing a new rule addressing EGU emission of hazardous air pollutants (“HAPs”) for at least one year after the panel report is issued.
  • Provides for a minimum five-year period to comply with a new EGU HAPs rule, with EPA retaining the ability to provide for a longer period based on various factors.
  • Fixes the so-called “frankenplant” problem in the proposed MATS rule.  Under that rule, EPA required new and existing plants to meet standards based on the best performing units for each individual HAP.  In reality, few if any plants could meet all of these standards at the same time.  Under the bill, standards would be based on the best performing plants for all of the HAPs.
  • Defines existing sources to include currently permitted EGUs even if those EGUs are not yet under construction.  Under the proposed MATS rule, units don’t qualify as existing sources unless they are under construction; those units not under construction have to meet the much more stringent new-unit standards.
  • Prevents EPA from regulating any individual HAPs unless it finds it “appropriate and necessary” to regulate that HAP.  Under the MATS rule, EPA claims authority to regulate all EGU HAPs even if it only finds that it is “appropriate and necessary” to regulate one.

The bill passed on a vote of 249 to 169.  Nineteen Democrats voted for the bill, and four Republicans voted No.  Although the bill has almost no chance of passing the Senate as a stand-alone bill, speculation has moved towards whether efforts will be made to attach some or all of the bill to the next or subsequent continuing resolution or appropriations bill.

A copy of the bill is available here.