Rep. Shelley Moore CapitoNational Journal

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Senate Republicans are preparing new legislation to upend the tentpole of the Obama administration's climate action plan, but they're also cracking the law books for an offensive playbook.

Sen. Shelley Moore Capito of West Virginia said she will introduce a bill next week challenging the EPA rules limiting greenhouse-gas emissions from existing power plants. Speaking after a Tuesday hearing on the EPA rules, Capito said her bill is still being worked out but would touch on the time line of implementation and the ability of states to opt out of EPA regulations. Her bill will target both the rules on existing power plants and a finalized rule on new power plants.

Inevitable lawsuits against the rule are likely to be appealed up the judicial ladder and could stretch on for years, something opponents are banking on because it would likely put compliance on hold as well. Senate Majority Leader Mitch McConnell has urged states to not comply with the rule, citing the uncertainty of legal challenges, and he even cautioned other countries that America's climate work was at risk because of legal challenges.

Capito's bill will look similar to—but have a wider scope than—a House bill that would give states the ability to opt of the rule and put a hold on federal enforcement until judicial challenges are finished. The House bill passed the Energy and Commerce Committee last week and is expected on the floor sometime after Memorial Day.

Republicans have warned that the EPA rule—which is set to be finalized this summer—would be costly for fossil-fuel states, while casting doubt on the climate benefits of the rule. They have also been increasingly poring through the Clean Air Act to raise questions about the legality of the power-plant rules, especially as states and utilities prepare lawsuits against the rule.

"We have EPA dictating to states and effectively micromanaging intrastate electricity-policy decisions to a degree even the agency admits is unprecedented. This raises a broad array of legal issues and is, quite simply, bad policy," Capito said at a Tuesday hearing of a Senate Environment and Public Works Subcommittee.

At the hearing, two state attorneys general detailed their legal plans, with West Virginia Attorney General Patrick Morrisey promising that the state would challenge the power-plant rule when it's finalized this summer. West Virginia has already led a legal challenge against the rule as part of a coalition with 14 other states, but a federal appeals court that heard the challenge last month indicated the challenge may have been filed too early.

Morrisey said Tuesday he expected more states would join the challenge when the rule was finalized.

Oklahoma Attorney General Scott Pruitt also previewed another legal avenue against the bill, saying that Oklahoma will challenge EPA's plan to impose a uniform federal plan against states that choose not to comply with the Clean Power Plan.

Last week, Oklahoma Gov. Mary Fallin issued an executive order barring the state from submitting a state implementation plan for the rule, which makes Oklahoma subject to the federal plan.

"Such a move by the EPA would be the proverbial 'gun to the head' of the states, demanding the states to act as the EPA sees fit or face punitive financial sanctions," Pruitt said.

States, even those who oppose the rule, have already begun working toward crafting implementation plans for the rule ahead of its finalization. (States will get a year from finalization to submit their plans.) The administration would like to see it implemented on schedule and without delay, not only to get the health benefits, but as part of its pledge to the United Nations to cut the country's greenhouse-gas emissions by 28 percent of 2005 levels by 2025.

EPA Administrator Gina McCarthy has repeatedly said the agency is on firm legal ground with the rule and last week told senators, "I believe we are acting under the authority Congress gave us in the Clean Air Act."

States and utilities have opened up a number of possible legal fronts against the rule—for example, saying that the rule regulating existing power plants is illegal because EPA is already regulating the power sector through a rule on new and modified plants. Morrisey also said that EPA is trying to reduce consumer demand for energy on top of regulating sources, which he said was an "assertion of unprecedented authority."

McConnell last week also thrust the obscure section 102(c) of the Clean Air Act into the spotlight, saying it would allow Congress to put a check on the rule because it could involve the creation of multistate pacts.

The rule's supporters have said the legal challenges are without bounds and that courts are sure to uphold EPA's action. Sen. Tom Carper, for one, pointed to three Supreme Court rulings affirming EPA's ability to control carbon pollution and said the "legal precedent ... is clear."

"Attempts by Congress and other parties to challenge its legality are essentially an attempt to delay implementation of the plan," Carper said. "The longer we wait to reduce our carbon output, the more severe, and perhaps irreversible, the effects of climate change will become."

This article is from the archive of our partner National Journal.

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