Legal experts spent the majority of Tuesday’s hearing of the House Energy and Commerce Subcommittee on Energy and Power arguing whether a certain amendment to the Clean Air Act prohibits the Environmental Protection Agency from adopting it’s proposed clean power rule.
The rule, which EPA proposed in June, would require states to adopt their own plans to cut emissions at existing power plants to meet the agency’s goal of reducing carbon emissions by 30 percent by 2030.
But Allison Wood, a partner with Hunton & Williams LLP, said a House amendment to section 111(d) of the Clean Air Act precludes the EPA from regulating sources of hazardous air pollutants that are already regulated by section 112.
Though the House and Senate adopted conflicting amendments to section 111(d), both of which appear in the statute, Wood said the House amendment trumps the Senate amendment because it was included in U.S. code
Richard Revesz, a Lawrence King Professor of Law and Dean Emeritus at the New York University School of Law however, said that argument is “unfounded.”
When there are two conflicting amendments, Revesz said statutes trump U.S. code unless the code itself was adopted as legislation, which didn’t happen in this case. Revesz said it’s up to the EPA to then interpret the rule.
Rep. Morgan Griffith (R-Va.) took his five minutes of questioning to go down, as he said, “a different rabbit hole.”
“Professor Revesz, the proposal you make is a departmental procedural impossibility,” he said. “It cannot happen. It doesn’t matter what the issue is.”
Griffith said the Clean Air Act could not have passed Congress with competing amendments. When there are differences between the House and Senate and both chambers adhere to their position, he said the bill dies.
“It’s not for you to say today that the bill should die because there’s some confusion because there are two different versions,” he said. “There are not two different versions. It could not have happened.”