[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 228 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 228

   To preempt regulation of, action relating to, or consideration of 
greenhouse gases under Federal and common law on enactment of a Federal 
                   policy to mitigate climate change.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2011

Mr. Barrasso (for himself, Mr. Inhofe, Mr. Blunt, Mr. Enzi, Mr. Vitter, 
Mr. Roberts, Mr. Moran, Mr. Thune, Mr. Cornyn, Mr. Hatch, and Mr. Lee) 
introduced the following bill; which was read twice and referred to the 
               Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
   To preempt regulation of, action relating to, or consideration of 
greenhouse gases under Federal and common law on enactment of a Federal 
                   policy to mitigate climate change.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defending America's Affordable 
Energy and Jobs Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the climate of the Earth is dynamic, and changes in 
        climate are caused by a complex combination of factors;
            (2) greenhouse gases are globally dispersed, and any 
        attempt by a country to reduce the greenhouse gas emissions of 
        the country must be undertaken in coordination with the 
        international community, including the developing world, in 
        order to have any significant impact;
            (3) regulating the emission of greenhouse gases under 
        Federal regulatory mechanisms in existence as of the date of 
        enactment of this Act is divorced from any intent expressed by 
        the Congress during the enactment of the authorizing statutes 
        governing those mechanisms;
            (4) any action to control emissions of greenhouse gases in 
        the United States would result in substantial impacts to major 
        sectors of the economy of the United States and interstate 
        commerce and should therefore be explicitly authorized and 
        prescribed by Congress;
            (5) the consequences of poorly designed Federal or State 
        regulation of greenhouse gases--
                    (A) are well-documented; and
                    (B) consist of lower economic growth, reductions in 
                new and existing employment, and reduced economic 
                competitiveness; and
            (6) substantial policy options, short of regulatory 
        authority, exist to spur technology innovation to promote 
        energy security and produce cleaner energy sources.
    (b) Purposes.--The purposes of this Act are--
            (1) to ensure that the consequences of ill-suited 
        regulations are not imposed on the economy of the United 
        States; and
            (2) to allow sufficient time for Congress to develop and 
        authorize an appropriate mechanism to address the energy needs 
        of the United States and the potential global challenges posed 
        by a changing climate.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Greenhouse gas.--The term ``greenhouse gas'' means any 
        of the following:
                    (A) Carbon dioxide.
                    (B) Methane.
                    (C) Nitrous oxide.
                    (D) Sulfur hexafluoride.
                    (E) Any hydrofluorocarbon.
                    (F) Any perfluorocarbon.
                    (G) Nitrogen trifluoride.
                    (H) Any other substance subject to regulation, 
                action, or consideration due to the contribution of the 
                substance to climate change.
            (3) Stationary source.--The term ``stationary source'' has 
        the meaning given the term in section 302 of the Clean Air Act 
        (42 U.S.C. 7602).

SEC. 4. REGULATION OF GREENHOUSE GASES.

    (a) Regulation, Action, and Consideration for Effects Other Than 
Climate Change.--
            (1) In general.--Except as provided in paragraph (2), the 
        President or the head of a Federal department or agency may not 
        promulgate regulations providing for the control of emissions 
        of a greenhouse gas, enforce or implement any law (including a 
        regulation) enacted or promulgated as of the date of enactment 
        of this Act that provides for the control of emissions of a 
        greenhouse gas, take action relating to or take into 
        consideration the climate effects of emissions of a greenhouse 
        gas, consider climate effects in implementing or enforcing any 
        law (including a regulation), or condition or deny any approval 
        based on climate effects unless the law, regulation, action, or 
        consideration is--
                    (A) determined by the President or head of a 
                Federal department or agency, as applicable, after 
                notice and opportunity for comment, to be necessary to 
                protect the public health from imminent and substantial 
                harm caused by direct human exposure to the relevant 
                greenhouse gas in a concentration that is substantially 
                greater than current and projected future average 
                concentrations of that greenhouse gas in the global 
                atmosphere; and
                    (B) based solely on effects other than effects 
                relating to atmospheric concentrations of greenhouse 
                gases, including climate change.
            (2) Exception.--The limitation under paragraph (1) does not 
        prohibit--
                    (A) regulation of, action with respect to, or 
                consideration of a greenhouse gas under title VI of the 
                Clean Air Act (42 U.S.C. 7671 et seq.) other than for 
                the potential or actual effect of the greenhouse gas on 
                climate change; or
                    (B) voluntary incentive programs to promote the 
                development or deployment of technologies that reduce 
                greenhouse gas emissions.
            (3) Exclusive authority; cafe regulations; challenges to 
        rules.--
                    (A) Exclusive authority.--The authority of the 
                Secretary of Transportation under chapter 329 of title 
                49, United States Code--
                            (i) does not include any authority with 
                        respect to greenhouse gases; and
                            (ii) is unaffected by this section.
                    (B) CAFE regulations.--Notwithstanding any 
                provision to the contrary in this Act, the requirements 
                set forth in the final rule entitled ``Light-Duty 
                Vehicle Greenhouse Gas Emission Standards and Corporate 
                Average Fuel Economy Standards; Final Rule'' (75 Fed. 
                Reg. 25324 (May 7, 2010)), shall remain in effect 
                without further modification or revision.
                    (C) Challenges to rules.--Nothing in this 
                subsection affects--
                            (i) any challenge to the final rule 
                        described in subparagraph (B) that--
                                    (I) as of the date of enactment of 
                                this Act, is pending in court; or
                                    (II) is filed after that date of 
                                enactment; or
                            (ii) any pending or future challenge to any 
                        current or future rules promulgated under the 
                        authority referred to in subparagraph (A).
            (4) Certain prior agency actions.--
                    (A) In general.--Except as provided in paragraph 
                (3), each rule promulgated and action taken by the 
                Administrator before the date of enactment of this Act 
                to regulate greenhouse gases for effects relating to 
                atmospheric concentrations of greenhouse gases 
                (including climate change), including each rule and 
                action referred to in subparagraph (B), shall have no 
                force or effect.
                    (B) Rules and actions.--The rules and actions 
                referred to in subparagraph (A) include--
                            (i) the final rule entitled ``Endangerment 
                        and Cause or Contribute Findings for Greenhouse 
                        Gases under section 202(a) of the Clean Air 
                        Act'' (74 Fed. Reg. 66496 (Dec. 15, 2009));
                            (ii)(I) the memorandum from Stephen 
                        Johnson, Administrator of the Environmental 
                        Protection Agency, to Regional Administrators 
                        of the Environmental Protection Agency, with 
                        the subject line stating ``EPA's Interpretation 
                        of Regulations that Determine Pollutants 
                        Covered by Federal Prevention of Significant 
                        Deterioration (PSD) Permit Program'' and dated 
                        Dec. 18, 2008; and
                            (II) the final action on reconsideration of 
                        that memorandum entitled ``Reconsideration of 
                        the Interpretation of Regulations That 
                        Determine Pollutants Covered by Clean Air Act 
                        Permitting Programs'' (75 Fed. Reg. 17004 
                        (April 2, 2010));
                            (iii) the final rule entitled ``Prevention 
                        of Significant Deterioration and Title V 
                        Greenhouse Gas Tailoring Rule'' (75 Fed. Reg. 
                        31514 (June 3, 2010));
                            (iv) the final rule entitled ``Action To 
                        Ensure Authority To Issue Permits Under the 
                        Prevention of Significant Deterioration Program 
                        to Sources of Greenhouse Gas Emissions: Finding 
                        of Substantial Inadequacy and SIP Call'' (75 
                        Fed. Reg. 77698 (December 13, 2010));
                            (v) the final rule entitled ``Action To 
                        Ensure Authority To Issue Permits Under the 
                        Prevention of Significant Deterioration Program 
                        to Sources of Greenhouse Gas Emissions: Federal 
                        Implementation Plan'' (75 Fed. Reg. 82246 
                        (December 30, 2010));
                            (vi) the interim final rule entitled 
                        ``Determinations Concerning Need for Error 
                        Correction, Partial Approval and Partial 
                        Disapproval, and Federal Implementation Plan 
                        Regarding Texas Prevention of Significant 
                        Deterioration Program'' (75 Fed. Reg. 82430 
                        (December 30, 2010));
                            (vii) the final rule entitled ``Limitation 
                        of Approval of Prevention of Significant 
                        Deterioration Provisions Concerning Greenhouse 
                        Gas Emitting-Sources in State Implementation 
                        Plans; Final Rule'' (75 Fed. Reg. 82536 
                        (December 30, 2010));
                            (viii) the final rule entitled ``Action To 
                        Ensure Authority To Implement Title V 
                        Permitting Programs Under the Greenhouse Gas 
                        Tailoring Rule'' (75 Fed. Reg. 82254 (December 
                        30, 2010));
                            (ix) the final rule entitled ``Action to 
                        Ensure Authority to Issue Permits Under the 
                        Prevention of Significant Deterioration Program 
                        to Sources of Greenhouse Gas Emissions: Finding 
                        of Failure to Submit State Implementation Plan 
                        Revisions Required for Greenhouse Gases'' (75 
                        Fed. Reg. 81874 (December 30, 2010));
                            (x) the final rule entitled 
                        ``Determinations Concerning Need for Error 
                        Correction, Partial Approval and Partial 
                        Disapproval, and Federal Implementation Plan 
                        Regarding Texas Prevention of Significant 
                        Deterioration Program'' (75 Fed. Reg. 82365 
                        (December 30, 2010));
                            (xi) any final rule providing for a waiver 
                        under section 209 of the Clean Air Act (42 
                        U.S.C. 7543) with respect to greenhouse gases 
                        or establishing any other requirements with 
                        respect to greenhouse gases pursuant to section 
                        177 of that Act (42 U.S.C. 7507);
                            (xii) the final rule entitled ``Mandatory 
                        Reporting of Greenhouse Gases'' (74 Fed. Reg. 
                        56260 (October 30, 2009)) and the definition of 
                        the term ``emissions data'' in section 2.301 of 
                        title 40, Code of Federal Regulations (or a 
                        successor regulation);
                            (xiii) any final action taken by the 
                        Administrator with respect to State 
                        implementation plans, Federal implementation 
                        plans, and policy guidance regarding 
                        construction or operating permits or permit 
                        requirements for stationary sources emitting 
                        greenhouse gases that is issued or taken 
                        before, on, or after the date of enactment of 
                        this Act; and
                            (xiv) any guidance, regulations, 
                        interpretive regulations, or policy regarding 
                        the emissions of greenhouse gases or climate 
                        change impacts of greenhouse gases promulgated 
                        or issued by the Administrator under any 
                        Federal law (including a regulation).
            (5) Regulation under other provisions.--
                    (A) In general.--Neither the regulation referred to 
                in paragraph (3)(B) nor any other provision of law 
                (including a regulation) or action relating to 
                greenhouse gases shall--
                            (i) have any impact on the regulation of 
                        stationary sources under title I of the Clean 
                        Air Act (42 U.S.C. 7401 et seq.); or
                            (ii) be considered to be the regulation of 
                        pollutants under that Act (42 U.S.C. 7401 et 
                        seq.) for any purpose (other than for the 
                        regulation of greenhouse gas emissions for 
                        light-duty motor vehicles from model years 2012 
                        through 2016, as required by the rule described 
                        in paragraph (3)(B)), including for the purpose 
                        of issuing permits or establishing regulatory 
                        standards.
                    (B) Requests for waivers.--Section 209(b) of the 
                Clean Air Act (42 U.S.C. 7543(b)) is amended by adding 
                at the end the following:
            ``(4) Requests for waivers.--Notwithstanding any other 
        provision of this Act or any other law--
                    ``(A) no request for a waiver of the application of 
                this section by any State for standards to control 
                emissions of any air pollutant that is a greenhouse gas 
                (as defined in section 3 of the Defending America's 
                Affordable Energy and Jobs Act) from new motor vehicles 
                or new motor vehicle engines of model year 2017 or 
                later may be granted by the Administrator; and
                    ``(B) no grant of any waiver by the Administrator 
                before the date of enactment of this paragraph shall be 
                considered by the Administrator, the requesting State, 
                or any court as waiving the application of subsection 
                (a), or any other provision of this section, to 
                standards adopted by the State for control of emissions 
                of any air pollutant that is a greenhouse gas (as 
                defined in section 3 of the Defending America's 
                Affordable Energy and Jobs Act) from new motor vehicles 
                or new motor vehicle engines of model year 2017 or 
                later.''.
            (6) Impacts on state laws.--
                    (A) In general.--Any provision of a State 
                implementation plan designating greenhouse gases as 
                pollutants that are subject to regulation or as 
                regulated pollutants, or otherwise authorizing or 
                requiring limitations on the emission of greenhouse 
                gases under State law--
                            (i) shall not be federally enforceable;
                            (ii) shall not be deemed to be Federal law; 
                        and
                            (iii) shall be deemed to be stricken from 
                        the State implementation plan.
                    (B) Authority of states.--
                            (i) In general.--Subject to clause (ii), 
                        nothing in this section affects any State law 
                        (including a regulation) or the authority of 
                        any State to adopt a law or promulgate a 
                        regulation.
                            (ii) Authority of administrator.--
                        Notwithstanding clause (i), the Administrator 
                        shall have no authority to approve or make 
                        federally enforceable any provision of a State 
                        implementation plan requiring the control of 
                        greenhouse gas emissions.
                            (iii) Amendment of existing laws.--If, as a 
                        result of the regulations referred to in 
                        paragraph (4), a State adopted any law 
                        (including a regulation) designating greenhouse 
                        gases as pollutants that are subject to 
                        regulation or as regulated pollutants, or 
                        authorizing or requiring limitations on the 
                        emission of greenhouse gases under State law, 
                        the State may amend the adopted law to remove 
                        any restrictions on greenhouse gas emissions.
                    (C) Federalization of sip requirements.--The 
                Administrator shall have no authority to approve or 
                make federally enforceable any provision of a State 
                implementation plan requiring the control of greenhouse 
                gas emissions.
            (7) Presidential findings and conclusions.--Except as 
        authorized by this subsection or another Act of Congress, the 
        President or the head of a Federal department or agency may not 
        examine or make findings or conclusions, such as those 
        contained in the final rule referred to in paragraph (4)(B)(i), 
        for purposes of promulgating or issuing policy, guidance, or 
        regulations to address the impacts of greenhouse gas emissions 
        on climate change.
            (8) Judicial review.--
                    (A) In general.--In addition to any other remedies 
                available, any person affected by a regulation, action, 
                or consideration concerning the control of emissions of 
                a greenhouse gas that fails to meet the criteria 
                described in paragraph (1) may challenge the 
                regulation, action, or consideration.
                    (B) Jurisdiction.--The United States Court of 
                Appeals for the District of Columbia Circuit shall have 
                exclusive jurisdiction over any review of any Federal, 
                State, or other regulation, action, or consideration 
                challenged under subparagraph (A).
    (b) Actions at Law.--No cause of action, whether based on common 
law or civil tort (including nuisance) or any other legal or equitable 
theory, may be brought or maintained, and no liability, money damages, 
or injunctive relief arising from such an action may be imposed, for--
            (1) any potential or actual contribution of a greenhouse 
        gas to climate change; or
            (2) any direct or indirect effect of potential or actual 
        atmospheric concentrations of a greenhouse gas.
    (c) Allowances.--No State shall have authority--
            (1) to require any entity to procure, hold, or surrender 
        allowances for the emission of greenhouse gases that takes 
        place outside of the State; or
            (2) to otherwise--
                    (A) regulate or tax, directly or indirectly, 
                greenhouse gas emissions produced outside of the State; 
                or
                    (B) to otherwise limit the importation of products 
                or electricity into the State based on greenhouse gas 
                emissions occurring outside the State.
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