[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


 EPA'S PROPOSED 111(d) RULE FOR EXISTING POWER PLANTS: LEGAL AND COST 
                                 ISSUES

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON ENERGY AND POWER

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 17, 2015

                               __________

                           Serial No. 114-20
                           
                           
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                           


      Printed for the use of the Committee on Energy and Commerce

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman
JOE BARTON, Texas                    FRANK PALLONE, Jr., New Jersey
  Chairman Emeritus                    Ranking Member
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
JOSEPH R. PITTS, Pennsylvania        ELIOT L. ENGEL, New York
GREG WALDEN, Oregon                  GENE GREEN, Texas
TIM MURPHY, Pennsylvania             DIANA DeGETTE, Colorado
MICHAEL C. BURGESS, Texas            LOIS CAPPS, California
MARSHA BLACKBURN, Tennessee          MICHAEL F. DOYLE, Pennsylvania
  Vice Chairman                      JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington   KATHY CASTOR, Florida
GREGG HARPER, Mississippi            JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey            JERRY McNERNEY, California
BRETT GUTHRIE, Kentucky              PETER WELCH, Vermont
PETE OLSON, Texas                    BEN RAY LUJAN, New Mexico
DAVID B. McKINLEY, West Virginia     PAUL TONKO, New York
MIKE POMPEO, Kansas                  JOHN A. YARMUTH, Kentucky
ADAM KINZINGER, Illinois             YVETTE D. CLARKE, New York
H. MORGAN GRIFFITH, Virginia         DAVID LOEBSACK, Iowa
GUS M. BILIRAKIS, Florida            KURT SCHRADER, Oregon
BILL JOHNSON, Ohio                   JOSEPH P. KENNEDY, III, 
BILLY LONG, Missouri                     Massachusetts
RENEE L. ELLMERS, North Carolina     TONY CARDENAS, California
LARRY BUCSHON, Indiana
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota
                    
                    Subcommittee on Energy and Power

                         ED WHITFIELD, Kentucky
                                 Chairman
PETE OLSON, Texas                    BOBBY L. RUSH, Illinois
  Vice Chairman                        Ranking Member
JOHN SHIMKUS, Illinois               JERRY McNERNEY, California
JOSEPH R. PITTS, Pennsylvania        PAUL TONKO, New York
ROBERT E. LATTA, Ohio                ELIOT L. ENGEL, New York
GREGG HARPER, Vice Chairman          GENE GREEN, Texas
DAVID B. McKINLEY, West Virginia     LOIS CAPPS, California
MIKE POMPEO, Kansas                  MICHAEL F. DOYLE, Pennsylvania
ADAM KINZINGER, Illinois             KATHY CASTOR, Florida
H. MORGAN GRIFFITH, Virginia         JOHN P. SARBANES, Maryland
BILL JOHNSON, Ohio                   PETER WELCH, Vermont
BILLY LONG, Missouri                 JOHN A. YARMUTH, Kentucky
RENEE L. ELLMERS, North Carolina     DAVID LOEBSACK, Iowa
BILL FLORES, Texas                   FRANK PALLONE, Jr., New Jersey (ex 
MARKWAYNE MULLIN, Oklahoma               officio)
RICHARD HUDSON, North Carolina
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
  
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................     1
    Prepared statement...........................................     3
Hon. Jerry McNerney, a Representative in Congress from the State 
  of California, opening statement...............................     3
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................     5
    Prepared statement...........................................     6
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     6

                               Witnesses

Laurence H. Tribe, Carl M. Loeb University Professor and 
  Professor Constitutional Law, Harvard Law School...............     8
    Prepared statement \1\.......................................     9
Allison D. Wood, Partner, Hunton and Williams, LLP...............    10
    Prepared statement...........................................    12
    Answers to submitted questions...............................   195
Richard L. Revesz, Lawrence King Professor of Law, Dean Emeritus, 
  Director, Institute for Policy Integrity, New York University 
  School of Law..................................................    34
    Prepared statement...........................................    36
Craig Butler, Director, Ohio Environmental Protection Agency.....    84
    Prepared statement...........................................    87
Kelly Speakes-Backman, Commissioner, Maryland Public Service 
  Commission, and Chair, Board of Directors, Regional Greenhouse 
  Gas Initiative, Inc............................................   101
    Prepared statement...........................................   103
Art Graham, Chairman, Florida Public Service Commission..........   111
    Prepared statement...........................................   113
Donald Van Der Vaart, Secretary, North Carolina Department of 
  Environment and Natural Resources..............................   130
    Prepared statement...........................................   132

                           Submitted Material

Comments on EPA Proposed Rule from the Florida Public Service 
  Commission, December 1, 2014...................................   156
Comments on EPA Proposed Rule from the Florida Office of Public 
  Counsel, November 30, 2014.....................................   179

----------
\1\ Available at: http://docs.house.gov/meetings/if/if03/
  20150317/103073/hhrg-114-if03-wstate-tribel-20150317-u1.pdf.

 
 EPA'S PROPOSED 111(d) RULE FOR EXISTING POWER PLANTS: LEGAL AND COST 
                                 ISSUES

                              ----------                              


                        TUESDAY, MARCH 17, 2015

                  House of Representatives,
                  Subcommittee on Energy and Power,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:00 a.m., in 
room 2123 of the Rayburn House Office Building, Hon. Ed 
Whitfield (chairman of the subcommittee) presiding.
    Members present: Representatives Whitfield, Olson, Barton, 
Shimkus, Pitts, Latta, Harper, McKinley, Pompeo, Kinzinger, 
Griffith, Johnson, Long, Ellmers, Flores, Mullin, Upton (ex 
officio), McNerney, Tonko, Engel, Green, Capps, Castor, 
Sarbanes, Yarmuth, Loebsack, and Pallone (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; Charlotte 
Baker, Deputy Communications Director; Leighton Brown, Press 
Assistance; Allison Busbee, Policy Coordinator, Energy and 
Power; Patrick Currier, Senior Counsel, Energy and Power; Tom 
Hassenboehler, Chief Counsel, Energy and Power; Mary Neumayr, 
Senior Energy Counsel; Chris Sarley, Policy Coordinator, 
Environment and Economy; Peter Spencer, Professional Staff 
Member, Oversight; Jean Woodrow, Director, Information 
Technology; Christine Brennan, Democratic Press Secretary; Jeff 
Carroll, Democratic Staff Director; Michael Goo, Democratic 
Senior Counsel, Energy and Environment; Caitlin Haberman, 
Democratic Professional Staff Member; Ashley Jones, Democratic 
Director, Outreach and Member Services; Rick Kessler, 
Democratic Senior Advisor and Staff Director, Energy and 
Environment; and John Marshall, Democratic Policy Coordinator.

  OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

    Mr. Whitfield. I would like to call our hearing to order 
this morning, and today's title is EPA's Proposed 111(d) Rule 
for Existing Power Plants: Legal and Cost Issues. And we have 
two panels of witnesses this morning, and I want to thank those 
of you on the first panel. I will be introducing each one of 
you before you give your opening statement, and you will be 
given 5 minutes at that time, but before we are able to listen 
to your marvelous opening statements, you have to listen to our 
opening statements, which sometimes is not quite as exciting to 
people.
    At this time, I would like to recognize myself for a 5-
minute opening statement.
    As I said, this morning our subcommittee will hold its 
first hearing this year on the EPA's proposed Clean Power Plan. 
We will examine specifically the circuitous and tortured 
rationale, in my opinion, of EPA that Section 111(d) of the 
Clean Air Act grants them the authority to regulate 
CO2 emissions from electric generating units that 
are already regulated under Section 112. We are also going to 
look closely at the impact on states and consumers.
    It appears that EPA is--excuse me just 1 minute. Given the 
stringency of this EPA proposed rule regarding CO2 
emissions at existing in coal plants, states are going to be 
forced to adopt state implementation plans within 1 year. And 
this regulation is so onerous for coal generation that, 
according to EPA's own projections, the amount of coat for 
electric generation in America would decline by 40 percent from 
the 2009 levels. The well-respected economic consulting firm, 
NERA, concluded that the proposal is the most expensive 
environmental regulation ever imposed on the electric power 
sector, costing between $41 to $73 billion per year, with 14 
states facing peak year electricity price increases that are 
likely to exceed 20 percent. Regional grid reliability 
coordinators have begun warning that the rule will curse 
portions of the grid to suffer cascading outages and voltage 
collapse.
    The North American Electricity Reliability Corporation 
recently produced an initial analysis that questioned the 
validity of the basic assumptions underlying the rule, and 
raised a multitude of concerns as to how the rule will affect 
the grid. This proposed rule has been described as a power 
grab, extreme, radical, unprecedented, and a violation of 
existing law. I agree with those characterizations. Even EPA 
has acknowledged that a literal application of Section 111(d) 
would likely preclude its proposal because the electric 
generating units are already regulated under Section 112. This 
proposed regulation would create turmoil in the generation, 
transmission, and distribution of electricity. It is being 
proposed because the President was unable to convince Congress 
to adopt a cap and trade legislation, and he has made 
international commitments without input or advice and consent 
from Congress, and in his Georgetown speech, he committed the 
U.S. to an extreme policy. It appears that EPA is trying to 
find a way to implement the President's plan pursuant to his 
international commitments, even though EPA has readily 
acknowledged that this proposal would not make a measurable 
difference in addressing climate change.
    So this is a significant issue that is going to have a 
dramatic impact on everything relating to electricity 
generation in America, and it is our responsibility to make all 
of this transparent, to give the American people the 
opportunity to be aware of how extreme this is, and what a 
fundamental change it would make, and to address the question 
is it really legal. And that is what we intend to do today. 
That is why we are thrilled with the panel of witnesses that we 
have.
    [The prepared statement of Mr. Whitfield follows:]

                Prepared statement of Hon. Ed Whitfield

    This morning our subcommittee will hold its first hearing 
of the year on the EPA's proposed ``Clean Power Plan.'' At this 
point, everyone from legal scholars to state government 
officials to affected utilities has had opportunity to review 
this proposed rule. As we will learn today, many have expressed 
serious concerns whether EPA can move forward with the proposed 
rule. Given the potential adverse impacts on ratepayers, many 
also question whether the agency should do so.
    EPA's plan to commandeer from state control nearly every 
major aspect of electricity generation, distribution, and use 
is based on section 111(d) of the Clean Air Act. However, there 
is a threshold question about whether EPA has statutory 
authority to proceed with its Clean Power Plan at all under 
that provision. Even assuming authority exists; neither the 
language of this provision nor its decades-long implementation 
history suggests that it authorizes such a sweeping federal 
agenda. This is especially true of the agency's attempts to 
regulate beyond the fence line of power plants by interfering 
with state decisions on matters like renewable portfolio 
standards and energy conservation mandates.
    Equally troubling are the Constitutional issues. Federalism 
is a core principle in our system of government and has proven 
to be a key component of effective energy and environmental 
policy. Unfortunately, the Clean Power Plan presents an 
unprecedented effort to tip the federal/state balance towards 
federal dominance over state electricity systems. Not 
surprisingly, officials from more than half the states have 
questioned EPA's legal authority to pursue this regulation.
    At risk is the discretion states have always had over the 
electricity generation mix. For example, my home state of 
Kentucky has chosen to rely mostly on coal to provide 
affordable and reliable electricity for its consumers and 
businesses. As a result, we are fortunate to have some of the 
lowest electricity rates in the country. Other states have 
chosen their own paths as they see fit to best serve their 
citizens' needs. But under the Clean Power Plan, each state's 
electricity plan would have to meet EPA's criteria for reducing 
carbon dioxide emissions and be approved by the agency.
    Any state that does not have a plan approved by the 
Administrator of the EPA would be subject to a Federal plan 
being imposed on it. EPA has yet to tell us what this federal 
plan would entail, but it is unlikely to be a viable option so 
much as an approach to compel states to submit to EPA demands 
in order to get their state plans approved.
    Given the Constitutional, statutory, and other legal issues 
surrounding the Clean Power Plan, I don't believe it will 
withstand judicial scrutiny. Given the tight deadlines under 
the proposed rule, states will be facing a decision about 
whether to submit their plans and initiate costly steps towards 
compliance before judicial review is complete. This would be 
unfortunate, because whether or not the Clean Power Plan is bad 
law, it certainly is bad policy.
    Even Administrator McCarthy has admitted that none of EPA's 
climate rules would actually make a measurable difference on 
future temperatures. The Clean Power Plan will, however, make a 
difference in many areas of the country to those who pay an 
electric bill.
    Indeed, the very purpose of the proposed rule is to replace 
affordability considerations with environmental ones in each 
state's electricity system. One study by NERA puts the total 
cost at $366 billion through 2031 and estimates increases in 
electricity prices of 12 percent or more. Beyond costs, there 
are highly credible warnings that ratepayers would face 
reliability risks, which already are a concern because of 
several other EPA rules targeting coal-fired generation but 
would get worse under the Clean Power Plan. No wonder states 
are fighting back against EPA.

    Mr. Whitfield. And with that, I would like to recognize the 
gentleman from California for his 5-minute opening statement.

 OPENING STATEMENT OF HON. JERRY MCNERNEY, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. McNerney. Thank you, Mr. Chairman.
    You mentioned this is the first hearing on this issue this 
year, but it is our fourth hearing on this issue in the last 
few years. So climate change is here. I mean it is happening. 
It is not a matter of speculation. We need to take action; we 
need to take it now. The longer we wait to take action on 
climate change, the more expensive it is going to be, the more 
damaging the effects of climate change are going to be, so it 
is incumbent upon us to do something about it. But the good 
news is that if the United States takes the lead, then we are 
going to be able to develop the technology, we are going to be 
able to export jobs, I mean we are going to be able to export 
materials, it is going to be a win for the United States, so we 
might as well embrace this now. Taking steps to curb carbon 
emission will have beneficial impacts such as repairing and 
replacing aging infrastructure with very high efficiency 
infrastructure.
    Now, I know that the coal producers are worried about this, 
but my advice to them is embrace carbon sequestration. Embrace 
it, because coal is going to be reduced whether we like it or 
not, but if we embrace carbon sequestration, then we will be 
able to continue to use coal and keep those important American 
jobs. So that is my advice to the coal producers. But we are 
going to be able to increase our clean energy sources, 
renewable energy, energy efficiency and so on. So I think this 
is an opportunity for us.
    Now, the Clean Air Act does give the EPA administrator the 
authority to put in place measures to reduce carbon dioxide 
production, and authority has been upheld in the courts. Now, I 
think we are going to hear some opinions about that this 
morning, but it has already been upheld in the courts.
    Now, the EPA's proposal, in my opinion, is reasonable. It 
includes energy efficiency, it includes looking for new, more 
efficient sources of energy, and using demand issues to help us 
reduce our carbon emissions. Now, the administration does have 
the responsibility to take action to protect us from the 
effects of climate change, so that is exactly what the Clean 
Power Plan does. Fourteen states in the United States, 
including my home state of California, have embraced this 
proposal. In a letter to the EPA, they wrote that even greater 
levels of cost-effective carbon pollution reductions from the 
power sector are achievable in this time frame, using the 
system described by the EPA. The EPA found that the power 
sector could reduce its emissions by 26 percent below the 2005 
levels under this initiative. That is a lot. Twenty-six percent 
reduction of the 2005 levels. That is significant, and that has 
put us in a leadership position. It has given other countries 
like China a motive to start reducing their carbon emissions, 
which is absolutely critical if we want to reduce carbon 
emissions in time to prevent the worst impacts of climate 
change. So this is really a win-win. But another thing that is 
really important is that the level of the amount of outreach 
that was done with this proposal was really unprecedented. The 
rule that we have in front of us is not final, so it is 
important for us to continue examining this issue, and to hear 
from all the stakeholders, and work together to find something 
that is going to benefit our Nation, put is in a leadership 
position, increase the economy, economic growth, and help stop 
climate change before the worst impacts are felt throughout the 
United States and throughout the world.
    So with that, I am going to yield back, Mr. Chairman.
    Mr. Whitfield. Thank you, Mr. McNerney.
    At this time, I would like to recognize the chairman of the 
full committee, Mr. Upton, for 5 minutes.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Thank you, Mr. Chairman.
    Today we continue our examination of what many folks 
believe is the most problematic of all the global warming-
related regulations being churned out by this Administration; 
the proposed Clean Power Plan by EPA. And I welcome our 
witnesses who are going to be discussing both the legal and 
cost concerns with this proposed rule, as well as the looming 
compliance difficulties at the state level.
    The Clean Air Act has been around since 1970, and we know 
from experience that it works best when implemented in the 
spirit of cooperative federalism. We have proven that we can 
accomplish a great deal to improve air quality when federal and 
state governments work together as partners. However, this 
proposed rule yanks the rug out from underneath the states with 
EPA dictating to the 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, not to mention that it is bad policy.
    As a result, many states are sounding the alarm about the 
legality of the rule and the implications for their citizens 
and their ratepayers. In addition to significant constitutional 
and other legal questions, states have expressed concerns about 
the feasibility of EPA's proposed requirements and the likely 
impacts on electricity costs and reliability. The risks to 
ratepayers are especially serious in states that rely on coal 
for a substantial part of their electricity generation. Under 
the Clean Power Plan, states would be forced to redesign their 
electricity generation, transmission, and distribution systems 
and related laws and policies, and to do so over a short time 
frame. Longstanding policies would be essentially wiped clean, 
and jobs and family budgets could suffer as a result, 
particularly for the most vulnerable.
    Today, we are going to hear several perspectives from both 
legal experts and state environmental and energy regulators. I 
am particularly concerned about the impacts on states, such as 
Michigan, which have a significant manufacturing sector. 
American manufacturers have shown that they can compete with 
anyone in the world, unless they face an uneven playing field 
caused by unilateral regulations like the EPA's proposed plan.
    Other EPA regulations like the Utility MACT rule have 
already contributed to rising electric rates and growing 
concerns about reliability. With the economy still far from 
fully recovered, the last thing job creators need is another 
expensive regulation likely to drive up energy prices. And the 
last thing struggling families need is to see their electric 
bills go up as well.
    So I hope that today's hearing will inform our efforts to 
develop commonsense policies that will ensure that electricity 
remains affordable and reliable in the coming decades. Jobs and 
the economy certainly are very important, and they remain our 
focus, and we will continue to work to keep the lights on and 
the electricity bills affordable.
    And I yield to other Republicans wishing to speak. Seeing 
none, I yield back the balance of my time.
    [The prepared statement of Mr. Upton follows:]

                 Prepared statement of Hon. Fred Upton

    Today we continue our examination of what many folks 
believe is the most problematic of all the global warming-
related regulations being churned out by the Obama 
administration EPA--the proposed ``Clean Power Plan.'' I 
welcome our witnesses who will be discussing both the legal and 
cost concerns with this proposed rule as well as the looming 
compliance difficulties at the state level.
    The Clean Air Act has been around since 1970, and we know 
from experience that it works best when implemented in the 
spirit of cooperative federalism. We have proven that we can 
accomplish a great deal to improve air quality when federal and 
state governments work together as partners. However, this 
proposed rule yanks the rug out from under states, with 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, 
not to mention that it is bad policy.
    As a result, many states are sounding the alarm about the 
legality of the rule and the implications for their citizens 
and ratepayers. In addition to significant Constitutional and 
other legal questions, states have expressed concerns about the 
feasibility of EPA's proposed requirements and the likely 
impacts on electricity costs and reliability.
    The risks to ratepayers are especially serious in states 
that rely on coal for a substantial part of their electricity 
generation. Under the Clean Power Plan, states would be forced 
to redesign their electricity generation, transmission, and 
distribution systems and related laws and policies, and to do 
so over a short timeframe. Longstanding policies would be 
essentially ``wiped clean,'' and jobs and family budgets could 
suffer as a result.
    Today, we will hear several perspectives from both legal 
experts and state environmental and energy regulators. I am 
particularly concerned about the impacts on states, such as my 
state of Michigan, which have a significant manufacturing 
sector. American manufacturers have shown that they can compete 
with anyone in the world--unless they face an uneven playing 
field caused by unilateral regulations like the EPA's proposed 
plan.
    Other EPA regulations like the Utility MACT rule have 
already contributed to rising electric rates and growing 
concerns about reliability. With the economy still far from 
fully recovered, the last thing job creators need is another 
expensive regulation likely to drive up energy prices. And the 
last thing struggling families need is to see their electric 
bills continue to go up.
    I hope that today's hearing will inform our efforts to 
develop commonsense policies that will ensure that electricity 
remains affordable and reliable in the coming decades. Jobs and 
the economy. That remains our focus. We will continue working 
to keep the lights on and the electric bills affordable.

    Mr. Whitfield. Gentleman yields back.
    At this time, I would like to recognize the gentleman from 
New Jersey, Mr. Pallone, the ranking member on the committee, 5 
minutes.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Chairman Whitfield.
    As we sit here today, unchecked climate change continues to 
reshape our world. According to NOAA, 2014 was the warmest year 
ever recorded, and 9 of the 10 hottest years have occurred 
since 2000. We know this warming is due to carbon pollution 
from fossil fuels accumulating in the atmosphere, trapping more 
heat and changing our climate. We can already see the effects 
of this warming in rapidly-melting ice sheets and glaciers, 
extreme droughts and wildfires, increased storm damages, 
shrinking coral reefs, and beyond. Globally, the cost of these 
impacts easily reach into billions of dollars each year, and 
that trend shows no sign of slowing down.
    To that end, EPA has proposed a workable plan to reduce 
emissions of carbon pollution from power plants, which are the 
largest uncontrolled source of manmade greenhouse gases in the 
U.S. Today, we will hear more about the Clean Power Plan, but 
there are few features that merit emphasizing in advance. 
First, the Clean Power Plan is not a one-size-fits-all proposal 
for reducing emissions. It uses a flexible state-based approach 
that takes account of each individual state's unique capacity 
to reduce emissions from its electricity sector. Second, EPA is 
not proposing that states act overnight. States have until 2030 
to meet their final goals, and the plan's interim goals don't 
begin until 2020. Third, the Clean Power Plan falls well within 
the legal authority and responsibility of EPA to address carbon 
pollution from power plants. This system-wide approach is based 
on the plain language of the Clean Air Act. And finally, and 
perhaps most importantly, the Clean Power Plan is just a 
proposal and is not yet finalized.
    EPA received over 3 \1/2\ million public comments on the 
Clean Power Plan, and is reviewing these comments as we speak. 
EPA can and will make adjustments to its proposal. EPA is 
looking hard at a range of issues relating to timing, 
reliability, technical, and legal issues, and EPA is working in 
close coordination with states, utilities, grid operators, and 
other federal agencies like DOE and FERC to make sure the plan 
is done right.
    And there are those who deny science. They claim that 
climate change is not real or manmade, that it is caused by 
natural cycles or sunspots, and that simply is untrue. The 
world's leading scientists have told us that climate change is 
happening, is caused by humans, and will have extremely serious 
impacts. The Republican-led Congress has not listened to the 
scientists, and has yet to take action to address these serious 
climate threats. And just saying no isn't an option anymore. We 
must reduce our carbon emissions, and the Clean Power Plan is a 
reasonable first step.
    So those who have concerns with EPA's plan have a 
responsibility, in my opinion, to not just criticize it, but 
also to propose alternative ways to achieve the same goal. 
There are always those who are willing to make absurd arguments 
on behalf of companies that profit from the status quo, and we 
will hear today from some of these that EPA's plan is not 
legal, that it is unworkable, that some states may refuse to 
participate, but I think that those making those arguments 
aren't really interested in finding solutions to our carbon 
pollution problem. They are not interested in developing a plan 
to help us reduce emissions while still maintaining a safe, 
reasonably-priced electricity system. To quote the words of EPA 
Administrator McCarthy, they are just trying to put their heads 
in the sand. They are more than welcome to do that but history 
will not treat them kindly. Keep this in mind as we listen 
today and during future hearings and debates on the Clean Power 
Plan. I think you will be able to recognize those who are 
simply arguing for inaction on behalf of entrenched fossil fuel 
interests, and compare them to those who want to act on climate 
change, and also want the development of our path forward to be 
thoughtful, sensible, and effective.
    So for my part, I am in the latter camp, and I urge all of 
my colleagues to join me. And I look forward to hearing from 
the witnesses.
    I don't think anybody on my side wanted time, is that 
correct? So I will just yield back my time. Thank you, Mr. 
Chairman.
    Mr. Whitfield. Gentleman yields back. Thank you very much.
    And that concludes our opening statements. So now we will 
turn to our panel of witnesses, and I am going to introduce 
each one of you individually before you give your opening 
statements.
    So our first opening statement will be given by Mr. 
Laurence Tribe, who is the Carl M. Loeb University Professor 
and Professor of Constitutional Law, Harvard. Professor Tribe, 
welcome, and we look forward to your testimony. You are 
recognized for 5 minutes, and be sure to turn the microphone on 
because it is not on automatically. So thank you.

   STATEMENTS OF LAURENCE H. TRIBE, CARL M. LOEB UNIVERSITY 
PROFESSOR AND PROFESSOR CONSTITUTIONAL LAW, HARVARD LAW SCHOOL; 
ALLISON D. WOOD, PARTNER, HUNTON AND WILLIAMS LLP; AND RICHARD 
   L. REVESZ, LAWRENCE KING PROFESSOR OF LAW, DEAN EMERITUS, 
 DIRECTOR, INSTITUTE FOR POLICY INTEGRITY, NEW YORK UNIVERSITY 
                         SCHOOL OF LAW

                 STATEMENT OF LAURENCE H. TRIBE

    Mr. Tribe. Mr. Chairman, members of the committee, I am 
honored to testify about EPA's proposed CO2 power 
plant regulations. I have submitted my full written statement 
for the record.
    EPA's proposal raises grave constitutional questions, 
exceeds EPA's statutory authority, and violates the Clean Air 
Act.
    First, the plan conflicts with settled principles of 
federalism and Supreme Court precedent because it would 
commandeer state governments, treating them more like 
marionettes, dancing to the tune of a federal puppeteer, than 
like laboratories of democracy. It would dictate the 
CO2 emissions target that each state must adopt 
within a year, commanding every state to enact an EPA-approved 
package of laws meeting that target by requiring power plants 
to shut down or reduce operations, consumers and businesses to 
use less electricity and pay more for it, and utilities to 
shift from coal to natural gas and other energy sources; a 
total overhaul of the states' way of life.
    Now, reducing states to this submissive role would confound 
the political accountability that the Tenth Amendment 
guarantees. EPA's plan would increase energy costs over local 
opposition, while cloaking that increase in the Emperor's garb 
of state choice, with state governments taking the blame for 
policies actually dictated and necessitated by EPA. A state 
that submits no plan meeting EPA's approval by 2016 confronts a 
centrally-planned and administered federal scheme of uncertain 
scope, burdening the state of its citizens backed by draconian 
sanctions like the loss of federal funds under preexisting 
antipollution programs. Prominent defenders of the EPA's 
proposal necessarily concede that noncomplying states gambling 
on whatever unpredictable backup plan EPA might impose would be 
at a huge disadvantage.
    EPA's proposal also presents serious Fifth Amendment 
problems. We are all CO2 emitters, and atmospheric 
CO2 is the intermingled result of all human 
activity, but EPA would impose costs, that ought to be borne 
equitably by everyone, on a small group of power plants and 
companies after requiring those same companies to invest 
billions of dollars to reduce their non-CO2 
pollutants over the past 25 years. The Constitution demands 
just compensation to rectify that bait and switch.
    Now, courts would never assume a congressional design to 
confer such revolutionary and constitutionally dubious power on 
EPA unless Congress clearly said so. But far from it, under the 
very Clean Air Act provision that EPA invokes, Section 111(d), 
Congress expressly prohibited EPA from doing exactly what it 
proposes to do here: regulate emissions from coal-fired power 
plants under Section 111(d), when those same power plants are 
already being regulated in costly ways under Section 112. In 
1995, EPA itself read the Clean Air Act to prohibit such 
duplication, as did the D.C. Circuit Court of Appeals in 2008, 
and the U.S. Supreme Court in 2011.
    If the Clean Air Act's meaning were ambiguous, and it 
isn't, settled principles of statutory interpretation would 
mean that EPA and any reviewing court would have to interpret 
the Act to avoid the constitutional difficulties that EPA's 
interpretation raises under the Fifth and Tenth Amendments. 
Now, to circumvent that avoidance principle, EPA resorts to 
sheer fantasy. It claims that Congress enacted a law in 1990 
that never made it into the U.S. Code, and that everybody has 
been using the wrong version of the statute for the past 
quarter century. Really? Crediting that story would call into 
question dozens of similar statutory provisions throughout the 
U.S. Code. The tale is pure fiction. There is no mistake in the 
U.S. Code, but even if Congress had truly tossed two different 
bills in the air and told EPA to decide which one to catch and 
run with, that would be a power Congress could not give away, 
and EPA could not recognize and exercise. It is a law-making 
power that belongs only to you, backed by a judicial power that 
belongs only to the courts.
    EPA is attempting an unconstitutional trifecta; usurping 
the prerogatives of the states, Congress and the federal courts 
all at once. Much is up for grabs in this complex area, but 
burning the Constitution of the United States, about which I 
care deeply, cannot be part of our national energy policy to 
deal with the problems of climate change.
    Thank you very much.
    [Mr. Tribe's testimony has been retained in committee files 
and can be found at:http://docs.house.gov/meetings/if/if03/
20150317/103073/hhrg-114-if03-wstate-tribel-20150317-u1.pdf.]
    Mr. Whitfield. Thank you, Professor Tribe.
    At this time, our next witness is Allison Wood, who is a 
partner at Hunton and Williams. And welcome. We appreciate you 
being here, and you are recognized for 5 minutes.

                  STATEMENT OF ALLISON D. WOOD

    Ms. Wood. Good morning. It is an honor to appear before 
this subcommittee to offer testimony on EPA's proposed Section 
111(d) rule.
    I have practiced environmental law for over 16 years, and 
for the past decade, my practice has focused almost exclusively 
on climate change.
    EPA's proposed rule suffers from a great many legal 
infirmities, and I will focus on two of those today. The first 
defect is that EPA is prohibited from regulating electric 
generating units under Section 111(d) because those units are 
already subject to regulation under a different provision of 
the Clean Air Act, Section 112, which regulates sources of 
hazardous air pollutants.
    Section 111(d) has always been a little-used provision of 
the Clean Air Act that was designed to catch the handful of 
sources that were not regulated under the Act's other major 
provisions. Indeed, this provision has been used to regulate 
sources only five times since 1970. The confusion over this 
point comes from two amendments that were made to Section 
111(d) during the 1990 amendments to the Clean Air Act, both of 
which appear in the Statutes at Large. EPA claims this leads to 
ambiguity, but in fact, the codifiers properly included in the 
United States Code only the House amendment; the amendment that 
clearly precludes regulation under Section 111(d) of source 
categories that are regulated under Section 112. This was 
appropriate, given that the managers of the Senate bill had 
expressly receded to the House amendment.
    The second legal defect involves EPA's overbroad 
interpretation of the term system of emission reduction in 
Section 111. In every other rulemaking under Section 111(d), 
EPA looked at existing sources to see what technology and 
processes were in place to limit pollution. EPA then based its 
determination of the best system of emission reduction for 
those types of existing sources on the known and demonstrated 
technologies and processes that were in use. States then 
applied the system of emission reduction to existing sources 
within their borders that did not yet have these pollution 
controls, while taking into account several factors including 
the source's remaining useful life.
    In this rulemaking, EPA turns this established procedure on 
its head and proposes for the first time a standard of 
performance that is based on not operating the source. EPA 
claims for the first time, based on the dictionary definition 
of the word ``system,'' that it can regulate any set of things 
that leads to reduced emissions from the source category 
overall, even if those things go beyond the fence line of the 
plant. EPA's new interpretation is fundamentally flawed. A 
system of emission reduction must begin and end at the source 
itself. EPA's interpretation would allow the agency endless 
regulation over all manner of things that are completely 
outside its purview. To use an illustration that may help 
people better understand what EPA is proposing to do here, it 
is as if EPA were requiring car owners not only to have 
catalytic converters on their cars, but also to travel a 
certain amount of days per week by bus, purchase a certain 
number of electric vehicles, and work from home one day a week. 
All of these things would reduce overall car emissions, but 
they do nothing to reduce the rate at which those cars emit 
pollutants per mile, and most people would surely agree that 
the Clean Air Act would not allow EPA to require these types of 
things from car owners, yet, this type of regulation is exactly 
what EPA is trying to do to power plants in the Section 111(d) 
rule.
    Finally, it should be noted that litigation over this rule 
will absolutely occur when it is finalized. Unfortunately, 
litigation takes time, and states are going to be forced to act 
before courts determine whether the Section 111(d) rule is 
lawful. State plans must be submitted within 1 year after the 
rule is finalized, unless a partial plan is submitted and EPA 
grants an extension. These plans will be very complex, and 
states have never before had to submit a plan under Section 
111(d) of this magnitude. Many states will need to pass 
legislation as part of their plan preparation. Regulations will 
need to be promulgated. Litigation will not be resolved before 
these things happen. Under this timing, any victory the states 
achieve will end up being hollow. A victory will not be able to 
give the states back the resources that were expended in plan 
development, nor will it solve the issue of states having to go 
through the time-consuming and uncertain process of unwinding 
legislation and regulations that were passed to put the plan in 
place.
    Thank you again for the opportunity to testify today.
    [The prepared statement of Ms. Wood follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you, Ms. Wood.
    At this time, our third witness is Professor Richard 
Revesz, who is the Lawrence King Professor of Law, Dean 
Emeritus, Director of Institute for Policy Integrity at the New 
York University School of Law. And thank you very much for 
being with us today, Professor, and you are recognized for 5 
minutes.

                 STATEMENT OF RICHARD L. REVESZ

    Mr. Revesz. Thank you, Mr. Chairman, and thank you for 
inviting me to testify before the committee.
    My written testimony covers four main points. First, the 
Clean Power Plan is a natural extension of previous EPA 
policies stretching back decades, and promulgated under both 
Republican and Democratic administrations, that use flexible 
compliance mechanisms to address the environmental harms of 
power production. Second, the Clean Power Plan does not give 
rise to any constitutional problems. Third, EPA has clear 
authority to implement the Clean Power Plan under Section 
111(d) of the Clean Air Act. And fourth, EPA's proposed 
guidelines in Section 111(d) are authorized by the statute and 
based upon demonstrated approaches that some utilities and 
states have already taken to reduce greenhouse gas emissions.
    On the first point, for the past quarter of a century, each 
President has taken measures to regulate the emissions of 
existing power plants because they are the Nation's largest 
sources of many harmful air pollutants, including mercury, 
sulfur dioxide, and carbon dioxide. Under the Administration of 
President George H. W. Bush, Congress enacted a 1990 amendment 
which capped sulfur dioxide emissions from existing power 
plants, and established an innovative trade mechanism to 
achieve reductions as cheaply as possible. Later, the 
Administrations of President Bill Clinton, George W. Bush, and 
Barack Obama each promulgated important regulations requiring 
existing power plants to reduce emissions of smog and 
particulate precursors that negatively affect the air quality 
in downwind states, again using cost-effective flexible trading 
mechanisms. And finally, the Administrations of both President 
George W. Bush and Barack Obama issued rules limiting emissions 
of mercury from existing plants.
    Like these earlier programs, EPA's Clean Power Plan will 
cost-effectively reduce pollution from existing power plants 
through a flexible program that enables states to rely on 
traditional regulation, emissions trading, or any other tool 
that they may prefer.
    My second point on the constitutional issues. The first 
claim made by opponents is there is a problem with the way 
Congress delegated regulatory power to EPA under Section 111(d) 
because the House and Senate passed arguably inconsistent 
amendments to the provision in 1990. Both the House and Senate 
versions were then included in a conference bill that was 
passed by each chamber and signed by President George H. W. 
Bush. In all of our history, the Supreme Court has struck down 
only two statutory provisions as constitutionally impermissible 
delegations to an administrative agency, both in the mid-
1930's, during its skirmishes with President Franklin Roosevelt 
over the New Deal. Supreme Court has never invalidated a 
federal statue on non-delegation grounds on the basis of the 
argument that opponents of the Clean Power Plan now advance: 
that a statute has arguably inconsistent provisions. Instead, 
the courts have consistently dealt with this problem by finding 
ways to develop a workable interpretation of the statute.
    Opponents of the Clean Power Plan make a similarly 
farfetched argument the plan violates the Takings Clause of the 
Fifth Amendment, which protects private property rights. A 
regulation leads to a Takings violation only if it deprives an 
owner of essentially all of the value of his or her property, 
which is not the case here. And even if it were, the 
appropriate remedy is a subsequent suit for compensation, not 
the invalidation of a nationwide rule.
    Finally, opponents claim that the Clean Power Plan runs 
afoul of the Tenth Amendment's prohibition against the 
commandeering of state institutions by the Federal Government. 
This extreme and unsupported interpretation of the Tenth 
Amendment would invalidate many of the core provisions of the 
Clean Air Act, not only Section 111(d), in fact, it is the 
basis for how the National Ambient Air Quality Standards under 
the Clean Air Act, which are the centerpiece of the statue, and 
have been its centerpiece since 1970, are administered. And 
nothing here is commandeered anyway. The states are merely 
given the option to submit plans if they choose to do so. If 
they do not, the Federal Government has the authority to impose 
federal implementation plans that give rise to no 
constitutional problem at all because they do not involve state 
institutions.
    The third point, the statutory point. Congress passed two 
amendments: the House Amendment and the Senate Amendment. The 
opponents of the Clean Power Plan would like us to ignore the 
Senate Amendment because it was not included in the U.S. Code 
by the Office of Law Revision Counsel, but everyone knows that 
a mere functionary cannot supplant the will of Congress. To do 
so would violate the principles of bicameralism and 
presentment. And in any event, even the House Amendment, which 
the opponents of the Clean Power Plan would like to credit, is 
not subject to a single interpretation; it is subject to 
multiple interpretations, and under traditional principles of 
statutory construction, the interpretation by the agency, by 
EPA, is entitled to deference in the courts.
    And finally, on the claim that the Clean Power Plan 
violates some provision of the Clean Air Act because it 
regulates beyond the fence line, the product here is 
electricity, not electricity produced by coal, and EPA has the 
authority to define the system in that way, and has done so.
    Thank you very much, and I would be delighted to answer 
questions.
    [The prepared statement of Mr. Revesz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you, Professor Revesz. And thank all 
of you for your statements.
    At this time, the members have an opportunity to ask 
questions, and I would like to recognize myself for 5 minutes 
at this time.
    Ms. Wood, we have heard a lot of discussion about inside 
the fence and outside the fence, and as I said in my opening 
statement, this regulation has been characterized in a lot of 
different ways; extreme, radical, power grab. Would you explain 
from your perspective of why this is so significantly different 
in that it allows outside-the-fence solutions?
    Ms. Wood. Outside the----
    Mr. Whitfield. Turn your microphone on.
    Ms. Wood. Yes, thank you. The outside-the-fence line 
nomenclature is being used a lot. Indeed, you can't even go 
beyond the source itself. So here we are talking about the 
actual electric generating unit. And the reason why people talk 
a lot about going beyond the fence line with this rule is that, 
of the four building blocks that are set forth in the rule, 
only one of them actually gets any kind of emission reduction 
at the source itself, and that is building block one that has 
to do with energy efficiency improvements that can be made.
    All of the other building blocks take place somewhere else 
beyond the source, outside the fence line. This has never been 
the case with any other rulemaking under Section 111(d).
    Mr. Whitfield. Never been the case before?
    Ms. Wood. No.
    Mr. Whitfield. I take it that a state would even be able to 
mandate the type of material used in a building under this 
regulation if it is adopted. Would that be correct?
    Ms. Wood. It----
    Mr. Whitfield. In order to meet the overall emission cap.
    Ms. Wood. Right. Exactly. You could add building block five 
that would say you have to have Energy Star buildings to try to 
reduce----
    Mr. Whitfield. Right.
    Ms. Wood [continuing]. Energy consumption. I mean that 
could also arguably fall within the building block four, which 
is designed to have consumers use less electricity.
    Mr. Whitfield. I thought your illustration was very good 
about driving to work. You could be mandated to take a bus, you 
could be mandated to this vehicle or ride a bicycle certain 
days, whatever, but it doesn't do anything about reducing the 
emission of your automobile.
    Ms. Wood. Right, and that is exactly the point of beyond 
the source or beyond the fence line.
    Mr. Whitfield. Yes.
    Ms. Wood. The emission reductions that you would get----
    Mr. Whitfield. Yes.
    Ms. Wood [continuing]. From not driving your car one day a 
week have nothing to do with----
    Mr. Whitfield. Yes.
    Ms. Wood [continuing]. The car running and getting----
    Mr. Whitfield. Yes.
    Ms. Wood [continuing]. And emitting less pollution----
    Mr. Whitfield. Yes.
    Ms. Wood [continuing]. It has to do with the car not 
running.
    Mr. Whitfield. And so, Professor Tribe, do you agree that 
this inside-the-fence, outside-the-fence is a radical change 
for EPA?
    Mr. Tribe. Mr. Chairman, I agree very much that it is a 
radical change, and it is a radical change that bears on what 
this committee needs to think about in several ways. First of 
all, I think it shows how unrealistic is the claim that, you 
know, there is nothing going on here, just move along, don't 
bother, which is, I think, the essence of Professor Revesz's 
testimony. No constitutional problem, nothing new. But it is 
radically new. I mean we should all, I think, be honest with 
ourselves. Yes, many people think that there are severe 
problems that need to be addressed, but the question is do we 
care about the rule of law and how we go about addressing them.
    Mr. Whitfield. Right.
    Mr. Tribe. Now, the way that a court, if a court gets its 
hands on this, would look at the outside-the-fence issue isn't 
just as a technical matter, inside, outside, it would look at 
it in terms of no limiting principle.
    Mr. Whitfield. Right.
    Mr. Tribe. As a number of state attorneys general have 
said, if you--if the EPA can do this, it can tell you how often 
to use your electric toothbrush.
    Mr. Whitfield. And the EPA has even had legal memorandums 
themselves saying that they didn't think they had the authority 
to regulate under 111(d).
    Mr. Tribe. Yes, that is right. In 1995, they didn't think 
they had the authority. They were told in 2008 by the D.C. 
Circuit they didn't have the authority. In 2011, the U.S. 
Supreme Court told them they didn't have the authority, and 
they say never mind.
    Mr. Whitfield. Yes. Well, why wouldn't they regulate under 
Section 108?
    Mr. Tribe. Well, 108 to 110, with respect to the National 
Ambient Air Quality Standards, really don't fit this very well 
or else you could be sure that they would go that route. The 
reason they don't fit is that they are really based on state 
designation of geographical areas within the state as 
attainment, non-attainment or unclassifiable.
    Mr. Whitfield. Right.
    Mr. Tribe. I would hate to live in an unclassifiable area. 
But the point is that CO2 comingles with everything 
uniformly throughout the global atmosphere----
    Mr. Whitfield. Right.
    Mr. Tribe [continuing]. And so you really couldn't approach 
it by making the findings. And besides the findings that you 
would have to make under 108 to 110 would be very difficult to 
make, and would require a procedure that they haven't gone 
through.
    Mr. Whitfield. And they can't do it under 112 because 
CO2 is not a listed hazardous air pollutant.
    Mr. Tribe. Right, under 112, there are 188 hazardous air 
pollutants listed by Congress. Nobody claims that 
CO2, which is essential for life, is hazardous in 
that sense. They try to----
    Mr. Whitfield. Yes.
    Mr. Tribe [continuing]. Split hairs by saying, well, it may 
not be hazardous but it is dangerous. But we are not writing a 
novel here, but we are talking about a law passed by this body, 
and I am concerned that I have cared about the environment ever 
since I was a kid, and I taught the first environmental law 
course in this country, and I have won major victories for 
environmental causes, but I am committed to doing it within the 
law. And there is a legal way to address these problems. They 
tried to get cap and trade with this Administration, didn't 
work. And I guess the EPA is now following a kind of marching 
order saying, well, if you can't do it through the lawful way, 
just take an agency and tell it to bend and twist and tear and 
rip the law.
    When I use the metaphor that burning the Constitution is 
not a good source of fuel for dealing with these problems, I 
was being metaphorical only in part. When you tear the 
Constitution apart bit by bit, and give it the death by 1,000 
cuts, what else will we sacrifice the Constitution for?
    Mr. Whitfield. Thank you, Professor Tribe. My time has 
expired.
    At this time, I recognize the gentleman from California for 
5 minutes.
    Mr. McNerney. Thank you, Mr. Chairman.
    Mr. Revesz or Professor, would you describe what the 
Supreme Court actions have been thus far with regard to the EPA 
that is applicable to the Clean Air Plan?
    Mr. Revesz. Sure. The Supreme Court has never said any----
    Mr. McNerney. Your speaker.
    Mr. Revesz. Sorry. The Supreme Court has never said 
anything that raises any questions about the legality of the 
Clean Power Plan. In fact, the case that Professor Tribe 
mentioned from 2011, the American Electric Power case, actually 
stands for exactly the opposite proposition. I mean the Supreme 
Court decided to preempt federal common-law claims because it 
said that EPA had the authority to regulate the carbon dioxide 
emissions of plants under Section 111(d). And so the Supreme 
Court has not stood in the way of this kind of regulation. 
There isn't a single Supreme Court case that raises any 
constitutional question. As I indicated, non-delegation claim 
is not a serious one. The Supreme Court has never struck any 
federal statute down on these grounds since the mid-1930s, and 
here all we have are two different conflicting approaches to a 
provision, and that is exactly where the agency gets the first 
crack at interpreting, and then the courts review the agency's 
interpretation. And that is actually already going on. There 
has been a challenge to the proposed rule that is now pending 
in the D.C. Circuit, it is going be argued on April 16, and 
then the standard way that these things are going to happen, 
the D.C. Circuit will decide whether the agency's 
interpretation is right or is wrong, but there is no real 
constitutional issue there.
    The Takings claim, again, the Supreme Court--there isn't a 
single case that would support holding this to be a Takings. If 
some firm thinks that it has been deprived of the whole value 
of its property through this regulation, which seems extremely 
unlikely, it can bring an action for compensation. If it, in 
fact, has been deprived of the value of its property, it would 
presumably prevail, but that is not a reason for striking down 
a nationwide rule.
    And on the Tenth Amendment point, and I wanted to stress 
something that was very important, the cooperative federalism 
model that is the core of the Clean Air Act provides for 
federal standards, gives the states an opportunity to come up 
with state implementation plans, and if they don't, the Federal 
Government can act and impose a federal implementation plan. 
This is the scheme under Section 108 through 110 that the 
chairman mentioned. It is the way National Ambient Air Quality 
Standards are done in this country. These are the standards 
that have saved hundreds of thousands of lives. They are the 
most successful federal environmental program ever. And if 
Section 111(d) has the Tenth Amendment problem, as Professor 
Tribe ascribes to it, Section 109 would have exactly the same 
problem because it is exactly the same cooperative federalism 
model. And, in fact, Section 111(d) uses pretty much the same 
language as Section 109.
    These are programs that have been around for 45 years, that 
were passed through a bipartisan consensus, they form the 
fabric of our environmental laws, and there is nothing 
different here than there is under Section 109.
    Mr. McNerney. Well, I was going to ask you about the Tenth 
Amendment, but you sort of wandered into that so I don't need 
to ask that question.
    So with that, I will yield back the----
    Mr. Revesz. If I could say something about the 
unprecedented nature of this regulation that Professor Tribe 
and Ms. Wood alluded to. There is nothing of that sort. I mean 
just last term, the Supreme Court upheld an important EPA rule 
that regulates the interstate emissions where the statute says 
that it prohibits any source from emitting any air pollutant 
that will significantly contribute to environmental problems in 
downwind states. And EPA authorized states to adopt trading 
mechanisms that go beyond imposing controls on particular 
sources. This issue was litigated before the Supreme Court. Its 
opponents argued EPA didn't have the authority to do that 
because the statute said refer to any source, and in the end, 
the Supreme Court upheld that regulation on a 6-2 vote with 
Justices Scalia and Thomas dissenting.
    So that is a very comparable program. It is also part of 
the same effort to control the emissions of existing power 
plants because they are such important contributors to 
pollution in this country.
    Mr. McNerney. Thank you, Mr. Chairman.
    Mr. Whitfield. Gentleman yields back.
    At this time, recognize the gentleman from Texas, Mr. 
Barton, for 5 minutes.
    Mr. Barton. Thank you, Mr. Chairman.
    I don't normally reread parts of testimony, but I am going 
to in this case read the some of the paragraphs of Professor 
Tribe because I think he lays out pretty explicitly and clearly 
what this is all about. This is at least his executive summary 
of his testimony today, and I quote, ``EPA lacks the statutory 
and constitutional authority to adopt its plan. The obscure 
section of the Clean Air Act that EPA invokes to support its 
breathtaking exercise of power in fact authorizes only 
regulating individual plants and, far from giving EPA the green 
light it claims, actually forbids what it seeks to do. Even if 
the Act could be stretched to usurp state sovereignty and 
confiscate business investments the EPA had previously 
encouraged and in some cases mandated, as this plan does, the 
duty to avoid clashing with the Tenth and Fifth Amendments 
would prohibit such stretching. EPA possesses only the 
authority granted to it by the Congress. It lacks implied or 
inherent powers. Its gambit here raises serious questions under 
the separation of powers Article I and Article III because EPA 
is attempting to exercise lawmaking power that belongs to 
Congress, and judicial power that belongs to the federal 
courts. The absence of EPA legal authority in this case makes 
the Clean Power Plan quite literally a power grab. EPA is 
attempting an unconstitutional trifecta: usurping the 
prerogatives of the states, Congress, and the federal courts 
all at once. Burning the Constitution should not become part of 
our national energy policy.''
    Now, that is pretty straightforward. Professor Tribe, I 
assume that we would stipulate that you are an expert in the 
Constitution, is that fair to say?
    Mr. Tribe. Some people have said that.
    Mr. Barton. Some people have said that, OK. I would also 
assume that the committee can stipulate that you are an expert 
in regulatory authority or environmental issues, is that also 
fair to say?
    Mr. Tribe. Again----
    Mr. Barton. Some people say that?
    Mr. Tribe. Some people say it, right.
    Mr. Barton. Some people say that.
    Mr. Tribe. Yes.
    Mr. Barton. Well, would you say, and again I want to quote 
from another Supreme Court case, this is in the Supreme Court 
case back in 2001, Whitman v. the American Trucking 
Association, that Congress does not alter the fundamental 
details of a regulatory scheme in vague terms. It does not, one 
might say, hide elephants in a mouse hole. Would you say this 
is an attempt to hide an elephant in a mouse hole?
    Mr. Tribe. I would say, Mr. Chairman, that it is an attempt 
to hide a very large constitutionally-troubled elephant in a 
very tiny mouse hole, and not a mouse hole that was accurately 
described, I might add, by Professor Revesz. Let me give you, 
if I might, just one example. He----
    Mr. Barton. Be quick because----
    Mr. Tribe [continuing]. Talked about----
    Mr. Barton [continuing]. I only have a minute and a half 
left.
    Mr. Tribe. Well, he just misdescribed the cases. The case 
of AEP v. Connecticut, he said Congress--the Supreme Court said 
that the EPA has this power, except the majority opinion in 
footnote 7 said there is an exception under 111(d), you can't 
use this power to regulate a source that is already being 
regulated under 112. Professor Revesz conveniently left out the 
only part of this case that is relevant.
    He also says that--well, I shouldn't take your time.
    Mr. Barton. Well, let me just reclaim my time.
    I was on the committee in 1990. I don't think Mr. Green 
was. I am not sure anybody else currently here was on the 
committee. Mr. Pallone may have been, I am not sure, but I 
participated in these debates. I was not on the Conference 
Committee between the House and the Senate so I can't claim 
personal knowledge, but I was on the committee and I was 
actively engaged in a bipartisan fashion in crafting this law, 
and we had a coalition of conservative Democrats, like Billy 
Tauzin and Ralph Hall and Mike Synar on the Democrat side with 
the Republicans, and Mr. Dingell, who was chairman at the time, 
kind of played us back and forth, but there was never a debate 
in the committee that would interpret the Clean Air Act 
amendments as the proponents of the Clean Power rule. Never. It 
was never. Just the opposite. Just the opposite.
    And, Mr. Chairman, I hope after the conclusion of these 
hearings, that we move legislation on a bipartisan basis that 
explicitly clarifies this point. The EPA has a right to set a 
national standard in interstate commerce to protect public 
health. It does not have the right to go in and micromanage how 
a state complies with a national standard which, as I 
understand it, is exactly what this Clean Power Plan does.
    And with that, I yield back.
    Mr. Whitfield. Thank you, Mr. Barton.
    At this time, recognize the gentleman from New Jersey, Mr. 
Pallone, for 5 minutes.
    Mr. Pallone. Thank you, Mr. Chairman.
    I am a little surprised by some of the legal arguments we 
are hearing against the Clean Power Plan, but I guess I have 
been around long enough to know that you can get constitutional 
lawyers and professors to say anything on both sides, just like 
you can get lawyers at home to say anything on both sides. So I 
just wanted to give Professor Revesz some time to comment on 
some of the comments that have been made by Professor Tribe. 
For instance, we are hearing that the Clean Air Act actually 
prohibits EPA from issuing the Clean Power Plan, however, the 
Supreme Court disagrees, citing American Electric Power v. the 
Connecticut case, if need be. An argument is also being made 
that since EPA acted to regulate mercury pollution from power 
plants, EPA does not have the authority to issue the Clean 
Power Plan. So, Professor Revesz, is this argument a reasonable 
interpretation of the law?
    Mr. Revesz. No. Several things. First, on the American 
Electric Power case that we have now been arguing, there is 
footnote 7. I am very familiar with it. Footnote 7 is subject 
to more than one interpretation. In fact, I am holding the 
Brief of the Federal Government in the D.C. Circuit case, and 
the Federal Government is interpreting this differently--the 
footnote differently. It is interpreting the footnote not to 
stand in the way of exactly what EPA is doing on the Clean 
Power Plan. On the standard techniques of statute 
interpretation, EPA, as the agency empowered by Congress to 
administer the statute, deserves deference. This is EPA's 
interpretation. EPA's interpretation is consistent with the 
argument I made, not with the argument Professor Tribe made.
    Now, Professor Tribe may, in fact, be ultimately right. 
That is for a court to decide. I believe that he is wrong. EPA 
believes that he is wrong. And we will find out, this issue 
will be argued extensively on April 16 before the D.C. Circuit.
    On the question about whether EPA cannot regulate under 
Section 111(d) because it has regulated mercury emissions under 
Section 112, that is wrong as well. There are two amendments. 
There is a House Amendment and a Senate Amendment. They were 
both passed. Now, it turns out that only one of them was 
included in the U.S. Code. That was a decision made by a mere 
functionary. This is the Office of Law--of--something or other. 
Of Legislative Counsel. That person cannot supplant the will of 
Congress, and that is well established. So EPA has, for 25 
years, under Administrations of both parties, sought to give 
meaning to both the House Amendment and the Senate Amendment.
    The opponents would like us to ignore the Senate Amendment 
entirely, and they would like to give the House Amendment a 
particular gloss, and it is a gloss that involves rewriting the 
statute. The statute uses two--twice the word or, and they 
would like us to instead supplant the word and. The word and 
would be more convenient for them, but actually, the statute 
has the word or. So not only would we have to ignore the Senate 
Amendment, which there is no basis for doing, but we also would 
have to rewrite the House Amendment, and we would have to go 
through an additional hurdle which is not giving EPA the 
deference that it is due under traditional principles of 
statutory interpretation as embodied in the Chevron case.
    If I can make one related point. On this analogy to cars, I 
don't think that the analogy to cars really works here because 
in the car example that Ms. Wood referred to, the product is 
the car, and if EPA wants to regulate cars it can regulate 
cars, and regulate the emissions of cars, as it does and has 
done since the early 1970s. Here, the product is electricity. 
It is not electricity produced by coal-fired power plants, it 
is electricity. And as you know, we have an integrated system 
for delivering usable electricity to consumers, and EPA can 
figure out what the best system of emission reduction for 
delivering usable electricity to consumers is.
    Let me give you an example. When I was growing up in 
Argentina, where I was born, when I had a fever my mother would 
give me a mercury thermometer. These things aren't sold in this 
country because they are dangerous, and instead, we use digital 
thermometers. If using the logic of the opponents of the Clean 
Power Plan, the product would be a mercury thermometer as 
opposed to a thermometer and, therefore, a regulation that 
might actually bring mercury thermometers out of business might 
be considered suspect, but we have never used a principle like 
this for regulation in this country, for good reason, because 
doing so entrenches bad technologies and stands in the way of 
innovation. The product here is not electricity produced by 
coal-fired power plants, it is usable electricity delivered to 
the consumers' home.
    Mr. Pallone. Thank you, Mr. Chairman.
    Mr. Whitfield. Thank you.
    At this time, recognize the gentleman from Texas, Mr. 
Olson, for 5 minutes.
    Mr. Olson. I thank the chair. And welcome, Professor Tribe, 
Ms. Wood, and Professor Revesz.
    This hearing is about one document; this Constitution. I 
have had this in my pocket for over 2 decades now. It is kind 
of worn, comes out by pages, but it is still is very much 
alive.
    And my first question is to you, Ms. Wood. Under EPA's 
proposed Clean Power Plan, states would have only 13 months to 
develop their state plans. Is that 13 months by statute? If 
not, where does that mandate come from?
    Ms. Wood. No, the 13 months is not from statute. The 13 
months is just a deadline that EPA has come up with in this 
proposed rule. Under the applicable regulations, the deadline 
is actually 9 months for a state to submit its plan, but the 
regulations are very clear that EPA can extend that deadline as 
it sees fit, so it has wide discretion there. So it has 
actually extended it from 9 months to 13.
    Mr. Olson. Wow, 4 more months. Now correct me if I am 
wrong, but under less complex programs don't they allow usually 
3 years to determine these standards, 3 years as opposed to 9 
months or 13 months, is that true?
    Ms. Wood. Typically, for state implementation plans, which 
are often called SIPs under the Section 110, the NAAQS Program, 
states do get 3 years.
    Mr. Olson. And this is for you, Mr. Tribe, as well as Ms. 
Wood. In light of the typical period for developing state 
implementation plans under the NAAQS Programs, does EPA's 
accelerated timeline in the Clean Power Plan for submitted 
state plans raise concerns? Constitutional concerns, can you do 
it, yes, no, reliable, whatever?
    Mr. Tribe. Are you asking whether the----
    Mr. Olson. What are your concerns, sir? What raises these 
concerns in all this accelerated development going down from 3 
years to 9 months to 13 months, what----
    Mr. Tribe. Well----
    Mr. Olson [continuing]. Are your concerns? How about----
    Mr. Tribe. Frankly, I don't know that the time change 
raises a big constitutional concern, but if I could, without 
cutting too much into your time, verify----
    Mr. Olson. No, it is your time, sir.
    Mr. Tribe [continuing]. One point which I think is 
absolutely crucial to that little document that you are 
holding, and that is the suggestion that we should defer to EPA 
on which of the 2 versions of this law, are really the law of 
the land. Let me be absolutely clear, it was not some 
functionary, it was the Senate conferees on October 27, 1990, 
who said we recede to the House version. The Senate version 
couldn't be implemented because it was just a clerical thing 
that referred to something that no longer existed. So that is 
absolutely clear. This ghost version of the law that Professor 
Revesz wants to resurrect, and I don't know why he would bother 
if the law as it really is in the books supported what they are 
doing, but I don't have time to go through the grammar to show 
why it doesn't, this ghost version doesn't exist. There may be 
ghosts, but this ghost is a nonexistent one. And now what he is 
saying is that because courts generally defer to agencies like 
EPA, when they take a statute that is ambiguous and interpret 
it one way or another, it should also somehow follow that when 
Congress tosses a law into the air, and there is another ghost 
competing with it, it is OK for the EPA to grab the ghost and 
run with it. What kind of version of the Constitution is he 
reading? Certainly not the one you have in your pocket.
    Mr. Olson. Yes, sir. I mean I am looking through this 
document. It has also the Declaration of Independence and the 
Constitution, 27 amendments, I don't see a ghost version 
anywhere in this document. So that is great insight.
    My final question is for all three witnesses. EPA has 
announced they will finalize this proposed Clean Power Plan for 
existing power plants this summer. Do you expect that will be 
challenged in the courts, and will be that be struck down or 
vacated in your humble opinion?
    Mr. Tribe. Well, it is being challenged already in a 
particular case in the D.C. Circuit, but the problem is that 
that court might not reach the merits. It might say it is 
premature because, after all, we don't have a final rule yet, 
but the real dilemma is that states are confronted with not a 
ghost but a phantom. They are confronted with some federal 
alternative that they can't yet see, and so they are under 
enormous pressure, which is what makes this a violation of the 
Tenth Amendment, under enormous pressure to revise their whole 
economy. And by the time that has happened, it might be too 
late for a court to unwind everything that has gone on. And, 
you know, maybe if that would have solved the whole climate 
problem, one would say, well, what is a little legal violation, 
but when you look at what the EPA itself says, it says that if 
this proposal were perfectly implemented and were not offset by 
what goes on abroad, what it would achieve by the year 2100 is, 
at most, reducing the rise of sea levels by \3/10\ of a 
centimeter, which is two or three sheets of paper, and reducing 
global mean temperature by under 1/100 of 1 degree centigrade. 
And I ask you, even if we could get all of that, is it worth 
that little document you are holding----
    Mr. Olson. Thank you, sir.
    Mr. Tribe [continuing]. And I would say no.
    Mr. Olson. I am out of my time. Thank you for being a 
ghostbuster.
    Mr. Whitfield. Gentleman's time has expired.
    At this time, I will recognize the gentlelady from Florida, 
Ms. Castor, for 5 minutes.
    Ms. Castor. Thank you, Mr. Chairman. And thank you to our 
esteemed panelists today. It has been very insightful.
    Professor Revesz, you have cited the Whitman v. American 
Trucking Association opinion as one of the most important 
environmental decisions overall in the history of the Supreme 
Court, and you say it has particular import for the Clean Power 
Plan. That was a case--who was the author of that case?
    Mr. Revesz. Justice Scalia.
    Ms. Castor. Justice Scalia. The central issue was the 
delegation of authority, whether it was constitutional or 
unconstitutional, is that right?
    Mr. Revesz. That is correct.
    Ms. Castor. So what did Justice Scalia say in that case 
that you think is quite analogous here, and that might be an 
issue----
    Mr. Revesz. Right.
    Ms. Castor [continuing]. In future court cases?
    Mr. Revesz. Right. Thank you. So that was a case in which 
Professor Tribe wrote a Brief, arguing that the Clean Air Act 
was--involved an unconstitutional delegation of legislative 
power to the administrative agency. Justice Scalia was widely 
regarded at the time, and still is, as the greatest friend of 
non-delegation doctrine in the Supreme Court, and Justice 
Scalia writing for unanimous court rejected the non-delegation 
argument. It was rejected unanimously by a vote of 9 to 0. And 
that case is relevant to this situation because that was the 
last time that a broad non-delegation argument was made 
challenging a major environmental provision. It was a provision 
of the----
    Ms. Castor. And that is the Clean Air Act too----
    Mr. Revesz [continuing]. Very same statute.
    Ms. Castor [continuing]. Is that right?
    Mr. Revesz. It is the Clean Air Act as well, the very same 
statute. And Professor Tribe made his argument, just like he is 
making it now, and it was unanimously rejected by the Supreme 
Court.
    If I can take just a moment to say something about ghosts. 
You know, I never knew that laws came in ghost and non-ghost 
versions. I mean they are either laws or they are not laws. If 
they are passed by both chambers and signed by the President, 
they are laws. If they are not passed by both chambers and not 
signed by the President, they are not laws. Here, there was a 
House Amendment and there was a Senate Amendment. Both the 
House Amendment and the Senate Amendment were passed by both 
chambers and they were signed by the President of the United 
States. That makes them a law.
    What the Senate manager said about receding would have been 
really interesting and very important if, in fact, they had 
carried out what they said and withdrawn the language, but the 
language was not withdrawn, it was passed by both bodies and, 
therefore, it became a law. Not a ghost law, a real law. And 
what EPA is asked to do here is not, as Professor Tribe said, 
to pick whether it likes the House Amendment better than the 
Senate Amendment, the question is whether these conflicting 
provisions of the federal statute can be properly reconciled. 
That is the business of an administrative agency, and an agency 
takes a first crack at doing that. EPA is not going to say we 
like the Senate Amendment better, it is going to say we think 
we can give both meaning to both the House Amendment and the 
Senate Amendment. And if they do it appropriately, the courts 
will defer to their interpretation. And if they don't do it 
appropriately, the courts will strike it down. And that issue 
is now being litigated, as Professor Tribe noted, before the 
D.C. Circuit, and it is going to get argued on April 16, but 
certainly, that is the standard tool of statute interpretation. 
That cannot, under any plausible guise, become a constitutional 
problem.
    Ms. Castor. And if it was unconstitutional, what would 
happen to a whole range of environmental protection laws in 
America?
    Mr. Revesz. Well, I mean if a court said that there was an 
unconstitutional delegation here because there was--there were 
separate House and Senate Amendments, and again, this would 
be--it is hard to even imagine how that could be the case, 
given the history of the non-delegation doctrine in this 
country, arguably both provisions would be invalid, and 
arguably we would go back to the preexisting law which would be 
the 111(d) provision that was in the books before 1990, which 
would, I think quite clearly, give EPA the power to do exactly 
what it is doing here.
    So even if this was all right, it is not clear the remedy 
would help opponents of the Clean Power Plan at all.
    Ms. Castor. OK, thank you.
    I yield back my time.
    Mr. Whitfield. The gentlelady yields back.
    At this time, recognize the gentleman from Illinois, Mr. 
Shimkus, for 5 minutes.
    Mr. Shimkus. Thank you for all you smart people for being 
here. This has really be educational and enlightening, and 
unfortunately, it is going to have real consequences.
    So first, I was involved in a Conference Committee, the 
2005 Energy Act, which was done here, open amendment, debated, 
and we don't do Conference Committees very much anymore, and so 
I think that is why there is confusion. So the first question 
is, if one chamber recedes to the other one, then the 
conference report has the language of the amendment that was 
accepted. There is no second amendment, is that true, Mr.--
Professor Tribe?
    Mr. Tribe. Yes, here----
    Mr. Shimkus. Briefly.
    Mr. Tribe. No.
    Mr. Shimkus. Thank you. Ms. Wood?
    Ms. Wood. No.
    Mr. Shimkus. Professor Revesz, you seem to think there is. 
How can there be two amendments when there--when you vote on a 
conference bill with language that has been given up by the 
Senate?
    Mr. Revesz. Because they both happen to be in the statutes-
at-large.
    Mr. Shimkus. If--typically, if a chamber withdraws its 
amendment, would you----
    Mr. Revesz. It is not----
    Mr. Shimkus [continuing]. But the chamber did withdraw the 
amendment.
    Mr. Revesz. It did not----
    Mr. Shimkus. Receded to it. Receded to the House language.
    Mr. Revesz. The House manager said----
    Mr. Shimkus. All right.
    Mr. Revesz [continuing]. That they were receding----
    Mr. Shimkus. All right.
    Mr. Revesz [continuing]. But both amendments were passed by 
both chambers, and both amendments were signed by the 
President. That is not the standard situation where a manager--
--
    Mr. Tribe. But it is standard. Excuse me, I don't mean to 
interrupt. It happens all the time. If Professor Revesz's view 
were accepted, there would be sheer chaos because this kind of 
situation----
    Mr. Shimkus. You would have multiple definitions of the 
language that was supposedly passed by the Legislative Branch.
    Mr. Tribe. Right, and I am not----
    Mr. Shimkus. OK.
    Mr. Tribe. I am not making a delegation argument here at 
all.
    Mr. Shimkus. All right, thank you. I want to go to my 
second question.
    To Ms. Wood, Professor Revesz talked about electricity in 
the interstate commerce and the regulated entity where it is 
really--what is it, you tell me? I think I know what it is but 
you tell me.
    Ms. Wood. The confusion that you are rightfully 
experiencing is because he is convoluting that somehow the 
Clean Air Act regulates the product that is being sold, and 
that is absolutely not the case. What----
    Mr. Shimkus. And the product in this case would be?
    Ms. Wood. The product is electricity.
    Mr. Shimkus. And what should they be doing?
    Ms. Wood. But what is being regulated, and what needs to be 
regulated, is the electric generating unit, the piece of 
equipment that is generating electricity. And in my car 
example, the fact that he car, which is what is the emitting 
source, and the product is the same thing, just happens to be a 
coincidence, but what the Clean Air Act regulates are sources 
of air pollution.
    Mr. Shimkus. Yes, thank you. And I was following up on 
Congressman Olson's discussion on the 9 plus 4 equals 13 
months. Were--how long would judicial review take in a case 
like this? This is to Mrs. Wood--Ms. Wood.
    Ms. Wood. Typically, in the D.C. Circuit you would be 
looking at 1 \1/2\ to 2 years before you would get a decision.
    Mr. Shimkus. So before we have--so that is the problem that 
a lot of us have. OK, there is a constitutional debate and 
conflicting views, I think we have established that, but we are 
going to enforce standards on not just the utilities but the 
ratepayers before this decision gets rendered.
    Ms. Wood. Indeed, and that is a very real problem, and you 
can see a very real-world example of it right now with the 
Mercury and Air Toxics Standards. That case is being argued 
next week before the Supreme Court, and a victory in that case 
is probably going to be hollow for many, many electric 
utilities because they have already installed the pollution 
controls under that rule.
    Mr. Shimkus. And as we have had discussions here, the real-
world implications are trying to comply financially. The 
difference between the Clean--some of the Clean Air Act and 
sulfur dioxide was that we had technology to do it.
    Ms. Wood. Yes. There were scrubbers that would remove the--
--
    Mr. Shimkus. We knew the cost----
    Ms. Wood [continuing]. Sulfur dioxide.
    Mr. Shimkus [continuing]. They were--and this committee has 
been clear in our hearings that every process except for 
advanced oil recovery in a small facility in Canada is not 
financially doable, and the government has invested and 
actually pulled out of the FutureGen 2.0 because it is too 
expensive. This government has made a decision they can't do a 
carbon sequestration.
    Ms. Wood. There is another critical difference between this 
and the Acid Rain Program that I think needs to be pointed out. 
The Acid Rain Program was enacted by Congress.
    Mr. Shimkus. Yes.
    Ms. Wood. It was not done in a rulemaking by EPA.
    Mr. Shimkus. Well, thank you. And I will just end on this. 
Mercury thermometers are not dangerous, but breaking the 
thermometers and drinking the mercury might be hazardous to 
your health because I think everyone here, based upon our age, 
probably used mercury thermometers.
    And I yield back.
    Mr. Whitfield. Thank you.
    At this time, recognize the gentleman from Iowa, Mr. 
Loebsack, for 5 minutes.
    Mr. Loebsack. Well, thank you, Mr. Chair.
    I am a former college professor, I have really enjoyed this 
a lot, but I am not a constitutional law scholar. I did 
comparative politics and international politics, but I really 
do appreciate the back-and-forth and all the rest, but 
eventually we are going to have to make some decisions here as 
a legislative body. There is no question about that.
    Just one quick note. This isn't new in terms of the EPA 
taking it upon itself, if you will, or trying to implement some 
kind of legislation. I understand the arguments just how far 
they are going, whether they are going too far or not. As you 
all know, long ago, you know, Ted Lowey talked about how, you 
know, regulatory agencies often go much further than Congress 
ever intended them to go, and we are going to continue the 
debate whether the EPA is going too far or not. There is no 
question about that.
    In the meantime, I would--and, Professor Tribe, if you 
would refrain from responding unless I ask you to do so. 
Professor Revesz, would you like to respond to Professor Tribe 
and his response to you on the 2 amendments issue? Just take a 
minute, if you would.
    Mr. Revesz. Yes. I think as I have already said, you know, 
it is often the case there are conflicting House and Senate 
versions of bills and in conference, the conference decides to 
go with one of the versions. That is the version that is then 
voted on by both chambers, signed by the President, and becomes 
law. That is the standard way that conferences work.
    Mr. Loebsack. Yes.
    Mr. Revesz. Here, that is not what happened. It wasn't that 
there were conflicting House and Senate versions, and the 
conferees chose the House version. The House version then 
became the bill that was voted on by both chambers and signed 
by the President. That is not what happened. What happened was 
that both the House version and the Senate version made it into 
the bills that were voted by both Houses, they made it into the 
statutes-at-large, they were signed by the President, and they 
are both duly enacted laws of the United States.
    Mr. Loebsack. All right, thank you, Professor Revesz.
    Professor Tribe, what is the legal way to address these 
problems? In your testimony, you mentioned a legal way to 
address these problems. What are we talking about when you say 
the legal way, and what are some examples of that?
    Mr. Tribe. It seems to me that an act of Congress, or a 
series of congressional enactments, is the only legal way.
    Mr. Loebsack. Yes.
    Mr. Tribe. I mean Congress has the power, did have the 
power to pass for the United States what California has done 
within California, a cap and trade plan, but it didn't succeed.
    Mr. Loebsack. Yes.
    Mr. Tribe. Congress could fund alternative energy sources, 
put a huge amount of emphasis, as the government already is 
doing to some extent, on solar, on wind, on geothermal, but it 
really would take an act of Congress. It is just not enough for 
an agency to do it on its own. And here, even if there were, as 
Professor Revesz thinks, two laws that Congress did pass, 
assume he is right for the moment and--because both of them 
made it into the statutes-at-large, an agency would have to 
reconcile them, as he says, but you can follow both at one, 
that is, each of them precludes the EPA from regulating certain 
things. The Senate version focused on the pollutant, the House 
version focused on the source. You could obey both. There is no 
need to choose between them, and choosing between them is not 
an exercise of delegated power.
    Mr. Loebsack. And you are someone who recognizes the 
importance of climate change, the reality of climate change, 
you said, and you have the----
    Mr. Tribe. No, I think----
    Mr. Loebsack. And you have been environmental----
    Mr. Tribe [continuing]. Me personally----
    Mr. Loebsack [continuing]. Very environmentally-minded over 
the years. If you could, you mentioned cap and trade, are there 
other kinds of things that Congress could do?
    Mr. Tribe. Well, you know, if I were just to be very 
imaginative, and I am only speaking for myself here, not for 
anybody else.
    Mr. Loebsack. That is what I am asking you to do, right.
    Mr. Tribe. A lot of people think that the best solution is 
to pay countries not to do so much deforestation----
    Mr. Loebsack. Yes.
    Mr. Tribe [continuing]. And that would take an expenditure 
of money. It is not the standard thing that comes to mind, it 
is way beyond the fence, but I think if Congress were able, I 
hate to say this, to get its act together, if Congress really 
could act effectively, there are a lot of things it could do.
    Mr. Loebsack. Yes.
    Mr. Tribe. Now, there is a problem. A lot of my friends 
tell me, look, don't be an idealist, don't be utopian. Congress 
isn't going to do anything so why are you so hot about the EPA 
violating the law and the Constitution? Well, it is just, I 
guess, the way I was brought up. I think the law and the 
Constitution matter.
    Mr. Loebsack. Yes, Professor Revesz?
    Mr. Revesz. Could I--yes. So under the Clean Air Act, 
Congress made a decision in 1970 not to define some limited 
number of pollutants that could be regulated, because Congress 
understood that as science evolved, other pollutants would 
become serious. And, therefore, the Clean Air Act uses a term 
air pollutant. Typically, air pollutant, dangerous to human 
health or welfare. EPA was basically required by the Supreme 
Court, in Massachusetts v. EPA, to acknowledge that greenhouse 
gases were air pollutants, subject to regulation under the 
Clean Air Act. This is not some power grab by this 
Administration, this has been now a process that has been going 
on for almost 10 years, and the Supreme Court said yes, when 
Congress said air pollutants, it meant something pretty broad. 
It is a broad definition, and greenhouse gases are air 
pollutants. And then EPA was asked to determine whether 
greenhouse gases endangered public health, and actually, the 
Bush EPA administrator made the initial endangerment 
determination. It didn't become effective at the end of the 
Bush Administration, and then this Administration made it 
again. And so now greenhouse gases are air pollutants, endanger 
public health, and that puts them at the core of what the Clean 
Air Act is designed to deal with.
    Mr. Loebsack. Thanks to all of you.
    Thanks, Mr. Chair.
    Mr. Whitfield. Gentleman's time has expired.
    At this time, recognize the gentleman from Ohio, Mr. Latta, 
for 5 minutes.
    Mr. Latta. Well, thank you, Mr. Chairman. And thank you 
very much for our witnesses today. We appreciate your 
testimony, and it is very informative.
    If I could start, Professor Tribe, last year the Supreme 
Court cautioned the EPA against interpreting the Clean Air Act 
in a way that would bring about an enormous and transformative 
expansion of the EPA's regulatory authority without clear 
congressional authorization. In your opinion, does the proposed 
Clean Power Plan comply with this directive?
    Mr. Tribe. I think that what the court said in the case 
that you are quoting, which was Utility Air Regulatory Group v. 
EPA, would apply many times over to this plan, and in 
particular, in that very case the court addressed the point 
that Professor Revesz just made. Yes, air pollutant in the 
dictionary definition part of the Clean Air Act is a very broad 
term, and it does encompass greenhouse gases, but when the 
court, in Mass v. EPA, in 2007, found a specific provision for 
regulating greenhouse gases in connection with tailpipe 
emissions, what UARG, the decision last year, said is you can't 
rewrite clear statutory terms to extrapolate from the fact that 
something which is a greenhouse gas for purposes of a 
particular regulatory context can, therefore, be regulated 
under a different statutory provision which, it is very clear, 
prohibits the regulation under 111(d) of greenhouse gases or 
any other air pollutant from a source that has already been 
forced to spend a lot of money under 112 in order to meet the 
requirements of 112 with respect to the 188 hazardous air 
pollutants.
    Mr. Latta. Well, OK. Professor Tribe, also then, the Clean 
Air Act places limits on the EPA's authority to use the Section 
111(d) to regulate existing sources that are already subject to 
regulation for hazardous air emissions under Section 112. Does 
this prohibit the EPA from regulating coal-fired utilities 
under Section 111(d)?
    Mr. Tribe. From regulating? I am sorry, I didn't hear you--
--
    Mr. Latta. From regulating coal-fired utilities----
    Mr. Tribe. Under 111(d).
    Mr. Latta [continuing]. Under 111(d).
    Mr. Tribe. It certainly prohibits them as long as those 
utilities are being regulated under 112 for the hazardous 
pollutants. Greenhouses gases cannot be regulated under 111.
    Mr. Latta. Well, with that then, especially from the 
testimony I have been hearing this morning, should the EPA's 
interpretation of these statutory provisions be entitled to 
deference by the courts, and if not, why not?
    Mr. Tribe. Well, two reasons. First of all, what it is 
doing is not interpretation, it is revision. It is picking a 
statute that Congress did not enact, and that is not something 
to which the courts would ever defer. Secondly, the principle 
of deference under a case called Chevron only kicks in where 
there is an ambiguity, and here there isn't an ambiguity. And 
besides, deference is trumped by a principle called 
constitutional avoidance, that is, the Supreme Court has said, 
and the D.C. Circuit has said, that when an ambiguous statute, 
and I maintain this is not ambiguous, would cause 
constitutional problems if you defer to the agency's 
interpretation of it, then you don't defer, so that even if 
deference were otherwise available, here it would be trumped by 
the serious constitutional problems that I have outlined, 
haven't had time to talk about in detail, but my statement in 
written form explains why, for example, even though the 
property is not being totally destroyed, this is a violation of 
the Fifth Amendment, and explains a number of other things. So 
given those constitutional problems, which I don't think have 
been solved----
    Mr. Latta. Well, and----
    Mr. Tribe [continuing]. Deference----
    Mr. Latta [continuing]. If I can just follow up with one 
question here because I am short on time. The Clean Air Act as 
a whole, and Section 111(d) in particular, are based on 
principles of cooperative federalism and are designed to give 
states autonomy and flexibility, and implementing emission 
control programs does the proposed rule strike an appropriate 
balance between the EPA and the states?
    Mr. Tribe. Well, I think that the EPA is not striking a 
constitutionally appropriate balance. It is basically saying, 
yes, you have some choice to meet this severe limit, but it is 
like saying your money or your life, and you can choose whether 
to pay me in cash or by check or by Bitcoin, that is, there is 
no power to command the states to do any of this stuff. And 
saying that, well, this is just optional, it is like 
cooperative federalism, completely confuses what happens 
normally under the Clean Air Act with what is happening here. 
Normally, the national goal is set and the Federal Government 
works with the states to find a way to implement it locally. 
That is not what is going on here. What is going on here is 
radically different.
    Mr. Latta. Thank you.
    Mr. Chairman, my time has expired.
    Mr. Whitfield. Gentleman's time has expired.
    At this time I will recognize the gentleman from Texas, Mr. 
Green, for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman, and ranking member for 
holding the hearing. I want to thank both our panels of 
witnesses to be here today.
    I know there is some disagreements about the EPA Clean 
Power Plan, but as a lawyer, I am always interested in hearing 
the arguments from our professors. Besides this hearing, the 
EPA Clean Power Plan has been subject to a lot of debate. 
Whether EPA has the authority to regulate power plants was 
ultimately decided by the courts, and it is this issue I find 
most disappointing. I have been in Congress for some time, and 
I would like to see a solution on our climate issues offered by 
this body, and not necessary because of the Supreme Court 
ruling. We should work together and control carbon emissions. 
That doesn't mean eliminating traditional fuels, and it 
certainly doesn't mean dismantling the EPA. It means a 
reasonable approach from a legislative body that would reach 
required compromise, and that is what we have been sent here to 
do, and I look forward to both panels.
    Professor Tribe, your testimony, a portion that jumped out 
at me is on page 11 where you say it makes far more sense to 
address climate change by legislation. I couldn't agree with 
you more, but without congressional action, the federal 
agencies are acting under the existing authority given by the 
Supreme Court. Professor Tribe, in your testimony on page 14, 
you address EPA's reference to the Chevron USA case. It is my 
understanding Chevron created a two-part test to determine 
regulatory authority. There are many attorneys in Washington 
and D.C. and around the country making large sums of money 
advising clients on which version of the House or Senate 
Amendment the Clean Air Act are law. If the Supreme Court 
agrees to hear this case, is it your argument that Congress 
spoke directly to the question at issue, or do you believe the 
court will rule on the agency's interpretation?
    Mr. Tribe. Well, I don't think the court would accept the 
agency's interpretation. I think here the statute is too clear, 
and the court in the UARG case made as clear as it could 
possibly have made it that the fact that greenhouse gases may 
be a terrible problem doesn't give a blank check to any agency 
to rewrite the law.
    Mr. Green. OK.
    Mr. Revesz. If I can just for a minute--in that case, EPA 
was trying to regulate 86 percent of the carbon dioxide 
emissions of certain stationary sources. The court in that case 
allowed EPA to regulate 83 percent of those emissions. Justice 
Scalia indicates that in his opinion. It only deprived the EPA 
of the authority to regulate the last 3 percent, and that was 
because that statute had a specific numerical provision that 
would have required EPA to either regulate a much larger number 
of sources than EPA wanted to do, or else disregard the number. 
And as a result of that problem, the Supreme Court deprived EPA 
of the authority to regulate the last 3 percent of those 
emissions, but allowed EPA to regulate 83 percent of the 
emissions of these stationary sources.
    So EPA ended up getting most of what it sought--the vast 
majority of what it sought out of that case, and the statutory 
problem that arose was a very specific statutory problem under 
that particular provision that has no bearing on other 
provisions that don't have those numerical limits.
    Mr. Green. Professor Revesz, one of the other things, since 
I only have a minute and a half, would a strict reading of the 
House version exclude many if not all potential regulated 
sources, and you have written extensively on environmental law 
and regulatory policy, is Congress, while we don't interpret 
the law, it is our job and the courts to do that, we have the 
responsibility for conflicting issues in the laws that we 
wrote. Do you agree with that?
    Mr. Revesz. Absolutely. And it often happens. This isn't an 
example of Congress doing something wrong. I mean it often is 
the case that statutes get passed and they have ambiguous 
provisions that require agency interpretation. This is the 
bread and butter of what the federal courts then to do is to 
determine whether the agency interpretations are entitled to 
deference, and whether they should be upheld.
    Mr. Green. And that is the federal court's job. Let me give 
you an example of one of the legislation that we have worked on 
passing. Congressman Olson and Congressman Mike Doyle and I 
have introduced legislation, and it has actually passed the 
House, to resolve conflicting language in the Federal Power 
Act, and that is our job to be able to do that, to do the 
legislating if there is an issue that the courts may not be 
addressing in our opinion is what the law is.
    Professor Tribe, I am sorry, I don't give you any more than 
10 seconds, but----
    Mr. Tribe. Well, I agree with that allocation of 
responsibility. I also think that measuring the law by 
percentages is not exactly right. I saw those talking points 
too----
    Mr. Green. Yes.
    Mr. Tribe [continuing]. The EPA wanted to win, and they 
said why don't you point out we won 83 rather than 86. That 
wasn't the point. The point was that their approach to the law 
was totally rejected by the court.
    Mr. Green. OK.
    Mr. Revesz. No, there were two issues. EPA won on one issue 
and lost on one issue. It was not totally rejected by the 
court.
    Mr. Whitfield. Gentleman's time has expired.
    Mr. Green. Thank you, Mr. Chairman.
    Mr. Whitfield. At this time, I will recognize the gentleman 
from West Virginia, Mr. McKinley, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman. And thank you to the 
panel for being here. It is always enlightening to hear some of 
these discussions. I know ultimately the decision is going to 
be made by the courts, but it helps us to understand a little 
bit of these issues, particularly between 112 and 111(d), but I 
don't think the American public gives a hoot. They really 
don't. They just want to make sure that Johnny has a job, and 
their electric rates are going to be reasonable for them to be 
able to continue. And I see us getting caught up. We start 
chasing these rabbits, that they get us distracted from where 
we need to be.
    I will be the first to tell you that I--do I think climate 
change is occurring? Absolutely. I think it is. But we have 
taken this simplistic route to go this direction, and so what I 
want to do is get back more to the fundamental. You all were 
chasing this rabbit all the way down. You are arguing over 112 
and 111(d), and you are talking about phantoms and ghosts, I 
think. Don't care. What are we going to do? What are we doing 
here with this fight? I would like to get back to the more 
basic where we are, because under the United Nations it said 
that 96 percent of the CO2 emissions are naturally 
occurring. Only 4 percent of all the CO2 emissions 
of the world are anthropogenic, manmade. See, I can use the 
term like you all. Only 4 percent. And the United Nations goes 
on to say that all coal-fired powerhouses in America, if you 
shut off every one of them shut down in America, under the 
United Nations, said you only reduce the CO2 
emissions by \2/10\ of 1 percent. That is not my statistic, 
that is from the United Nations, \2/10\ of 1 percent.
    So what I am doing, I am the engineer in the room here on 
this. So now we are getting to the point, under this rule, they 
want to reduce it 30 percent, so we are talking about a rule 
that reduces 30 percent of \2/10\ of 1 percent. We are talking 
about a reduction of CO2 emissions in the globe of 
\6/100\ of 1 percent. Forget the argument over 112 or 111(d), 
we are going to spend billions of dollars, we are going to 
raise rates, jobs are going to be lost--to save \6/100\ of 1 
percent of the CO2 emissions. That doesn't make 
logical sense. From an engineering perspective, there is 
something wrong when we start chasing a rabbit over here, when 
we are putting our economy at risk over \6/100\ of 1 percent.
    Professor, could you respond to that? Are we chasing the 
right rabbit here?
    Mr. Tribe. Well, my grandchildren ask a similar question, 
which shows how wise you are, because I think my grandchildren 
are smart as whips. Grandpa, why are you worried about this 111 
and 112 stuff? Is the world going to be destroyed? And then I 
tell them, well, there is this agency and it says if you do 
what it wants, they are not going to save the world, in fact, 
maybe by the year 2100, they will prevent the oceans from 
rising as much as, well, two sheets of your paper. But they 
think that by making a start, it is good, better than nothing. 
Well, your grandpa spends his life teaching about the 
Constitution, and so I sort of put that in the balance. There 
are a lot of details there, they look like rabbits going into 
rabbit holes, but that matters because in the long run, all 
those rabbits add up to something that this country has built. 
And then they ask a different question. They say, well, if we 
make a start, isn't that good? And then I try to give them the 
old proverb, you can't leap across a chasm in two steps, you 
know. Jumping halfway or even 1 percent of the way might do a 
lot more harm, like splat on the bottom of the chasm, than not 
doing this at all and looking for something else. What would 
you do, Grandpa? And then I say I am not an expert in that 
stuff.
    Mr. McKinley. Ms. Wood?
    Ms. Wood. I wanted just to expand for a second on what 
Professor Tribe was saying about needing to make a start and 
wanting to build on something. I think it is important to 
recognize here that if these sources are not regulated under 
Section 111(d), they are regulated under Section 112, and that 
is what is prohibiting the 111(d). Under 112, these sources 
have to put on maximum available control technology, maximum. 
So it is not as though these sources are not going to be 
controlled. And more importantly, in terms of when you start 
talking about carbon dioxide, I think it is also important to 
note that EPA has said that the carbon benefits from that 
maximum available control technology are estimated to be $360 
million annually. So it is not as though there isn't a start 
being made.
    Mr. McKinley. Right. And my time has run out, but I would 
rather us be focusing on something more practical than this 
ideological--why aren't we doing energy efficiency, why aren't 
we looking at more research into clean coal technology, but to 
simply go after it and start doing this and costing us jobs I 
think is incredibly naive.
    Thank you, and I yield back.
    Mr. Whitfield. Gentleman's time has expired.
    At this time, recognize the gentleman from Kentucky, Mr. 
Yarmuth, for 5 minutes.
    Mr. Yarmuth. Thank you very much, Mr. Chairman. Thanks to 
the witnesses.
    After listening to this discussion, I am not sure I am 
happy or sad that I dropped out of law school years ago. I 
think I am happy. But I want to go back to--you mentioned the 
Massachusetts v. EPA case, and I--what we were debating the 
Waxman-Markey bill several years ago, 2009, and so forth. That 
was kind of the motivating factor, I think, for many of us at 
that point, that if the Supreme Court had said that we have to 
regulate carbon dioxide, wouldn't it be better for Congress to 
act and create a mechanism for dealing with it than trusting 
the EPA to be flexible enough to deal with states like my own, 
and Congressman McKinley's as well. So I am curious because I 
have heard some difference of opinion, and I don't want to 
start another debate, on whether that decision actually 
mandated, made it compulsory for EPA to regulate CO2 
or just basically made it permissive. You are shaking your 
head, Ms. Wood, do you want to answer that?
    Mr. Revesz. Well----
    Mr. Yarmuth. Or either one.
    Mr. Revesz. Yes, that decision held that--EPA in that case 
was arguing that greenhouse gases were not air pollutants for 
the purposes of Section 202 of the Clean Air Act. The Supreme 
Court held that they were, in fact, air pollutants for the 
purposes of Section 202 of the Clean Air Act. It did not 
mandate regulation because regulation is mandated only if the 
air pollutants endanger public health or welfare. So the next 
step was for EPA to make the determination, the court did not 
make it as was appropriate, to make the determination whether 
greenhouse gases endanger public health and welfare, which is a 
statutory term. As I indicated earlier, Stephen Johnson, who 
was the EPA Administrator at the end of the Bush 
Administration, made that endangerment finding, but the 
Administration ran out of time. It wasn't approved during the 
Bush Administration, and it was, therefore, made anew by the 
Obama Administration. And that was challenged in the D.C. 
Circuit. Many groups challenged the endangerment finding and 
said that that was--and the agency had acted inappropriately in 
making that finding. The D.C. Circuit upheld the agency's 
decision. Those same groups then petitioned the court for 
certiorari, and the court, while granting cert on other issues 
in that case, and that ended up being the Utility Air 
Regulatory Group case, denied certiorari on the endangerment 
finding.
    So now it basically is the law, or at least the agency has 
said that greenhouse gas emissions endanger public health. And 
now Massachusetts v. EPA dealt with Section 202 of the Clean 
Air Act. The definition of air pollutant and of harming public 
health is very similar across many sections of the Clean Air 
Act and, therefore, that case has now led to all these other 
rules. These rules are basically based on exactly the same 
legal principle. And EPA is proceeding accordingly with the 
Supreme Court----
    Mr. Yarmuth. They are doing their job as they see it, based 
on what the Supreme Court said----
    Mr. Revesz. Right.
    Mr. Yarmuth [continuing]. About CO2.
    Mr. Revesz. What the Supreme Court said in Mass v. EPA, 
that greenhouse gases are air pollutants. Well, the D.C. 
Circuit said, in the case that became UARG in the Supreme 
Court, is the endanger public health, and then----
    Mr. Yarmuth. In fact, there has been a considerable amount 
of at least scientific evidence that there is a connection 
between CO2 and elevated levels of asthma and so 
forth in communities. I know that is true in my community as 
well.
    I want to get to a question real quick with Ms. Wood. In 
your issue about whether or not we regulate the product or go 
outside the fence, or so forth, if under a state's plan, the 
state utilities, power companies, offered financial incentives 
for conservation to its customers, would that fit within your 
conclusion of being something that would be consistent with 
your interpretation of what EPA can regulate, even though in 
this case it would be voluntary, the states would be doing it, 
not EPA, but EPA would have to approve the plan?
    Ms. Wood. I think the key difference here----
    Mr. Yarmuth. Yes.
    Ms. Wood [continuing]. Is in how the targets are set versus 
the flexibility that you could use to meet that target. And I 
think this is a key distinction that needs to be made. And the 
issue isn't whether a power company could do what you are 
saying to meet the target, the question is should those types 
of things be considered in determining what the target is. And 
to that, my answer is no, the Clean Air Act doesn't permit 
that. 111 has always been understood to begin and end at the 
source.
    Now, in the Clean Air Mercury Rule that EPA did several 
years ago, they did have flexible cap and trade mechanism to 
meet that limit, but the target itself and the limit itself was 
based on technology that could be applied at every unit. So you 
started with activated carbon injection, and you figured out 
what the rate would be at each unit, but then you allowed 
flexibility in terms of how you would meet that.
    So in your example, I think that would be permissible in 
terms of meeting the target, but it would not be permissible 
for setting the target.
    Mr. Yarmuth. OK, appreciate that.
    I yield back. Thank you, Mr. Chairman.
    Mr. Whitfield. Gentleman yields back.
    At this time, recognize the gentleman from Virginia, Mr. 
Griffith, for 5 minutes.
    Mr. Griffith. Thank you, Mr. Chairman. Appreciate you 
having this hearing very much.
    I rarely disagree with my colleague from West Virginia, but 
in this case I do. The process and the procedures by which we 
get our laws and pass our laws may not always make sense and be 
practical in the minds of some, but it is what has allowed our 
republic to exist for the length of time it has, over 200-and--
I guess we are closing in on 220-some-plus years, and it is 
extremely important.
    Professor Revesz, I love these things, and I am going to go 
down a different rabbit hole than the one we have been going 
over, although I am coming back to that one because I love that 
one too. The proposal that you make is a parliamentary 
procedure impossibility. It cannot happen. Doesn't matter what 
the issue is. Jefferson is very clear in the Manual of 
Parliamentary Practice. When there are differences between the 
two Houses, they get together in a conference and they work 
those differences out. If both Houses adhere to their position, 
the bill itself dies. It is not for you to say today that the 
bill should die if there is some confusion because there are 
two different versions. There are not two different versions, 
there is one version. It could not have passed out of both 
Houses, gone through a Conference Committee, and gotten to the 
President's desk unless there was one version, and one version 
exclusively.
    And then we get to the point that Professor Tribe made, and 
it is an honor for me to be in your presence. We are not always 
going to agree. There are a lot of things we are going to 
disagree on politically, but your defense of the Constitution I 
am 100 percent behind and----
    Mr. Tribe. Thank you.
    Mr. Griffith [continuing]. Agree. And even when the rules 
in the Constitution are against me on what I believe ought to 
happen, I respect that those bodies and those rulings must be 
followed.
    And so we get to that because I think that if there was 
some kind of a disagreement and suddenly it is found 25, 30 
years later, that creates a problem, and I would submit--I 
don't know about the 1995 ruling. I would ask you quickly if 
you could tell me about that. You said that it had already been 
determined in '95, '08, and '11, and I know '08 and '11.
    Mr. Tribe. Right. Well, in 1995, the EPA itself interpreted 
the Section 111(d) as I have, and as I think the courts would.
    Mr. Griffith. OK. And then we get to 2008, and you didn't 
make this point, although I am sure you are aware of it, and I 
find this language fascinating and brought this up to the EPA 
months ago. That decision, if you read it, part of it says this 
requires vacation of CAMR's regulations for both new and 
existing EGUs, electric generation units.
    Mr. Tribe. Yes.
    Mr. Griffith. EPA promulgated the CAMR regulations for 
existing EGUs under Section 111(d). This is a court opinion by 
the Circuit Court in D.C. This is what I am saying here. For 
existing EGUs under Section 111(d). But under EPA's own 
interpretation of the section, it cannot be used to regulate 
sources listed under 112.
    Mr. Tribe. Right.
    Mr. Griffith. The judge found that they had conceded, and 
he goes on to say, EPA thus concedes that if EGUs remain listed 
under Section 112 as we hold, then the CAMR regulations for 
existing sources must fail. The EPA appealed that ruling, but 
not on that point.
    Now, what is significant about that, and the question I 
have for you, and I am going back to first year of law school 
for myself, is the EPA now precluded, under either the theory 
of res judicata or collateral estoppel, having conceded the 
point in the 2008 case and not appeal to the Supreme Court, and 
having been a party in that case, albeit not a party in the 
2011 case----
    Mr. Tribe. So----
    Mr. Griffith [continuing]. Have they conceded the point, 
and are they now thrown out on their backsides because they 
have already conceded this point, and to bring it back up is a 
waste of time, as Mr. McKinley said?
    Mr. Tribe. I think, because that case was New Jersey v. 
EPA, it is only New Jersey that could make that collateral 
estoppel argument. Other people confronted by an EPA that says 
we have now changed our minds, like Robert Jackson once said, 
the matter does not appear to me now as it appears to have 
appeared to me then, other people are not going to be able to 
estop the EPA. But the EPA is free to make these arguments, I 
just think they are wrong and will lose.
    Mr. Griffith. All right. And you think they will lose also 
in looking at 2011, although they were not a party to that, you 
were correct in referencing footnote 7 that said that the 
Supreme Court specifically said in their opinion, previously 
cited approvingly by Professor Revesz, that there is an 
exception, EPA may not employ 7411(d), which is what we are 
talking about, if existing statutory sources of the pollutant 
in question are regulated under the National Ambient Air 
Quality Standard program, 7408 through 7410, or the Hazardous 
Air Pollutants Program, 7412, which is what we are talking 
about is 111 and 112, am I not correct?
    Mr. Tribe. Correct, and that use of the word or supports 
the court's reading. The courts have been consistent in 
accepting this reading all this time, and it is amazing, though 
it is not illegal as such, for the EPA to scratch its head and 
say how are we going to win this case, we have to invent a new 
statute.
    Mr. Griffith. And they have reached pretty deep to find 
something that they could hang their hat on.
    Mr. Tribe. They reached very deep, to something that 
Senator Durenberger when it was first proposed said I can't 
imagine this being used very often. It has only been used 5 
times. It is a technical little--well, it is a mouse hole, and 
they are pulling an elephant out of it.
    Mr. Griffith. Thank you. I have to yield back. I wish I had 
more time.
    Mr. Whitfield. Gentleman yields back. Thank you.
    At this time, recognize the gentleman from Maryland, Mr. 
Sarbanes, for 5 minutes.
    Mr. Sarbanes. Thank you, Mr. Chairman. And thanks to the 
panel.
    I don't know that I have a whole lot to add or more to ask, 
but we have talked about phantoms and we have talked about 
ghosts, and we are now getting to a dead horse in terms of 
beating it over this issue of the interpretation. I gather that 
the crux of this is whether the EPA's pursuit of the Clean 
Power Plan is warranted or authorized under Section 111(d), and 
that then sets to this question of whether it is seeking to 
balance and interpret the conflict between these two amendments 
is appropriate or not appropriate.
    Because you all have been debating this most of the time we 
have been here, I am assuming that while there are other parts 
of your argument, and briefs, that you point to, that you view 
that as probably being the issue upon which a court's review of 
this question is going to turn. Is that fair?
    Mr. Tribe. Well, I have tried to encapsulate the essence of 
it, but what I submitted is over a 50-page document, and I do 
think courts will pay attention to the several different parts 
of the argument. One, that even if Congress did give this power 
to the EPA, it would violate basic principles of federalism, 
and that is one reason that a court would not interpret 
Congress' having done so. Two, that there are powerful issues 
about the statute itself, and the EPA's authority to go beyond 
a statute. And three, separation of powers issues that arise 
out of the EPA's recognition that because the statute as 
written doesn't quite do what they want to do, they have 
created a magical mystery tour through the parliamentary 
procedure to say, well, there are two statutes. And although I 
have suggested, both here and in my written testimony, that if 
there really were two, which doesn't happen, they could follow 
them both by both outlawing the regulation of pollutants that 
are covered by 112, and outlawing the regulation under 111(d) 
of sources under 112.
    Mr. Sarbanes. Professor Revesz, do you----
    Mr. Revesz. Yes, if I can answer your question more 
directly. The debate we have been having here is replicated in 
hundreds of pages of briefs before the D.C. Circuit. All of 
these issues are being aired in great detail on both sides. 
Most of the positions that I have made here are made by the 
U.S. Department of Justice, by many states. Other states are 
taking the opposite position. Some industry groups are agreeing 
with my interpretation of the Constitution of the statue, other 
industry groups are on the other side. All of this, there are 
hundreds and hundreds of pages of briefs on all of the issues 
we have been talking about.
    If I can just take a moment to respond to an issue that Mr. 
Griffith raised. There is clearly only one version of the 
statute. There has to be only one version. That one version 
includes arguably inconsistent provisions. They are arguably 
consistent, and arguably inconsistent, but they were both voted 
on by both chambers and signed by the President. And the CAMR 
case is different because in the CAMR case, the problem was 
that EPA had initially sought to regulate mercury emissions 
under Section 112, then in Bush Administration decided to 
regulate under 111(d), but it was trying to regulate the same 
mercury emissions, the same hazardous air pollutant. Everyone 
concedes that EPA cannot invoke Section 111(d) to regulate a 
hazardous air pollutant that is being regulated under Section 
112. But here the issue is the greenhouse gases are not 
hazardous air pollutants regulated under Section 112, so the 
CAMR case is actually an opposite to this problem, but I am 
sorry, I took up a little bit of your time.
    Mr. Sarbanes. No, actually, I was going to ask you to add 
whatever you think is left on this question. Can you real 
briefly, in 43 seconds, just give me a little bit more of your 
perspective on why the Takings issue is not determinative here?
    Mr. Revesz. Well, because first, this is a regulation, it 
is not a physical Takings, so a regulation would have to 
deprive a property owner of almost all of the value of the 
property. And if there is a property owner for whom that is the 
case, the proper remedy is not to invalidate this regulation, 
but it is for that property owner to sue separately at a later 
time for compensation.
    Mr. Sarbanes. Thank you.
    Mr. Tribe. Could I----
    Mr. Sarbanes. Sure, Professor Tribe. You have----
    Mr. Tribe [continuing]. Add one word?
    Mr. Sarbanes [continuing]. One more second.
    Mr. Tribe. We have never suggested striking down the law. 
Compensation is all we have talked about, but ever since The 
Steel Seizure Case, the Supreme Court has said that an agency, 
and even the President is not allowed to impose a bill on the 
American taxpayers for compensation unless Congress, which has 
the power of the purse, has clearly authorized the action that 
is going to require the compensation. That is all we have been 
talking about under that part of our----
    Mr. Revesz. But there is no compensation required here.
    And one last point. On footnote 7, as we have now, I think, 
indicated, footnote 7 is subject to interpretations, and there 
are literally dozens of pages in the D.C. Circuit briefs on 
either side of that issue. I think it is pretty clear what 
footnote 7 means. Obviously, Professor Tribe thinks is it clear 
on the other side, but there are two interpretations of 
footnote 7 of the American Electric Power case that are out 
there.
    Mr. Whitfield. Thank you. Gentleman's time has expired.
    At this time, recognize the gentleman from Missouri, Mr. 
Long, for 5 minutes.
    Mr. Long. Thank you, Mr. Chairman. And thank you all for 
being here today.
    When we started this hearing, I didn't have this document 
in my hand. And I represent the Seventh District in Missouri, 
which is Springfield, Joplin, Branson, Missouri, and we have a 
lot of successful businesses that germinated there. Bass Pro 
Shops started from nothing and has become what it is today. 
O'Reilly Automotive, which is across the United States, very 
successful company. We have a great medical community there, a 
lot of successful businesses, and a lot of people that just 
want to raise their kids in a good part of the country. Have a 
good job, raise their kids, have a nice place to raise their 
family. And I saw in my notes today, my little handy-dandy 
pocket card here, that the city of Springfield was coming to 
see me today, and I thought that is great. They think enough of 
me to come and talk to me about some issues that they have 
pressing. I am glad they came to Washington to see me, but they 
didn't come to Washington to see me, they came for a 
conference. And the reason they came to this conference, there 
were two cities of the United States that were invited to the 
conference to speak on this. One was Richmond, Virginia, and 
the other was Springfield, Missouri. And the reason is they 
have done such a good job, such a forward-thinking job with 
these different issues that we are discussing here today.
    I want to read you just a little snippet of what we have, 
and then kind of ask you all's suggestion on something. But 
this is from Mayor Bob Stephens, Mayor of Springfield, 
Missouri. Affordability and unfunded environmental mandates. 
And like I say, you can think what you want about things, but I 
stepped off in a side room here and got this in our meeting, I 
couldn't run back to my office and meet him over there, so I 
was required to meet him here due to time constraints. 
Affordability and unfunded environmental mandates. As you know, 
the city of Springfield, Greene County, and Springfield City 
Utilities have been working cooperatively to develop a proposed 
integrated plan framework that would foster a more holistic 
approach to the various unfunded EPA environmental mandates 
that all communities are facing; wastewater, storm water, 
drinking water, air quality, and solid waste. Our integrated 
plan framework attempts to consider all of these issues 
together instead of each one separately, and to focus resources 
where the community can achieve the biggest bang for the buck. 
We appreciate your efforts to ensure that future unfunded 
environmental mandates must be affordable for the community and 
the citizens.
    Now, one of the things that they did in this report that 
they are in here in Washington, and were honored enough to be 
thought of highly enough for the conference to be one of two 
cities, is they did the math. I know you all are constitutional 
scholars and such, but I don't know how your math is, but the 
math that they did was over the next 15 to 20 years, these 
unfunded mandates from the Environmental Protection Agency are 
only going to cost each individual in my district a little over 
$46,000 per person over the next 15 to 20 years.
    So I guess I will start here with Professor, is it Revesz? 
Do you have any suggestions what I tell the folks back home 
about these?
    Mr. Revesz. Well, it is a little hard for me to comment on 
a document that I haven't seen, but I can tell you from my 
experience, one of my areas of expertise is a cost benefit 
analysis of environmental regulation, and I actually care a lot 
about having the benefits of environmental regulation exceed 
the cost, and I am a big proponent of the use of cost benefit 
analysis to justify environmental regulation, which sets me 
apart from actually the vast majority of environmental law 
professors in this country who don't like it as much as I do. 
But I can tell you that often, these early cost estimates turn 
out not to be accurate, and----
    Mr. Long. They are usually low, aren't they?
    Mr. Revesz. No, actually, empirical studies show that 
initial cost estimates tend to be higher than the ultimate 
costs are, and there is a good reason for that. As initial 
estimates are generally made on the basis of sort of current 
end-of-the-pipe technology, but there is a great ingenuity in 
American business, and businesses figure out ways of doing 
things more effectively and more cheaply, and for that reason, 
in the end, costs end up being lower than are predicted.
    There is a lot of debate on cost estimates. There is huge 
variance, and each of those estimates should be submitted to 
serious peer review by serious experts, and I would take well-
conducted cost estimates very seriously. But----
    Mr. Long. So we----
    Mr. Revesz [continuing]. I would caution----
    Mr. Long. I hate to interrupt you but I am about out of 
time, but Johnny Morris, the owner of Bass Pro Shops, has a 
saying, we all live downstream. We all do live downstream. We 
want to have a clean environment to raise our family, and 
whether it is in the Ozarks or Washington, D.C., or the state 
of Washington, we all want a good clean environment, but unless 
you own Bass Pro Shops or you own O'Reilly Automotive, or one 
of these businesses, and our median income is under the $46,000 
a year, it is pretty tough to explain to the folks back home 
that you have to put a cup in the storm waters that pass 
through Springfield, and dip it and make it palatable, and some 
of these ridiculous regulations.
    I think I am over my time. I was going to yield my time 
back but I don't have any, Mr. Chairman. Thank you.
    Mr. Whitfield. The gentleman yields back.
    At this time, recognize the gentleman from New York, Mr. 
Tonko, for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair. And welcome to our 
panelists.
    Since 1970, the Clean Air Act has had several key features 
that have helped make it one of the most successful 
environmental laws in the world. Science-based, health-
protective standards keep our eye on the prize: healthy air for 
everyone. Cooperative federalism allows EPA to set the clean 
air goals, and allows states to decide how best to achieve 
them. EPA retains backstop enforcement authority, ensuring that 
every citizen in the United States receives a minimum level of 
protection, even if their state fails to act. Some have claimed 
that this arrangement violates the Tenth Amendment, and I 
quote, ``If a state fails to formulate a plan, EPA will mandate 
a federal plan. This commandeering violates the Constitution 
under New York v. U.S.''
    Professor Revesz, does the Clean Air Act state plan/federal 
plan provisions violate the Constitution?
    Mr. Revesz. It does not, and the reason is that states are 
not required to do anything. States are given the option to 
come up with state implementation plans, and if they don't, EPA 
can impose federal implementation plans on the sources of 
pollution. And because EPA imposes those directly on the 
pollution sources and not on state institutions, there is no 
Tenth Amendment problem.
    The cooperative federalism arrangement under Section 
111(d), as I indicated earlier, is exactly the same arrangement 
that has been in place since 1970 for meeting the national 
Ambient Air Quality Standards. EPA sets the reduction 
requirements in the National Ambient Air Quality Standards to 
define the maximum permissible concentration of pollution in 
the ambient air. The states can then decide how to allocate 
that reduction requirement among their sources through state 
implementation plans. And generally, they do, but sometimes 
they don't. And when they don't, EPA imposes federal 
implementation plans. And this system has been going on for 
decades. So the reason there isn't a Tenth Amendment problem is 
because EPA does not actually require the states to do these 
state implementation plans, it merely gives them the option to 
do them. And 111(d) is exactly the same situation. Through 
its--the Clean Power Plan--the proposed rule in the Clean Power 
Plan, EPA has set a reduction requirement that applies to each 
state. Each state can now decide what to do. Each state is not 
forced in any way to do what EPA has suggested they do in the 
regulation. They can do whatever they want as long as they meet 
the reduction requirement. And if they choose not to do 
anything, and some states have said they won't, EPA can then 
impose a federal implementation plan. And the fact that some 
states have already said that they will not do it shows that 
there is no compulsion.
    Mr. Tonko. Professor, would it be fair to say that ``the 
existence of a backup federal plan takes the Clean Air Act 
outside the commandeering world,'' just as the Supreme Court 
said in the radiation case of New York v. U.S.?
    Mr. Revesz. Yes, that is exactly right. And the New York 
case was problematic because there, the federal statute was 
requiring states to either take title to certain waste or adopt 
certain regulations----
    Mr. Tonko. Well, I----
    Mr. Revesz [continuing]. Which is not the case here.
    Mr. Tonko. Thank you. And I ask about these two statements 
because they were both made by Professor Tribe, and I sensed a 
bit of conflict there. Do you see any conflict between the two 
statements?
    Mr. Revesz. Well, there certainly is conflict between the 
two statements you mentioned now and Professor Tribe's position 
in his written submissions and in his testimony today.
    Mr. Tonko. Thank you. And Professor Revesz, we are all 
hearing about these legal questions, about the EPA's ability to 
regulate greenhouse gases emitted from power plants. As you 
know, power plants are the largest source of uncontrolled 
CO2 emissions in the U.S. I am not an attorney, but 
I thought the overall question of whether EPA had the authority 
under the Clean Air Act to regulate greenhouse gases was 
considered by the Supreme Court. I believe there were three 
separate cases: Massachusetts v. EPA; American Electric Power 
v. EPA; and Utility Air Regulatory Group v. EPA, and that the 
court ruled in favor of EPA regulation of greenhouse gases. In 
fact, the court in the Utility Air Regulatory Group case, 
talking about EPA regulation of power plants said that ``the 
Act speaks directly to emissions of carbon dioxide from the 
defendant's plants.'' So I just thought we should remember that 
and put it all in context. And any comments that you have in 
response----
    Mr. Revesz. No, I----
    Mr. Tonko [continuing]. To those cases?
    Mr. Revesz. I totally agree, in the Utility Air Regulatory 
Group case that was decided last year, one of the issues was 
whether best available control technology could include the 
regulation of greenhouse gases, and the Supreme Court held that 
it could, and the reason that it could is because greenhouse 
gases were regulated air pollutants that endanger public health 
and welfare.
    Mr. Tonko. Thank you very much.
    With that, I see my time is up and I yield back.
    Mr. Whitfield. Gentleman's time has expired.
    I know that Mr. Tribe was trying to respond. Did you want 
to make a comment?
    Mr. Tribe. Right. I don't know whether you call it a point 
of personal privilege or whatever, but since I was quoted, the 
context was a statement I made in October of 2012. I was 
talking about something that bears no resemblance to the plan 
that was announced, proposed by the EPA on September 2014. I 
may have some ability to foresee the future, but not that much.
    It is true that the existence of an otherwise unproblematic 
backup plan can take something out of the normal commandeering 
world, but here we have something that is much more like what 
the U.S. Supreme Court decided in NFIB v. Sebelius, was 
impermissible pressure on the states because preexisting help 
that the states are getting from the Federal Government to deal 
with air pollution, in places like Springfield, can be yanked 
when the state is recalcitrant and does not succumb to the 
Federal Government's demand that it meet certain goals.
    In addition, the backup plan here, the reason I called it a 
phantom earlier is something that Professor Revesz said at page 
13 of his prepared statement, he says it remains to be seen 
what a backstop federal implementation plan will look like. 
Now, what kind of alternative is it to tell a state either 
achieve these goals, and you can do it in any of several ways 
but none of them are voluntary, or we will do something to you 
and we won't tell you quite what?
    Mr. Whitfield. OK.
    Mr. Tribe. It is not just putting a bullet to their head, 
it is making them play Russian roulette.
    Mr. Whitfield. Thank you, Mr. Tribe.
    Mr. Revesz. If I could----
    Mr. Whitfield. You want a personal privilege, Professor?
    Mr. Revesz. Yes, I would like that. That is the way that 
the Clean Air Act has worked for 45 years. Under the National 
Ambient Air Quality Standards, EPA can set state limitation 
plans. If they don't, the Federal Government can impose a 
federal implementation plan. The Federal Government does not 
say upfront what that federal implementation plan would look 
like----
    Mr. Whitfield. Well----
    Mr. Revesz [continuing]. It waits until the states either 
submit a state implementation plan or not. Here, EPA is 
actually doing something it has never done before, which is 
favorable to the states. It has said we are going to give you 
early guidance and we are going to do it sometime in the next 
few months so you actually have some information, which is a 
lot more information than states have had under the kind of 
bread and butter of the Clean Air Act for the last 45 years.
    Mr. Whitfield. And we have another panel coming up after 
you all that will be getting into this also.
    At this time, I would like to recognize the gentlelady from 
North Carolina, Mrs. Ellmers, for 5 minutes.
    Mrs. Ellmers. Thank you, Mr. Chairman. And thank you to our 
panelists for being here today on this subject.
    I would like to, you know, focus in, you know, we are 
talking about our states, and in North Carolina, North Carolina 
is going to be negatively impacted by the increased utility 
bills. I know we have already discussed whether or not that 
will take place over time, but as it plays out I do believe 
that will be the case, and obviously, this interpretation of 
Section 111(d) of the Clean Air Act.
    With that, I would like to ask Professor Tribe and Ms. 
Wood, the EPA maintains that the rule is very flexible. How 
would you describe the rule in just a few words, because I know 
we have kind of gone over this subject a bit, and I have a very 
particular question I would like to ask all of you in the 
remainder of my time?
    Mr. Tribe. Well, I would say that the flexibility is an 
illusion. In fact, the Attorney General of Michigan, in 
comments filed with the EPA in November of last year, warned 
that the plan really takes meaningful freedom away from the 
states----
    Mrs. Ellmers. Yes.
    Mr. Tribe [continuing]. And has just a patina----
    Mrs. Ellmers. Yes.
    Mr. Tribe [continuing]. Of flexibility.
    Mrs. Ellmers. Yes.
    Mr. Tribe. It is like the example I gave, your money or 
your life, but you can pay----
    Mrs. Ellmers. But you can pay----
    Mr. Tribe [continuing]. By cash or by check.
    Mrs. Ellmers [continuing]. You can choose any vehicle as 
long as you choose a black one, that kind of thing.
    Mr. Tribe. Right. Very much like that.
    Mrs. Ellmers. Ms. Wood, and to that one, do you feel it is 
flexible, but then also as a Clean Air Act practitioner, how 
would North Carolina or any other state be able to actually 
implement this rule?
    Ms. Wood. Yes. The flexibility is exactly as Professor 
Tribe described it, it is illusory, and the example I like to 
use in describing the flexibility is it is as if I came to you, 
the State of North Carolina, and I said I want you to give me 
change for a dollar. You can do it any way you want. It can be 
100 pennies, it can be four quarters, I don't care, you just do 
it, North Carolina, the way you want. Well, the problem is 
North Carolina only has 60 cents, and so there really isn't 
flexibility there.
    Mrs. Ellmers. Right. So in other words, with the--got it.
    Now, to that point, I want to go into something very 
specific because I think, there again, I know we have been 
debating law and the interpretation. I am a nurse and I am much 
more practical when it comes to these things. So what I would 
like to know is, based on this 111(d) provision, in building 
block number four, which is relating to the increased energy 
efficiency, how would this be enforced?
    And I will start with you, Professor Tribe, and then just 
go to each one of you.
    Mr. Tribe. I would rather defer, if I could, because she 
is----
    Mrs. Ellmers. That is fine. That is fine. Ms. Wood.
    Mr. Tribe. She is more of an expert in the intricacies than 
I am.
    Mrs. Ellmers. OK.
    Mr. Wood. That gets to the essence of the problem of this 
rule which is that it goes beyond the source, as I have talked 
about today. There is no mechanism in the Clean Air Act for you 
to go and require people to reduce their electric consumption.
    Mrs. Ellmers. And basically, what we are talking about here 
is we are not talking about the state now or penalizing the 
state, we are talking about individuals. We are talking about 
individual households, we are talking about individuals who may 
or may not be complying with these regulations.
    Ms. Wood. Exactly. So either you are going to hold the 
individuals directly responsible, which isn't permissible under 
the Clean Air Act, or you are somehow going to try to force the 
electric utility companies to make----
    Mrs. Ellmers. To----
    Ms. Wood [continuing]. Their customers do it.
    Mrs. Ellmers [continuing]. Enforce. Correct.
    Professor Revesz, would you like to comment on this?
    Mr. Revesz. Sure. As I indicated earlier, I mean the 
product here, what is being regulated is electricity delivered 
in usable form to consumers.
    Mrs. Ellmers. To consumers.
    Mr. Revesz. Consumers. Now, I don't think EPA is arguing 
that consumers should use less electricity, or take the bus one 
day a week or work at home, or anything like that.
    Ms. Wood. That is absolutely building block four.
    Mrs. Ellmers. To the point.
    Mr. Revesz. That is an interpretation of building block 
four, and we can disagree with that but I don't think we will 
resolve it in the next 52 seconds.
    Also, we shouldn't lose sight of the fact that nothing is 
being imposed on any state here.
    Mrs. Ellmers. OK, but there again, now----
    Mr. Revesz. These are very----
    Mrs. Ellmers [continuing]. Now I am just reclaiming my 
time. We have already determined it is not the state we are 
talking about. We are talking about the individuals are the 
users of this energy, the individuals. My question is how would 
you enforce this?
    Mr. Revesz. States in their plans can come up with 
reductions any way they choose. They don't have to do anything 
in particular. They can have trading schemes, they can enter 
into compacts with other states and have multistate schemes, 
they have a million different options in how they can do this. 
They don't have to do it this way.
    Mrs. Ellmers. But building block number four talks about 
the individual use.
    Mr. Revesz. The building blocks are used to determine the 
state reduction requirements. They are not imposing any 
requirement on any state or on anyone else, they are just a way 
of determining to what extent states can reduce their carbon 
dioxide emissions.
    Mrs. Ellmers. Thank you.
    And I yield back the remainder of my time.
    Mr. Whitfield. Gentlelady yields back.
    At this time, I recognize the gentleman from Texas, Mr. 
Flores, for 5 minutes.
    Mr. Flores. Thank you, Mr. Chairman. And I want to thank 
the panel for joining us today. This has been a fascinating 
discussion, particularly with respect to government overreach.
    Professor Tribe, the question of Takings has come up in the 
course of this conversation today. Professor Revesz, a few 
minutes ago, indicated that it wasn't a problem, but you 
indicate that the rule's impact raises Fifth Amendment or 
Takings concerns. Can you tell us what you mean by that, can 
you expand?
    Mr. Tribe. What I mean I think is best illustrated by 
decisions that involve not only the Takings and Compensation 
Clauses, but the Due Process Clause. As the Supreme Court has 
held in a number of cases, including one where the EPA 
initially promised confidential treatment to pesticide makers 
and then pulled the rug out from under them, and another in 
which the United States Government offered companies more 
favorable accounting treatment if they would bail out failing S 
and Ls, and then reneged, in cases like that, the Supreme Court 
has found a doctrinal basis either in the Contract Clause or in 
the Due Process Clause or in the Takings Clause for saying that 
even though you haven't wiped somebody off the map entirely, 
you have left them with some value, if you lead them to take a 
course of action and then pull the rug out from under them, 
fairness requires some kind of compensation. And in particular, 
the way the coal companies have been led on here is well known, 
this was something that was encouraged by the government, and 
in particular, when they were forced to invest billions of 
dollars in meeting the requirements under 112 with respect to 
the hazardous pollutants, they were pouring money down a hole, 
and they were not told, guess what, it is all gone, because the 
state that you live in has no choice other than to put you out 
of business.
    Mr. Flores. Well, that sort of brings me to my next 
question related to 111(d). This seems to be on shaky legal 
ground already. It is already the subject of lawsuits that 
haven't been finalized yet.
    And so, Ms. Wood, what happens if the states start 
implementing the final rule only to have the courts strike the 
rule down, and what do these states do, what if they have 
already started signing the contracts, people started breaking 
ground on investments, or making capital commitments for 
investments, what happens next?
    Ms. Wood. Yes. There are two sets of harm that can happen 
here; one is to the states and the other is to the power 
plants----
    Mr. Flores. Correct.
    Ms. Wood [continuing]. Themselves. And when you are looking 
at the states, they are having to start now to prepare these 
plans. In the litigation that is pending, the state of Alabama, 
for example, submitted an Affidavit that said that this was by 
far the most complex undertaking that the state of Alabama 
Environment Department had undertaken in 40 years. So it is a 
lot of capital being expended to come up with these plans.
    Most states are going to need to enact legislation and put 
in place regulations. So if at the end of that time period, 
this is all found to be unlawful, well, all of that effort will 
have been lost, but more importantly to the extent legislation 
and regulations have been put in place, all of that is going to 
have to be reversed, and, you know, that is also going to be 
time-consuming. And then as you said, power plants need to 
start planning now and so they can enter into contracts and 
could have financial----
    Mr. Flores. Right, but it goes unsaid here but is obvious 
is that the consumers and the taxpayers and ratepayers all bear 
the cost to that.
    Continuing on Section 111(d), it is the basis for the Clean 
Power Plan that the EPA has come up with, but this provision as 
I understand it has seldom been used in EPA's 44-year history. 
The Supreme Court also recently said it is skeptical when an 
agency claims to discover in a long, long exigent statute, an 
unheralded power to regulate a significant portion of the U.S. 
economy.
    And so, Ms. Wood, another question for you. Isn't it 
correct that in the 1990 amendments to the Clean Air Act, only 
one section of 111(d) regulation has been promulgated that 
still exists?
    Ms. Wood. Yes, that is correct. As Professor Tribe has 
talked about, there was one version of Section 111(d) that was 
actually promulgated. It is the House version, it is what is 
shown right now in the United States Code, and it precludes 
regulation of source categories under 111(d) if they are 
already regulated under 112.
    Mr. Flores. Well, and that was sort of my next question, as 
these have always had very limited reach.
    Ms. Wood. Yes, very limited reach. It really was designed 
by Congress to be a catch-all for something that slipped 
through the cracks. These sources are not slipping through the 
cracks, they are being regulated under 112 and having to 
install maximum achievable control technologies.
    Mr. Flores. Right. So there has never been an expansive use 
of 111(d) like this that we are proposing.
    So, Professor Tribe, would you like to comment?
    Mr. Tribe. I agree.
    Mr. Flores. And you have 2 seconds.
    Mr. Tribe. It has only been used for four pollutants and 
five sources. They are very specialized and localized, like 
municipal waste landfills or sulfuric acid plants, which give 
off acid mist, and the idea that it is nothing new, just 
business as usual is the most fantastic account I have heard.
    Mr. Flores. OK. Thank you very much. I yield back.
    Mr. Whitfield. Gentleman yields back.
    At this time, recognize the gentleman from Mississippi, Mr. 
Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman. And thanks to each of 
you for being here. You have been very informative, and it is a 
challenging issue to every one of our states, a very expensive 
issue and proposition that is here. And the discussion on the 
Constitution is certainly very intriguing. And yesterday I saw 
in the vault at National Archives the original handwritten 
letter that Thomas Jefferson wrote following the Louisiana 
Purchase, congratulating Congress on this new acquisition, 
which had not been approved yet. And him being a strict 
constructionist, he was obviously concerned about people 
calling it unconstitutional, and he said it was extra-
constitutional. So, it is amazing how we have progressed in 200 
years, and how we look at things.
    But, Professor Tribe, EPA and proponents of this regulatory 
approach say Section 111(d) serves as a catch-all that provides 
regulatory authority to ensure there are no gaps in air 
pollutant regulations. And I know we have touched on it, but 
what are your thoughts about this gap-filling argument?
    Mr. Tribe. Well, it is the job of Congress to fill gaps in 
the law, and it tried to fill the little cracks, as Ms. Wood 
suggested, not in a huge gap, when it passed 111(d); little 
things that just weren't covered because they were not among 
the 188 hazardous pollutants that are regulated under 112 at 
the source. But the idea that when an agency is not satisfied 
with the coverage of a law, it can sort of squeeze the law so 
that the hole in the legal ozone layer is sort of closed up is 
just totally fantastic.
    Mr. Harper. Well, Professor Tribe, following that line, 
have you identified any evidence that Congress intended to 
provide EPA powers to expand its own regulatory authority when 
EPA identifies the need to do so, and how would that be 
possible under the Constitution?
    Mr. Tribe. Well, I think it wouldn't be possible, and I 
have found no such evidence.
    Mr. Harper. OK, thank you.
    Ms. Wood, I think everybody agrees that EPA has the 
authority under certain circumstances to set standards that 
people comply with by installing certain equipment, for 
example, catalytic converters have been added to cars to meet 
environmental regulations. How is EPA's proposed 111(d) rule 
different than that?
    Ms. Wood. Yes. Well, it is different in the ways that I 
have discussed, which is it is going beyond the source of 
pollution, and the bulk of the reductions that EPA is claiming 
from this rule are not actually coming from the source, they 
are coming from other areas.
    This is the first time in its history that EPA has ever 
tried to apply any part of 111 in this manner. Rather than 
being a standard of performance, in other words saying how a 
source should perform and at what rate it should emit, it is 
really a standard of nonperformance. Let us try to figure out 
ways where these plants don't have to run. It is completely 
backwards and upside-down. Nothing has ever been done like 
this, and in fact, if you think about it, if you are looking 
for the best system of emission reduction, which is what EPA 
does, not running it or shutting it down would always be best, 
and yet that is never what they have found before.
    Mr. Harper. Thank you very much.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Whitfield. The gentleman yields back.
    And that concludes our questions, and I want to thank the 
three of you for taking time to be with us and discuss this 
very important issue with a lot of profound impacts down the 
road. So, Professor Tribe, thank you. Ms. Wood, Professor 
Revesz, thank you. We look forward to continuing to work with 
you on this issue and others.
    And with that, we will release the first panel.
    Mr. Tribe. Thank you, Mr. Chairman.
    Ms. Wood. Thank you, Mr. Chairman.
    Mr. Whitfield. Thank you so much. Thank you.
    And I would like to call up the second panel now, who have 
been very patient. And on this panel, we are going to really 
zero-in on the practical impacts at the state level, and what 
their thoughts are about this proposed rule.
    And we have four witnesses: Mr. Craig Butler, Ms. Kelly 
Speakes-Backman, Mr. Art Graham, and Mr. Donald van der Vaart. 
So if you all would take your seats. And just like the first 
panel, I will introduce each one of you right before you give 
your opening statement. I do think it is important that 
everybody understand that today is Mr. Art Graham's birthday, 
so he is a fun-loving guy and that is why he is here today--to 
celebrate his birthday.
    But our first witness is Mr. Craig Butler, who is the 
Director of the Ohio Environmental Protection Agency. Mr. 
Butler, thank you for being with us, and you are recognized for 
5 minutes for a statement. And at the end of that time, we will 
have questions for you.

   STATEMENTS OF CRAIG BUTLER, DIRECTOR, OHIO ENVIRONMENTAL 
    PROTECTION AGENCY; KELLY SPEAKES-BACKMAN, COMMISSIONER, 
    MARYLAND PUBLIC SERVICE COMMISSION, AND CHAIR, BOARD OF 
   DIRECTORS, REGIONAL GREENHOUSE GAS INITIATIVE, INC.; ART 
GRAHAM, CHAIRMAN, FLORIDA PUBLIC SERVICE COMMISSION; AND DONALD 
    VAN DER VAART, SECRETARY, NORTH CAROLINA DEPARTMENT OF 
               ENVIRONMENT AND NATURAL RESOURCES

                   STATEMENT OF CRAIG BUTLER

    Mr. Butler. Good morning, Mr. Chairman, Chairman Whitfield, 
members of the committee. I do appreciate the opportunity to 
testify before the subcommittee.
    My name is Craig Butler. I am director of the Ohio 
Environmental Protection Agency, and I have been asked to 
provide testimony on Ohio's comments and interpretation of the 
Clean Power Plan.
    As reflected in our detailed comments, and extensive 
comments to U.S. EPA, the proposal seeks to overhaul the 
Nation's power generation, transmission, distribution systems, 
by reducing coal-based electricity, and instituting federally-
mandated reliance on energy efficiency, renewable energy under 
the guise of global climate protection.
    It is no secret, as we have heard today, that many states 
including Ohio, that the Clean Power Plan is encumbered with 
significant legal problems and should not go forward. While I 
am not here and won't discuss those concerns in detail, be 
assured that Ohio will continue to pursue these challenges 
either independently or joining with other states to prevent 
the likely illegal rulemaking from moving ahead.
    U.S. EPA's request for comment on more than over 500 
different aspects of the proposed rule as it was published in 
the Federal Register, combined with the inability to answer 
basic questions throughout that comment period, clearly 
highlights that the plan has not been well designed and was 
rushed out the door to meet a predetermined schedule. 
Nonetheless, Ohio felt a strong obligation to dissect the 
proposed rule from a very technical standpoint. We took it very 
seriously. We partnered with our Public Utilities Commission of 
Ohio, and conducted an extensive outreach effort to interested 
parties during the comment preparation. Our detailed review 
produced more than 180 pages of technical comments.
    One major flaw is how U.S. EPA inexplicably ignores 
efficiency improvements already made to our coal-fired power 
plants, and instead orders sweeping new changes or 
improvements, regardless of feasibility. For example, U.S. EPA 
plan requires an achievement of 4 percent or 6 percent 
efficiency improvement at all coal plants. We know this was 
established without any site-specific assessment in Ohio. In 
reality, Ohio's coal fleet will have recognized a 5.4 percent 
heat rate improvement between 1997 and 2016, and as a result of 
additional reductions, may be very costly or if not impossible. 
In fact, carbon emissions will be reduced by 47 percent between 
2005 and early 2016 from our power plants, yet U.S. EPA's 
allocation allocates no credit in the Clean Power Plan for pre-
2012 ``early adopters'' of energy efficiency improvements, 
increasing cost to achieve new state regulatory targets and 
threatening more closures of coal plants in Ohio.
    Ironically, after coal-fired units are required to make new 
costly upgrades, their ability to recover the costs in the 
marketplace is minimized by utilization restrictions as a 
result of the remaining EPA building blocks requiring natural 
gas plants to achieve a 70 percent utilization rate. It is 
nonsensical to force costly upgrades on one hand, and only deny 
the same units the ability to run and pay for them.
    In another example, we believe U.S. EPA has misapplied the 
economic feasibility analysis to predict the reliability on the 
bulk power system. It is not clear if U.S. EPA may have 
consulted with the Department of Energy, North American 
Electric Reliability Corporation, Federal Energy Regulatory 
Commission, or power providers to identify and use well-known 
technical modeling software to specifically design to analyze 
how changes in the transmission will be affected. However, 
these organizations currently responsible for maintaining the 
grid and stability and reliability have warned of outages and 
voltage collapse if the plan is implemented as proposed. To 
Ohio, this signals that U.S. EPA failed to consult these 
organizations in a meaningful way while formulating this plan, 
and does not fully understand the implications of the plan.
    As Ohioans discuss this issue across the state, we hear one 
overriding concern: maintaining our affordable, reliable power 
is critical to both the pocketbooks of Ohioans and continued 
economic development within our state. Ohio has been a 
manufacturing hub in the heart of this country since the 
Industrial Revolution. Fueled by electricity, which remains 9 
percent below the national average, Ohio is home to a broad 
range of energy-intensive industries, and is competitive on the 
national and global market. The Clean Power Plan, with all its 
legal and technical flaws, presents a direct threat to these 
benefits to the Ohio consumer.
    One stunning statistic I will share with you is the Public 
Utilities Commission conducted the detailed analysis of the 
Clean Power Plan and indicates that 39 percent higher 
electricity rates in calendar year '25 that will cost Ohioans 
$2.5 billion. In the last 4 years, Governor Kasich has 
supported an energy policy that is inclusive of all sources in 
generation. From our world-class energy summit in 2011, where 
we discussed developing a broad portfolio of the cost-effective 
sources, to recent legislative activity to include combined 
heat and cogeneration in our qualifying energy sources, we have 
and will continue to embrace the often overused but certainly 
relevant all-of-the-above strategy. We do it because it is 
important to affordable, reliable energy and to protect the 
environment.
    I will close by saying Ohio is willing and is very prepared 
to participate in a full national debate on carbon, the need or 
not, frankly, to regulate carbon emissions from power plants, 
and how Ohio is and remains committed to being a good steward 
of the environment. However, the Clean Power Plan is a 
seriously flawed proposal and should not be used to set 
unprecedented national policy. U.S. EPA should reconsider this 
misguided approach.
    Thank you.
    [The prepared statement of Mr. Butler follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you, Mr. Butler.
    And our next witness is Ms. Kelly Speakes-Backman, who is 
the Commissioner at the Maryland Public Service Commission, and 
Chair of the Regional Greenhouse Gas Initiative. Thank you for 
being with us, and you are recognized for 5 minutes.

               STATEMENT OF KELLY SPEAKES-BACKMAN

    Ms. Speakes-Backman. Mr. Chair and members of the 
committee, thank you very much for inviting me----
    Mr. Whitfield. Your microphone is on, and move it up closer 
please.
    Ms. Speakes-Backman. Thanks. I think it is with this chair.
    Thank you very much for inviting me to testify this 
morning. I am grateful for this opportunity to comment on the 
proposal's costs, feasibility, and impact on consumers and 
electrics reliability.
    As an economic regulator first and foremost, my primary 
objective is to ensure that the environmental goals of my state 
are realized in the most cost-effective way possible, while 
maintaining grid reliability. To this end, I am pleased that 
the EPA has allowed states to work within the current construct 
of our electric grid markets by encouraging a regional approach 
to compliance. As one of the nine states participating in RGGI, 
the experience of my state as well as recent analyses completed 
by several independent grid operators indicates that a regional 
path to compliance is the most efficient and cost-effective 
path forward.
    Together, our nine states continue to successfully 
implement the Nation's first fully-operational carbon market. 
The RGGI program caps emissions by first determining a regional 
budget of carbon dioxide allowances, then distributing a 
majority of the CO2 allowances through regional 
auctions, so that states may capture the allowance value for 
reinvestment in strategic energy programs.
    Our nine states represent 16 percent of the U.S. economy, 
and generate a total gross domestic product of $2.4 trillion 
U.S. The states work together within the current electricity 
markets to create a unified system for auctioning and trading 
carbon allowances so that our environmental goals are achieved 
through a least-cost, market-based solution. Although we have 
collaborated effectively for the better part of a decade, the 
RGGI region remains diverse in many aspects. We comprise three 
separate regional transmission organizations, we have different 
political landscapes, and dissimilar generation profiles. For 
example, in Maryland, our generation remains predominantly 
coal. As part of RGGI, and coupled with other state energy 
initiatives, however, we have been able to diversify our fuel 
mix and reduce our carbon footprint. Since 2005, in-state 
generation from renewables, nuclear, and natural gas as a 
percentage of total generation mix has increased from 36 
percent to 55 percent, while in-state generation from coal has 
decreased 56 percent to 44 percent. Over our entire RGGI 
region, the power sector carbon pollution has decreased by 40 
percent, while our regional economy has grown by 8 percent. 
That is from 2005 to 2013. Non-hydro renewable generations has 
increased by 47 percent, while our regional dependency on coal 
and oil has decreased. Our carbon intensity of the power sector 
has decreased at twice the rate of the rest of the country.
    So we believe that market forces, state policies, and 
programs, such as RGGI, are driving these cost-effective 
pollution reductions, while simultaneously supporting our local 
economies. Our energy efficiency, demand response, and 
renewable initiatives, as well as policies to encourage fuel 
switching and to less carbon-intensive fuels, all work in 
tandem to reduce pollution and establish long-term solutions 
for a reliable energy infrastructure. Many of the complementary 
strategic energy initiatives are funded using proceeds from 
these RGGI allowance auctions, creating a virtuous cycle of 
benefits that also serves to minimize ratepayer impact.
    I could go through the rest of my written statement, but I 
would very much prefer to just leave you with five points that 
we have learned as part of RGGI, and I would be happy to take 
questions afterwards. The five lessons that we have learned and 
what we hope will be helpful to other states as they are 
crafting their plans, either state or regional, include the 
formation of--one of the lessons stems from the formation of 
our intra and interstate agency relationships as part of the 
regional cooperative effort. These relationships and resources 
have spilled over into other initiatives such as distributed 
generation, electric vehicles, and compliance with other EPA 
and state environmental regulations. Two is the pooling of 
staff resources and budgets. Basically, we can do a lot more 
with a lot less. We have been able to complete the necessary 
regional electric sector modeling in a timely fashion with 
built-in peer review. The third is a regional mechanism 
stimulates active and productive stakeholder engagement. The 
fourth, regional consistency does not require the states to 
implement identical programs. We in Maryland have one way of 
using these proceeds. Those in New York, those in 
Massachusetts, those in the other states participating in RGGI 
base their investments on their own state policies and 
priorities. And fifth, lastly and the most important lesson 
that we have learned by the RGGI states as it applies to the 
Clean Power Plan, is that participation in a regional 
compliance effort will likely provide other states with the 
most flexibility moving forward. Initial hurdles surrounding 
the structure of the mechanism are not, in fact, insurmountable 
as demonstrated by us and in the RGGI states. Using this 
regional construct, the regional emission cap is the only 
enforceable mechanism included in the compliance plan. States 
retain jurisdiction over their own energy efficiency and 
renewable energy programs, and can continue to offer these 
initiatives as complimentary measures that help mitigate the 
cost of compliance for their ratepayers.
    Thank you very much for your time this morning.
    [The prepared statement of Ms. Speakes-Backman follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you.
    Our next witness is Mr. Art Graham, who is chairman of the 
Florida Public Service Commission. Mr. Graham, thanks for being 
with us, and you are recognized for 5 minutes. And happy 
birthday, as I said earlier.

                    STATEMENT OF ART GRAHAM

    Mr. Graham. Thank you, Mr. Chairman. Thank you for the 
birthday wishes. And thank you and the subcommittee for 
allowing me the opportunity to come and speak today.
    My testimony is my perspective as a utility regulator. I 
believe the EPA's Clean Power Plan, the CPP, threatens the 
affordability and reliability of Florida's electric power. I am 
going to get straight to what I feel is the most troubling 
aspect of the CPP. That would be both the fairness and the 
cost.
    In Florida, we have below-average CO2 emissions 
because of the following. We shifted a lot of our generations 
to low-emission natural gas early on. We offered incentives to 
harvest the available heat rate improvements over the past 30 
years, and through energy efficiency programs that have already 
reduced consumption by 9,330 gigawatt hours. Now, all these 
things allowed us to realize a 25 percent decrease in 
CO2 emissions from 2005 to 2012, but yet none of 
these things are recognized by the current plan. However, in 
the current plan 34 states have higher CO2 emission 
rates than Florida, but only 15 states have higher reduction 
percentage required by the CPP.
    The second concern I want to express this morning is the 
cost of compliance. EPA's responsibility is economic 
protection, which is very important. I think it is very 
important. But my responsibility is protecting the consumer 
from excessive costs and the reliability of the power grid, 
which I think is equally as important. The costs of 
implementing the CPP aren't certain at this early stage, but 
the utility customers will certainly pay for EPA's dramatic 
shift away from economic planning and least cost operation. How 
much is not exactly known, but the cost analysis I will talk to 
you about this morning from our Florida Office of Public 
Counsel, and you will get some idea from there.
    OPC's job is to represent the utility customers' interest. 
They took a very conservative approach and applied EPA's own 
cost assumptions. The specifics are in my written testimony 
that I submitted earlier.
    So briefly, under building block one, applying the 
approximate midpoint of EPA's cost range to achieve 
approximately 6 percent improvement, Public Counsel identified 
a cost of $1.15 billion. Under building block two, Public 
Counsel's conservative methodology precluded costs associated 
with this building block, but the issues were as follows. 
Codifying costs for the EPA's overstatement of gas plant 
capacity, the cost for required new gas transportation 
infrastructure, i.e., pipelines, the cost for replacing 
generating units into retirement long before the end of their 
useful life, i.e., the stranded costs. I can tell you these are 
all big-ticketed items. Under building block three, using a 
U.S. Energy Information Agency's most recent costs for utility 
scale solar, replacing 10 percent of the conventional capacity 
would cost Florida $16.8 billion. Under building block four, 
for Florida EPA's 10 percent reduction equals 5,745 megawatts 
of avoided capacity. Our demand site program costs $1.48 
million per megawatt of avoided capacity. So EPA's assumption 
will cost us over $8.5 billion.
    Now, Florida's Office of Public Counsel limited itself to 
costs that can be cleanly calculated, applying EPA's numbers 
with the most basic government data. Counting only the most 
obvious and easily qualified costs, the expense to Florida 
ratepayers start at almost $27 billion. That works out to about 
$2,800 per utility customer. However, the complete cost is 
much, much higher.
    In short, if EPA wants to reduce the carbon emission by 30 
percent from the 2005 levels, well, then let us use the 2005 
levels as our baseline. It makes no sense that EPA won't 
recognize what states have done since 2005. It is unfair to 
punish early efforts with bigger and more expensive 
requirements.
    And I have some more, but I don't want to run over.
    [The prepared statement of Mr. Graham follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. OK, Mr. Graham, thank you very much, and we 
will have an opportunity to ask questions as well, and then we 
have your full statement for the record.
    At this time, I would like to introduce Donald van der 
Vaart, who is the Secretary for North Carolina Department of 
Environment and Natural Resources. Thanks very much for being 
with us, and you are recognized for 5 minutes.

               STATEMENT OF DONALD VAN DER VAART

    Mr. van der Vaart. Thank you. Chairman Whitfield, Ranking 
Member Rush, and members of the subcommittee, thank you for 
inviting me to testify this afternoon.
    I have the privilege of serving Governor McCrory as 
Secretary of the Department of Environment and Natural 
Resources, and I am grateful for the opportunity to share my 
views on this very important topic. I would also like to 
recognize Representatives Hudson and Ellmers, two distinguished 
North Carolina members who sit on this committee.
    The Clean Air Act specifically provides that states, not 
the EPA, have the primary responsibility for implementing 
programs that protect the resources of this Nation. It is an 
indisputable fact that states like North Carolina have been 
very successful over the past 30 years implementing programs 
that protect public health and welfare, while providing for 
economic development.
    Before I comment on the specific issues of state resources, 
I would like to note the issues that are omitted from my 
comments. First, my comments will not address the scientific 
uncertainty of the impact of human activity and greenhouse 
gases have on climate. My comments do not discuss the accuracy, 
or the lack thereof, of the IPCC models relied upon by the EPA 
to develop this rule, or the divergence between the models' 
predictions and actual temperatures over the past 15 years. 
Although these issues are critical in any decision to regulate 
greenhouse gases, my comments are limited to separate but 
equally important aspects of any final 111(d) rulemaking 
process: that is, state resources, state and utility planning 
efforts, and the legal frailty of the proposed rule.
    I will address the state resources and advocate for what 
North Carolina calls the legal trigger approach to Section 
111(d) implementation. Given the certain litigation that will 
ensue if the proposed rule under 111(d) is promulgated, states 
such as North Carolina are at risk of investing unnecessary 
time and resources, developing and enacting state 111(d) plans 
prior to the resolution of litigation. North Carolina 
recommends that the EPA amend the rule's submittal deadlines to 
require states to submit a 111(d) plan only after the 
conclusion of the judicial review process. Traditionally, when 
the EPA promulgates a new rule that sets forth requirements 
designed to address some aspect of the Clean Air Act, each 
state must take action, usually in the form of legislation and 
rulemaking, to avoid sanctions directly or avoid sanctions on 
its sources. The state then submits a demonstration to the EPA 
for approval, which can take anywhere from a few months to many 
years, during which time the states implement their rules. If 
the rule is struck down, however, the state is forced to uproot 
its earlier work and begin a new planning process; legislation, 
rulemaking, implementation and enforcement, and the process 
must often be amended again when EPA revises its illegal rule 
in an attempt to satisfy the courts.
    This is not just an academic concern. There are several 
recent cases where this study in futility has occurred. The 
EPA's attempts to address economic inequity in regional energy 
markets through interstate pollution rules, such as the 
NOx SIP Call, the Clean Air Interstate Rule, and the 
Cross-State Air Pollution Control Rule, all prime examples. 
There is universal agreement that the 111(d) rule will 
fundamentally restructure how energy is generated and consumed 
in America. I would argue that EPA's Section 111(d) rule is to 
energy what the Affordable Care Act is to healthcare. This 
fundamental change to America's electricity model will come at 
the hands of a rule that few consider legally firm. The EPA 
acknowledges in the rule that it is structured to survive even 
if portions of the rule are struck down. In my more than 20 
years of implementing air quality rules, I am not aware of any 
rule where the EPA has made an a priori acknowledgement of 
legal infirmity.
    Despite the rule's uncertain future, state plans would need 
to move forward to allow, for example, switching from a cost-
based energy dispatch model to a carbon dioxide dispatch model. 
Under the EPA's current proposal, legislative changes, utility 
resource planning, and regulatory execution must proceed while 
111(d) is under judicial review. EPA's acknowledgement of the 
legal frailty of their creative interpretation of the Clean Air 
Act not only argues for the legal trigger, but it also calls 
Chevron deference into question. In this rule, like many other 
EPA rulemakings, the EPA characterizes statutory language as 
ambiguous to invoke Chevron deference. Unfortunately, the EPA's 
legal track record is so poor that one can only wonder if 
Chevron deference should be withdrawn because the agency has 
abused its public trust.
    Simply stated, if the EPA wants to upend the world's 
greatest power system by forcing a round peg into the square 
hole that is Section 111(d), it should have the prudence to 
allow the final rule to be reviewed by the courts before 
requiring states to undertake such a profound effort.
    Thank you for the opportunity to have testified.
    [The prepared statement of Mr. van der Vaart follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you, Mr. van der Vaart. And thank all 
of you for taking time to give us your views on this important 
issue.
    I will recognize myself for 5 minutes for questions.
    In my opening statement, I described this proposed 
regulation as being characterized as extreme, a power grab, 
radical, unprecedented, and even unlawful. I think you can come 
to the logical conclusion that this is being implemented to 
implement the President's international agreements.
    And I would ask each of you, the EPA has given the states 
13 months to come up with a state implementation plan if this 
regulation is adopted. Is that an unusually short period of 
time from your personal experience with EPA? Mr. Butler?
    Mr. Butler. Mr. Chairman, it is a very short time frame, 
frankly, one which we don't believe we could ever meet.
    Mr. Whitfield. OK.
    Mr. Butler. And I know some states are different.
    Mr. Whitfield. OK, so it is very short. You don't think you 
can meet it.
    What about you, Ms. Speakes-Backman?
    Ms. Speakes-Backman. Well, thank you for the question. I 
would say that for my state and for the other eight 
participating RGGI states, since EPA has explicitly allowed our 
construct to exist, we already are practicing what they are 
asking for.
    Mr. Whitfield. So you are saying you could meet the----
    Ms. Speakes-Backman. Absolutely.
    Mr. Whitfield [continuing]. Proposed regulation.
    Mr. Graham?
    Mr. Graham. I agree it is short, and I don't think we can 
do it either. We would have to have several special sessions.
    Mr. Whitfield. OK. What about you, Mr. van der Vaart?
    Mr. van der Vaart. The plan that we anticipate submitting 
we could meet. It is not the plan the EPA is seeking.
    Mr. Whitfield. OK. Now, this has been described as a real 
takeover of the electric system in America--generating system. 
Why would EPA, from your personal view, would they want a 13-
month time period to allow states to implement something this 
complicated? What would be the reason for that? Mr. Butler, do 
you have any idea?
    Mr. Butler. Mr. Chairman, I think it is--as I had pointed 
out in mine, and you had in your testimony, I think the 
President has a goal that he is trying to meet, and is asking 
the states to help him meet that goal, but a very short time 
frame.
    Mr. Whitfield. OK. Why do you think, Ms. Speakes-Backman?
    Ms. Speakes-Backman. I can't say exactly why because I 
don't agree with the premise, necessarily, that it is a 
takeover, sir.
    Mr. Whitfield. OK, what about you, Mr. Graham, do you have 
any idea why?
    Mr. Graham. Mr. Chairman, I would agree with you and Mr. 
Butler on that.
    Mr. Whitfield. OK. Mr. van der Vaart?
    Mr. van der Vaart. I believe that this fictitious sense of 
urgency is not about emission reductions. We are meeting 
emission reductions, thanks in large part to the free market 
and the low cost of natural gas.
    Mr. Whitfield. Yes.
    Mr. van der Vaart. I believe the urgency has to do with the 
fact that they sense that the veil of legal authority has been 
stripped from this rule, and it will soon meet its demise.
    Mr. Whitfield. Yes.
    Mr. van der Vaart. They want to force----
    Mr. Whitfield. Yes.
    Mr. van der Vaart [continuing]. Utility companies to begin 
their planning process----
    Mr. Whitfield. Yes.
    Mr. van der Vaart [continuing]. Which is a lot longer than 
13 months, so that they can get this ball rolling.
    Mr. Whitfield. And, you know, in our first panel, you 
listened to the constitutional arguments and so forth. How many 
of you actually believe that the average citizen out there has 
any basic understanding of the impact of this regulation and 
what it would be? Do you think the average citizen even has any 
insight into this, Mr. Butler?
    Mr. Butler. Mr. Chairman, we did an extensive outreach 
and--as we prepared our comments, and we took a lot of public 
comment on this, but irrespective of that, I think in general, 
the public does not understand any of the technical details of 
any of the legal construct here----
    Mr. Whitfield. Right.
    Mr. Butler [continuing]. That is under debate, nor, 
frankly, what the potential cost might be because we have not, 
frankly, been able to understand the plan well enough or know--
--
    Mr. Whitfield. You probably don't understand what the cost 
implications are.
    Mr. Butler. Right.
    Mr. Whitfield. Do you think the average citizen understands 
the potential impact of this?
    Ms. Speakes-Backman. I believe that public sentiment is 
increasingly aware of climate change and the issues----
    Mr. Whitfield. I am not talking about climate change, I am 
asking you----
    Ms. Speakes-Backman. And----
    Mr. Whitfield [continuing]. Do they understand the impact, 
in your opinion, of the consequences of this?
    Ms. Speakes-Backman. The impact in our RGGI states is less 
than 1 percent for the overall----
    Mr. Whitfield. So you think they do understand----
    Ms. Speakes-Backman [continuing]. So that----
    Mr. Whitfield. OK, Mr.----
    Ms. Speakes-Backman [continuing]. Impact is not necessary--
--
    Mr. Whitfield. Mr. Graham, what about you, do you think 
they understand?
    Mr. Graham. I don't think they have any idea. We have 
reached out quite a bit and got very little feedback. I think 
the power generators----
    Mr. Whitfield. Yes.
    Mr. Graham [continuing]. Have an idea of what this is going 
to cost----
    Mr. Whitfield. OK.
    Mr. Graham [continuing]. But I think the financial impact, 
and we really haven't put out----
    Mr. Whitfield. OK.
    Mr. Graham [continuing]. What we propose that some of the 
numbers are until we get the final plan coming back.
    Mr. Whitfield. Do you think they understand, Mr. van der 
Vaart?
    Mr. van der Vaart. No, sir.
    Mr. Whitfield. OK. Now, Mr. Graham, you talked about you 
viewed this as unfair and very costly. Is that your honest 
opinion of the impact of this regulation on the state of 
Florida?
    Mr. Graham. Without a doubt. What gets me, and you see in 
all of the EPA's data, that they said they want to decrease 30 
percent of the CO2 emissions from the 2005 numbers. 
Now, one of the things that Florida has already done from 2005 
to 2012, we have already jumped ahead of a lot of this stuff. 
We switched a lot of things over to natural gas. We are, right 
now, about 65 percent natural gas. We have done a lot of other 
improvements since then, and for you not to take into account, 
because they are using 2012 as the baseline.
    Now, the problem we run into there is that was an all-time 
low for natural gas, so we are using so much more natural gas, 
so the carbon emission that they are putting out there is so 
much lower than it was, like I said, back in '05. And so I 
think----
    Mr. Whitfield. OK.
    Mr. Graham [continuing]. It is unfair that we are not 
getting that credit.
    Mr. Whitfield. Thank you. My time has expired.
    At this time, recognize the gentlelady from Florida, Ms. 
Castor, for 5 minutes.
    Ms. Castor. Thank you, Mr. Chairman. Thank you to the 
panel.
    Mr. Graham, it recently came to light that Florida Governor 
Rick Scott has an unwritten policy that bans the use of the 
terms climate change and global warming. A number of state 
employees and scientists from the Florida Department of 
Environmental Protection, the Department of Health, the water 
management districts, the Florida Department of Transportation, 
have all come forward and said this is the case. I read your 
testimony. Nowhere in your testimony does it use the term 
climate change or global warming. Is that a product of Governor 
Scott's unwritten policy?
    Mr. Graham. Absolutely not. I was told to come here and 
talk about what the financial impact is going to be of 
implementing 111(d), and so that is why that was in my written 
testimony.
    Ms. Castor. Well, and I find your testimony very curious 
because the Florida Public Service Commission has not been on 
the side of consumers, and they have not, your words, you say 
the Clean Power Plan threatens affordability for consumers, and 
the commission will protect consumers from excessive costs, but 
let me give you a few examples of the costs that Florida has 
heaped on our customers. The PFC recently gutted energy 
efficiency initiatives, even though efficiency can meet demand 
at a much lower cost, at a fraction of the cost of building new 
power plants, and can help customers reduce energy use, put 
money back into their pocket, create jobs at the same time. I 
mean we would see larger savings on bills, but that is not the 
business model in Florida. So those stunning rollbacks in 
energy efficiency, especially at a time when we have to be 
looking for ways to save on carbon pollution and save money.
    Here is another example. The Public Service Commission has 
really worked over the past years to stifle renewable energy in 
Florida, and especially solar. You recently stated at a Public 
Service Commission hearing that Florida, sunshine state, 
branding is nothing more than a license plate slogan. Well, I 
hope everyone was watching the weather over this past winter. 
Florida is the sunshine state. We rely on tourism.
    You cited a national renewable energy lab report, but, in 
fact, that report from July 2012 said Florida is indeed ranked 
third in the nation for total estimated technical potential for 
rooftop solar voltaics in the U.S. That same report said 
Florida clearly has the best solar resource east of the 
Mississippi River, but the commission has scrapped solar 
rebates, also going to cost us money, especially with the new 
requirements of the Clean Power Plan.
    And then the best example is what the Public Service 
Commission and the legislature has done to increase bills, 
especially if you are a Duke Energy customer. And my colleagues 
might not be aware, but Florida had adopted an advance recovery 
fee that allowed the utilities to collect costs in advance for 
building power plants. And in fact, even when Duke Energy had 
to scrap a power plant and had to put another one on mothballs, 
without creating one kilowatt hour of energy, customers in my 
neck of the woods, in central Florida, are on the hook for $3 
billion, and that is modest, in costs. $3 billion, not one, not 
one kilowatt in energy.
    So when I hear you talk about affordability, and that you 
are really concerned about the consumers, the record simply 
does not support that in the state of Florida.
    I want to give you time to respond, but we have an 
obligation, we have a shared obligation, to confront these 
issues. And I am sorry, I am going to give you a little time to 
recover, but think about the state of Florida, what consumers 
are going to have to pay in storm water damage, costs to re-
nourish beaches, what if we have a more powerful storm, that 
comes out of property taxes. You are looking at it in a very 
constrained way; a utility concentric way, and that is not 
reality in our state. Go ahead.
    Mr. Graham. Thank you. We cut back a lot on the energy 
efficiency programs because we have done so much so far. As you 
heard me say earlier, since we started this program, we have 
achieved 9,330 gigabytes worth of----
    Ms. Castor. Mr. Graham, that is simply not the case. There 
is report after report after report that says the state of 
Florida is so far behind. Now we are down to about zero in our 
energy efficiency goals because the business model is 
backwards. It is not a model that helps address the modern 
challenges. It is all about how much energy you can sell. And 
utilities now need to be compensated for helping consumers save 
money. And I really recommend that you take this obligation 
seriously and think about the cost to consumers from here on 
out.
    Thank you.
    Mr. Whitfield. Ms. Castor's time has expired.
    At this time, recognize the gentleman from Texas, Mr. 
Barton, for 5 minutes.
    Mr. Barton. Well, thank you, Mr. Chairman. I had meetings 
in my office so I have been listening to the hearing on the 
television in my office, and I want to commend all four of our 
panelists. I thought your testimony was excellent.
    I am going to start off with a basic question for each one 
of you. We will start with you, Mr. Butler.
    Are the requirements in this Clean Power Plan necessary for 
Ohio to meet any pending nonattainment areas in your state?
    Mr. Butler. No, sir. No.
    Mr. Barton. OK. Ms. Backman, from Maryland.
    Ms. Speakes-Backman. Speakes-Backman. Yes, sir. The 
programs that we already have in place in Maryland have us in 
good stead to meet the goals of the Clean Power Plan.
    Mr. Barton. So it is not necessary in Maryland, OK.
    Gentleman from----
    Mr. Graham. No, sir.
    Mr. Barton [continuing]. North Carolina.
    Mr. Graham. It is not necessary.
    Mr. Barton. And from Florida.
    Mr. van der Vaart. Florida----
    Mr. Barton. Florida. North Carolina. I have you backwards.
    Mr. van der Vaart. But the same answer, no.
    Mr. Barton. So this is not a necessary thing under the 
Clean Air Act amendments to meet any standards for 
nonattainment. In fact, is it a true statement that nothing in 
this Clean Power initiative sets a standard of emission 
reduction in your state? Is that a true statement? There is not 
a target you have to meet in terms of parts per million or 
anything like that?
    Mr. Butler. It is not, sir.
    Mr. Barton. It is not. Is it a true statement that what 
this is is social planning imposed on your state by the Federal 
Government? We will start with you, Mr. Butler.
    Mr. Butler. We believe it is an unprecedented act--
unprecedented action that, frankly, has not--does not have any 
congressional intent behind it.
    Mr. Barton. OK. Now, Ms. Speakes-Backman, I was impressed 
with what you said in your testimony. It sounds like Maryland 
is part of a regional group that has voluntarily come together, 
set your own goals, and increased your renewable energy 
portfolio, and done quite a bit of good things, but you did 
that because the compact or the coalition that your state is a 
part of made a voluntary decision to do that. Is that not 
correct?
    Ms. Speakes-Backman. Yes, sir. We voluntarily decided to 
take control of our environment, of the reliability issues that 
we were facing, and with cost increases to our ratepayers.
    Mr. Barton. And I have no problem with that. I think that 
is good and I am glad Maryland is doing it, but how would you 
feel if we passed a law here that said Maryland had to use 
triple the amount of Texas=produced natural gas in that? Would 
you like that? Clean-burning Texas natural gas, I might add.
    Ms. Speakes-Backman. Well, seeing, sir, that we use plenty 
of Pennsylvania clean natural gas----
    Mr. Barton. I understand, and I am not here to----
    Ms. Speakes-Backman. But----
    Mr. Barton [continuing]. Knock Pennsylvania, but my point 
is----
    Ms. Speakes-Backman. But, sir, I think the issue--I think 
the question that you are asking me is about being forced to 
use one particular type of fuel or another, which is not 
necessarily how this Clean Power Plan is structured. This Clean 
Power Plan is structured----
    Mr. Barton. Well, in the case of Texas, if Texas decides to 
try to comply with this, we have to shut down 45 percent of our 
existing coal-fired power plants; two of which are in my old 
congressional district. Those two power plants are the economic 
linchpins in their counties. These are rural counties in south 
central Texas. One power plant has been there over 40 years, 
the other power plant has been there 25 years. I mean they are 
the economic mainstay in those particular counties, and they 
would be shut down. They would be shut down for no 
environmental reason. No environmental positivism. None.
    As the gentleman from West Virginia or Virginia pointed 
out, you know, \6/10\ of 1 percent decrease in CO2 
over a 30 or 40-year period. I mean it is crazy.
    The chairman asked a question about why the 13-year--month 
period to--13-month period to comply, and you all were very 
polite about giving non-answer answers, but I think the reason 
is because the Obama Administration is going to be out of 
office, and they want this thing put in while they are still in 
office. Now, that is speculation on my point, but it is 
informed speculation.
    Again, I have no problem with what any of your states are 
doing, and I am extremely impressed with what Maryland is 
doing. I think that is a good thing. I believe in states' 
rights. New York doesn't want to allow hydraulic fracturing, so 
they don't. Pennsylvania allows it, but with different 
reporting requirements than Texas. I believe in federalism, it 
is a good thing, but I don't believe in this new Clean Power 
Plan initiative that is imposing a social policy on the states, 
with no environmental benefit and no real opt-out provision.
    With that, Mr. Chairman, I yield back.
    Mr. Whitfield. Gentleman yields back.
    At this time, recognize the gentleman from New Jersey, Mr. 
Pallone, for 5 minutes.
    Mr. Pallone. Thank you, Mr. Chairman.
    Commissioner Speakes-Backman, I wanted to ask you a 
question about the Regional Greenhouse Gas Initiative.
    Ms. Speakes-Backman. Any time, sir.
    Mr. Pallone. I wasn't here for your testimony. I had to go 
to another committee hearing, but in your testimony you state 
that through 2013, RGGI states reinvested over $950 million of 
auction proceeds and energy efficiency, clean and renewable 
energy and other strategic energy programs. And you note that 
these proceeds have helped low-income families pay their energy 
bills, supported energy efficiency upgrades, and helped 
families and businesses install solar, wind, and geothermal 
systems at their properties. In fact, under RGGI, just last 
week, the sale of 15.3 million carbon dioxide allowances netted 
$82 million and set a record high price.
    So the question is, the RGGI program seems to be the most 
effective and efficient way for states to meet the standards 
set forth in the EPA's Clean Power Plan. Can you tell me about 
the environmental and economic benefits this is providing to 
the state of Maryland?
    Ms. Speakes-Backman. Yes, sir. Thank you for the question. 
And, yes, in fact, there were an additional $82 million just 
last Friday announced in our just last previous auction.
    In Maryland specifically, we have reinvested the auction 
proceeds in consumer benefit programs. It has helped more than 
215,800 low-income Maryland families to pay their energy bills. 
It has supported energy efficiency upgrades at 11,800 low-to-
moderate income households, helped 5,206 families, and 201 
businesses in Maryland to install solar, wind, and geothermal 
systems.
    Mr. Pallone. So I mean obviously, the program has been 
tremendously effective in Maryland and other participating 
states, and these states are going to have a leg up when it 
comes to meeting the EPA standards.
    Now, I am just mentioning this in part because that is why 
I am so disappointed that, in my home state of New Jersey, our 
governor, Chris Christie, has withdrawn our state from the 
program, as you know. And not only is this going to hinder New 
Jersey's ability to meet the EPA standards, it is actually 
costing the state money. According to an analysis by 
Environment Northeast, since New Jersey withdrew from the RGGI 
program in 2011, the state has passed up more than $114 million 
in potential revenue, and the state could miss out on an 
additional $387.1 million through 2020, and those figures don't 
even account for the record price for allowances hit at the 
RGGI auction last week, which you mentioned. That is money that 
could be used to use support energy efficiency upgrades and job 
creation, like it is doing in Maryland and other participating 
states. So I know he is not with us here today, but I have 
called on Governor Christie to reconsider his decision to 
withdraw from RGGI because I think New Jerseyans deserve to 
reap the benefits of this successful, economically-efficient 
program, which is reducing carbon emissions and creating jobs 
in the northeast.
    Now, I have about a minute and a half. I know that--if you 
wanted to respond to some of the questions that were asked 
before that maybe you didn't have time for, you could use the 
time to do that, unrelated to my question.
    Ms. Speakes-Backman. Thank you very much, sir.
    May I just add that the car analogy in the panel before was 
so interesting to me in that, you know, what can be done in--
for the car is a catalytic converter, but to me, when I think 
about a mass-based regional program such as RGGI, and taking 
that same analysis, it is like having a catalytic converter but 
then you put a variable toll on the roads that is outside the 
box. Right? It is outside the car system. And putting a toll on 
those roads, you can take the money and you can reinvest that 
in R & D so that you can further improve the equipment that is 
put on the car to reduce emissions. But in addition, you can 
take those revenues and further control traffic by putting the 
tolls on certain roads that are busy. You can do things like 
improving those roads themselves. There are ways to reinvest 
and to make this a positive.
    I don't think it is mutually exclusive to help your 
environmental goals and to build your economies.
    Mr. Pallone. All right, thank you so much.
    Thank you, Mr. Chairman.
    Mr. Latta [presiding]. Thank you very much. And before I 
recognize myself for 5 minutes, I would like to ask unanimous 
consent from the committee to enter a letter dated December the 
1st, 2014, from Director Butler of the Ohio EPA to the 
respondent and also the executive summary. And these documents 
were submitted to the U.S. EPA as part of their comments to 
oppose the Clean Power Plan.
    Without objection, so ruled.
    [The information appears at the conclusion of the hearing.]
    Mr. Latta. If I could start, Director Butler, and also to 
all of our panel, thanks very much for being here. Again, it 
has been very informative.
    But, Director, if you would, would you expand on the 
reference you made to the differences in the 2005 and 2012 
baselines, and how this would affect Ohio by not taking into 
consideration the early action that many have taken to improve 
that efficiency?
    Mr. Butler. Mr. Chairman, thanks for the question. And I 
think Mr. Graham made a couple of very relevant points in his 
testimony to this fact as well.
    Ohio has many utilities that are very early adopters in 
making sure that their plants run as efficiently as possible. 
Frankly, the hundreds of millions of dollars that they have 
invested will be left on the cutting room floor, if you will, 
if the Clean Power Plan, which talks about a 2005 
implementation date, is passed. In reality, that date of 
looking to develop a plan is all based on the year 2012. So any 
emission reductions or, frankly, efficiency improvements that 
have been made prior to 2012 will not count. We think that that 
not only disincentivizes our utilities from doing that work, 
but it, frankly, also makes it much more difficult for them to 
comply, if not exceptionally more expensive for them to comply 
going forward with meeting the new bucket 1 requirements of 
having a 4 to 6 percent energy efficiency improvement.
    Further, we have talked to our utilities as part of our 
dialog and comments on the Clean Power Plan. They think it is 
fundamentally very difficult, if not impossible, to reach that 
4 or 6 percent efficiency improvements at our existing 
utilities. Our fleet has gotten much more efficient, ironically 
because many of those units were shut down because of the 
mercury standard, others were improved because they wanted to 
be more efficient and generate more power into the grid. But 
those costs were heavy, and they think that a 1 to 2 percent 
improvement would be all that they could develop to comply with 
the Clean Power Plan.
    Mr. Latta. Thank you. If I could continue, Director, could 
you also explain the issues you foresee with the costs and the 
efficiency related to the EPA's building block number two, 
which will result in the natural gas-fired units used for base 
load power in coal-fired plants into peaking power?
    Mr. Butler. Mr. Chairman, I think the earlier reference 
about the Clean Power Plan fundamentally is changing the 
electric distribution market from really one that is based on 
cost, to one based on environmental impact, and that is a 
serious, serious problem. In addition, just the discontinuity 
between the way EPA has set up the Clean Power Plan bucket one 
on efficiencies at power plants versus bucket two where they 
are wanting to see natural gas generation run at a 70 percent 
rate. I think we see two fundamental problems. One is we will 
see significant closures and--as we already have of our coal-
fired fleet, and we will see some, but I don't know yet how 
much natural gas generation come online. There is a disconnect 
on how those work, so we are really concerned, as many others 
are, about the power grid being able to supply power.
    Fundamentally, we also find an inconsistency here. While 
EPA is requiring or suggesting that the power plants become 
more efficient, and invest hundreds of millions of dollars to 
do that, that they not be allowed to run to recover those costs 
because they are then driving gas to take over that capacity.
    Mr. Latta. Well, when we look at Ohio, right now, is Ohio 
about 71 percent coal-fired?
    Mr. Butler. Yes, sir.
    Mr. Latta. And when you look down the road at what the EPA 
is ordering, and it was already discussed, I think, by the 
chairman, the question really comes then to, with all these 
costs being put onto these power plants, who is going to pay 
for that in the long run?
    Mr. Butler. Right. Mr. Chairman, we are very concerned 
because we think all of those costs get passed onto the 
consumers of Ohio.
    Mr. Latta. Especially when you have put out in your 
discussions with the EPA, have they even talked about what the 
consequences are? Do they look at what it would do to a state 
like Ohio with 71 percent coal generated, especially for our 
business communities and the people that work in those 
factories and businesses?
    Mr. Butler. Mr. Chairman, I believe they probably do think 
about Ohio, although we were very concerned, frankly, dismayed, 
when U.S. EPA--they do talk about they have had some extensive 
outreach across the country, and they did attend listening 
sessions across the country. We, frankly, invited, as did our 
states in West Virginia and Kentucky, to come to any three of 
our states and hold a listening session to see and hear from 
the general population that were actually going to be very much 
impacted by this Clean Power Plan, and they elected not to come 
to any of our three states.
    Mr. Latta. So you put on an invitation and they just did 
not come.
    Mr. Butler. Yes, sir.
    Mr. Latta. Thanks very much.
    My time has expired, and the chair will now recognize Mr.--
--
    Voice. Mrs. Capps.
    Mr. Latta [continuing]. The gentlelady from California, 
Mrs. Capps, for 5 minutes.
    Mrs. Capps. Thank you, Mr. Chairman, for holding this 
hearing. And I want to thank all of our witnesses for your 
testimony.
    It is so clear that the power sector is responsible for a 
major portion of carbon dioxide emissions in the United States, 
but it is also clear that these emissions are causing our 
planet's climate to change at an unprecedented rate. We need to 
act today to curb these emissions and prepare for the 
consequences that are forecast. Fortunately, and, Ms. Kelly 
Speakes-Backman, you spoke to this, that the Regional 
Greenhouse Gas Initiative, or RGGI, has really impressively 
reduced emission rates, and has done so while also improving 
the regional economy and fostering job creation. My colleague 
from New Jersey asked you about that, and unfortunately, 
apparently, his state of New Jersey has backed away from it, 
but I hope that this momentum will build. I think it is clearly 
possible to increase energy efficiency, reduce emissions, and 
provide affordable energy for local residents.
    So in addition to carbon emissions, the power sector 
generates so many other harmful pollutants, including sulfur 
dioxide, nitrous oxide and mercury, to name a few. In addition 
to exacerbating the impacts of climate change, these pollutants 
have direct impacts on human health, leading to increased rates 
of respiratory problems, contributing to heart attacks, 
strokes, and even premature death. This has been documented, 
and is being documented. The benefits of reducing carbon 
dioxide and these other pollutants under the Clean Power Plan 
will likely have benefits that far outweigh the cost of 
implementation, especially in the health sector.
    And I wanted to ask you how this implementation of RGGI has 
affected the benefit of human health in your area.
    Ms. Speakes-Backman. Thank you for the question. As you 
know, in Maryland especially, we are a little bit downwind of 
some of the coal plants that are in the Midwest, and they have 
directly affected the health and the costs of that health to 
our citizens. And so as part of the effort that our state has 
undergone to try to mitigate those health issues, as well as to 
mitigate the reliability issues that we have had from frequent 
storms, increasing frequency and severity of storms, the costs 
our ratepayers have had to incur in order to build up 
resilience against such storms, there are lot of costs aside 
from the work that is going to be done under the Clean Power 
Plan that need to be taken into account when you are doing a 
full cost benefit scenario.
    Mrs. Capps. Yes. Thank you. Significant reductions in 
sulfur dioxide and nitrous oxide and mercury has benefitted 
over the long haul, but they are offset by downwind and other 
aspects that tell us that we are not fully where we want to be 
yet.
    Mr. Butler, I wanted to turn to you, if I could. In August 
of last year, the waters off Lake Erie, off the coast of 
Toledo, experienced a harmful algae bloom that impacted 
drinking water for about 400,000 people. Am I correct?
    Mr. Butler. Yes, ma'am.
    Mrs. Capps. The science is increasingly clear that harmful 
algal blooms will become more severe a frequent in the future 
due to climate change. This means more human health costs, more 
taxpayer dollars spent on clean-up, unless we take action to 
reduce carbon emissions. In your testimony, you focused 
exclusively on the financial costs of implementing the Clean 
Power Plan, but, you know, in the constraints of time perhaps 
you weren't able to reach any of the benefits. Would you agree 
that human health benefits such as fewer harmful algal blooms 
and cleaner air, should all be considered in doing a full 
assessment of the Clean Power Plan?
    Mr. Butler. Mrs. Capps, if you have an opportunity, in our 
extensive comments, we submitted U.S. EPA, and then were 
brought into the record today----
    Mrs. Capps. Great.
    Mr. Butler [continuing]. You will see an extensive 
summarization of our issues related to this issue about 
suggesting that there will be significant human health 
improvements by regulating carbon.
    Mrs. Capps. Yes.
    Mr. Butler. We do not believe that is the case, and do not 
believe that the science proves it. Now, however, in a lot of 
reductions that come along, we have improved our sulfur dioxide 
and ozone emissions in Ohio and in our downwind states. I mean 
we do not deny the fact that there have been many, many, many 
improvements to public health, but I think it is not 
appropriate to tie that back to CO2 emissions----
    Mrs. Capps. Perhaps that needs to be----
    Mr. Butler [continuing]. Close to the Clean Power Plan.
    Mrs. Capps. Perhaps we need to do more studies along that 
health. The EPA's proposal, I believe, the Clean Power Plan, is 
an important step forward in combatting climate change, will 
ultimately lower. How this is impacted, as your colleague 
sitting next to you indicated, it takes some time and I believe 
we should go further into studying the effects of changes that 
are being made more thoroughly as they relate to regional and 
other factors. And this is all about the health of our 
constituents.
    And I know I am out of time, so I support this plan, and I 
am going to yield back now.
    Mr. Whitfield. At this time, I recognize the gentleman from 
Virginia, Mr. Griffith, for 5 minutes.
    Mr. Griffith. Thank you, Mr. Chairman.
    The gentlelady just referenced it in her comments about her 
concerns about global warming and the health concerns, and then 
she went on to say that maybe we need to take some more time, 
we need more studies on the health. Mr. Butler, it is my 
understanding that, in fact, the EPA has not done any science 
on this particular regulation and how much it would change 
climate change, but that using the normal EPA modeling 
procedures, the American Coalition for Clean Coal Electricity 
did run an analysis on how much the rule would reduce climate 
change, and the American Coalition for Clean Coal Electricity 
found that atmospheric CO2 concentrations would only 
be reduced by less than 1 percent in 2050, the increase in 
global average temperature would only be reduced by \16/1000\ 
of a degree Fahrenheit in 2050, sea-level rise would only be 
reduced by .3 mm or \1/100\ of an inch. This is the equivalent 
of a piece of paper, or a couple of pieces of paper. And so 
taking that all into consideration--well, first let me say, do 
you know of any other studies out there, other than the one 
that I have referenced, that indicate there is going to be some 
huge change to what sometimes is referred to as global warming, 
but more commonly, particularly in the east, is referred to as 
climate change, since warming hasn't happened?
    Mr. Butler. Yes, Mr. Griffith, I am unaware of any 
additional studies. We did a very extensive search when we did 
our comments on the Clean Power Plan, and the ones that you 
referenced are many of the studies that we also took a look at 
as part of our review of the Clean Power Plan.
    Mr. Griffith. OK, but you don't have any direct numbers 
from the EPA themselves?
    Mr. Butler. We do not.
    Mr. Griffith. And notwithstanding the fact that they 
haven't taken the time, that Mrs. Capps referenced, maybe to 
look at this matter and the health studies, et cetera, and 
whether or not this would affect anything, this rule is coming 
down your state's throat any day now, isn't it?
    Mr. Butler. Yes, sir, it is. We are very concerned about 
the resources that it will take on our state levels to, on the 
one had have these discussions and perhaps even legal issues 
around the implementation, but at the same time go down the 
path of having to commit our state resources to develop an 
implementation plan that, at the end of the day, one, may not 
be necessary, two, that may change significantly from where we 
started.
    Mr. Griffith. Right. And so your folks are being forced to 
go forward, even though there are all kinds of legal 
implications going on. And as you could probably tell from the 
previous panel and the debate there, I am very well versed, and 
I believe the EPA does not have authority. We will stay tuned 
to see what the courts say, but I don't think you can change 
the law just because you find some reference in the closet that 
says that maybe there was a different interpretation, because 
if either side adheres to their position, there is no bill. 
Senate said it receded.
    Without getting into all that legal argument, Secretary van 
der Vaart, your state is going to have to comply even though 
the legalities and the fight over the legalities may continue, 
you have to go ahead and get a plan out there. Isn't that true?
    Mr. van der Vaart. Well, that is right, and I think that 
that is why I am here. There are a lot of things we can say. I 
applaud Maryland and the rest for doing what they want to do. 
North Carolina has made major reductions since the 2005 date. 
America generally has dropped its carbon dioxide emissions from 
2010 to 2013 by 10 percent, and it was all done without the 
benefit of a federal action. It was done primarily by the 
revolution that is our natural gas production here in America.
    But yes, the concern we have is developing legislation, 
developing rules, our utility regulatory system has to be 
altered----
    Mr. Griffith. And you will spend a lot of money going down 
that path, and then the Supreme Court comes out a year and a 
half, 2 years, 3 years from now and all of a sudden, it all has 
to start over again.
    Chairman Graham, your power plants are facing that same 
problem, but even if this thing goes forward, a number of them 
are going to have to be shut down before their useful life 
ends, isn't that correct?
    Mr. Graham. That is correct. We are about 20 percent coal 
in Florida. Like I said, we switched to a lot of natural gas 
early on, and they are talking about closing down about 90 
percent of our coal plants.
    Mr. Griffith. And so you are going to be hurting, and also 
that means that you are going to have some stranded costs, and 
that means the increased cost we pay will go on to your 
ratepayers, isn't that correct?
    Mr. Graham. It is almost like they paid for the plant 
twice. They paid for the plant, and they have all this useful 
life left, and then we have to shut it down.
    Mr. Griffith. And the beauty of natural gas and some of the 
energy revolution is that we can attract jobs back to the 
United States but we have to have affordable energy, and this 
plan doesn't do much for the environment, and it damages our 
ability and our reputation in the world to have affordable 
energy. Isn't that true? I don't have time for an answer, but I 
assume that it is with most of you. Ms. Speakes-Backman, I 
agree you would disagree, but I recognize that, and yield back.
    Mr. Whitfield. Gentleman's time has expired.
    At this time, recognize the gentleman from New York, Mr. 
Tonko, for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair. And thank you to our 
panelists for appearing before the subcommittee.
    And Commissioner Speakes-Backman, let me address my 
comments first and foremost to you. Welcome, and thank you for 
your service as chair of the RGGI Board of Directors. As you 
have noted, New York is a member of RGGI. In my last 
workstation before service here in the House, I was president 
and CEO of NYSERDA, New York State Energy Research and 
Development Authority, which got me a seat at the RGGI table. 
And so I am very thankful for your leadership and for carrying 
forth with the mission of that plan.
    As a participant in RGGI, New York has been able to 
accomplish a great deal. Greater energy efficiency, cleaner 
air, expanded deployment of renewable energy technologies, and 
these are just a few of the benefits, many that are arising.
    EPA's proposal is just that at this stage; a proposal. I 
support its goals. As a proposal, I am sure it will evolve and 
change, perhaps, before the final rule is released. There, 
however, seems to be a number of utilities and states that are 
claiming the goals of the proposal cannot be achieved without 
severe economic hardship, and sacrificing our electricity 
reliability. You seem to take a different view. Why are you 
convinced that these predictions are wrong?
    Ms. Speakes-Backman. Well, thank you for your participation 
in RGGI as a state, and thank you for the question.
    I do take a different position, and in fact, I take the 
position that RGGI, coupled with our other state policies, has 
helped us to improve reliability. So specific to the 
reliability issue, which is very near and dear to my heart, and 
it is actually part of my legal obligation as a commissioner of 
the Maryland Public Service Commission, we have implemented 
RGGI within the construct of existing markets, and that 
includes the North American Electric Reliability Corporation's 
oversight of bulk system reliability. It includes FERC's 
retaining its authority over the market's design. It includes 
also reliable dispatch of least cost resources remaining with 
our grid operation system. So this is not an upending of the 
systems. We have been doing this for 8 years, and we have had 
fewer reliability issues because we have been able to support 
programs such as demand response and energy efficiency to help 
reduce the load in specifically load pocket areas.
    Mr. Tonko. Thank you. And also there are those who would 
argue that sound stewardship of our environment and economic 
recovery, the growth of our economy, cannot go hand-in-hand. 
Are there any stats that you can cite in terms of perhaps job 
growth in the energy areas that have enabled us to strengthen 
our economy and provide for cutting-edge new opportunities with 
innovation as it relates to the energy arena?
    Ms. Speakes-Backman. Yes, sir. I can speak specifically to 
the state of Maryland with respect to jobs. I would have to 
look up that number, but I believe it is in my written 
testimony, sir, but we have created jobs and we have improved 
our economy, while we have reduced by 40 percent our carbon 
dioxide from power plants. And I am sorry, I don't have that 
number at my fingertips.
    Mr. Tonko. Well, I am certain that you also--other 
participants at the RGGI table representing that array of 
states, but I think it can be documented that we have grown a 
new culture of job activity, all while strengthening the 
environmental outcome, and----
    Ms. Speakes-Backman. Absolutely.
    Mr. Tonko [continuing]. The sense of environmental justice 
that has been produced by RGGI accompanies that of social and 
economic justice. So, I think that there is this whole silo 
effort to look at certain impacts, needs to be looked at in a 
fuller array, a broad view that provides for a strong context 
of a better future for all of the states involved.
    Ms. Speakes-Backman. Absolutely, sir. I just recalled the 
number. In the first 3 years of our program alone of RGGI, we 
have created 16,000 job years in our region.
    Mr. Tonko. How many, sorry?
    Ms. Speakes-Backman. 16,000 job years in our region. Based 
on the further reductions that we made through a program review 
in 2014, an independent analysis by the Analysis Group has 
shown that we will add yet another 130,000 job years to our 
region.
    Mr. Tonko. Thank you very much.
    And with that, I see my time is up.
    Mr. Whitfield. Gentleman's time has expired.
    Mr. Tonko. I yield back.
    Mr. Whitfield. At this time, I recognize the gentlelady 
from North Carolina, Mrs. Ellmers, for 5 minutes.
    Mrs. Ellmers. Thank you, Mr. Chairman. And thank you to our 
panel, especially to you, Secretary van der Vaart, for being 
here from North Carolina.
    As your position as secretary of DNR North Carolina, and as 
an attorney, can you reflect a little bit about the discussion 
that took place on panel 1 about the ambiguities that exist 
between the rule--the 111 and the 112, especially focusing back 
to 1990 when it was first put forward?
    Mr. van der Vaart. Yes, ma'am. Yes, ma'am. That is a good 
point. The previous discussion, I would warn you all, maybe 
appears to me, at least, setting up a straw man, the question 
of whether the codified versus the statute at large language 
actually controls. The fact of the matter is, it doesn't 
matter. Even if you take the statute at large, there is no 
ambiguity, and the reason is in 1990, the Clean Air Act, under 
Section 112 was fundamentally changed from a pollutant-based 
program to a source category-based program. And, therefore, the 
language in the statute at large is entirely consistent with 
what happened at that point.
    Mrs. Ellmers. Yes.
    Mr. van der Vaart. And I am afraid that the previous 
discussion, for one reason or another, may have missed that. 
And so it is very good that you keep that in mind. Thank you.
    Mrs. Ellmers. And then getting back to some of the--there 
again, the discussion that took place in the first panel, one 
of my questions is really about implementation of this, and 
especially when it comes to 111, in the building block number 
4, and there again, Secretary, from your perspective, how can 
this possibly be enforced, or can you foresee a way that the 
EPA would actually be able to enforce this on North 
Carolinians?
    Mr. van der Vaart. That is a very good question, and we 
have thought very hard about it. Another misunderstanding that 
many people have about the Clean Air Act is that somehow 108 
and 110 are implemented similarly to 111. That is not the case. 
When a state fails, for whatever reason, to submit an 
approvable plan under 110, 108, to protect NAAQS, the state 
itself is subject to sanctions including highway funds removal. 
That is not the case in 111.
    Mrs. Ellmers. Yes.
    Mr. van der Vaart. If we do not submit an approvable plan, 
there is no downside for North Carolina as such as the 
government, however, the Federal Government will then enforce 
directly to the source. And so, Representative Ellmers, you are 
giving me a specter of what happens to my grandma when she----
    Mrs. Ellmers. Yes.
    Mr. van der Vaart [continuing]. Doesn't screw in a CFL bulb 
in her house. Is she going to be thrown in jail by the feds? Am 
I going to be thrown in jail because I am somehow missing my 
obligation, or is the utility executive somehow going to get 
thrown in jail, when really maybe the EPA should be thrown in 
jail. So----
    Mrs. Ellmers. Well, there again, it is part of that ongoing 
discussion of comparing apples to oranges and kind of 
alternative universes when we are talking about this issue.
    My final question for you, Secretary van der Vaart, is, 
there again, looking towards our North Carolinians, is it 
economically feasible and fiscally responsible for us to 
foresee a future where we go from a cost-based energy dispatch 
model to a carbon dioxide-based dispatch model?
    Mr. van der Vaart. We can put a man on the moon. We can 
certainly do this, but it will be at a cost, and unfortunately, 
the people who are going to bear that cost are the ones least 
able to afford it. It is going to be our lower and middle class 
folks, it is going to mean the job losses for high-paying 
manufacturing jobs because electricity prices is fundamental to 
siting of new manufacturing. So yes, we can do it. Is it legal? 
Absolutely not. And, in fact, as you heard, it is already been 
going on in a more cost-effective manner by the states 
themselves.
    Mrs. Ellmers. Yes.
    Mr. van der Vaart. So what we have here is a Federal 
Government attempt to upend, as I said, the world's greatest 
electricity system through a little-known codicil in the Clean 
Air Act.
    Mrs. Ellmers. Thank you, sir.
    And I will just close out by saying that North Carolina has 
made such strides, and thank you, a lot of it is due to your 
leadership and moving forward on clean energy. And I believe 
North Carolina, and so many other states that have taken these 
steps already, need and deserve that credit. So thank you all 
to the panel.
    And thank you, Mr. Chairman. I yield back the remainder of 
my time.
    Mr. Whitfield. Gentlelady yields back.
    At this time, recognize the gentleman from Ohio, Mr. 
Johnson, for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman. I appreciate it. And, 
Director Butler, thank you for joining us today from the great 
state of Ohio.
    Lot of concerns there about the things that we have talked 
about this morning. Director Butler, it seems as if the 
Administration is ignoring the lawsuit that many states, 
including Ohio, are currently engaged in with the EPA, and 
instead they are solely focused on the implementation of the 
rule. Given all the legal issues surrounding EPA's 111(d) 
proposal, would you support the EPA setting aside the 
implementation planning until legal challenges are resolved?
    Mr. Butler. Mr. Johnson, thanks for that question. I think 
Professor Tribe is far more eloquent than I am on these issues 
in the previous panel, but I think to your point, I think that 
is the exact request that we would have and have made to U.S. 
EPA to have them consider. I look at it from a state resource 
application. We will likely be, if the Clean Power Plan evolves 
as a final plan, much like the draft plan, and it still has 
what we believe are its legal flaws, will be challenging that 
law with many other states. That will not, unless things 
change, relieve us from the obligation to be developing at the 
same time in a parallel path, expending state resources to 
develop a plan of implementation in a very tight time schedule 
that, as you have heard, we don't think we can meet. Those are 
scarce state resources, frankly, we cannot and should not have 
to expend. So directly to your question, I have advised and 
asked U.S. EPA, because there is no compelling deadline 
relative to this issue about carbon, that we set this 
implementation issue aside and have our requisite debate about 
the legal issues, and then go from there.
    Mr. Johnson. Well, let us expound on that a little bit. 
States like Ohio, and others that we have talked to here today, 
are implementing a number of new and older EPA regulations 
ranging from the Mercy and Air Toxics Rules, to particulate 
matter standards, to new ozone rules. So can you expand a 
little bit, doesn't this put strain on state resources, and 
what happens if, on top of all of this, states also have to 
implement a final 111(d) rule that eventually could get thrown 
out in court? And the reason I say that is because we have seen 
that scenario before. The brick industry invested hundreds of 
millions of dollars into complying with a set of standards that 
the courts threw out, and then they got virtually no credit by 
the EPA for all that investment that they did, and the EPA 
certainly was not standing there ready to give them their money 
back.
    Secretary van der Vaart, if they do get thrown in jail, 
they had better not call me for bail money because I am not 
going to be at the table.
    How do you feel about that, Mr. Butler?
    Mr. Butler. Yes. Mr. Johnson, I--thanks for that question. 
I think we have seen--we always are trying to comply with our 
delegated programs and certainly our air programs. We have made 
tremendous success in air quality in Ohio. We have seen an 
unprecedented number of regulatory requirements come down the 
road.
    So you mentioned the mercury rule. Not only does that, you 
know, add to the time commitment and planning and 
implementation for compliance, it is, frankly, having to shut 
down \1/4\ of our coal generation fleet in the state of Ohio. 
So we are concerned about that. Today, ironically, as we sit 
here is the same day that we are required to submit our 
comments on the proposed new ozone standard, and we are just on 
the cusp of, frankly, getting to the point of being statewide 
full compliance of the 2008 ozone standard. I would love to, 
frankly, declare victory on that and say--but no, we are in a 
position now where we are having to decide whether or not we 
need to drop that standard further, and whether or not the 
science is supportive of that. We are, in addition, in the 
midst of looking at both the particulate matter and 
SO2 rules, and whether or not, frankly, we move down 
the path of having additional ozone transport regulations. And 
the list goes on.
    So that puts an incredible strain on us as state regulators 
and implementers, and is, frankly, just an additional cost that 
we are requiring to our legislature to pass on to customers.
    Mr. Johnson. Well, thank you.
    Secretary van der Vaart, do you have a comment on that as 
well?
    Mr. van der Vaart. Well, I would just like to emphasize 
again, America is moving toward cleaner energy. It is moving 
that direction because of the free market and our revolution in 
natural gas exploration and production. We are all states doing 
what we think is right in cleaning up the environment, and I 
think it is not a time to rush to judgment when we have such a 
flawed proposal.
    Mr. Johnson. Thank you very much.
    Mr. Chairman, I yield back.
    Mr. Whitfield. The gentleman's time has expired.
    And I want to thank all four of you for joining us today to 
discuss this significant issue.
    I would like to also include the following documents in the 
record. Comments submitted to EPA on the proposed 111(d) rule 
by the Florida Public Service Commission, and the Florida 
Office of Public Counsel.
    [The information appears at the conclusion of the hearing.]
    Mr. Whitfield. And we will keep the record open for 10 
days. I was going to come down and say hello to each one of you 
personally, but we have a vote on the floor and it is almost 15 
minutes gone now, so I am going to rush out, but we look 
forward to working with you. Thank you very much.
    And that adjourns today's hearing.
    [Whereupon, at 1:39 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
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