[House Report 114-348]
[From the U.S. Government Publishing Office]


114th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {      114 348

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

 
  PROVIDING FOR CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, 
UNITED STATES CODE, OF A RULE SUBMITTED BY THE ENVIRONMENTAL PROTECTION 
   AGENCY RELATING TO ``STANDARDS OF PERFORMANCE FOR GREENHOUSE GAS 
  EMISSIONS FROM NEW, MODIFIED, AND RECONSTRUCTED STATIONARY SOURCES: 
                  ELECTRIC UTILITY GENERATING UNITS''

                                _______
                                

 November 19, 2015.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Upton, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 71]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the joint resolution (H.J. Res. 71) providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of 
a rule submitted by the Environmental Protection Agency 
relating to ``Standards of Performance for Greenhouse Gas 
Emissions from New, Modified, and Reconstructed Stationary 
Sources: Electric Utility Generating Units''', having 
considered the same, report favorably thereon without amendment 
and recommend that the joint resolution do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     7
Statement of General Performance Goals and Objectives............     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Earmark, Limited Tax Benefits, and Limited Tariff Benefits.......     7
Committee Cost Estimate..........................................     7
Congressional Budget Office Estimate.............................     7
Federal Mandates Statement.......................................     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Advisory Committee Statement.....................................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     8
Changes in Existing Law Made by the Bill, as Reported............     8
Dissenting Views.................................................     9

                          PURPOSE AND SUMMARY

    H.J. Res. 71 was introduced by Rep. Ed Whitfield (R KY) on 
October 26, 2015. The joint resolution provides for 
congressional disapproval under chapter 8 of title 5, United 
States Code, of a rule submitted by the Environmental 
Protection Agency relating to ``Standards of Performance for 
Greenhouse Gas Emissions from New, Modified, and Reconstructed 
Stationary Sources: Electric Utility Generating Units.''

                  BACKGROUND AND NEED FOR LEGISLATION

    On October 26, 2015, Subcommittee on Energy and Power 
Chairman Whitfield introduced H.J. Res. 71 pursuant to the 
Congressional Review Act.\1\ This joint resolution would 
disapprove the Environmental Protection Agency's (EPA) recently 
published final rule setting carbon dioxide (CO2) emissions 
standards for new fossil-fuel fired power plants.\2\
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    \1\The Congressional Review Act is set forth in 5 U.S.C. 
Sec. Sec. 801 808.
    \2\This EPA's final rule for new power plants is entitled 
``Standards of Performance for Greenhouse Gas Emissions from New, 
Modified, and Reconstructed Stationary Sources: Electric Utility 
Generating Units''' and was published in the Federal Register at 80 
Fed. Reg. 64510 (October 23, 2015).
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    This final rule, together with EPA's final rule for 
existing fossil-fuel fired power plants, referred to by the 
agency as its ``Clean Power Plan,'' was issued pursuant to the 
President's ``Climate Action Plan'' and an accompanying 
Presidential Memorandum.\3\ These two rules would put in place 
an unprecedented regulatory structure throughout the U.S. 
electricity sector, effectively imposing renewable energy and 
cap-and-trade mandates similar to those in the Waxman-Markey 
cap-and-trade legislation that failed in 2010.\4\
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    \3\This EPA's final rule for existing power plants is entitled 
``Carbon Pollution Emission Guidelines for Existing Stationary Sources: 
Electric Generating Units''' and was published at 80 Fed. Reg. 64662 
(Oct. 23, 2015). The Climate Action Plan is available at https://
www.whitehouse.gov/sites/default/files/image/
president27sclimateactionplan.pdf and the Presidential Memorandum dated 
June 25, 2013 is available at https://www.whitehouse.gov/the-press-
office/2013/06/25/presidential-memorandum-power-sector-carbon-
pollution-standards.
    \4\See H.R. 2454, the ``American Clean Energy and Security Act of 
2009'' (111th Cong. 2009).
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    H.J. Res. 71 would specifically disapprove of EPA's CO2 
regulations for new power plants, referred to by the agency as 
``New Source Performance Standards''' or its ``111(b) Rule.'' 
Under this rule, EPA interprets section 111(b) of the Clean Air 
Act to allow the agency to set standards for new coal-fired 
power plants premised on the installation of carbon capture and 
storage (CCS) technologies that are not commercially viable for 
electric power generation. While EPA maintains CCS is 
adequately demonstrated, there are no commercial-scale coal-
fired power plants with CCS currently operating in the United 
States that could meet the standards. As a result, the rule 
imposes a de facto ban on construction in the United States of 
any new coal-fired power plants, even the most state of the art 
coal-fired electric generating units being built in Europe, 
Japan, and other countries.
    This rule is highly controversial and there are significant 
questions regarding its legality.\5\ Issues include whether the 
rule comports with the statutory requirements of section 111 of 
the Clean Air Act, which requires that performance standards be 
based on technologies that are ``adequately demonstrated,'' as 
well as the Energy Policy Act of 2005, which prohibits the 
agency from considering technology used at a facility receiving 
assistance under the Department of Energy's Clean Coal Power 
Initiative, or at a facility receiving an advanced coal project 
tax credit, as being ``adequately demonstrated'' for purposes 
of section 111 of the Clean Air Act.\6\
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    \5\Legal issues surrounding EPA's 111(b) rulemaking were addressed 
in the Committee's report on H.R. 3826, the Electricity Security and 
Affordability Act, Feb. 28, 2014, available at https://
www.congress.gov/113/crpt/hrpt365/CRPT-113hrpt365.pdf.
    \6\Id.
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    There are also significant cost and energy policy issues 
raised by the rule, including its potential impacts on the 
diversity, affordability and reliability of the nation's 
electricity supplies, as well as the precedential effect of the 
regulation on other types of facilities subject to regulation 
under section 111 of the Clean Air Act.\7\ At the same time, 
the climate benefits of the rule according to EPA will be 
negligible.\8\
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    \7\Id.
    \8\80 Fed. Reg. at 64515 (``EPA projects that this rule will result 
in negligible CO2 emission changes . . . by 2022 as a result of the 
performance standards for newly constructed EGUs''').
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    The Attorneys General or state agencies of at least 23 
states have challenged this regulation, including Alabama, 
Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, 
Louisiana, Michigan, Missouri, Montana, Nebraska, North 
Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Texas, 
Utah, West Virginia, Wisconsin, and Wyoming.\9\
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    \9\See State of West Virginia et al v. United States Environmental 
Protection Agency, U.S. Court of Appeals for the District of Columbia, 
Case No. 15 1399.
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What the resolution will do

    The legislation provides that Congress disapproves the rule 
submitted by the EPA relating to ``Standards of Performance for 
Greenhouse Gas Emissions from New, Modified, and Reconstructed 
Stationary Sources: Electric Utility Generating Units''' 
(published at 80 Fed. Reg. 64510 (October 23, 2015)), and such 
rule shall have no force or effect. Under the Congressional 
Review Act, an agency may not issue a rule that is the same or 
substantially similar to a rule that has been disapproved 
through the statutorily prescribed process unless authorized by 
subsequent legislation.\10\
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    \10\See 5 U.S.C. 801(b)(2) (``A rule that does not take effect (or 
does not continue) under paragraph (1) may not be reissued in 
substantially the same form, and a new rule that is substantially the 
same as such a rule may not be issued, unless the reissued or new rule 
is specifically authorized by a law enacted after the date of the joint 
resolution disapproving the original rule.''); see also ``The 
Congressional Review Act (CRA),'' Congressional Research Service (Dec. 
11, 2014) available at http://www.crs.gov/reports/pdf/IF10023; ``The 
Congressional Review Act: Frequently Asked Questions,'' Congressional 
Research Service (April 17, 2015) available at http://www.crs.gov/
Reports/pdf/R43992?source=search.
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                                HEARINGS

    The Subcommittee on Energy and Power held three hearings 
relating to EPA's regulation of new power plants under section 
111(b) of the Clean Air Act. The hearings and witnesses 
included the following:
           On October 22, 2015, the Subcommittee held a 
        hearing entitled ``EPA's CO2 Regulations for New and 
        Existing Power Plants: Legal Perspectives'' and 
        received testimony from:
                    Elbert Lin, Solicitor General of West 
                Virginia;
                    Allison D. Wood, Partner, Hunton & 
                Williams, LLP;
                    Raymond L. Gifford, Partner, Wilkinson 
                Barker Knauer LLP;
                    Richard L. Revesz, Lawrence King Professor 
                of Law, Dean Emeritus, Director, Institute for 
                Policy Integrity, New York University School of 
                Law; and
                    Emily Hammond, Associate Dean for Public 
                Engagement, Professor of Law, George Washington 
                University School of Law.
           On October 7, 2015, the Subcommittee held a 
        hearing entitled ``EPA's CO2 Regulations for New and 
        Existing Power Plants'' and received testimony from:
                    The Honorable Janet McCabe, Acting 
                Administrator, Air and Radiation, U.S. 
                Environmental Protection Agency.
           On November 14, 2013, the Subcommittee held 
        a hearing entitled ``EPA's Proposed GHG Standards for 
        New Power Plants and H.R. _, Whitfield-Manchin 
        Legislation'' and received testimony from:
                    The Honorable Joe Manchin, Senator, West 
                Virginia;
                    The Honorable Janet McCabe, Acting 
                Assistant Administrator for Air and Radiation, 
                U.S. Environmental Protection Agency;
                    The Honorable E. Scott Pruitt, Oklahoma 
                Attorney General;
                    The Honorable Henry Hale, Mayor, Fulton, 
                Arkansas;
                    Tony Campbell, President and CEO, East 
                Kentucky Power Cooperative;
                    Dr. Donald R. van der Vaart, Chief, 
                Permitting Section, North Carolina Department 
                of Environment and Natural Resources-Division 
                of Air Quality;
                    J. Edward Cichanowicz, Engineering 
                Consultant;
                    Ross E. Eisenberg, Vice President, Energy 
                and Resources Policy, National Association of 
                Manufacturers;
                    David Hawkins, Director of Climate 
                Programs, Natural Resources Defense Council; 
                and
                    Susan F. Tierney, Managing Principal, 
                Analysis Group.

                        COMMITTEE CONSIDERATION

    On November 3, 2015, the Subcommittee on Energy and Power 
met in open markup session to consider H.J. Res. 71 and 
forwarded the bill to the full Committee, without amendment, by 
a record vote of 15 ayes and 12 nays.
    On November 17 and 18, 2015, the Committee on Energy and 
Commerce met in open markup session to consider H.J. Res. 71. A 
motion by Mr. Upton to order H.J. Res. 71, reported to the 
House, was agreed to by a record vote of 28 ayes and 20 nays.

                            COMMITTEE VOTES

    Clause 3(b) of Rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. The 
following reflects the record votes taken during the Committee 
consideration:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      COMMITTEE OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee made findings that are 
reflected in this report.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    H.J. Res. 71 provides for congressional disapproval under 
chapter 8 of title 5, United States Code, of a rule submitted 
by the Environmental Protection Agency relating to ``Standards 
of Performance for Greenhouse Gas Emissions from New, Modified, 
and Reconstructed Stationary Sources: Electric Utility 
Generating Units'''.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.J. 
Res. 71 would result in no new or increased budget authority, 
entitlement authority, or tax expenditures or revenues.

       EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI 
of the Rules of the House of Representatives, the Committee 
finds that H.J. Res. 71 contains no earmarks, limited tax 
benefits, or limited tariff benefits.

                        COMMITTEE COST ESTIMATE

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    At the time this report was filed, the cost estimate 
prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 1974 
was not available.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                    DUPLICATION OF FEDERAL PROGRAMS

    No provision of H.J. Res. 71 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111 139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                   DISCLOSURE OF DIRECTED RULEMAKINGS

    The Committee estimates that enacting H.J. Res. 71 
specifically directs to be completed no specific rulemakings 
within the meaning of 5 U.S.C. 551 that would not otherwise be 
issued by the agency.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    The legislation provides that Congress disapproves the rule 
submitted by the EPA relating to ``Standards of Performance for 
Greenhouse Gas Emissions from New, Modified, and Reconstructed 
Stationary Sources: Electric Utility Generating Units''' 
(published at 80 Fed. Reg. 64510 (October 23, 2015)), and such 
rule shall have no force or effect.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    This legislation does not amend any existing Federal 
statute.

                            DISSENTING VIEWS

    On August 3, 2015, the Environmental Protection Agency 
(EPA) finalized a rule limiting carbon pollution from new, 
modified, and reconstructed power plants under section 111(b) 
of the Clean Air Act.\1\ That same day, EPA also finalized the 
``Clean Power Plan'' rule establishing emission guidelines for 
states to follow in developing plans to control carbon 
pollution from existing coal-fired and natural gas-fired power 
plants under section 111(d) of the Clean Air Act.\2\
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    \1\U.S. Environmental Protection Agency, Standards of Performance 
for Greenhouse Gas Emissions from New, Modified, and Reconstructed 
Stationary Sources: Electric Generating Units, 80 Fed. Reg. 64510 (Oct. 
23, 2015) (Final Rule) (online at www.gpo.gov/fdsys/pkg/FR-2015-10-23/
pdf/2015-22837.pdf) (hereinafter GHG Standards for New, Modified, and 
Reconstructed Power Plants).
    \2\U.S. Environmental Protection Agency, Carbon Pollution Emission 
Guidelines for Existing Stationary Sources: Electric Utility Generating 
Units, 80 Fed. Reg. 64662 (Oct. 23, 2015) (Final Rule) (online at 
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf) (hereinafter 
Clean Power Plan).
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    H.J. Res. 71 is part of the Republicans' ongoing attack on 
EPA's Clean Air Act authority to cut carbon pollution and 
prevent dangerous climate change. If the resolution is enacted, 
EPA's 111(b) rule would not be implemented. And, EPA would not 
be able to reissue the 111(b) rule or any rule that is 
substantially the same.\3\ This is particularly important since 
it would block this administration, or any future 
administration, from taking meaningful action to curb carbon 
emissions from power plants.
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    \3\5 U.S.C. Sec. 801(b).
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                 INACCURACIES IN THE MAJORITY'S REPORT

    The majority's report includes a number of false 
statements, inaccuracies, and exaggerations regarding EPA's 
111(b) rule.
Ban on coal-fired power plants
    First, their report says that EPA developed the rule, 
``premised on the installation of carbon capture and storage 
(CCS) technologies that are not commercially viable for 
electric power generation . . . As a result, the rule imposes a 
de facto ban on construction in the United States of any new 
coal-fired power plants.''\4\
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    \4\Majority Report at 2 3.
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    The claim of a ``de facto ban'' is false. At a hearing 
before the Committee on Energy and Commerce, Subcommittee on 
Oversight and Investigations, Dr. Julio Friedmann, Deputy 
Assistant Secretary for Clean Coal at the U.S. Department of 
Energy, stated unambiguously: ``first generation CCS technology 
is commercially available today. You can call up a number of 
U.S. and international manufacturers, and they will sell you a 
unit at a large scale for capture of more than a million tons 
per year.''\5\ He added that a number of these companies also 
offer performance guarantees.\6\
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    \5\House Committee on Energy and Commerce, Subcommittee on 
Oversight and Investigations, statement of Dr. Julio Friedmann, Deputy 
Assistant Secretary for Clean Coal, U.S. Department of Energy, Hearing 
on Department of Energy Oversight: Status of Clean Coal Programs, 113th 
Cong. (Feb. 11, 2014).
    \6\Id.
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    Legality of the Rule Next, their report makes assertions 
about the legality of the rule, specifically questioning 
whether EPA fulfilled the Clean Air Act's requirement ``that 
performance standards be based on technologies that are 
`adequately demonstrated.'''\7\
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    \7\Majority Report at 3.
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    Section 111 of the Clean Air Act directs EPA to set 
performance standards to control air pollution from new 
stationary sources. Section 111(b) requires these standards to 
``reflect the degree of emission limitation achievable through 
the application of the best system of emission reduction which 
the Administrator determines has been adequately 
demonstrated.''\8\ Over the long history of this provision, 
which has been part of the Clean Air Act in various forms since 
1970, the D.C. Circuit has provided guidance to EPA on how to 
interpret and implement this directive.\9\ The key 
considerations for setting a section 111(b) standard are 
technical feasibility, quantity of emissions reductions, costs 
that are reasonable (i.e., not exorbitant), and advancing 
pollution-control technology.\10\
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    \8\Clean Air Act Sec. 111(b).
    \9\U.S. Environmental Protection Agency, GHG Standards for New, 
Modified, and Reconstructed Power Plants at 64540 (online at 
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
    \10\Id.
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    EPA is required to consider technological advancement when 
determining the standard because it is intended to force the 
adoption of new, innovative, and more effective technologies, 
and not simply those technologies that have already been widely 
adopted. This intent is clearly stated both in the requirement 
for ``best system of emission reduction'' and in the 
legislative history. For example, the Senate Committee Reports 
for the 1970 and 1977 Clean Air Act Amendments explain that new 
source performance standards ``should provide an incentive for 
industries to work toward constant improvement''\11\ and 
``stimulate the development of new and better technology.''\12\ 
In interpreting this mandate, the D.C. Circuit has noted that 
the statute ``embraces . . . technological innovation.''\13\
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    \11\Senate Committee on Public Works, National Air Quality 
Standards Act of 1970, at 17, 91st Cong. (Sept. 17, 1970) (S. Rept. 91 
1196).
    \12\Senate Committee on Environment and Public Works, Clean Air 
Amendments of 1977, at 17, 95th Cong. (May 10, 1977) (S. Rept. 95 127).
    \13\Sierra Club v. Costle, 657 F.2d 298, 346 (D.C. Cir. 1981).
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    The majority's report also claims that the rule violates 
provisions in the Energy Policy Act of 2005 (EPACT05) that bar 
EPA from considering the use of technology at a facility that 
received federal financial assistance under that Act to 
determine whether the technology is ``adequately demonstrated'' 
for the purposes of Clean Air Act section 111.\14\ Some 
commenters on the proposed rule--including Murray Energy--took 
the position that the EPACT05 provisions bar all consideration 
of a facility's existence if the facility received EPACT05 
assistance.\15\
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    \14\Majority Report at 3.
    \15\U.S. Environmental Protection Agency, GHG Standards for New, 
Modified, and Reconstructed Power Plants at 64542 (online at 
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
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    These claims are based on an erroneous interpretation of 
the provisions, which prohibit EPA from making a section 111 
determination based solely on the use of technology at a 
federally funded demonstration project, but do not preclude all 
use of such information as supporting evidence, as well as a 
misreading of EPA's proposal, which cites extensive other 
evidence supporting the proposed finding.\16\
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    \16\See, e.g., Environmental Defense Fund, The Strong Legal 
Foundation for the Carbon Pollution Standards for New Power Plants: A 
Response to the House Energy and Commerce Committee's Letter on the 
Energy Policy Act of 2005 and Carbon Capture and Storage Technology 
(Dec. 5, 2013) (online at blogs.edf.org/climate411/files/2013/12/
Response-to-House-Committee-Letter-on-EPAct.pdf).
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    In fact, EPA specifically solicited comment on its 
interpretation of these provisions and in the final rule 
``interprets these provisions to preclude EPA from relying 
solely on the experience of facilities that received DOE 
assistance, but not to preclude the EPA from relying on the 
experience of such facilities in conjunction with other 
information.''\17\
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    \17\U.S. Environmental Protection Agency, GHG Standards for New, 
Modified, and Reconstructed Power Plants at 64541 (online at 
www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22837.pdf).
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                               CONCLUSION

    The history of the Clean Air Act is a history of 
exaggerated claims that have never come true. In reality, 45 
years of clean air regulation have shown that a strong economy 
and strong environmental and public health protection go hand-
in-hand.
    EPA's power plant rules are a critical part of our national 
strategy to reduce carbon pollution and protect the climate. 
These rules outline a path to cleaner air, better health, a 
safer climate, and a stronger economy. H.J. Res. 71 would 
nullify that rule, and replace it with nothing.
    For the reasons stated above, we oppose the resolution and 
dissent from the views contained in the Committee's report.

                                   Frank Pallone, Jr.,
                                           Ranking Member.
                                   Bobby L. Rush.
                                   Anna G. Eshoo.
                                   Eliot L. Engel.
                                   Gene Green.
                                   Diana DeGette.
                                   Lois Capps.
                                   Mike Doyle.
                                   Jan Schakowsky.
                                   G. K. Butterfield.
                                   Doris O. Matsui.
                                   Kathy Castor.
                                   John Sarbanes.
                                   Jerry McNerney.
                                   Peter Welch.
                                   Ben Ray Lujan.
                                   Paul Tonko.
                                   John Yarmuth.
                                   Yvette D. Clarke.
                                   David Loebsack.
                                   Kurt Schrader.
                                   Joseph P. Kennedy, III.
                                   Tony Cardenas.

                                  [all]