The House Continuing Resolution: The Dismantling of Climate Regulation

By Danielle Sugarman


Taking advantage of the fact that government funding was set to run out on March 4th, House Republicans used the need for a Continuing Resolution (“CR”) on the Fiscal Year 2011 budget to push through radical cuts in the discretionary budget and additional provisions that, if enacted, would block the EPA from regulating GHG emissions and defund the White House Energy and Climate Office.  The CR, known as H.R.1, was introduced on February 11th by Republicans in the House Appropriations Committee and passed in the House on February 19th.  It proposed $3 billion in cuts to the EPA, including a $107 million hit for climate change programs (29% less than the 2010 enacted level).

Under pressure to avoid a government shutdown, on March 1st, the House voted 335-91 to approve a new CR that continues to fund the government for an additional two weeks.  While the interim measure does not cut EPA’s budget and does not include any of the policy measures blocking EPA rules that House lawmakers included in H.R.1, House Republicans are saying that those policy riders should be included in a final CR to fund the government for the rest of fiscal year 2011.  On March 4, the Senate Democrats introduced their own federal spending roadmap for 2011 (Senate Amendment 149) that would cut roughly $6 billion from the White House’s 2011 budget request ($50 billion less than the House Bill).  Senate Amendment 149 strikes all but one of the House-approved riders that would restrict President Obama’s environmental policies, and restored much of the spending on energy research and EPA programs that were targeted by the House.  Both funding bills are expected to fall short of the 60-vote threshold for passage.  Voting is expected to begin on Tuesday March 8.

This blog post analyzes the specific provisions in H.R.1, as it was passed by the House, that specifically target climate policy generally as well as EPA’s authority to regulate GHGs in particular.  In addition to vast budget cuts for other environmental agencies and programs such as the Department of Energy (including programs for renewable energy and energy efficiency), Department of the Interior, and NOAA, under H.R.1, the full wrath of Republicans fell predominantly on the EPA.  The following provisions of H.R.1 present a myriad of pitfalls for climate action.

Section 1746 of H.R.1 states that “[n]one of the funds made available to the [EPA] by this division or any other Act may be expended for purposes of enforcing or promulgating any regulation (other than with respect to section 202 of the Clean Air Act) or order, taking action relating to, or denying approval of state implementation plans or permits because of the emissions of greenhouse gases due to concerns regarding possible climate change.” (The exception for Section 202 would leave alone the uncontroversial emissions standards for motor vehicles).  In addition to being widely impactful, this provision presents a number of technical complications for regulators and emitters.

As the defunding of EPA’s GHG regulations would not alter the underlying legal effect of GHG regulations that have already been promulgated, uncertainty would be created around any permits issued during the period covered by the CR that do not include GHG controls.  For example, the language would create a large obstacle for big power plants and factories that require permits for construction.  Permitting requirements include controls on CO2 and other GHGs, but by blocking EPA from “taking action relating to  . . . permits because of the emissions of [GHGs] due to concerns regarding possible climate change,” §1746  would prevent EPA from issuing permits legally required for new source construction.  Similarly problematic, the Tailoring Rule was passed to exempt smaller sources from permitting requirements.  The language of §1746 would bar EPA from providing the regulatory exemptions to smaller sources, potentially resulting in millions of sources being in violation of EPA rules for building without a permit.  Other consequences of the section could arguably include preventing EPA from engaging in any rulemaking (as EPA would be prohibited from promulgating “any regulation”) on open regulatory questions (such as rulemaking on deferrals EPA issued for permitting requirements for large power plants and factories burning biomass).

Section 1759 reduces the budget for the Council on Environmental Quality (CEQ).  CEQ was created as part of the National Environmental Policy Act (NEPA) and is responsible for coordinating federal environmental efforts including overseeing Federal agency implementation of NEPA.

A number of harmful amendments were also passed as part of H.R.1.  Amendment number 84 [H.AMDT 47] by Rep. Mike Pompeo reduces the [EPA], Environmental Programs and Management account by $8,458,000. This provision would remove funding for EPA’s GHG emissions reporting registry, thus restricting the Agency’s ability to gather, analyze and report emissions data from large emitters.

Amendment 165 [H.AMDT 88] by Rep. John Carter was passed to “prohibit the use of funds to be used to implement, administer, or enforce  the rule entitled National Emission Standards for Hazardous Air Pollutants From the Portland Cement manufacturing Industry and Standards of Performance for Portland Cement Plants” published by the EPA on Sept. 9, 2010.  This provision would block EPA from implementing new air pollution rules for cement kilns which produce mercury and other forms of toxic air pollution.

Amendment 204 [H.AMDT 89] by Rep. Steve Scalise prohibits “the use of funds to be used to pay the salaries and expenses for specified federal agency positions and their offices.”  This provision eliminates the funding for, among others, the Assistant to the President for Energy and Climate Change (formerly Carol Browner), Special Envoy for Climate Change (Todd Stern), and Special Advisor for Green Jobs, Enterprise and Innovation, and Council on Environmental Quality (formerly Van Jones).

Amendment 533 [H.AMDT 96] by Rep. Don Young prohibits “use of funds by the Environmental Appeals Board to consider, review, reject, remand, or otherwise invalidate any permit issued for Outer Continental Shelf sources located offshore of the States along the Arctic Coast under the Clean Air Act.”  This provision would block the Appeals Board from reviewing permits relating to platform and drill ship exploration, construction, development, production, processing, or transportation of petroleum sources for the OCS.  It would specifically facilitate exploratory drilling by Shell Oil off of Alaska’s Coast.

Amendment 466 [H.AMDT 101] by Rep. Ted Poe passed prohibiting “use of funds by the EPA to implement, administer, or enforce any statutory or regulatory requirement pertaining to emissions of greenhouse gases.”  This provision would disable requirements relating to GHG emissions and would prevent EPA from addressing these pollutants for any reason, including analyzing impacts on ozone or climate change.

Amendment 377 [H.AMDT 145] by Rep. Jeff Flake prohibits “the use of funds for the construction of an ethanol blender pump or an ethanol storage facility.”  This provision would hamper advancement on ethanol based fuel compounds that reduce strict reliance on petroleum.

Amendment 495 [H.AMDT 148] by Rep. Ralph Hall prohibits “the use of funds to implement, establish, or create a NOAA Climate Service as described in the ‘Draft NOAA Climate Service Strategic Vision and Framework’. . . .”  This provision would impede NOAA’s ability to provide a reference source for data, analysis and modeling relating to climate change which would aid in planning decisions.

Amendment 109 [H.AMDT 151] by Rep. Morgan Griffith prohibits “use of funds to the EPA, the Corps of Engineers, or the Office of Surface Mining Reclamation and Enforcement [that] may be used to carry out, implement, administer, or enforce any policy or procedure set forth in the memorandum issued by the EPA.”  This provision would bar EPA action relating to a June 11, 2009 memorandum regarding permit coordination for surface coal mining and would prohibit action arising out of an April 1, 2010 guidance on improving review of Appalachian surface coal mining operations.  These EPA documents apply, in part, to the controversial practice of mountaintop removal mining.

Amendment 149 [H.AMDT 154] by Rep. Blaine Luetkemeyer prohibits “the use of funds for contributions to the Intergovernmental Panel on Climate Change (IPCC),” the foremost scientific body on climate change.

Amendment 94 [H.AMDT 156] by Rep. John Sullivan prohibits “the use of funds in the decision of the Administrator of the EPA entitled ‘Partial Grant of Clean Air Act Waiver Application Submitted by Growth Energy to increase the Allowable Ethanol Content of Gasoline to 15 percent.’” This amendment would stop EPA from using its funding to implement its decision allowing the ethanol content of gasoline to be increased from 10 to 15%.  In Oct. of 2010 EPA had approved a partial waiver for use of E15 fuel in light-duty motor vehicles for model year cars 2007 and newer.  In January of this year, EPA extended the waiver to model year cars 2001-2006.

Amendment 217 [H.AMDT.158] by Rep. David McKinley prohibits “the use of funds by the EPA to develop, propose, finalize, implement, administer, or enforce any regulation that identifies or lists fossil fuel combustion waste as hazardous waste subject to regulation.” This provision would restrict EPA’s authority to classify coal ash as a hazardous waste, as is now under consideration.

With Senate Democrats having insisted that Republican policy riders be removed in the short-term CR that passed on March 1, it is unclear whether the provisions of H.R.1 discussed above will make it to the President’s desk or ultimately into a more formal piece of legislation setting spending levels for the government for the balance of the fiscal year.  However the two chambers will need to reach a more long-term budget agreement and it is unlikely that the debate over EPA’s climate regulations will go away.