{"id":164,"date":"2010-07-16T10:16:29","date_gmt":"2010-07-16T15:16:29","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=164"},"modified":"2012-01-31T15:47:04","modified_gmt":"2012-01-31T20:47:04","slug":"the-preemptive-effects-of-the-revised-american-power-act","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2010\/07\/16\/the-preemptive-effects-of-the-revised-american-power-act\/","title":{"rendered":"The preemptive effects of the revised American Power Act"},"content":{"rendered":"
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by Hannah Chang<\/em><\/p>\n

A revised draft of the American Power Act (APA), a bill that was introduced by Senators Kerry and Lieberman in May 2010, surfaced earlier this week<\/a>, on July 13.\u00a0 Although neither Senator Kerry nor Senator Lieberman have confirmed the validity of the circulating draft, it is thought that the 667-page discussion draft<\/a>, which would establish a cap on greenhouse gases (GHGs) for utilities only, will be considered as part of a larger package to be introduced by Senate Majority Leader Reid that will include provisions on oil spill response and renewable energy.<\/p>\n

CCCL previously analyzed<\/a> the preemptive effects of the original APA<\/a> on the Environmental Protection Agency\u2019s (EPA\u2019s) authority under the Clean Air Act and on state authority to regulate GHGs.\u00a0 Since that last writing, the stakes have only risen in the controversy over possible preemption of EPA authority.\u00a0 Senator Lisa Murkowski\u2019s proposed resolution of disapproval that would have overturned EPA\u2019s endangerment finding and effectively blocked EPA regulation of GHGs was rejected by a 53-47 vote in the Senate on June 10, 2010.\u00a0 On July 6, 2010, EPA released its proposed Transport Rule<\/a>, which would establish stringent limitations on nitrous oxide and sulfur dioxide emissions from power plants.\u00a0 Utilities are reportedly demanding relief<\/a> from these proposed regulations, and from other regulation of conventional pollutants, as a concession for supporting a climate bill that would establish a utilities-only cap on GHGs.<\/p>\n

If the revised, utilities-only APA discussion draft is to be considered by the Senate, it is worth understanding the proposal\u2019s effect on EPA and state authority.\u00a0 The following summarizes preemption under the revised draft and how it compares with preemption under the original APA.\u00a0 Generally, most of the preemptive language in the two versions is substantially similar \u2013 that is to say, the revised APA significantly weakens EPA authority, much like the original APA.\u00a0 The revised APA may have even more far-reaching preemptive effects, however, as a result of the placement of brackets around certain sections that indicate reconsideration and possible future omission of these sections.<\/p>\n

Title II, Subtitle D (\u00a7\u00a7 2301-07) of the revised APA (beginning on page 428), entitled \u201cEnsuring Regulatory Predictability for Greenhouse Gases,\u201d is the principal section addressing preemption of existing Clean Air Act authority.\u00a0 These sections mirror the same Title II, Subtitle D (\u00a7\u00a7 2301-07) of the original APA (beginning on page 619 of that version).\u00a0 Like the original APA, the revised APA would:<\/p>\n