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H.R. 4169 Seeks to Limit EPA Regulation of Carbon Dioxide Emissions

On December 3, 2015, a bill was introduced in the U.S. House of Representatives proposing to relate the ability of the EPA to regulate carbon dioxide emissions, from fossil fuel-fired electric generating plants, to certification of specific actions by other countries to reduce carbon dioxide emissions. H.R. 4169 links new regulations of CO2 emissions from those power plants to implementation of regulations by other countries that would reduce worldwide CO2 emissions (not including US. emissions) by eighty (80%) percent.

Not only does the bill prevent the EPA from trying to unilaterally take action to reduce CO2 emissions, the bill appears to effectively preempt U.S. participation in any international agreement on reduction of CO2, unless it meets the standards set by Congress.  One question is whether the bill would violate Article II, section 2 of the United States Constitution which provides the President “…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”.  If the President reaches an international agreement on CO2 emissions that has a different standard for reduction, does Congress have the authority to block implementation of such an agreement through an Act such as H.R. 4169?

The full text of the bill reads as follows:

“To amend the Clean Air Act to prohibit any regulation under such Act concerning the emissions of carbon dioxide from a fossil fuel-fired electric generating unit from taking effect until the Administrator of the Environmental Protection Agency makes certain certifications, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the “Fighting Against Imbalanced Regulatory Burdens Act of 2015”.

SEC. 2. NO UNILATERAL REGULATION OF EMISSIONS OF CARBON DIOXIDE.

The Clean Air Act (42 U.S.C. 7401 et seq.) is amended by inserting after section 329 the following:

SEC. 330. NO UNILATERAL REGULATION OF EMISSIONS OF CARBON DIOXIDE FROM FOSSIL FUEL-FIRED ELECTRIC GENERATING UNITS.

(a) Prohibition On Regulations Concerning Emissions Of Carbon Dioxide From Fossil Fuel-Fired Electric Generating Units Taking Effect.—

(1) PROHIBITION.—A regulation under this Act concerning emissions of carbon dioxide from a fossil fuel-fired electric generating unit to address climate change may not take effect until the Administrator certifies that a sufficient number of countries have put into effect regulations concerning emissions of carbon dioxide which are at least as stringent as the regulation under this Act.

(2) COUNTRIES.—For the purposes of paragraph (1), the term ‘sufficient number’ means a sufficient number of countries so that, in the aggregate, such countries account for not less than 80 percent of the global carbon dioxide emissions, excluding such emissions in the United States, in the calendar year immediately preceding the year in which the regulation under this Act would be enforced.

(3) STRINGENCY CONSIDERATIONS.—For the purposes of paragraph (1), a country’s regulation concerning carbon dioxide emissions may only be considered to be as stringent as the regulation under this Act if such country’s regulation limits carbon dioxide emissions to a numeric standard that is equal to or less than such a standard under the regulation under this Act in a timeframe that is equal to or less than the timeframe under the regulation under this Act.

(b) Rule Of Construction.—Nothing in this section shall be construed as providing the Administrator with any authority to promulgate any regulation concerning, take action relating to, or take into consideration the emissions of carbon dioxide.”

Steven Silverberg