HR 750 IHCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

H. R. 750CommentsClose CommentsPermalink

To preempt regulation of, action relating to, or consideration of greenhouse gases under Federal and common law on enactment of a Federal policy to mitigate climate change.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

February 16, 2011CommentsClose CommentsPermalink

Mr. WALBERG introduced the following bill; which was referred to the Committee on Energy and CommerceCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To preempt regulation of, action relating to, or consideration of greenhouse gases under Federal and common law on enactment of a Federal policy to mitigate climate change.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Defending America’s Affordable Energy and Jobs Act’.CommentsClose CommentsPermalink

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings- Congress finds that--CommentsClose CommentsPermalink





(1) the climate of the Earth is dynamic, and changes in climate are caused by a complex combination of factors;CommentsClose CommentsPermalink





(2) greenhouse gases are globally dispersed, and any attempt by a country to reduce the greenhouse gas emissions of the country must be undertaken in coordination with the international community, including the developing world, in order to have any significant impact;CommentsClose CommentsPermalink





(3) regulating the emission of greenhouse gases under Federal regulatory mechanisms in existence as of the date of enactment of this Act is divorced from any intent expressed by the Congress during the enactment of the authorizing statutes governing those mechanisms;CommentsClose CommentsPermalink





(4) any action to control emissions of greenhouse gases in the United States would result in substantial impacts to major sectors of the economy of the United States and interstate commerce and should therefore be explicitly authorized and prescribed by Congress;CommentsClose CommentsPermalink





(5) the consequences of poorly designed Federal or State regulation of greenhouse gases--CommentsClose CommentsPermalink





(A) are well-documented; andCommentsClose CommentsPermalink





(B) consist of lower economic growth, reductions in new and existing employment, and reduced economic competitiveness; andCommentsClose CommentsPermalink





(6) substantial policy options, short of regulatory authority, exist to spur technology innovation to promote energy security and produce cleaner energy sources.CommentsClose CommentsPermalink





(b) Purposes- The purposes of this Act are--CommentsClose CommentsPermalink





(1) to ensure that the consequences of ill-suited regulations are not imposed on the economy of the United States; andCommentsClose CommentsPermalink





(2) to allow sufficient time for Congress to develop and authorize an appropriate mechanism to address the energy needs of the United States and the potential global challenges posed by a changing climate.CommentsClose CommentsPermalink

SEC. 3. DEFINITIONS.

In this Act:CommentsClose CommentsPermalink





(1) ADMINISTRATOR- The term ‘Administrator’ means the Administrator of the Environmental Protection Agency.CommentsClose CommentsPermalink





(2) GREENHOUSE GAS- The term ‘greenhouse gas’ means any of the following:CommentsClose CommentsPermalink





(A) Carbon dioxide.CommentsClose CommentsPermalink





(B) Methane.CommentsClose CommentsPermalink





(C) Nitrous oxide.CommentsClose CommentsPermalink





(D) Sulfur hexafluoride.CommentsClose CommentsPermalink





(E) Any hydrofluorocarbon.CommentsClose CommentsPermalink





(F) Any perfluorocarbon.CommentsClose CommentsPermalink





(G) Nitrogen trifluoride.CommentsClose CommentsPermalink





(H) Any other substance subject to regulation, action, or consideration due to the contribution of the substance to climate change.CommentsClose CommentsPermalink





(3) STATIONARY SOURCE- The term ‘stationary source’ has the meaning given the term in section 302 of the Clean Air Act (42 U.S.C. 7602).CommentsClose CommentsPermalink

SEC. 4. REGULATION OF GREENHOUSE GASES.

(a) Regulation, Action, and Consideration for Effects Other Than Climate Change-CommentsClose CommentsPermalink





(1) IN GENERAL- Except as provided in paragraph (2), the President or the head of a Federal department or agency may not promulgate regulations providing for the control of emissions of a greenhouse gas, enforce or implement any law (including a regulation) enacted or promulgated as of the date of enactment of this Act that provides for the control of emissions of a greenhouse gas, take action relating to or take into consideration the climate effects of emissions of a greenhouse gas, consider climate effects in implementing or enforcing any law (including a regulation), or condition or deny any approval based on climate effects unless the law, regulation, action, or consideration is--CommentsClose CommentsPermalink





(A) determined by the President or head of a Federal department or agency, as applicable, after notice and opportunity for comment, to be necessary to protect the public health from imminent and substantial harm caused by direct human exposure to the relevant greenhouse gas in a concentration that is substantially greater than current and projected future average concentrations of that greenhouse gas in the global atmosphere; andCommentsClose CommentsPermalink





(B) based solely on effects other than effects relating to atmospheric concentrations of greenhouse gases, including climate change.CommentsClose CommentsPermalink





(2) EXCEPTION- The limitation under paragraph (1) does not prohibit--CommentsClose CommentsPermalink





(A) regulation of, action with respect to, or consideration of a greenhouse gas under title VI of the Clean Air Act (42 U.S.C. 7671 et seq.) other than for the potential or actual effect of the greenhouse gas on climate change; orCommentsClose CommentsPermalink





(B) voluntary incentive programs to promote the development or deployment of technologies that reduce greenhouse gas emissions.CommentsClose CommentsPermalink





(3) EXCLUSIVE AUTHORITY; CAFE REGULATIONS; CHALLENGES TO RULES-CommentsClose CommentsPermalink





(A) EXCLUSIVE AUTHORITY- The authority of the Secretary of Transportation under chapter 329 of title 49, United States Code--CommentsClose CommentsPermalink





(i) does not include any authority with respect to greenhouse gases; andCommentsClose CommentsPermalink





(ii) is unaffected by this section.CommentsClose CommentsPermalink





(B) CAFE REGULATIONS- Notwithstanding any provision to the contrary in this Act, the requirements set forth in the final rule entitled ‘Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule’ (75 Fed. Reg. 25324 (May 7, 2010)), shall remain in effect without further modification or revision.CommentsClose CommentsPermalink





(C) CHALLENGES TO RULES- Nothing in this subsection affects--CommentsClose CommentsPermalink





(i) any challenge to the final rule described in subparagraph (B) that--CommentsClose CommentsPermalink





(I) as of the date of enactment of this Act, is pending in court; orCommentsClose CommentsPermalink





(II) is filed after that date of enactment; orCommentsClose CommentsPermalink





(ii) any pending or future challenge to any current or future rules promulgated under the authority referred to in subparagraph (A).CommentsClose CommentsPermalink





(4) CERTAIN PRIOR AGENCY ACTIONS-CommentsClose CommentsPermalink





(A) IN GENERAL- Except as provided in paragraph (3), each rule promulgated and action taken by the Administrator before the date of enactment of this Act to regulate greenhouse gases for effects relating to atmospheric concentrations of greenhouse gases (including climate change), including each rule and action referred to in subparagraph (B), shall have no force or effect.CommentsClose CommentsPermalink





(B) RULES AND ACTIONS- The rules and actions referred to in subparagraph (A) include--CommentsClose CommentsPermalink





(i) the final rule entitled ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases under section 202(a) of the Clean Air Act’ (74 Fed. Reg. 66496 (Dec. 15, 2009));CommentsClose CommentsPermalink





(ii)(I) the memorandum from Stephen Johnson, Administrator of the Environmental Protection Agency, to Regional Administrators of the Environmental Protection Agency, with the subject line stating ‘EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program’ and dated Dec. 18, 2008; andCommentsClose CommentsPermalink





(II) the final action on reconsideration of that memorandum entitled ‘Reconsideration of the Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs’ (75 Fed. Reg. 17004 (April 2, 2010));CommentsClose CommentsPermalink





(iii) the final rule entitled ‘Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule’ (75 Fed. Reg. 31514 (June 3, 2010));CommentsClose CommentsPermalink





(iv) the final rule entitled ‘Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call’ (75 Fed. Reg. 77698 (December 13, 2010));CommentsClose CommentsPermalink





(v) the final rule entitled ‘Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan’ (75 Fed. Reg. 82246 (December 30, 2010));CommentsClose CommentsPermalink





(vi) the interim final rule entitled ‘Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas Prevention of Significant Deterioration Program’ (75 Fed. Reg. 82430 (December 30, 2010));CommentsClose CommentsPermalink





(vii) the final rule entitled ‘Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule’ (75 Fed. Reg. 82536 (December 30, 2010));CommentsClose CommentsPermalink





(viii) the final rule entitled ‘Action To Ensure Authority To Implement Title V Permitting Programs Under the Greenhouse Gas Tailoring Rule’ (75 Fed. Reg. 82254 (December 30, 2010));CommentsClose CommentsPermalink





(ix) the final rule entitled ‘Action to Ensure Authority to Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Failure to Submit State Implementation Plan Revisions Required for Greenhouse Gases’ (75 Fed. Reg. 81874 (December 30, 2010));CommentsClose CommentsPermalink





(x) the final rule entitled ‘Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas Prevention of Significant Deterioration Program’ (75 Fed. Reg. 82365 (December 30, 2010));CommentsClose CommentsPermalink





(xi) any final rule providing for a waiver under section 209 of the Clean Air Act (42 U.S.C. 7543) with respect to greenhouse gases or establishing any other requirements with respect to greenhouse gases pursuant to section 177 of that Act (42 U.S.C. 7507);CommentsClose CommentsPermalink





(xii) the final rule entitled ‘Mandatory Reporting of Greenhouse Gases’ (74 Fed. Reg. 56260 (October 30, 2009)) and the definition of the term ‘emissions data’ in section 2.301 of title 40, Code of Federal Regulations (or a successor regulation);CommentsClose CommentsPermalink





(xiii) any final action taken by the Administrator with respect to State implementation plans, Federal implementation plans, and policy guidance regarding construction or operating permits or permit requirements for stationary sources emitting greenhouse gases that is issued or taken before, on, or after the date of enactment of this Act; andCommentsClose CommentsPermalink





(xiv) any guidance, regulations, interpretive regulations, or policy regarding the emissions of greenhouse gases or climate change impacts of greenhouse gases promulgated or issued by the Administrator under any Federal law (including a regulation).CommentsClose CommentsPermalink





(5) REGULATION UNDER OTHER PROVISIONS-CommentsClose CommentsPermalink





(A) IN GENERAL- Neither the regulation referred to in paragraph (3)(B) nor any other provision of law (including a regulation) or action relating to greenhouse gases shall--CommentsClose CommentsPermalink





(i) have any impact on the regulation of stationary sources under title I of the Clean Air Act (42 U.S.C. 7401 et seq.); orCommentsClose CommentsPermalink





(ii) be considered to be the regulation of pollutants under that Act (42 U.S.C. 7401 et seq.) for any purpose (other than for the regulation of greenhouse gas emissions for light-duty motor vehicles from model years 2012 through 2016, as required by the rule described in paragraph (3)(B)), including for the purpose of issuing permits or establishing regulatory standards.CommentsClose CommentsPermalink





(B) REQUESTS FOR WAIVERS- Section 209(b) of the Clean Air Act (42 U.S.C. 7543(b)) is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(4) REQUESTS FOR WAIVERS- Notwithstanding any other provision of this Act or any other law--CommentsClose CommentsPermalink





‘(A) no request for a waiver of the application of this section by any State for standards to control emissions of any air pollutant that is a greenhouse gas (as defined in section 3 of the Defending America’s Affordable Energy and Jobs Act) from new motor vehicles or new motor vehicle engines of model year 2017 or later may be granted by the Administrator; andCommentsClose CommentsPermalink





‘(B) no grant of any waiver by the Administrator before the date of enactment of this paragraph shall be considered by the Administrator, the requesting State, or any court as waiving the application of subsection (a), or any other provision of this section, to standards adopted by the State for control of emissions of any air pollutant that is a greenhouse gas (as defined in section 3 of the Defending America’s Affordable Energy and Jobs Act) from new motor vehicles or new motor vehicle engines of model year 2017 or later.’.CommentsClose CommentsPermalink





(6) IMPACTS ON STATE LAWS-CommentsClose CommentsPermalink





(A) IN GENERAL- Any provision of a State implementation plan designating greenhouse gases as pollutants that are subject to regulation or as regulated pollutants, or otherwise authorizing or requiring limitations on the emission of greenhouse gases under State law--CommentsClose CommentsPermalink





(i) shall not be federally enforceable;CommentsClose CommentsPermalink





(ii) shall not be deemed to be Federal law; andCommentsClose CommentsPermalink





(iii) shall be deemed to be stricken from the State implementation plan.CommentsClose CommentsPermalink





(B) AUTHORITY OF STATES-CommentsClose CommentsPermalink





(i) IN GENERAL- Subject to clause (ii), nothing in this section affects any State law (including a regulation) or the authority of any State to adopt a law or promulgate a regulation.CommentsClose CommentsPermalink





(ii) AUTHORITY OF ADMINISTRATOR- Notwithstanding clause (i), the Administrator shall have no authority to approve or make federally enforceable any provision of a State implementation plan requiring the control of greenhouse gas emissions.CommentsClose CommentsPermalink





(iii) AMENDMENT OF EXISTING LAWS- If, as a result of the regulations referred to in paragraph (4), a State adopted any law (including a regulation) designating greenhouse gases as pollutants that are subject to regulation or as regulated pollutants, or authorizing or requiring limitations on the emission of greenhouse gases under State law, the State may amend the adopted law to remove any restrictions on greenhouse gas emissions.CommentsClose CommentsPermalink





(C) FEDERALIZATION OF SIP REQUIREMENTS- The Administrator shall have no authority to approve or make federally enforceable any provision of a State implementation plan requiring the control of greenhouse gas emissions.CommentsClose CommentsPermalink





(7) PRESIDENTIAL FINDINGS AND CONCLUSIONS- Except as authorized by this subsection or another Act of Congress, the President or the head of a Federal department or agency may not examine or make findings or conclusions, such as those contained in the final rule referred to in paragraph (4)(B)(i), for purposes of promulgating or issuing policy, guidance, or regulations to address the impacts of greenhouse gas emissions on climate change.CommentsClose CommentsPermalink





(8) JUDICIAL REVIEW-CommentsClose CommentsPermalink





(A) IN GENERAL- In addition to any other remedies available, any person affected by a regulation, action, or consideration concerning the control of emissions of a greenhouse gas that fails to meet the criteria described in paragraph (1) may challenge the regulation, action, or consideration.CommentsClose CommentsPermalink





(B) JURISDICTION- The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over any review of any Federal, State, or other regulation, action, or consideration challenged under subparagraph (A).CommentsClose CommentsPermalink





(b) Actions at Law- No cause of action, whether based on common law or civil tort (including nuisance) or any other legal or equitable theory, may be brought or maintained, and no liability, money damages, or injunctive relief arising from such an action may be imposed, for--CommentsClose CommentsPermalink





(1) any potential or actual contribution of a greenhouse gas to climate change; orCommentsClose CommentsPermalink





(2) any direct or indirect effect of potential or actual atmospheric concentrations of a greenhouse gas.CommentsClose CommentsPermalink





(c) Allowances- No State shall have authority--CommentsClose CommentsPermalink





(1) to require any entity to procure, hold, or surrender allowances for the emission of greenhouse gases that takes place outside of the State; orCommentsClose CommentsPermalink





(2) to otherwise--CommentsClose CommentsPermalink





(A) regulate or tax, directly or indirectly, greenhouse gas emissions produced outside of the State; orCommentsClose CommentsPermalink





(B) to otherwise limit the importation of products or electricity into the State based on greenhouse gas emissions occurring outside the State.CommentsClose CommentsPermalink