Senate Democrats fell short Oct. 17 in their attempt to undo a Trump administration rollback of Obama-era carbon pollution limits for U.S. power plants.
The vote failed, 41-53. Only one Republican, Sen. Susan Collins (Maine), crossed over to vote with Democrats in support of scrapping the Trump administration regulations. Democratic Sens. Doug Jones (Ala.), Joe Manchin (W.Va.), and Kyrsten Sinema (Ariz.) voted against the effort.
At issue was the Environmental Protection Agency rule issued by the Trump administration in July that essentially scrapped Obama’s more stringent Clean Power Plan, which sought to reduce climate-warming greenhouse gas emissions from power plants by 32 percent below 2005 levels by 2030.
The replacement—the Affordable Clean Energy rule—set much more narrow standards for power plant emissions, applying limits solely on what individual facilities can achieve through efficiency improvements on site.
Democrats sought to scrap the Trump replacement plan with a disapproval resolution (S.J. Res. 53) using expedited procedures under the Congressional Review Act, which requires only a simple majority to pass.
Even if it had passed, the resolution would have likely faced a Trump veto.
‘Blunt Procedural Tool’
Sen. Sheldon Whitehouse (D-R.I.) told colleagues on the floor Oct. 16 that the Trump administration’s Affordable Clean Energy replacement was a title “fanciful enough to make George Orwell blush.”
Sen. Tom Carper (D-Del.) said he was not generally supportive of using the Congressional Review Act to repeal federal regulations, calling it a “blunt procedural tool.” The Trump rule, Carper said, could actually increase carbon emissions by allowing power plants to burn coal for decades longer than under the Obama rules.
Senate Minority Leader Chuck Schumer (D-N.Y.) vowed last week to use the Congressional Review Act’s fast-track procedures to try to scrap the EPA replacement rule, and to get rid of Trump administration health regulations, in order to protect pre-existing conditions—protections Democrats argue are too weak and would only provide “junk” health care plans—as well as a rollback of limits on state and local tax deductions in the 2017 tax law.
“To me they are just trying to make news, they are not trying to make a law, they are not trying to change an outcome,” Barrasso told reporters Oct. 16.
The Congressional Review Act, a 1996 law signed by President Bill Clinton, gave Congress fast-track procedures for holding an up-or-down vote on final regulations, policy guidance, and other final agency actions.
Senate Democrats, though, aren’t as eager for a vote on overturning the Trump EPA’s upcoming mercury rule as they are about overturning the Affordable Clean Energy rule.
The White House is reviewing a final rule that could undo the legal basis of the nation’s first ever toxic air pollution limits on power plants over a flawed cost-benefit analysis. The 2015 rule relied more on the co-benefits of reducing fine airborne particle pollution rather than the direct benefits of mercury to make its case.
Using the Congressional Review Act resolution to try overturning the mercury rule can’t be taken lightly, Mary Frances Repko, Democratic staff director to the Senate Environment and Public Works committee, said at an Oct. 16 National Press Club discussion on the EPA’s upcoming regulation.
The CRA is akin to taking a sledgehammer to the regulation, not a surgical tool, Repko added. “We have to evaluate what the effect of being successful might be: Is it a difference between taking an action that is simply an accountability vote versus an action that has the effect of overturning a regulation.”
If a regulation is successfully overturned, the CRA prevents an agency from making a substantially similar regulation.
Former EPA Administrator Gina McCarthy, who shepherded the Obama-era Mercury and Air Toxics Standards through the agency in 2015, cautioned Democrats during the same panel against using the CRA to overturn the upcoming mercury rule because of unintended consequences to the underlying regulation.