H. Rept. 112-50 - 112th Congress (2011-2012)
April 01, 2011, As Reported by the Energy and Commerce Committee

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House Report 112-50 - ENERGY TAX PREVENTION ACT OF 2011




[House Report 112-50]
[From the U.S. Government Printing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     112-50

======================================================================



 
                   ENERGY TAX PREVENTION ACT OF 2011

                                _______
                                

 April 1, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

         Mr. Upton, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 910]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 910) to amend the Clean Air Act to prohibit the 
Administrator of the Environmental Protection Agency from 
promulgating any regulation concerning, taking action relating 
to, or taking into consideration the emission of a greenhouse 
gas to address climate change, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     4
Hearings.........................................................    15
Committee Consideration..........................................    16
Committee Votes..................................................    16
Committee Oversight Findings.....................................    23
Statement of General Performance, Goals and Objectives...........    23
New Budget Authority, Entitlement Authority, and Tax Expenditures    23
Earmark..........................................................    23
Committee Cost Estimate..........................................    23
Congressional Budget Office Estimate.............................    23
Federal Mandates Statement.......................................    25
Advisory Committee Statement.....................................    25
Applicability to Legislative Branch..............................    25
Section-by-Section Analysis of Legislation.......................    25
Changes in Existing Law Made by the Bill, as Reported............    26
Dissenting Views.................................................    31

                               Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Energy Tax Prevention Act of 2011''.

SEC. 2. NO REGULATION OF EMISSIONS OF GREENHOUSE GASES.

  Title III of the Clean Air Act (42 U.S.C. 7601 et seq.) is amended by 
adding at the end the following:

``SEC. 330. NO REGULATION OF EMISSIONS OF GREENHOUSE GASES.

  ``(a) Definition.--In this section, the term `greenhouse gas' means 
any of the following:
          ``(1) Water vapor.
          ``(2) Carbon dioxide.
          ``(3) Methane.
          ``(4) Nitrous oxide.
          ``(5) Sulfur hexafluoride.
          ``(6) Hydrofluorocarbons.
          ``(7) Perfluorocarbons.
          ``(8) Any other substance subject to, or proposed to be 
        subject to, regulation, action, or consideration under this Act 
        to address climate change.
  ``(b) Limitation on Agency Action.--
          ``(1) Limitation.--
                  ``(A) In general.--The Administrator may not, under 
                this Act, promulgate any regulation concerning, take 
                action relating to, or take into consideration the 
                emission of a greenhouse gas to address climate change.
                  ``(B) Air pollutant definition.--The definition of 
                the term `air pollutant' in section 302(g) does not 
                include a greenhouse gas. Notwithstanding the previous 
                sentence, such definition may include a greenhouse gas 
                for purposes of addressing concerns other than climate 
                change.
          ``(2) Exceptions.--Paragraph (1) does not prohibit the 
        following:
                  ``(A) Notwithstanding paragraph (4)(B), 
                implementation and enforcement of the rule entitled 
                `Light-Duty Vehicle Greenhouse Gas Emission Standards 
                and Corporate Average Fuel Economy Standards' (as 
                published at 75 Fed. Reg. 25324 (May 7, 2010) and 
                without further revision) and finalization, 
                implementation, enforcement, and revision of the 
                proposed rule entitled `Greenhouse Gas Emissions 
                Standards and Fuel Efficiency Standards for Medium- and 
                Heavy-Duty Engines and Vehicles' published at 75 Fed. 
                Reg. 74152 (November 30, 2010).
                  ``(B) Implementation and enforcement of section 
                211(o).
                  ``(C) Statutorily authorized Federal research, 
                development, and demonstration programs addressing 
                climate change.
                  ``(D) Implementation and enforcement of title VI to 
                the extent such implementation or enforcement only 
                involves one or more class I substances or class II 
                substances (as such terms are defined in section 601).
                  ``(E) Implementation and enforcement of section 821 
                (42 U.S.C. 7651k note) of Public Law 101-549 (commonly 
                referred to as the `Clean Air Act Amendments of 1990').
          ``(3) Inapplicability of provisions.--Nothing listed in 
        paragraph (2) shall cause a greenhouse gas to be subject to 
        part C of title I (relating to prevention of significant 
        deterioration of air quality) or considered an air pollutant 
        for purposes of title V (relating to permits).
          ``(4) Certain prior agency actions.--The following rules and 
        actions (including any supplement or revision to such rules and 
        actions) are repealed and shall have no legal effect:
                  ``(A) `Mandatory Reporting of Greenhouse Gases', 
                published at 74 Fed. Reg. 56260 (October 30, 2009).
                  ``(B) `Endangerment and Cause or Contribute Findings 
                for Greenhouse Gases Under Section 202(a) of the Clean 
                Air Act', published at 74 Fed. Reg. 66496 (December 15, 
                2009).
                  ``(C) `Reconsideration of Interpretation of 
                Regulations That Determine Pollutants Covered by Clean 
                Air Act Permitting Programs', published at 75 Fed. Reg. 
                17004 (April 2, 2010) and the memorandum from Stephen 
                L. Johnson, Environmental Protection Agency (EPA) 
                Administrator, to EPA Regional Administrators, 
                concerning `EPA's Interpretation of Regulations that 
                Determine Pollutants Covered by Federal Prevention of 
                Significant Deterioration (PSD) Permit Program' 
                (December 18, 2008).
                  ``(D) `Prevention of Significant Deterioration and 
                Title V Greenhouse Gas Tailoring Rule', published at 75 
                Fed. Reg. 31514 (June 3, 2010).
                  ``(E) `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', published at 
                75 Fed. Reg. 77698 (December 13, 2010).
                  ``(F) `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', published at 
                75 Fed. Reg. 81874 (December 29, 2010).
                  ``(G) `Action to Ensure Authority To Issue Permits 
                Under the Prevention of Significant Deterioration 
                Program to Sources of Greenhouse Gas Emissions: Federal 
                Implementation Plan', published at 75 Fed. Reg. 82246 
                (December 30, 2010).
                  ``(H) `Action to Ensure Authority to Implement Title 
                V Permitting Programs Under the Greenhouse Gas 
                Tailoring Rule', published at 75 Fed. Reg. 82254 
                (December 30, 2010).
                  ``(I) `Determinations Concerning Need for Error 
                Correction, Partial Approval and Partial Disapproval, 
                and Federal Implementation Plan Regarding Texas 
                Prevention of Significant Deterioration Program', 
                published at 75 Fed. Reg. 82430 (December 30, 2010).
                  ``(J) `Limitation of Approval of Prevention of 
                Significant Deterioration Provisions Concerning 
                Greenhouse Gas Emitting-Sources in State Implementation 
                Plans', published at 75 Fed. Reg. 82536 (December 30, 
                2010).
                  ``(K) `Determinations Concerning Need for Error 
                Correction, Partial Approval and Partial Disapproval, 
                and Federal Implementation Plan Regarding Texas 
                Prevention of Significant Deterioration Program; 
                Proposed Rule', published at 75 Fed. Reg. 82365 
                (December 30, 2010).
                  ``(L) Except for actions listed in paragraph (2), any 
                other Federal action under this Act occurring before 
                the date of enactment of this section that applies a 
                stationary source permitting requirement or an 
                emissions standard for a greenhouse gas to address 
                climate change.
          ``(5) State action.--
                  ``(A) No limitation.--This section does not limit or 
                otherwise affect the authority of a State to adopt, 
                amend, enforce, or repeal State laws and regulations 
                pertaining to the emission of a greenhouse gas.
                  ``(B) Exception.--
                          ``(i) Rule.--Notwithstanding subparagraph 
                        (A), any provision described in clause (ii)--
                                  ``(I) is not federally enforceable;
                                  ``(II) is not deemed to be a part of 
                                Federal law; and
                                  ``(III) is deemed to be stricken from 
                                the plan described in clause (ii)(I) or 
                                the program or permit described in 
                                clause (ii)(II), as applicable.
                          ``(ii) Provision defined.--For purposes of 
                        clause (i), the term `provision' means any 
                        provision that--
                                  ``(I) is contained in a State 
                                implementation plan under section 110 
                                and authorizes or requires a limitation 
                                on, or imposes a permit requirement 
                                for, the emission of a greenhouse gas 
                                to address climate change; or
                                  ``(II) is part of an operating permit 
                                program under title V, or a permit 
                                issued pursuant to title V, and 
                                authorizes or requires a limitation on 
                                the emission of a greenhouse gas to 
                                address climate change.
                  ``(C) Action by administrator.--The Administrator may 
                not approve or make federally enforceable any provision 
                described in subparagraph (B)(ii).''.

SEC. 3. PRESERVING ONE NATIONAL STANDARD FOR AUTOMOBILES.

  Section 209(b) of the Clean Air Act (42 U.S.C. 7543) is amended by 
adding at the end the following:
  ``(4) With respect to standards for emissions of greenhouse gases (as 
defined in section 330) for model year 2017 or any subsequent model 
year new motor vehicles and new motor vehicle engines--
          ``(A) the Administrator may not waive application of 
        subsection (a); and
          ``(B) no waiver granted prior to the date of enactment of 
        this paragraph may be construed to waive the application of 
        subsection (a).''.

SEC. 4. SENSE OF CONGRESS.

  It is the sense of the Congress that--
          (1) there is established scientific concern over warming of 
        the climate system based upon evidence from observations of 
        increases in global average air and ocean temperatures, 
        widespread melting of snow and ice, and rising global average 
        sea level;
          (2) addressing climate change is an international issue, 
        involving complex scientific and economic considerations;
          (3) the United States has a role to play in resolving global 
        climate change matters on an international basis; and
          (4) Congress should fulfill that role by developing policies 
        that do not adversely affect the American economy, energy 
        supplies, and employment.

                          Purpose and Summary

    H.R. 910, the ``Energy Tax Prevention Act of 2011'' was 
introduced by Rep. Fred Upton (together with Reps. Barton, 
Boren, McKinley, McMorris Rogers, Peterson, Rahall, Sullivan, 
Walden and Whitfield) on March 3, 2011. The legislation 
prevents the Environmental Protection Agency (EPA) from using 
the Clean Air Act (CAA) to implement its global warming 
regulatory agenda, thereby avoiding the resultant energy cost 
increases, job losses, and overall economic damage. The 
regulations have begun to go into effect, with numerous 
additional rulemakings pending or expected, and the potential 
adverse consequences to gasoline and electricity prices, 
household incomes, costs of goods and services, global 
competitiveness and employment are likely to increase 
considerably unless the agency's lack of authority under the 
CAA is clarified.
    Key provisions in the bill:
    
 Expressly preclude the Administrator of EPA from 
promulgating any rules regulating greenhouse gases under the 
CAA to address climate change, subject to limited exceptions, 
and clarify that greenhouse gases are not air pollutants under 
the statute.
    
 Repeal existing CAA greenhouse gas climate change 
rules and programs, including the EPA Administrator's 
endangerment finding and regulation of greenhouse gases 
emissions from stationary sources under the CAA's Prevention of 
Significant Deterioration (PSD) preconstruction and Title V 
operating permit programs.
    
 Allow states to undertake climate change policies, 
but voids, as a matter of federal law, requirements for states 
to regulate greenhouse gases under their PSD and Title V 
operating permit programs.
    
 Provide exceptions for light-duty motor vehicle 
regulations scheduled to take effect for Model Years 2012 
through 2016 and proposed medium and heavy-duty vehicle 
provisions for Model Years 2014 through 2018, implementation of 
the renewable fuels mandate under CAA Section 211(o), federally 
authorized climate change research, utility industry greenhouse 
gas reporting requirements, and implementation of the 
stratospheric ozone provisions under Title VI of the CAA.

                  Background and Need for Legislation

    America faces rising gasoline and other energy costs, a 
weak and nearly-jobless economic recovery, and intense global 
competition threatening to further erode the domestic 
manufacturing and industrial sectors. Yet the EPA is moving 
aggressively to implement a global warming agenda that is 
almost certain to be the most far-reaching, costly and 
complicated set of regulations in the agency's history. Though 
premised by EPA on the Supreme Court's 5 to 4 decision in 
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 
(2007), the agency's regulations are by no means mandated by 
that Supreme Court decision. The Supreme Court Majority 
interpreted Congressional intent behind the 1970 CAA and 
subsequent amendments, and inferred that greenhouse gases could 
fit with the statute's definition of ``air pollutant''; however 
the Supreme Court did not require EPA to make an endangerment 
finding for greenhouse gases or proceed with its global warming 
regulations. Rather, EPA was directed to ground its reasons for 
action or inaction in the CAA.
    In contrast, Congress has debated global warming directly 
on numerous occasions, and has repeatedly rejected legislative 
measures that in some respects were less sweeping than EPA's 
regulations. In the previous debates over global warming 
legislation, and most recently the American Clean Energy and 
Security Act of 2009, Congress has created a record regarding 
the science and economics of global warming policy that is 
highly relevant to the debate over the merits of EPA's efforts 
to implement the regulatory equivalent. Three hearings listed 
below relating to H.R. 910 further strengthen the conclusion 
that EPA's greenhouse gas regulations under the CAA would be an 
extremely costly and ineffective means of addressing climate 
change. Regardless, EPA is moving expeditiously to promulgate 
its regulatory scheme. The initial greenhouse gas regulations 
have begun to be issued by the EPA. As the first step, in 
December 2009, the Administrator of EPA issued an 
``endangerment finding'' concluding that the atmospheric 
concentrations of the combination of carbon dioxide and five 
other greenhouse gases endanger public health and welfare, and 
those emissions of such greenhouse gases from motor vehicles 
are contributing to such concentrations and hence endangering 
public health and welfare. Subsequently, EPA moved forward with 
greenhouse emissions standards from motor vehicles, including 
its ``Light Duty Vehicle'' rule which sets greenhouse gas 
emissions standards for passenger cars and trucks for Model 
Years 2012-2016 and went into effect on January 2, 2011, with 
estimated compliance costs of $52 billion. EPA has also 
proposed greenhouse gas and fuel economy standards for medium 
and heavy duty vehicles for Model Years 2014-2018, with 
estimated compliance costs of $7.7 billion. EPA has advised 
that it is considering actions to reduce greenhouse emissions 
from other transportation sources.
    EPA contends that, once it began regulating greenhouse gas 
emissions from vehicles, there was an automatic statutory 
trigger requiring it to begin regulating such emissions for 
stationary sources under two CAA permitting programs. These 
programs are known as the Prevention of Significant 
Deterioration (PSD) preconstruction permit program, and the 
Title V operating permit program. These are permits that 
regulated entities must get when they make a major modification 
or build new projects. EPA estimates that prior to its new 
global warming rules, only 280 sources were required annually 
to obtain PSD permits, and that nationwide there are 
approximately 15,000 sources that currently have Title V 
operating permits. EPA concluded, however, that once the agency 
began regulating greenhouse gas emissions from motor vehicles 
on Jan. 2, 2011, (i) 82,000 sources would need PSD permits and 
to install ``Best Available Control Technology'' or ``BACT'' 
(determined on a case by case basis); and (ii) 6.1 million 
sources would need to obtain Title V permits.
    EPA itself called this potential regulatory result 
``absurd'' and said it would lead to a grid-locking of the 
permit system, as permitting authorities would be swamped with 
permit applications and permitting would come to a halt for 
both large and small sources. Without permits, facilities 
cannot construct or modify, with potentially devastating 
economic consequences.
    In May 2010, EPA issued its so-called ``Tailoring Rule'' 
pursuant to which EPA raised the CAA statutory thresholds to 
require permitting initially only for the largest industrial 
sources of greenhouse gas emissions from 100/250 tons to 
100,000 tons per year. In essence, EPA replaced the thresholds 
that Congress itself established with much higher thresholds. 
EPA has ``tailored'' the CAA permitting requirements to 
initially cover large industrial facilities it projects 
represent 70% of all U.S. greenhouse gas emissions (e.g., power 
plants, large boilers, pulp and paper, cement, iron and steel, 
refineries and nitric acid plants). EPA plans to initially 
limit permitting requirements to 1,600 PSD permits annually and 
15,550 operating permits. EPA estimates the costs of this 
permitting avoided by the Tailoring Rule are $78 billion 
annually. EPA, however, has already scheduled other rulemakings 
to address phasing in permitting for smaller sources, including 
rulemakings to be completed in 2012 and 2016.
    There has been a great deal of discussion about whether EPA 
has the legal authority to ``tailor'' numerical thresholds 
established by Congress in this fashion and several causes of 
action have been filed challenging EPA's actions.
    The first PSD permitting requirements for large industrial 
facilities became effective in January 2011 and the first Title 
V permit requirements will go into effect in July 2011. To 
comply with the permitting requirements, EPA, has issued BACT 
Guidance which indicates BACT may mean efficiency measures, 
carbon capture and storage (CCS) technologies (which as a 
practical matter are not commercially deployed and not expected 
to be for years), and leaves open to states whether or not they 
may require fuel switching to reduce greenhouse gas emissions.
    In addition to PSD and Title V permitting, in the past EPA 
has outlined an array of possible additional greenhouse gas 
related rulemakings under the CAA. For example, in December 
2010, EPA announced it plans to set new greenhouse gas ``New 
Source Performance Standards'' specifically for existing 
petroleum refineries and fossil fired power plants. EPA has 
also previously advised that the agency is also considering 
petitions or requests to regulate such emissions from cement 
plants, nitric acid plants, utility boilers, oil and gas 
production, landfills, and concentrated animal feeding 
operations.
    In October 2009, EPA also issued mandatory greenhouse gas 
reporting rules pursuant to the CAA and appropriations 
legislation (FY 2008 Consolidated Appropriations Act, H.R. 
2764, Pub. L. 110-161). EPA estimated the costs of the initial 
rule to be $132 million in the first year, and $89 million 
annually. EPA estimated that over 10,000 facilities in the U.S. 
would be covered by the rules and would have to begin annual 
reporting requirements. Since October 2009, EPA has 
supplemented the reporting rule four times to add more sources.
    H.R. 910 would prevent these EPA's expansive regulations of 
stationary sources from being implemented by the agency, and 
circumventing Congressional intent. It would also return global 
warming policymaking responsibility where it belongs--Congress.

                         Economic Justification

    EPA's global warming regulations under the CAA seem almost 
tailor-made to exacerbate the very economic problems the nation 
now faces. The Subcommittee on Energy and Power held two 
hearings that included discussion regarding the economic 
implications of the agency's agenda. The hearings echoed those 
of past legislative debates over cap and trade energy taxes in 
detailing the adverse impact of such measures on energy prices 
and employment as well as the likelihood that the high costs 
would not be justified by any demonstrable climate change 
reduction benefits.

                              ENERGY COSTS

    Fossil fuels--coal, oil, and natural gas--provide this 
nation with 85 percent of its energy. They are widely used 
because of their availability, reliability and affordability. 
There is no question that low-cost energy is the lifeblood of a 
strong and free economy--empowering in both the figurative and 
literal sense. America's fossil fuel-based energy supplies 
already face the world's most stringent regulations, including 
numerous air pollution measures under the CAA. Now, EPA is 
beginning the process of rolling out a set of new ones based on 
addressing carbon dioxide and other greenhouse gas emissions. 
It is nothing short of a dramatic transformation of the 
American economy via what amounts to a massive energy tax.
    Motor fuels are among the impacted energy sources. As it 
is, the price of gasoline has nearly doubled since the 
beginning of 2009. Although still slightly below the $4.00 per 
gallon levels reached in the summer of 2008, today's high 
prices are particularly challenging given that many households 
are struggling in the current economy. While exogenous events, 
namely unrest in North Africa and the Middle East, are a 
significant factor in rising oil and motor fuels prices, 
federal laws and regulations have long been a contributor as 
well. For example, the U.S. remains the only nation in the 
world that places substantial domestic oil supplies off limits. 
With additional domestic production, prices would be lower and 
vulnerability to geopolitical events would be reduced. In 
addition to oil production constraints, a long list of 
regulations imposed on domestic refiners add to the cost of 
turning oil into gasoline and diesel fuel.
    Rather than revisiting these costly existing restrictions 
with an eye towards modifications that would ease future pain 
at the pump, the Obama administration continues adding to the 
burden with its global warming agenda. These regulations apply 
to domestic refineries and may also add further roadblocks to 
domestic oil production. For example, domestic refiners and 
producers will come under the PSD and Title V permitting 
programs for greenhouse gases. In addition, on December 23, 
2010, EPA announced that it will propose New Source Performance 
Standards (NSPS) for such emissions from refiners which will 
apply to existing as well as new sources. EPA has not conducted 
any economic analysis of what these stationary source GHG rules 
might cost.
    The domestic refining sector has raised concerns about the 
impact on the cost of producing motor fuels. On February 9, 
2011, the Subcommittee received testimony from the Vice 
President of Lion Oil, an Arkansas refiner, who testified that 
a major refinery expansion project at his company had been put 
on hold, and that ``the uncertainty and potentially prohibitive 
costs associated with possible cap-and-trade legislation and 
EPA's greenhouse gas regulations were a critical factor leading 
us to delay the completion of the expansion.'' With regard to 
the ultimate impact of EPA's new regulations on retail prices, 
he stated that `` [H.R. 910] is also necessary to protect 
consumers, farmers, and truckers from higher gasoline and 
diesel fuel prices.'' When asked what EPA regulations he was 
most concerned about, he acknowledged that his industry faces 
many, but that ``the PSD and the NSPS portions of the 
greenhouse gas regulations are the most immediate concern.''
    Similar concerns were also raised in letters of support for 
H.R. 910 from the National Petrochemical and Refiners 
Association (NPRA) and individual companies. The President of 
NPRA stated that ``[s]ome of our members have been forced to 
stop expansion projects that would have increased our domestic 
petrochemical and fuel supply'' because of EPA's greenhouse gas 
agenda, which he believes would ``raise consumer fuel costs 
further by restricting our domestic energy production.'' A 
representative of one of the nation's large refining companies, 
Valero, stated that ``every credible economic analysis that has 
been performed shows that Americans will pay higher prices at 
the pump . . . as a direct result of EPA's action.''
    EPA Administrator Lisa Jackson has countered that EPA 
regulations may reduce fuel costs and dependence on foreign oil 
as a consequence of fuel savings under the new motor vehicle 
fuel efficiency standards, which were the first greenhouse gas 
regulations to be promulgated by the agency. However, H.R. 910 
explicitly exempts these new light duty fuel efficiency 
standards, which the Administration agreed in 2009 to 
promulgate pursuant to an agreement between EPA, the National 
Highway Traffic Safety Administration (NHTSA) and the State of 
California. Under H.R. 910, these provisions, which are 
applicable to Model Years 2012 through 2016, will still go into 
force as planned, as will EPA's proposed standards for medium 
and heavy duty engines and vehicles for Model Years 2014 
through 2018. Thus, any energy savings from these new standards 
are preserved by H.R. 910.
    For 2017 and afterwards, H.R. 910 prevents EPA and 
California from setting its own further standards for 
greenhouse gas tailpipe emissions under the CAA, restoring sole 
authority for fuel economy regulations with NHTSA where it has 
resided since the 1975 Energy Policy and Conservation Act. 
NHTSA can strengthen fuel economy standards for 2017 and beyond 
if it believes doing so is in the public interest, and Congress 
can also direct stringent standards.
    According to an analysis conducted for the National Black 
Chamber of Commerce by Charles River Associates, the American 
Energy and Security Act of 2009 was estimated to increase 
gasoline prices by 19 cents per gallon by 2015 and 95 cents by 
2050--above and beyond anything else that may impact prices in 
the years ahead. While EPA has provided very few details 
regarding what their full greenhouse gas regulatory 
requirements will ultimately entail, it is unlikely that the 
agency would be satisfied with anything less stringent than the 
unsuccessful legislation the regulations are attempting to 
replace. Indeed, during the debate over climate legislation in 
2009 and 2010, Administrator Jackson warned of higher costs 
associated with regulations in order to urge Congress to enact 
legislation as the preferred alternative. When asked by Rep. 
John Dingell, during an April 22, 2009 Committee on Energy and 
Commerce hearing on the American Energy and Security Act, 
whether regulating greenhouse gases under the Clean Air Act 
would result in a ``glorious mess,'' Administrator Jackson 
replied that ``if your point, sir, is that it is more efficient 
to do it via a bill, via new legislation like this discussion 
draft envisions, then I couldn't agree more.''
    Beyond motor fuels, EPA's greenhouse gas regulations also 
threaten to raise electricity costs. Coal is used to generate 
half of America's electricity, and it is also the energy source 
most heavily targeted under EPA's greenhouse gas regulatory 
scheme. Electric utilities, manufacturers who rely on 
affordable coal-fired generation to compete globally, and the 
operators of coal mines who supply this energy source all 
testified in favor of H.R. 910. The President and CEO of South 
Carolina electricity provider Santee Cooper testified at the 
February 9th hearing that EPA's greenhouse gas regulations, 
along with others, threaten ``premature shutdown of significant 
amounts of the existing U.S. coal fleet; increases in 
electricity prices; risks to electric reliability; job losses; 
and harm to the U.S. economy.'' He added that the cost of 
natural gas fired electricity, responsible for nearly 20 
percent of generation, would rise as well. At a March 1, 2011 
hearing, the President of the Ohio Coal Association stated that 
``[a]llowing the USEPA to regulate greenhouse gases will 
increase the cost to power our Country, cause massive transfers 
of wealth, and result in huge job losses that will not be 
recovered.''
    As with gasoline prices, the full impact on electricity 
prices cannot be accurately predicted until EPA better explains 
what its greenhouse gas agenda would require. A Vice President 
of Charles River Associates testified on March 1st that all 
pending EPA regulations ``could increase real (i.e. before 
inflation) wholesale electricity prices by 35-40% from 2015 
onward. Most of this impact is attributable to the greenhouse 
gas regulations.''
    High energy costs disproportionately burden low income 
households and the smallest of businesses. The President and 
CEO of the National Black Chamber of Commerce noted at the 
February 9th hearing that ``[w]hile paying a higher heating 
bill this month or doling out money for gasoline on the way 
into the office from McLean or Bethesda may mean little to 
government bureaucrats, people living paycheck to paycheck and 
small businesses trying to get by simply cannot afford it, 
especially now.''

                                  JOBS

    Unemployment remains persistently high, and the American 
people are demanding policies that will get the nation back to 
work. But the record also makes clear that greenhouse gas 
regulations reduce rather than create domestic jobs.
    As discussed previously, EPA's regulations would raise 
gasoline and electricity costs, harming both consumers and 
businesses. But energy is only part of the higher costs EPA's 
agenda would impose on America's job creators. The costs of 
compliance with these new requirements will also be 
substantial, though hard to quantify since the agency has yet 
to inform the regulated community what technologies would pass 
muster. Further, the uncertainty raised by this as-yet-
unspecified regulatory scheme is already having a chilling 
effect on plant expansions and other job-creating investments. 
Worse, given the backdrop of intense global competition in the 
manufacturing sector, these unilateral EPA regulations mean 
that jobs will migrate to nations like China, India, and others 
who have made clear that they have no plans to impose similar 
global warming measures on their industries.
    The breadth of the impact is staggering. At the February 
9th and March 1st hearings, the Subcommittee heard from a broad 
cross section of sectors--manufacturers, energy producers, 
small businesses, farmers--testifying against EPA's global 
warming regulations. Subsequently, a large number of trade 
associations, representing a significant percentage of private 
sector employment, have come out in support of H.R. 910. This 
includes the American Forest and Paper Association, American 
Electric Power, American Iron and Steel Institute, American 
Public Power Association, Business Roundtable, Fertilizer 
Institute, Industrial Energy Consumers of America, Metalcasters 
Alliance, National Association of Realtors, National 
Cattlemen's Beef Association, National Petrochemical and 
Refiners Association, American Farm Bureau Federation, U.S. 
Chamber of Commerce, National Association of Manufacturers, 
National Mining Association, and the National Rural Electric 
Cooperative Association.
    The effects of EPA's regulations are potentially felt most 
acutely by manufacturers and by energy intensive and trade 
exposed industries competing in a global marketplace. In some 
instances, facility expansions have already been delayed as is 
occurring with the Lion Oil's Arkansas refinery expansion 
project. Their representative noted that ``at the same time 
construction jobs were being terminated in El Dorado, Arkansas, 
in India, more than 75,000 workers were embarking on a 3-year 
project to build a brand-new state-of-the-art refinery designed 
purely for export purposes.'' Other projects have been scaled 
back considerably as is the case with a Nucor Corporation steel 
facility in Louisiana. The General Manager of Environmental 
Affairs at Nucor stated at a February 9th hearing that the 
original project ``was around 1,000 jobs when the full project 
was in, and we are around 150 jobs right now. And there was 
about 2,000 construction jobs originally and we are at about 
500 construction jobs right now. . . .''
    Rather than provide regulatory certainty, EPA's ill-defined 
regulatory rollout is creating uncertainty and stifling 
investment. The President of the Industrial Energy Consumers of 
America stated on March 1st that ``[t]he EPA greenhouse gas 
regulation is an example of regulation that creates uncertainty 
and discourages investment and when added to the many other new 
regulations it is understandable why corporate America is 
sitting on $2 trillion of cash.'' Many believe EPA's GHG 
policies are a contributor to the slow economic recovery and 
lingering high unemployment.
    Not only are these policies bad for the American economy 
and domestic jobs, but they do little to reduce greenhouse gas 
emissions. EPA's rules will chase manufacturing activity to 
nations that often have higher greenhouse gas emissions per 
unit output (sometimes referred to as ``carbon leakage''). 
Nucor said that ``the U.S. steel industry has the lowest CO2 
emissions per ton in the world,'' and that ``these very 
regulations and practices that are intended to improve the 
environment actually result in increased global emissions and 
more environmental impact than if the industry had remained in 
the United States.'' The Manufacturing Director for chemical 
producer FMC similarly testified that ``[t]he current U.S. 
approach to regulating greenhouse gases not only fails to 
incentivize us to achieve greater efficiency, but over time it 
may lead to U.S. natural soda ash producers to lose business to 
our off-shore rivals, mainly the Chinese, who produce their 
soda ash synthetically. Synthetic soda ash generates an average 
of 30 percent greater greenhouse gas emissions per ton than 
does soda ash mined from natural resources.'' In sum, there is 
little if any environmental gain to justify the economic pain.
    Administrator Jackson suggested that small businesses are 
not harmed by EPA's greenhouse gas rules because the so-called 
Tailoring Rule prevents direct regulation of them, at least at 
the outset. However, small business, just like homeowners and 
car owners, will face higher energy costs as a consequence of 
the burdens imposed on utilities and refineries. Indeed, 
despite a large number of pending regulations, the President 
and CEO of the National Black Chamber of Commerce, who also 
sits on the Board of the U.S. Chamber of Commerce, singled out 
EPA's greenhouse gas measures as the top concern of the small 
business community. A representative of James River Air 
Conditioning, who testified on behalf of the National 
Federation of Independent Business (NFIB) on March 1st, added 
that many small businesses are contractors for large 
construction projects that are being discouraged by EPA's 
agenda. Further, he and other small business owners find little 
comfort in the Tailoring Rule, as ``it would merely temporarily 
delay inevitable and onerous permitting requirements.''
    Similar claims that agricultural jobs are unaffected are 
also misleading. The President of the Illinois Farm Bureau who 
testified on behalf of the American Farm Bureau on February 
9th, warned that ``farmers and ranchers receive a double 
economic jolt,'' from these regulations. He explained that 
``even if this `tailoring' approach were to survive, farmers 
and ranchers would still incur the higher costs of compliance 
passed down from utilities, refiners and fertilizer 
manufacturers that are directly regulated as of January 2, 
2011.'' In addition, he was also wary of EPA's so-called 
Tailoring Rule, testifying that if the Tailoring Rule fails to 
withstand legal challenge, ``[f]or the first time, many farm 
and ranch operations will likely be subject to direct new 
source review/prevention of significant deterioration 
construction permits and Title V permit requirements under the 
Clean Air Act.''
    The Senior Vice President and Chief Economist for the 
American Council for Capital Formation testified on February 
9th about the overall impact of EPA's rules on the American 
economy. She stated that the uncertainty created by these rules 
has discouraged the investment necessary for a robust recovery 
and job growth, and estimates that ``in 2014 there would be an 
economy wide job loss of 476,000 to 1,400,000 when direct, 
indirect, and induced effects are included.'' She added that 
these are net job losses, after any so-called green jobs are 
taken into account. The last point was reinforced by a 
representative of Charles Rivers Associates on March 1st . When 
asked about the green jobs, he conceded that firms coming under 
EPA's global warming regulations would have to employ people in 
order to comply with the new requirements, and would raise 
employment amongst companies that make pollution control 
equipment or produce carbon-free energy. However, these 
policies greatly increase energy and other operating costs, 
which destroy far more jobs in the process. He concludes that 
``EPA's new regulations will create losses throughout the 
economy that more than offset any gains for specific industries 
that receive new orders because of EPA regulations.'' Indeed, 
this appears to be happening already.

                         COSTS VERSUS BENEFITS

    The debate over H.R 910 is not a debate about the science 
of climate change, but rather about whether EPA regulation of 
greenhouse gases under the CAA is a sensible solution or not. 
It clearly is not the appropriate vehicle.
    Those skeptical of the claim that global warming is a dire 
crisis are particularly concerned by the staggering costs of 
EPA's global warming regulations. But it is not necessary to be 
a climate change skeptic to be a skeptic of EPA's regulatory 
agenda, as this agenda would not make an appreciable difference 
in either the atmospheric concentrations of carbon dioxide and 
other greenhouse gases or the earth's future temperature.
    As discussed previously, the unilateral nature of EPA's 
actions, amidst the backdrop of developing world emissions that 
already surpass America's emissions and are growing at a rate 
many times faster, raise serious doubts as to the efficacy of 
the agency's regulatory scheme. Further, the fact that American 
manufacturing activity would likely be outsourced to nations 
with higher emissions per unit output raises the possibility 
that the rules may prove environmentally counterproductive.
    China alone out-emits the United States, and its emissions 
growth is projected by the Energy Information Administration to 
be several times higher than America's through 2030. At the 
February 9th hearing, EPA Administrator Jackson confirmed, as 
she did at previous cap and trade hearings, that unilateral 
action would be nearly meaningless, conceding that ``we will 
not ultimately be able to change the amount of CO2 that is 
accumulating in the atmosphere alone. . . .'' She suggested 
that EPA should move ahead nevertheless in the hope that other 
nations would follow the lead of the United States. Indeed, at 
a March 8th Subcommittee hearing entitled ``Climate Science and 
EPA's Greenhouse Gas Regulations,'' scientists and public 
health experts raised doubts that EPA's agenda would make a 
measurable difference, either in emissions, future 
temperatures, or the claimed environmental and public health 
impacts. When questioned about the impact of EPA's regulations, 
the Director of the Earth System Science Center at the 
University of Alabama in Huntsville stated that ``[I] have done 
several calculations in that regard and the impact is miniscule 
to whatever--really both the greenhouse gas concentration total 
and what the climate system might do as a result of that 
delta.''
    In some cases, the predicted harm from global warming may 
be outweighed by the harm from EPA's global warming 
regulations--a cure potentially worse than the disease. For 
example, in response to assertions that continued warming would 
harm corn yields, this witness, who is also Alabama's State 
Climatologist, noted that ``[w]e grow corn from North Dakota to 
Alabama. When it is warm in Alabama, we still get 240 bushels 
an acre for irrigated corn, a tremendous amount of corn. The 
temperature is not as critical when you know how to farm and 
deal with the variations that occur in a particular area. But I 
can assure you, because I talk to a lot of farmers and deal 
with them, that their fuel costs, their fertilizer costs, they 
are complaining a lot right now and just cannot bear to see 
those costs go up any more which would happen if a price were 
put on carbon like that.''
    With regard to claims that EPA's rule would improve public 
health, the Professor Emeritus of Tropical Public Health at the 
Uniformed Services University of the Health Sciences stated 
that ``[l]et us disabuse ourselves of the idea, if it is out 
there, that EPA controlling CO2 will improve health outcomes in 
the US or elsewhere.'' Indeed, he expressed strong concerns 
about the public health implications brought on by EPA's costly 
agenda. He stated that ``with greater EPA control over CO2, it 
is likely that economic growth will suffer and we will be 
poorer as a nation. I have observed in my many years of 
scientific research, in both rich and poor countries, the rich 
countries can afford to deal with public health problems.'' EPA 
confirmed the high costs relative to reductions in temperature 
in only regulatory impact analysis of its the light duty 
vehicle rule. In its analysis, EPA concluded that the rule 
would impose compliance costs of nearly $52 billion dollars but 
would only reduce the earth's future temperature by an 
estimated 0.006 to 0.015 degrees Celsius (no more than 0.027 
degrees Fahrenheit) by 2100. Sea level rise was expected to be 
reduced by 0.06 to 0.14 cm (no more than 0.055 inches) by 2100. 
If this ratio of costs to benefits applies to the rest of EPA's 
regulations, the agency may well be embarking on a trillion 
dollar agenda in order to make a difference in the earth's 
future temperature of, at most, one or two tenths of a degree 
Fahrenheit by 2100 and a comparably trivial difference in sea 
level rise--quite possibly the worst deal ever presented to the 
American people.

        RESTORING THE ROLE OF CONGRESS IN SETTING CLIMATE POLICY

    Rather than serving as a departure from the longstanding 
Congressional position on climate change, H.R. 910 restores it. 
Greenhouse gas emissions controls under the Clean Air Act have 
in the past been considered and rejected by Congress. The many 
issues now emerging from EPA's greenhouse gas regulatory agenda 
confirm that Congress' reluctance was well founded.
    Given the sweeping consequences of this agenda on the 
American people, it is clear that global warming policy 
decisions should be directed by Congress and not a federal 
agency. That is what H.R. 910 seeks to accomplish.
    Notwithstanding the Supreme Court's decision in 
Massachusetts v. EPA, the language of the CAA argues against 
its use as a tool to address global warming. Although the CAA 
specifically expressly identifies a large number of air 
pollutants and details how they will be regulated, the statute 
contains no direct authority for the agency to regulate carbon 
dioxide or other greenhouse gases. In the debate over the 1990 
amendments to the CAA (the last major amendments to this 
statute), two significant global warming provisions were 
included in the Senate-passed version, S. 1630. However, these 
provisions were taken out of the bill that ultimately passed.
    The existing provisions now being applied to carbon dioxide 
were designed for localized pollution like particulate matter 
and lead, but make little sense when addressing greenhouse 
gases that are spread evenly throughout the globe, and for 
which unregulated foreign emissions are several times more 
significant than regulated domestic sources. The end result of 
this unilateral scheme cannot help but be ineffective in 
addressing climate change.
    In the years since the 1990 debate over CAA amendments, 
Congress has considered a number of pieces of legislation that 
would create authority to regulate greenhouse gases. In fact, 
Congress in the last ten years has considered and rejected a 
number of such bills--either cap-and-trade legislation, multi-
pollutant bills that included carbon dioxide as a pollutant, or 
other measures. The most recent and extensive debate was over 
the American Clean Energy and Security Act of 2009, for which 
no Senate counterpart was ever brought to a vote in that body. 
The fact that members introduced these bills strongly suggests 
that they did not believe Congress had already created such 
authority when it enacted the original CAA or its 1977 and 1990 
amendments. More importantly, the fact that none of these bills 
were enacted underscores where Congress stands on the issue.
    The very objections Congress has expressed over global 
warming measures are precisely those being realized now that 
EPA's regulations are coming into force. A clear example of 
this can be seen with the 95-0 passage of S. Res. 98, the 
Senate Byrd-Hagel Resolution. This 1997 resolution expressed 
the sense of the Senate that the U.S. should not become a 
signatory to any multilateral global warming treaty that either 
exempted developing nations like China or harmed the U.S. 
economy. The Kyoto Protocol did both, and indeed neither 
President Clinton nor his successors has submitted the treaty 
to the Senate for ratification. The very fears raised by the 
Senate in its Byrd-Hagel resolution--disproportionate and 
significant harm to the American economy--are now being 
realized under EPA's regulations.
    Proponents of EPA's agenda have stated that the Supreme 
Court's decision should be the last word, but this is 
incorrect. The Supreme Court did not mandate that the EPA make 
an endangerment finding and indeed no administration whether 
Democrat or Republican has ever made such an unprecedented 
finding. While it is the role of the Supreme Court to interpret 
existing legislation such as the CAA, Congress is free to amend 
or clarify that legislation if it believes the Supreme Court 
concluded wrongly or that circumstances necessitate a change in 
the law. Indeed, the current Congress would be remiss if it 
ignored the deleterious impact of EPA's regulatory agenda in 
favor of a highly controversial 5 to 4 Supreme Court decision 
and its interpretation of Congressional intent when the CAA 
which was enacted--decades before global warming emerged as an 
issue.
    Further, it should be noted that in Massachusetts v. EPA 
the issue before the Court was standards for motor vehicles and 
``whether EPA has the statutory authority to regulate 
greenhouse emissions from new motor vehicles'' under Section 
202(a) of the Clean Air Act. The Court concluded that EPA had 
the authority to regulate such emissions under section 
202(a)(1) of the CAA Act ``[i]f EPA makes a finding of 
endangerment'' under the provision, stating that ``EPA must 
ground its reasons for action or inaction in the statute.'' The 
Court never addressed standards for regulation of greenhouse 
gases from stationary sources. To the extent that EPA has moved 
forward with regulation of motor vehicle emissions, H.R. 910 
allows EPA's regulation of greenhouse gases from motor vehicles 
under its light-duty vehicle rule and proposed medium and heavy 
duty truck rule, while prohibiting the agency's expansion of 
such regulation for future years and preventing the agency from 
moving forward with its regulation of greenhouse gas emissions 
from stationary sources.

                                Hearings

    The Subcommittee on Energy and Power on February 9, 2011 
held a legislative hearing on the discussion draft of ``The 
Energy Tax Prevention Act'' and received testimony from:
    
 The Honorable James M. Inhofe, U.S. Senator, 
Ranking Member, Committee on Environment and Public Works
    
 The Honorable Lisa Jackson, Administrator, U.S. 
Environmental Protection Agency
    
 The Honorable Greg Abbott, Attorney General, State 
of Texas
    
 Harry C. Alford, President and CEO, National Black 
Chamber of Commerce
    
 Steve Rowlan, General Manager, Environmental 
Affairs, Nucor Corporation
    
 James Pearce, Director of Manufacturing, FMC 
Corporation
    
 Steve Cousins, Vice President, Lion Oil Company
    
 Philip Nelson, President, Illinois Farm Bureau
    
 Lonnie N. Carter, President and CEO, Santee Cooper
    
 Betsey Blaisdell, Senior Manager of Environmental 
Stewardship, The Timberland Company
    
 Fred T. Harnack, General Manager, Environmental 
Affairs, U.S. Steel Corporation
    
 Peter S. Glaser, Partner, Troutman Sanders LLP
    
 Margo Thorning, Senior Vice President and Chief 
Economist, American Council for Capital Formation
    
 Lynn R. Goldman, American Public Health 
Association
    
 James N. Goldstene, Executive Officer, California 
Air Resources Board
    The Subcommittee on Energy and Power on March 1, 2011 held 
a hearing on ``EPA's Greenhouse Gas Regulations and Their 
Effect on American Jobs.'' The Subcommittee received testimony 
from:
    
 Mike Carey, President, Ohio Coal Association
    
 Forrest McConnell, President, McConnell Honda & 
Acura (on behalf of the National Automobile Dealers 
Association)
    
 Dan Reicher, Professor of Law and Executive 
Director of the Steyer-Taylor Center for Energy Policy and 
Finance, Stanford Law School
    
 Hugh A. Joyce, President, James River Air 
Conditioning Company, Inc. (on behalf of National Federation of 
Independent Business)
    
 W. David Montgomery, Vice President, Charles River 
Associates
    
 Paul Cicio, President, Industrial Energy Consumers 
of America
    
 The Honorable Gina A. McCarthy, Assistant 
Administrator, Office of Air and Radiation, U.S. Environmental 
Protection Agency
    The Subcommittee on Energy and Power on March 8, 2011 held 
a hearing on ``Climate Science and EPA's Greenhouse Gas 
Regulations.'' The Subcommittee received testimony from:
    
 Dr. Richard Somerville, Distinguished Professor 
Emeritus, Scripps Institution of Oceanography, University of 
California, San Diego
    
 Dr. Christopher Field, Director, Department of 
Global Ecology, Carnegie Institution of Washington
    
 Dr. Francis W. Zwiers, Director, Pacific Climate 
Impacts Consortium, University of Victoria
    
 Dr. Donald Roberts, Professor Emeritus, Uniformed 
Services University of the Health Sciences
    
 Dr. John R. Christy, Director, Earth System 
Science Center, University of Alabama in Huntsville
    
 Dr. Roger Pielke, Sr., Senior Research Scientist, 
Cooperative Institute for Research in Environmental Sciences, 
University of Colorado at Boulder
    
 Dr. Knute Nadelhoffer, Director, University of 
Michigan Biologicial Station, University of Michigan

                        Committee Consideration

    On February 2, 2011, Chairman Fred Upton and Subcommittee 
on Energy and Power Chairman Ed Whitfield released a discussion 
draft of the Energy Tax Prevention Act of 2011. On March 3, 
2011, the proposed legislation was introduced as H.R. 910.
    On March 10, the Subcommittee on Energy and Power reported 
the bill and favorably recommended it to the full Committee. 
During the markup, no amendments were offered.
    On March 14, 2011 and March 15, 2011 the Committee on 
Energy and Commerce met in open markup session. During the 
markup, eleven amendments were offered of which one was 
adopted, as amended. On March 15, 2011, the Committee ordered 
H.R. 910 favorably reported to the House, amended.

                            Committee Votes

    Clause 3(b) of rule XII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Upton to order H.R. 910, reported to the House, 
as amended, was agreed to by a record vote of 34 yeas and 19 
nays. The following reflects the recorded votes taken during 
the Committee consideration, including the names of those 
Members voting for and against.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee made findings that are 
reflected in this report.

         Statement of General Performance, Goals and Objectives

    H.R. 910 amends the CAA to clarify that the Administrator 
of the Environmental Protection Agency does not have the 
authority to promulgate any regulation concerning, take action 
relating to, or take into consideration the emission of a 
greenhouse gas to address climate change, and for other 
purposes.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the committee finds that H.R. 
910, the Energy Tax Prevention Act of 2011, would result in no 
new or increased budget authority, entitlement authority, or 
tax expenditures or revenues.

                                Earmark

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the committee finds that H.R. 910, the energy Tax Prevention 
Act of 2011, contains no earmarks, limited tax benefits, or 
limited tariff benefits.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                                    March 30, 2011.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 910, the Energy 
Tax Prevention Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 910--Energy Tax Prevention Act of 2011

    Summary: H.R. 910 would amend the Clean Air Act to prohibit 
the Environmental Protection Agency (EPA) from regulating 
greenhouse gases (GHGs) to address climate change. The bill 
would create exceptions for various programs in current law, 
including emission standards for vehicles and EPA's renewable 
fuel standard. Because certain EPA activities associated with 
regulating GHGs would be prohibited under the bill, CBO 
estimates that enacting this legislation would save $57 million 
in 2012 and about $250 million over the 2012-2016 period, 
assuming that appropriations in those years were reduced 
accordingly.
    Pay-as-you-go procedures do not apply to H.R. 910 because 
the bill would not affect direct spending or revenues.
    H.R. 910 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
expand an existing preemption of state laws that regulate 
greenhouse gas emissions from motor vehicles. Although the 
preemption would limit the application of state law, CBO 
estimates that it would impose no duty on state governments 
that would result in additional spending.
    The bill contains no new private-sector mandates as defined 
in UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 910 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                     -----------------------------------------------------------
                                                                                                          2012-
                                                        2012      2013      2014      2015      2016      2016
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.......................       -57       -58       -59       -60       -62      -296
Estimated Outlays...................................       -23       -49       -58       -60       -60      -250
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
910 will be enacted by the end of fiscal year 2011, that 
appropriations for regulating GHGs will be reduced, and that 
resulting outlay savings will follow historical spending 
patterns for identical and similar programs.
    According to EPA, appropriations allocated to support 
activities related to regulating GHGs totaled about $17 million 
in 2010. Funding at that annual rate is also provided for 2011 
under the Additional Continuing Appropriations Amendments, 2011 
(Public Law 112-6).\1\ Based on information from EPA, CBO 
estimates that for 2012 the agency will require an additional 
$40 million in appropriations under current law to support 
various activities related to regulating GHGs, including 
promulgating New Source Performance Standards, establishing 
permitting requirements, and continuing to support ongoing 
efforts associated with the GHG reporting registry. Under this 
legislation, such activities would be prohibited. Thus, CBO 
estimates that enacting the legislation would reduce the need 
for appropriations in 2012 by about $57 million.
---------------------------------------------------------------------------
    \1\A full-year appropriation for EPA programs in 2011 has not yet 
been enacted. for this estimate, CBO assumes that the partial-year 
funding already provided will be increased proportionately--
annualized--to provide full-year funding.
---------------------------------------------------------------------------
    In subsequent years, it is not certain whether EPA would 
pursue additional activities to meet requirements related to 
regulating GHGs under current law or whether current activities 
would be maintained. However, assuming funding levels in those 
years would remain close to the 2012 level with adjustments for 
inflation, CBO estimates that enacting the legislation would 
result in savings of $250 million over the 2012-2016 period, if 
appropriations for EPA over that period were reduced 
accordingly.
    Intergovernmental and private-sector impact: H.R. 910 
contains an intergovernmental mandate as defined in UMRA 
because it would expand an existing preemption of state laws 
that regulate GHGs from motor vehicles. Under current law, 
California may obtain a waiver from EPA to establish its own 
standard for GHGs from motor vehicles. Once EPA has approved 
the waiver, other states may adopt the California standard. The 
bill would prevent EPA from approving such waivers, thus 
expanding the preemption. Although the preemption would limit 
the application of state law, CBO estimates that it would 
impose no duty on state governments that would result in 
additional spending.
    The bill contains no new private-sector mandates as defined 
in UMRA.
    Estimate prepared by: Federal Costs: Susanne S. Mehlman; 
Impact on State, Local, and Tribal Governments: Ryan Miller; 
Impact on the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the congressional Accountability Act.

               Section-by-Section Analysis of Legislation


Section 1. Short title

    Section 1 provides the short title for the legislation, the 
``Energy Tax Prevention Act of 2011.''

Section 2. No regulation of emissions of greenhouse gases

    Section 2 amends the General Provisions of the Clean Air 
Act by adding a new Section 330. Section 330(a) expressly 
defines the greenhouse gases that are to be excluded from any 
climate change-related regulation (e.g., water vapor, carbon 
dioxide, and methane). Section 330(b)(1) makes clear that the 
Administrator of EPA may not promulgate regulations or take 
action with respect to greenhouse gases to address climate 
change under the Clean Air Act. The term ``air pollutant'' is 
clarified to exclude greenhouse gases for the purposes of 
addressing climate change.
    
 Section 330(b)(2) provides for the following 
exceptions to the prohibition on the Administrator's greenhouse 
gas regulatory authority: H.R. 910 allows EPA to implement 
emissions standards already promulgated by the agency for Model 
Year 2012-2016 passenger cars and trucks, and proposed by EPA 
for Model Years 2014-2018 for medium and heavy-duty trucks. 
H.R. 910 allows EPA to carry out statutorily authorized 
activities relating to its renewable fuel standard program 
which requires that transportation fuel sold in the United 
States contain a minimum volume of renewable fuel.
    
 H.R. 910 allows EPA to carry out statutorily 
authorized Federal research, development, and demonstration 
programs addressing climate change. H.R. 910 allows EPA to 
implement Title VI under the CAA which relates to stratospheric 
ozone protection and compliance with the Montreal Protocol on 
Substances That Deplete the Ozone Layer, to which the United 
States is a signatory. H.R. 910 does not preclude EPA from 
continuing to participate fully in the Montreal Protocol 
process and related international negotiations.
    
 H.R. 910 allows EPA to continue to require 
utilities to gather and report information on greenhouse gas 
emissions.
    Section 330(b)(3) clarifies that the exceptions in (b)(2) 
do not trigger regulatory obligations under part C of Title I 
(``Prevention of Significant Deterioration of Air Quality'') or 
Title V (``Permits'') of the Clean Air Act.
    Section 330(b)(4) expressly repeals prior rulemakings by 
EPA relating to regulating greenhouse gases to address climate 
change.
    Section 330(b)(5) states that nothing in the Act affects 
State authority to adopt and enforce State laws and regulations 
pertaining to greenhouse gases; however, any changes States 
have adopted in their State implementation plans and Title V 
operating permit programs with respect to greenhouse gases are 
not federally enforceable and are deemed stricken.

Section 3. Regulation of automobiles

    Section 3 amends Clean Air Act section 209(b) to exclude 
greenhouse gases from the Administrator's waiver authority for 
new motor vehicles or new motor vehicle engines for Model Year 
2017 and any other subsequent model year. Subject to this 
limitation, nothing in the Act precludes states from pursuing 
their own state greenhouse gas policies or regimes. Further, 
nothing in the Act affects the National Highway Traffic Safety 
Administration's exclusive authority to set fuel economy 
standards for motor vehicles.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

CLEAN AIR ACT

           *       *       *       *       *       *       *


TITLE II--EMISSION STANDARDS FOR MOVING SOURCES

           *       *       *       *       *       *       *


Part A--Motor Vehicle Emission and Fuel Standards

           *       *       *       *       *       *       *


                            STATE STANDARDS

  Sec. 209. (a) * * *
  (b)(1) * * *

           *       *       *       *       *       *       *

  (4) With respect to standards for emissions of greenhouse 
gases (as defined in section 330) for model year 2017 or any 
subsequent model year new motor vehicles and new motor vehicle 
engines--
          (A) the Administrator may not waive application of 
        subsection (a); and
          (B) no waiver granted prior to the date of enactment 
        of this paragraph may be construed to waive the 
        application of subsection (a).

           *       *       *       *       *       *       *


TITLE III--GENERAL

           *       *       *       *       *       *       *


SEC. 330. NO REGULATION OF EMISSIONS OF GREENHOUSE GASES.

  (a) Definition.--In this section, the term ``greenhouse gas'' 
means any of the following:
          (1) Water vapor.
          (2) Carbon dioxide.
          (3) Methane.
          (4) Nitrous oxide.
          (5) Sulfur hexafluoride.
          (6) Hydrofluorocarbons.
          (7) Perfluorocarbons.
          (8) Any other substance subject to, or proposed to be 
        subject to, regulation, action, or consideration under 
        this Act to address climate change.
  (b) Limitation on Agency Action.--
          (1) Limitation.--
                  (A) In general.--The Administrator may not, 
                under this Act, promulgate any regulation 
                concerning, take action relating to, or take 
                into consideration the emission of a greenhouse 
                gas to address climate change.
                  (B) Air pollutant definition.--The definition 
                of the term ``air pollutant'' in section 302(g) 
                does not include a greenhouse gas. 
                Notwithstanding the previous sentence, such 
                definition may include a greenhouse gas for 
                purposes of addressing concerns other than 
                climate change.
          (2) Exceptions.--Paragraph (1) does not prohibit the 
        following:
                  (A) Notwithstanding paragraph (4)(B), 
                implementation and enforcement of the rule 
                entitled ``Light-Duty Vehicle Greenhouse Gas 
                Emission Standards and Corporate Average Fuel 
                Economy Standards'' (as published at 75 Fed. 
                Reg. 25324 (May 7, 2010) and without further 
                revision) and finalization, implementation, 
                enforcement, and revision of the proposed rule 
                entitled ``Greenhouse Gas Emissions Standards 
                and Fuel Efficiency Standards for Medium- and 
                Heavy-Duty Engines and Vehicles'' published at 
                75 Fed. Reg. 74152 (November 30, 2010).
                  (B) Implementation and enforcement of section 
                211(o).
                  (C) Statutorily authorized Federal research, 
                development, and demonstration programs 
                addressing climate change.
                  (D) Implementation and enforcement of title 
                VI to the extent such implementation or 
                enforcement only involves one or more class I 
                substances or class II substances (as such 
                terms are defined in section 601).
                  (E) Implementation and enforcement of section 
                821 (42 U.S.C. 7651k note) of Public Law 101-
                549 (commonly referred to as the ``Clean Air 
                Act Amendments of 1990'').
          (3) Inapplicability of provisions.--Nothing listed in 
        paragraph (2) shall cause a greenhouse gas to be 
        subject to part C of title I (relating to prevention of 
        significant deterioration of air quality) or considered 
        an air pollutant for purposes of title V (relating to 
        permits).
          (4) Certain prior agency actions.--The following 
        rules and actions (including any supplement or revision 
        to such rules and actions) are repealed and shall have 
        no legal effect:
                  (A) ``Mandatory Reporting of Greenhouse 
                Gases'', published at 74 Fed. Reg. 56260 
                (October 30, 2009).
                  (B) ``Endangerment and Cause or Contribute 
                Findings for Greenhouse Gases Under Section 
                202(a) of the Clean Air Act'', published at 74 
                Fed. Reg. 66496 (December 15, 2009).
                  (C) ``Reconsideration of Interpretation of 
                Regulations That Determine Pollutants Covered 
                by Clean Air Act Permitting Programs'', 
                published at 75 Fed. Reg. 17004 (April 2, 2010) 
                and the memorandum from Stephen L. Johnson, 
                Environmental Protection Agency (EPA) 
                Administrator, to EPA Regional Administrators, 
                concerning ``EPA's Interpretation of 
                Regulations that Determine Pollutants Covered 
                by Federal Prevention of Significant 
                Deterioration (PSD) Permit Program'' (December 
                18, 2008).
                  (D) ``Prevention of Significant Deterioration 
                and Title V Greenhouse Gas Tailoring Rule'', 
                published at 75 Fed. Reg. 31514 (June 3, 2010).
                  (E) ``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'', published at 75 Fed. 
                Reg. 77698 (December 13, 2010).
                  (F) ``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'', published at 75 Fed. 
                Reg. 81874 (December 29, 2010).
                  (G) ``Action to Ensure Authority To Issue 
                Permits Under the Prevention of Significant 
                Deterioration Program to Sources of Greenhouse 
                Gas Emissions: Federal Implementation Plan'', 
                published at 75 Fed. Reg. 82246 (December 30, 
                2010).
                  (H) ``Action to Ensure Authority to Implement 
                Title V Permitting Programs Under the 
                Greenhouse Gas Tailoring Rule'', published at 
                75 Fed. Reg. 82254 (December 30, 2010).
                  (I) ``Determinations Concerning Need for 
                Error Correction, Partial Approval and Partial 
                Disapproval, and Federal Implementation Plan 
                Regarding Texas Prevention of Significant 
                Deterioration Program'', published at 75 Fed. 
                Reg. 82430 (December 30, 2010).
                  (J) ``Limitation of Approval of Prevention of 
                Significant Deterioration Provisions Concerning 
                Greenhouse Gas Emitting-Sources in State 
                Implementation Plans'', published at 75 Fed. 
                Reg. 82536 (December 30, 2010).
                  (K) ``Determinations Concerning Need for 
                Error Correction, Partial Approval and Partial 
                Disapproval, and Federal Implementation Plan 
                Regarding Texas Prevention of Significant 
                Deterioration Program; Proposed Rule'', 
                published at 75 Fed. Reg. 82365 (December 30, 
                2010).
                  (L) Except for actions listed in paragraph 
                (2), any other Federal action under this Act 
                occurring before the date of enactment of this 
                section that applies a stationary source 
                permitting requirement or an emissions standard 
                for a greenhouse gas to address climate change.
          (5) State action.--
                  (A) No limitation.--This section does not 
                limit or otherwise affect the authority of a 
                State to adopt, amend, enforce, or repeal State 
                laws and regulations pertaining to the emission 
                of a greenhouse gas.
                  (B) Exception.--
                          (i) Rule.--Notwithstanding 
                        subparagraph (A), any provision 
                        described in clause (ii)--
                                  (I) is not federally 
                                enforceable;
                                  (II) is not deemed to be a 
                                part of Federal law; and
                                  (III) is deemed to be 
                                stricken from the plan 
                                described in clause (ii)(I) or 
                                the program or permit described 
                                in clause (ii)(II), as 
                                applicable.
                          (ii) Provision defined.--For purposes 
                        of clause (i), the term ``provision'' 
                        means any provision that--
                                  (I) is contained in a State 
                                implementation plan under 
                                section 110 and authorizes or 
                                requires a limitation on, or 
                                imposes a permit requirement 
                                for, the emission of a 
                                greenhouse gas to address 
                                climate change; or
                                  (II) is part of an operating 
                                permit program under title V, 
                                or a permit issued pursuant to 
                                title V, and authorizes or 
                                requires a limitation on the 
                                emission of a greenhouse gas to 
                                address climate change.
                  (C) Action by administrator.--The 
                Administrator may not approve or make federally 
                enforceable any provision described in 
                subparagraph (B)(ii).

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 910 was introduced on March 3, 2011, by Chairman Fred 
Upton and Subcommittee Chairman Ed Whitfield. Senator James 
Inhofe introduced a companion bill in the Senate (S. 482) on 
the same date.
    The Upton-Inhofe bill reported by the Committee on Energy 
and Commerce legislatively repeals a scientific finding by the 
Environmental Protection Agency that greenhouse gases endanger 
public health and welfare. The Upton-Inhofe bill would also 
broadly eliminate EPA's authority to address emissions of 
greenhouse gases and the danger of climate change. This is an 
unprecedented action by members of Congress to substitute their 
opinions for a scientific finding that EPA made based on the 
best available scientific research and understanding.
    The bill is titled ``The Energy Tax Prevention Act of 
2011'' and, according to its sponsors, has a primary purpose of 
stopping the Environmental Protection Agency (EPA) from 
``imposing a backdoor cap-and-trade tax.''\1\ However, EPA does 
not have taxing authority, nor has EPA proposed to establish a 
cap and trade program. In fact, EPA officials have recently 
stated that they will not establish a cap on carbon 
pollution.\2\
---------------------------------------------------------------------------
    \1\House Committee on Energy and Commerce, Press Release, Upton, 
Whitfield, Inhofe Unveil Energy Tax Prevention Act to Protect America's 
Jobs & Families (Feb. 7, 2011) (online at 
http://energycommerce.house.gov/news/PRArticle.aspx?NewsID=8178).
    \2\EPA Promises to Avoid Cap, But Some Utilities Want Trade, E&E 
News (Feb. 4, 2011).
---------------------------------------------------------------------------
    The bill sponsors also assert that the purpose of the bill 
is to stop rising gas prices, claiming that planned EPA 
regulations will restrict oil supplies and cause gas prices to 
rise. This claim was labeled ``false'' by Politifact, a project 
of the St. Petersburg Times to fact check statements by members 
of Congress and other public figures.\3\ The claim is flawed in 
multiple respects. First, gas prices are rising now, and there 
is widespread consensus that the increase is due to concerns 
about unrest in the Middle East.\4\ EPA has not yet even 
proposed greenhouse gas regulations that would apply to oil 
refineries, and it will take years before any such regulations 
are final and require any control of greenhouse gas emissions. 
Nor is there any indication that the regulations will be 
particularly stringent or burdensome. Also, there is general 
agreement that gas prices are largely driven by the price of 
oil, which is determined on the world market and is unaffected 
by any EPA greenhouse gas regulations.
---------------------------------------------------------------------------
    \3\Fred Upton Says Pending Bill to Block EPA Curbs of Greenhouse 
Gases Will Stop Rising Gas Prices,' PolitiFact (Mar. 14, 2011) (online 
at http://www.politifact.com/truth-o-meter/statements/2011/mar/14/fred-
upton/fred-upton-says-pending-bill-block-epa-curbs-green/).
    \4\See, Libyan Unrest Keeps Oil Price on the Boil, Financial Times 
(Mar. 7, 2011).
---------------------------------------------------------------------------
    In fact, EPA's greenhouse gas regulations will 
significantly reduce Americans' spending on gasoline. EPA has 
issued greenhouse gas regulations for light-duty vehicles for 
model years 2012-2016, and those regulations are projected to 
save consumers on average $3,000 at the pump over the life of 
the vehicles.\5\ The Upton-Inhofe bill would block EPA from 
extending and strengthening these standards for vehicles after 
2016, and would even endanger the existing standards by 
creating a new legal vulnerability.
---------------------------------------------------------------------------
    \5\U.S. EPA, EPA and NHTSA Finalize Historic National Program to 
Reduce Greenhouse Gases and Improve Fuel Economy for Cars and Trucks 
(Apr. 2010) (online at http://www.epa.gov/otaq/climate/regulations/
420f10014.htm).
---------------------------------------------------------------------------
    The bill is also premised on the claim that climate change 
is a hoax, as stated by Senator Inhofe, and therefore EPA's 
scientific finding of endangerment is invalid and action to 
address the problem is unnecessary. At a hearing on climate 
science on March 8, 2011, held at the request of Committee 
Democrats, eminent climate scientists presented overwhelming 
scientific evidence that the earth is warming, that observed 
climate change is primarily caused by human activities, and 
that harmful and costly impacts of climate change are already 
occurring and will become more severe over time.\6\ In an 
editorial on this hearing and the Upton-Inhofe legislation, the 
editors of Nature, one of the world's two top science journals, 
stated ``the legislation is fundamentally anti-science, just as 
the rhetoric that supports it is grounded in willful 
ignorance.''\7\
---------------------------------------------------------------------------
    \6\Energy & Commerce Committee, Energy & Power Subcommittee, 
Hearing on Climate Science and EPA's Greenhouse Gas Regulations (Mar. 
8, 2011).
    \7\Into Ignorance, Nature (Mar. 16, 2011)(online at http://
www.nature.com/nature/journal/v471/n7338/full/471265b.html).
---------------------------------------------------------------------------
    In summary, the Upton-Inhofe bill would:
    
 Overturn the Supreme Court's opinion finding that 
EPA has the authority to regulate greenhouse gases under the 
Clean Air Act.
    
 Overturn EPA's scientific determination that 
greenhouse gases endanger human health and the environment.
    
 Prohibit EPA from requiring stationary sources to 
reduce greenhouse gas emissions.
    
 Prohibit EPA from requiring additional reductions 
of greenhouse gas emissions from motor vehicles and repeal 
California's authority to regulate greenhouse gas emissions 
from motor vehicles.
    
 Prohibit EPA from requiring reductions of 
greenhouse gas emissions from other mobile sources, such as 
planes, trains, boats, and large construction equipment.
    
 Prohibit EPA from enforcing existing greenhouse 
gas reporting requirements.
    
 Interfere with EPA's implementation of Title VI of 
the Clean Air Act, which addresses ozone-depleting chemicals 
and substitutes for such chemicals, as well as undermine 
Administration negotiating positions under the Montreal 
Protocol on Substances that Deplete the Ozone Layer.
    
 Create legal uncertainty about the status of the 
recent motor vehicle standards adopted by EPA.
    
 Call into question EPA's authority to implement 
voluntary programs to reduce greenhouse gas emissions.
    
 Create new litigation opportunities for opponents 
of regulation of conventional pollutants.
    The bill is opposed by: the American Lung Association\8\, 
American Public Health Association,\9\ American Thoracic 
Society; Asthma and Allergy Foundation of America; Physicians 
for Social Responsibility; Trust for America's Health;\10\ 
1,882 doctors, nurses and other medical professionals;\11\ 
retired high-ranking U.S. military officers;\12\ 2,505 
scientists;\13\ Natural Resources Defense Council; League of 
Conservation Voters; Center for Biological Diversity; 
Environment America; Conservation Law Foundation; National 
Audubon Society; The Wilderness Society; Earthjustice; U.S. 
Climate Action Network; Center for American Progress Action 
Fund; American Rivers; Sierra Club; Defenders of Wildlife; 
Environmental Defense Fund; and Union of Concerned Scientists, 
among others.\14\
---------------------------------------------------------------------------
    \8\Letter from Charles D. Connor, President and CEO of the American 
Lung Association, to Rep. Ed Whitfield and Rep. Bobby L. Rush (Mar. 10, 
2011) (online at http://edit-democrats.energycommerce.house.gov/sites/
default/files/image_uploads/HR9100ppositi 
on_03.10.11_AmericanLungAssociation.pdf).
    \9\Letter from Georges C. Benjamin, Executive Director of the 
American Public Health Association, to Rep. Ed Whitfield and Rep. Bobby 
Rush (Mar. 9, 2011) (online at http://edit-
democrats.energycommerce.house.gov/sites/default/files/image_uploads/
APHAOppositionLetter_03.10.11.pdf).
    \10\Letter from Charles Connor, President and CEO of the American 
Lung Association; Bill McLin, President and CEO of the Asthma and 
Allergy Foundation of America; Georges C. Benjamin, Executive Director 
of the American Public Health Association; Peter Wilk, Executive 
Director of Physicians for Social Responsibility; Dean E. Schraufnagel, 
President of the American Thoracic Society; and Jeffrey Levi, Executive 
Director of the Trust for America's Health; to the U.S. House of 
Representatives (Mar. 14, 2011) (online at http://
democrats.energycommerce.house.gov/sites/default/files/image_uploads/
HealthOrganizationsOpposeHR910_0.pdf).
    \11\Letter from Health and Medical Professionals, to the U.S. House 
of Representatives (Feb. 9, 2011) (online at http://
democrats.energycommerce.house.gov/sites/default/files/image_uploads/
House%20Doc%20Letter%20Final_0.pdf).
    \12\Letter from Retired US Air Force Lt. General Norman Seip, 
Retired US Navy Rear Admiral Stuart Platt, and Retired US Army Maj. 
General George Buskirk, to Rep. Henry Waxman (Mar. 10, 2011) (online at 
http://democrats.energycommerce.house.gov/sites/default/files/
image_uploads/Military_OpposeUptonInhofe_03.10.11.pdf).
    \13\Letter from 2,505 scientists, to the U.S. House of 
Representatives (Feb. 2011) (online at http://
democrats.energycommerce.house.gov/sites/defaultf/files/image_uploads/
LettersScientists_03.08.11.pdf).
    \14\Letter from the Natural Resources Defense Council, League of 
Conservation Voters, Center for Biological Diversity, Environment 
America, Conservation Law Foundation, National Audubon Society, The 
Wilderness Society, Earthjustice, U.S. Climate Action Network, Center 
for American Progress Action Fund, American Rivers, Physicians for 
Social Responsibility, Sierra Club, Defenders of Wildlife, 
Environmental Defense Fund, and the Union of Concerned Scientists, to 
Rep. Ed Whitfield and Rep. Bobby Rush (Mar. 9, 2011) (online at http://
edit-Democrats.energycommerce.house.gov/sites/default/files/
image_uploads/HR910Opposition_03.10.11_Organizations.pdf).
---------------------------------------------------------------------------
    In addition, last year 120 public health associations 
stated their opposition to ``any efforts to weaken, delay or 
block the EPA from protecting the public's health'' from risks 
from climate change,\15\ and 255 members of the National 
Academy of Sciences affirmed the threat from climate change and 
called for action to reduce it.\16\
---------------------------------------------------------------------------
    \15\Letter from 120 Public Health Associations, to President Barack 
Obama, the U.S. Senate, and the U.S. House of Representatives (Sep. 28, 
2010) (online at http://www.apha.org/NR/rdonlyres/2405CEFA-
854D4EE0814E-86C8552A3CBB/0/PHgroupssignonclimatechange92810final.pdf).
    \16\255 Members of the National Academy of Sciences, Climate Change 
and the Integrity of Science, Science Magazine (May 7, 2010) (online at 
http://democrats.energycommerce.house.gov/sites/default/files/
image_uploads/LetterNationalAcademies_03.08.11.pdf).
---------------------------------------------------------------------------
I. Upton-Inhofe Overturns Massachusetts  v. EPA
    The Upton-Inhofe bill overturns the landmark Supreme Court 
case Massachusetts v. EPA, which held that greenhouse gases, 
including carbon dioxide, are ``air pollutants'' under the 
Clean Air Act that EPA must regulate if they endanger public 
health or welfare.\17\ The bill adds a new section 330(b)(1)(B) 
to the Clean Air Act that provides that the term ```air 
pollutant' . . . does not include a greenhouse gas.'' 
Additionally, new section 330(b)(1)(A) would amend the Clean 
Air Act to state that EPA may not take action on carbon 
pollution or even ``take into consideration'' carbon pollution 
in the future regardless of the danger it poses to public 
health or welfare.
---------------------------------------------------------------------------
    \17\Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
---------------------------------------------------------------------------

II. Upton-Inhofe Repeals EPA's Endangerment Finding

    New section 330(b)(4)(B) of the Clean Air Act would 
legislatively repeal EPA's scientific determination that 
greenhouse gases threaten public health and welfare, commonly 
known as the endangerment finding. This determination was made 
in 2009, when the EPA Administrator found that the current and 
projected concentrations of the six key greenhouse gases--
carbon dioxide (CO
2
), methane (CH
4
), 
nitrous oxide (N
2
O), hydrofluorocarbons (HFCs), 
perfluorocarbons (PFCs), and sulfur hexafluoride 
(SF
6
)--in the atmosphere threaten the public health 
and welfare of current and future generations.\18\
---------------------------------------------------------------------------
    \18\Environmental Protection Agency, 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).
---------------------------------------------------------------------------
    Legislatively repealing the scientific determination 
directly conflicts with the consensus of climate scientists and 
the world's most authoritative scientific organizations, 
including:
    
 The National Academy of Sciences, which reported 
in 2010: ``Climate change is occurring, is caused largely by 
human activities, and poses significant risks for--and in many 
cases is already affecting--a broad range of human and natural 
systems.''\19\
---------------------------------------------------------------------------
    \19\National Research Council, Advancing the Science of Climate 
Change (2010)(online at http://www.nap.educatalog.php?record_id=12782).
---------------------------------------------------------------------------
    
 The premier scientific institutions of all of the 
world's major economies (including the United States, the 
United Kingdom, France, Germany, Russia, Japan, China, Brazil, 
and India), which have warned that ``[t]he need for urgent 
action to address climate change is now indisputable.''\20\
---------------------------------------------------------------------------
    \20\G8+5 Academies' joint statement: Climate change and the 
transformation of energy technologies for a low carbon future, Academia 
Brasileira de Ciencias, Brazil, Indian National Science Academy, India, 
Academy of Science of South Africa, South Africa, Royal Society of 
Canada, Canada, Accademia Nazionale dei Lincei, Italy, Royal Society, 
United Kingdom, Chinese Academy of Sciences, China, Science Council of 
Japan, Japan, National Academy of Sciences, United States of America, 
Academie des Sciences, France, Academia Mexicana de Ciencias, Mexico, 
Deutsche Akademie der Naturforscher Leopoldina, Germany, Russian 
Academy of Sciences, Russia (online at http://
www.nationalacademies.org/includes/G8+5energy-climate09.pdf).
---------------------------------------------------------------------------
    
 The American Association for the Advancement of 
Science, the American Geophysical Union, and the American 
Meteorological Society, along with 15 other leading scientific 
organizations, which have stated: ``If we are to avoid the most 
severe impacts of climate change, emissions of greenhouse gases 
must be dramatically reduced.''\21\
---------------------------------------------------------------------------
    \21\Letter to the U.S. Senate from the Presidents and Executive 
Directors of American Association for the Advancement of Science, 
American Chemical Society, American Geophysical Union, American 
Institute of Biological Sciences, American Meteorological Society, 
American Society of Agronomy, American Society of Plant Biologists, 
American Statistical Association, Association of Ecosystem Research 
Centers, Botanical Society of America, Crop Science Society of America, 
Ecological Society of America, Natural Science Collections, Alliance 
Organization of Biological Field Stations, Society for Industrial and 
Applied Mathematics, Society of Systematic Biologists, Soil Science 
Society of America, University Corporation for Atmospheric Research 
(Oct. 21, 2009) (online at http://www.aaas.org/news/releases/2009/
media/1021climate_letter.pdf).
---------------------------------------------------------------------------
    
 Thirteen federal departments and agencies, 
including NASA, the National Science Foundation, and the 
Department of Defense, which reported in 2009 that global 
warming is ``unequivocal and primarily human-induced'' and that 
``widespread climate-related impacts are occurring now and are 
expected to increase.''\22\
---------------------------------------------------------------------------
    \22\Global Climate Change Impacts in the United States, U.S. Global 
Change Research Program (2009) (online at http://globalchange.gov/
publications/reports/scientific-assessments/us-impacts). These agencies 
participate in the U.S. Global Change Research Program (USGCRP). The 
USGCRP began as a presidential initiative in 1989 and was mandated by 
Congress in the Global Change Research Act of 1990 (P.L. 101-606), 
which called for ``a comprehensive and integrated United States 
research program which will assist the Nation and the world to 
understand, assess, predict, and respond to human-induced and natural 
processes of global change.''
---------------------------------------------------------------------------
    
 The Intergovernmental Panel on Climate Change 
(IPCC), which has reported: ``Warming of the climate system is 
unequivocal, as is now evident from observations of increases 
in global average air and ocean temperatures, widespread 
melting of snow and ice and rising global average sea 
level.''\23\
---------------------------------------------------------------------------
    \23\Climate Change 2007: Synthesis Report, Intergovernmental Panel 
on Climate Change (2007) (online at http://www.ipcc.ch/
publications_and_data/ar4/syr/en/spm.html). The IPCC is the leading 
international body for the assessment of climate change. It was 
established in 1988 by the World Meteorological Organization (WMO) and 
the United Nations Environment Programme (UNEP) to assess the ``risk of 
human-induced climate change.'' The Panel is open to all members of the 
WMO and UNEP, and includes more than 2500 scientists from around the 
world.
---------------------------------------------------------------------------

III. Upton-Inhofe Prohibits EPA from Regulating Stationary Sources

    New section 330(b)(1)(A) provides that EPA may not take 
action on carbon pollution or even ``take into consideration'' 
carbon pollution in the future. It states:

                  The Administrator may not, under [the Clean 
                Air Act], promulgate any regulation concerning, 
                take action relating to, or take into 
                consideration the emission of a greenhouse gas 
                to address climate change.

    This section has two primary effects on EPA authority to 
reduce emissions of greenhouse gases from stationary sources. 
First, it prohibits EPA from requiring permits to address 
greenhouse gases under its ``prevention of significant 
deterioration'' (PSD) program.\24\ Second, it blocks EPA from 
setting minimum control requirements for major new and existing 
sources under the ``new source performance standards'' (NSPS) 
provisions.\25\
---------------------------------------------------------------------------
    \24\ CAA section 165.
    \25\ CAA section 111.
---------------------------------------------------------------------------
            A. Impact on the PSD Program
    Once EPA regulated greenhouse gases from motor vehicles, 
the PSD permit review requirement applied automatically 
beginning January 2, 2011. It requires that major new 
facilities or existing facilities making major modifications 
that significantly increase emissions undergo a review of 
options to minimize increases in emissions.\26\ In May 2010, 
EPA finalized a ``tailoring rule'' to limit the permit review 
requirements to only the largest sources.\27\ Until June 30, 
2011, only sources subject to PSD for other pollutants will be 
required to consider greenhouse gases in their permits.\28\ 
From July 1, 2011, to June 30, 2013, only new sources that emit 
at least 100,000 tons of greenhouse gases per year or existing 
sources that modify and seek to increase pollution by at least 
75,000 tons per year will be required to obtain PSD 
permits.\29\ EPA has committed to undertake an additional 
rulemaking that will be completed before July 1, 2012, which 
would consider whether to lower the threshold further, but 
would not consider any level below 50,000 tons per year.\30\
---------------------------------------------------------------------------
    \26\See CAA sections 165, 169.
    \27\U.S. Environmental Protection Agency, Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule, Final Rule, 75 
Fed. Reg. 31514 (June 3, 2010).
    \28\Id. at 31516.
    \29\Id.
    \30\ Id.; U.S. Environmental Protection Agency, Final Rule: 
Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule, Fact Sheet (online at: http://www.epa.gov/nsr/
documents/20100413fs.pdf).
---------------------------------------------------------------------------
    PSD permit review is done on a case-by-case basis, taking 
into account the design and function of the specific facility 
undergoing review. The review is carried out by the permitting 
authorities, which are typically state or local pollution 
control agencies. The process requires consideration of all 
options for limiting emissions, followed by the elimination of 
those options that are too costly or technically infeasible, 
and the selection of the remaining option that permitting 
authorities consider to be ``best available control 
technology'' (BACT).
    In November 2010, EPA issued guidance to state agencies on 
implementing the review requirements for greenhouse gases.\31\ 
The guidance emphasized that the well-established process and 
precedents used for other pollutants would also apply to 
greenhouse gases. The guidance also clarified what is likely to 
be required of sources. It indicated that enemy efficiency 
improvements should in most cases constitute BACT for 
greenhouse gases.\32\ The guidance suggested that carbon 
capture and sequestration would likely be eliminated as an 
option for BACT because of high costs.\33\ The guidance further 
stated that fuel switching that would fundamentally redefine a 
source (such as switching from coal to natural gas) would not 
need to be considered as an option.\34\ In addition, EPA has 
announced that it intends to modify its policies to provide 
that certain permit applications that have been pending with 
the agency for a substantial period of time will not need to be 
modified to comply with subsequently applicable air quality 
requirements, including the greenhouse gas PSD 
requirements.\35\
---------------------------------------------------------------------------
    \31\ U.S. Environmental Protection Agency, PSD and Title V 
Permitting Guidance For Greenhouse Gases (hereinafter Guidance) (Nov. 
2010) (online at http://www.epa.gov/nsr/ghgdocs/epa-hq-oar-2010-0841-
0001.pdf); U.S. Environmental Protection Agency, Greenhouse Gas 
Permitting Guidance, Summary Slides (hereinafter Summary) (Fall 2010) 
(online at: http://epa.gov/air/oaqps/eog/video/pdfs/
GHGPermittingGuidance_Nov18&19Webinars.pdf.)
    \32\Guidance at 46; Summary at 17.
    \33\Guidance at 36-38; Summary at 24.
    \34\Guidance at 29; Summary at 19.
    \35\See Declaration of Regina McCarthy, Avenal Power Center, LLC v. 
U.S. EPA (Case No.: 1:10-cv-00383-RJL) (Jan. 31, 2011).
---------------------------------------------------------------------------
    Forty-nine states have taken actions to ensure that permit 
applications could go forward when the greenhouse gas review 
requirements went into effect on January 2, 2011.\36\ Only 
Texas failed to take the necessary actions. To ensure that 
applicants in Texas could receive the necessary pre-
construction permits, EPA issued an interim final rule on 
December 23, 2010, to partially disapprove Texas's permitting 
program and authorize EPA to issue permits with respect to 
greenhouse gases.\37\
---------------------------------------------------------------------------
    \36\National Association of Clean Air Agencies, GHG Permitting 
Programs Ready to Go by January 2nd (Oct. 28, 2010).
    \37\U.S. Environmental Protection Agency, Clean Air Act Permitting 
for Greenhouse Gas Emissions--Final Rules Fact Sheet (online at: http:/
/www.epa.gov/nsr/ghgdocs/20101223factsheet.pdf).
---------------------------------------------------------------------------
    The Upton-Inhofe bill would eliminate this requirement that 
large new or modified sources of greenhouse gases take, or even 
consider, any steps to minimize the pollution they will add to 
the atmosphere.
            B. Impact on the NSPS Program 
    In December 2010, EPA announced a schedule to establish New 
Source Performance Standards (NSPS) for greenhouse gases for 
two categories of sources--fossil fuel-fired power plants and 
refineries--pursuant to two proposed settlement agreements. 
Under the agreements, EPA will propose standards for utilities 
and refineries in July 2011 and December 2011 and will finalize 
the standards in May 2012 and November 2012, respectively.\38\
---------------------------------------------------------------------------
    \38\U.S. Environmental Protection Agency, Settlement Agreements To 
Address Greenhouse Gas Emissions From Electric Generating Units and 
Refineries, Fact Sheet (online at: www.epa.gov/airquality/pdfs/
settlementfactsheet.pdf).
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    Under an NSPS, EPA establishes performance standards for 
new facilities (and modified facilities that significantly 
increase emissions) reflecting best demonstrated technology 
taking costs into account.\39\ In practice, these standards are 
generally less stringent than limits based on best available 
control technology. In addition, states must submit plans to 
EPA to reduce emissions at existing facilities.\40\ Under these 
provisions, states have the flexibility to apply less stringent 
standards or longer compliance schedules for various reasons 
including costs, remaining useful life of the facility, and 
physical impossibility.
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    \39\CAA section 111.
    \40\CAA section 111(d).
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    EPA is in the process of conducting five listening sessions 
to give stakeholders extensive opportunities to provide their 
views to the agency even prior to any NSPS proposal.\41\ 
Nothing in EPA's history of issuing NSPS or its approach to 
date on greenhouse gases suggests that the agency plans to 
establish costly or onerous requirements for new sources under 
these provisions.
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    \41\U.S. Environmental Protection Agency, Listening Sessions on 
Greenhouse Gas Standards for Fossil Fuel Fired Power Plants and 
Petroleum Refineries, Webpage, (online at http://www.epa.gov/
airquality/listen.html).
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    The Upton-Inhofe bill would eliminate this EPA authority to 
set minimum emissions standards for large fossil-fuel fired 
power plants and oil refineries, which are the first and second 
largest stationary sources of greenhouse gases respectively.

IV. Upton-Inhofe Prohibits EPA and California from Establishing New 
        Tailpipe Standards

    The Upton-Inhofe bill changes the manner in which motor 
vehicles have been regulated in the United States for 40 years. 
The Clean Air Act authorizes two sets of standards to control 
tailpipe pollution from motor vehicles: (1) federal standards 
and (2) state standards established by California, which can 
also be adopted by other states. The Upton-Inhofe bill would 
terminate both federal and state authority to establish 
tailpipe standards for greenhouse gases after vehicle model 
year 2016.
            A. Impact on EPA Authority
    New section 330(b)(2)(A) prevents ``further revision'' of 
the 2010 greenhouse gas tailpipe standards. Those standards 
apply to vehicle model years 2012 to 2016. This national 
program for fuel economy and greenhouse gas emissions was 
supported by the automobile industry, the states, and 
environmental advocacy groups.\42\ If the Upton-Inhofe bill is 
enacted, there will be no federal greenhouse gas tailpipe 
standards for cars and trucks after model year 2016.
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    \42\See U.S. Environmental Protection Agency, U.S. Department of 
Transportation, National Highway Traffic Safety Administration, Light-
Duty Vehicle Greenhouse Gas Emissions Standards and Corporate Average 
Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324 (May 7, 2010).
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    EPA and the National Highway Traffic Safety Administration 
have recently evaluated scenarios representing 3%, 4%, 5%, and 
6% annual increases in overall average stringency in tailpipe 
standards after model year 2016. These scenarios are roughly 
equivalent to 47 to 62 mpg in 2025, if all improvements were 
made using fuel economy-improving technology.\43\ Under the 
Upton-Inhofe bill, EPA would lose its authority to adopt 
standards that promote these technologies.
---------------------------------------------------------------------------
    \43\U.S. Environmental Protection Agency and U.S. National Highway 
Traffic Safety Administration, Interim Joint Technical Assessment 
Report (Oct. 2010) (online at http://www.epa.gov/otaq/climate/
regulations/420fl 0051.htm).
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    NHTSA, acting alone, is highly unlikely to achieve 
comparable levels of oil savings and emissions reductions. Of 
the benefits achieved by the 2012 to 2016 national standards, 
fully one-quarter of the fuel savings and one-third of the 
greenhouse gas emissions reductions are produced solely by the 
EPA tailpipe standards.\44\ These differences stem in large 
part from differences in the underlying statutory authorities 
of the two agencies. For example, some manufacturers have 
routinely paid civil penalties rather than complying with NHTSA 
fuel economy requirements, while this option is not available 
as a practical matter under the Clean Air Act.
---------------------------------------------------------------------------
    \44\See U.S. Environmental Protection Agency, U.S. Department of 
Transportation, National Highway Traffic Safety Administration, Light-
Duty Vehicle Greenhouse Gas Emissions Standards and Corporate Average 
Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324, 25343-4, 25347 
(May 7, 2010).
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            B. Impact on California Authority
    Section 209(b) of the Clean Air Act requires EPA to waive 
federal preemption for California motor vehicle standards if 
the agency determines that California's standards in the 
aggregate will be at least as protective of public health and 
welfare as federal standards. It also provides that other 
states have the option of electing to apply California's 
standards. In practice, this has allowed California to set 
vehicle standards that are more protective of public health 
than the federal standard and has allowed other states to 
follow California's example. However, section 3 of the Upton-
Inhofe bill strips the EPA of authority to waive federal 
preemption, thereby blocking any state tailpipe standards for 
greenhouse gases for model years 2017 or later.

V. Upton-Inhofe Prohibits EPA from Establishing Standards for Other 
        Mobile Sources

    The Upton-Inhofe bill bars EPA from using its existing 
authority under Title II of the Clean Air Act to establish 
greenhouse gas emissions standards for other mobile sources 
such as planes, trains, boats, and heavy construction 
equipment.\45\ NHTSA does not have authority to establish 
efficiency standards for these sources, which consume over 2 
million barrels of oil per day.\46\ Under the Upton-Inhofe 
bill, the potential for substantial oil savings and greenhouse 
gas emissions reductions from these sources would be forfeited.
---------------------------------------------------------------------------
    \45\See CAA sections 213, 231.
    \46\See U.S. Energy Information Administration, Annual Energy 
Outlook 2011 (online at: 
http://www.eia.doe.gov/oiaf/aeo/tablebrowser/
#release=AE02011&subject=0-AE02011&table=4509AE02011&region=0090&cases=r
ef2011-d120810c).
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VI. Upton-Inhofe Prohibits EPA from Enforcing Greenhouse Gas Reporting 
        Requirements

    Congress included provisions in the Clean Air Act 
Amendments of 1990 that required power plants to report carbon 
dioxide emissions.\47\ In 2007, Congress extended this 
reporting requirement to apply to other large sources, as well 
as other greenhouse gases, and EPA issued implementing 
regulations in 2009.\48\ New section 330(b)(4)(A), however, 
would overturn the recently adopted greenhouse gas reporting 
requirements for all sources. Power plants would be the only 
sources subject to any reporting requirements, and they would 
not have to report greenhouse gas emissions other than carbon 
dioxide.
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    \47\Clean Air Act Amendments of 1990, section 821 (Public Law 101-
549).
    \48\Consolidated Appropriations Act, 2008 (H.R. 2764; Public Law 
110-161); U.S. Environmental Protection Agency, Mandatory Reporting of 
Greenhouse Gases; Final Rule, 74 Fed. Reg. 56260 (Oct. 30, 2009).
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    In addition, EPA prepares the inventory of U.S. greenhouse 
gas emissions, which is submitted by the United States pursuant 
to its treaty obligations under the U.N. Framework Convention 
on Climate Change. Section 330(b)(1) may prevent EPA from 
conducting this technical work and thus could impair the United 
States' ability to carry out its obligations under this 
international treaty, which was signed by President George H. 
W. Bush and ratified by the U.S. Senate.

VII. Upton-Inhofe Undermines EPA Programs Related to Substitutes for 
        Ozone-Depleting Chemicals

    Under section 612 of the Clean Air Act, companies that wish 
to market a new substitute for ozone depleting substances must 
apply to EPA for approval. In determining whether to approve a 
substitute, EPA compares the overall risk to human health and 
the environment posed by the original substance with that of 
the potential substitute. The global warming potential of a 
substitute can be a significant factor in this analysis. In 
fact, a number of U.S. companies, including Dupont, Honeywell, 
and GE, have expended significant resources developing 
substitutes with very low global warming potential.
    New section 330(b)(1) would block EPA from considering 
global warming impacts when approving substitutes. While 
section 330(b)(2)(D) excepts implementation and enforcement of 
Title VI, that exception applies only to the extent that the 
implementation or enforcement only involves class I or class II 
substances (i.e., ozone depleting substances). However, 
recently approved and pending substitutes are not class I or 
class II substances. As a result, EPA would appear to be unable 
to consider climate change effects in deciding whether to 
approve applications for substitutes.
    There are other ways in which the Upton-Inhofe bill 
interferes with the ozone-depletion provisions of the Clean Air 
Act. For the last two years, the United States, in partnership 
with Canada and Mexico, has advocated for an amendment to the 
Montreal Protocol that would control the global production of 
HFCs, which are substitutes for ozone-depleting chemicals that 
have high global warming potentials. HFCs are not class I or 
class II substances. New section 330(b)(1) would prevent EPA 
from implementing such a treaty amendment through the Clean Air 
Act. As a result, it would undermine the Administration's 
ability to pursue established treaty negotiating positions that 
dozens of countries now support.

VIII. Upton-Inhofe Creates Legal Uncertainty for the 2010 Motor Vehicle 
        Standards

    A summary of the Upton-Inhofe bill issued by the majority 
Committee staff states that the Act would allow EPA to 
implement the light-duty vehicle tailpipe standards for 2012-
2016.\49\ However, the language of the Upton-Inhofe bill may 
not effectuate this stated goal.
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    \49\Energy and Commerce Committee Staff, Subcommittee Markup of 
H.R. 910, the Energy Tax Prevention Act of 2011 (internal memorandum) 
(Mar. 8, 2011).
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    As discussed above, section 330(d)(4)(B) repeals the 
endangerment finding. An endangerment finding is an essential 
precondition for light-duty tailpipe standards under section 
202(a) of the Clean Air Act. Section 330(b)(2)(A) states that 
notwithstanding the repeal of the endangerment finding, section 
330(b)(1) does not prohibit EPA from implementing and enforcing 
the light-duty vehicle tailpipe standards adopted in May 2010. 
But the bill does nothing to satisfy or remove the independent 
legal requirement for an endangerment finding under section 
202(a). In response to questions, majority counsel stated that 
the light-duty vehicle tailpipe standards are not affected by 
this bill because the bill codifies that rule. There is, 
however, no language in the bill that has the legal effect of 
codifying the light-duty tailpipe standards rule. Therefore, 
repeal of the endangerment finding will provide opponents of 
the light-duty vehicle greenhouse gas rule a new legal argument 
that the rules are unlawful.

IX. Upton-Inhofe Calls Voluntary Programs into Question

    It is unclear whether the Upton-Inhofe bill preserves EPA's 
authority under the Clean Air Act to implement many voluntary 
programs to reduce greenhouse gases. Clean Air Act section 103 
is a primary authority for many of these programs. While 
section 330(b)(2)(C) excepts ``research, development and 
demonstration programs'' from the prohibition in section 
330(b)(1), this language is narrower than the language in 
section 103 of the Clean Air Act, which authorizes 
``nonregulatory strategies.'' Thus, it is unclear whether the 
language of the exception encompasses voluntary programs. 
Moreover, EPA could be blocked from relying on section 103, 
which authorizes EPA activities with respect to ``air 
pollution'' and ``air pollutants,'' as authority for these 
voluntary programs because new section 330(b)(1)(B) excludes 
greenhouse gases from the definition of ``air pollutant.'' 
These provisions in the Upton-Inhofe bill call into question 
many successful voluntary programs, such as EPA's SmartWay 
program, which works with the trucking industry to reduce 
emissions, or EPA's participation in the Global Methane 
Initiative, an international effort to implement methane 
emissions reduction projects and technologies.

X. Upton-Inhofe Creates Litigation Opportunities for Opponents of 
        Regulation of Conventional Pollutants

    The Upton-Inhofe bill appears to create numerous new 
litigation opportunities over the regulation of conventional 
air pollutants due to legal ambiguities created by drafting 
peculiarities. For instance, although ozone is regulated for 
its conventional impacts on public health and welfare, it is 
also greenhouse gas. Under the Bush Administration, EPA 
considered the climate effects of ozone when establishing a 
national ambient air quality standard for ozone.\50\ Similarly, 
implementation of the existing landfill gas regulations, which 
encompass methane and other gases, might be barred as those 
regulations were justified at least in part based on climate 
change. It is unclear what impact the Upton-Inhofe bill would 
have on many clean air actions that address conventional air 
pollutants like ozone and landfill gas that also have climate 
change impacts.
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    \50\EPA, Air Quality Criteria for Ozone and Related Photochemical 
Oxidants, Vol. I (Feb. 2006).
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XI. Amendments to H.R. 910

    On March 15, 2011, a number of amendments to H.R. 910 were 
considered by the full Committee. Three amendments sought to 
recognize and accept the scientific underpinning of EPA's 
endangerment finding. Each amendment was rejected on a party-
line vote with all Democratic members supporting the amendment 
and all Republican members opposing the amendment.
    First, Rep. Waxman offered an amendment that would have put 
the Committee on record accepting what decades of data has 
demonstrated--that the planet is warming. The amendment read as 
follows:
    At the end of the bill, add the following new section:

SEC. 4. CONGRESSIONAL ACCEPTANCE OF THE SCIENTIFIC FINDINGS OF THE 
                    ENVIRONMENTAL PROTECTION AGENCY.

    Congress accepts the scientific finding of the 
Environmental Protection Agency that ``Warming of the climate 
system is unequivocal, as is now evident from observations of 
increases in global average air and ocean temperatures, 
widespread melting of snow and ice, and rising global average 
sea level.''.
    Second, Rep. DeGette offered an amendment that would have 
put the Committee on record accepting the scientific consensus 
that climate change is caused by human greenhouse gas 
emissions. The amendment read as follows:
    At the end of the bill, add the following new section:

SEC. 4. CONGRESSIONAL ACCEPTANCE OF THE SCIENTIFIC FINDINGS OF THE 
                    ENVIRONMENTAL PROTECTION AGENCY.

    Congress accepts the scientific finding of the 
Environmental Protection Agency that the ``scientific evidence 
is compelling'' that elevated concentrations of greenhouse 
gases resulting from anthropogenic emissions ``are the root 
cause of recently observed climate change''.
    Third, Rep. Inslee offered an amendment that would have put 
the Committee on record accepting the scientific finding that 
public health is threatened by climate change. The amendment 
read as follows:
    At the end of the bill, add the following new section:

SEC. 4. CONGRESSIONAL ACCEPTANCE OF THE SCIENTIFIC FINDINGS OF THE 
                    ENVIRONMENTAL PROTECTION AGENCY.

    Congress accepts the scientific finding of the 
Environmental Protection Agency that ``the public health of 
current generations is endangered and that the threat to public 
health for both current and future generations will likely 
mount over time as greenhouse gases continue to accumulate in 
the atmosphere and result in ever greater rates of climate 
change''.
                                   Henry A. Waxman.
                                   Anna G. Eshoo.
                                   Frank Pallone, Jr.
                                   Edward J. Markey.
                                   G.K. Butterfield.
                                   Jan Schakowsky.
                                   Anthony D. Weiner.
                                   Eliot L. Engel.
                                   Charles A. Gonzalez.
                                   Bobby L. Rush.
                                   Doris O. Matsui.
                                   Mike Doyle.
                                   Diana DeGette.
                                   Tammy Baldwin.
                                   Donna M. Christensen.
                                   Jay Inslee.
                                   Lois Capps.
                                   Edolphus Towns.