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Capito Bill Brings Out the Knives for the Clean Power Plan - Frightening Remake of Murder on the Orient Express

05/15/2015 04:13 pm ET | Updated May 14, 2016

Sen. Shelley Moore Capito (R-WV) introduced a bill this week that she called "the principal legislative vehicle" to block President Obama's historic Clean Power Plan. Capito's bill is a big polluters' wish list - a direct attack on the Clean Air Act and the national guarantee given 45 years ago to protect all Americans' health and their environment from air pollution.

Sen. Capito's bill thrusts multiple knives into the Clean Air Act, seeking to kill the Clean Power Plan in as many ways as coal and power company lobbyists can think of. It's like Murder on the Orient Express only without the suspense, since Capito's co-perpetrators - 25 Republicans and one Democrat - revealed themselves on Wednesday.

They're not just seeking to block action here at home, to let American power plants keep dumping unlimited amounts of dangerous carbon pollution into the air. They're also trying to scuttle an international agreement to curb carbon pollution around the world.

U.S. leadership has already brought forth pollution-cutting pledges by China and other major emitters and set the stage for success in Paris later this year. Capito's bill seeks to block all that by breathing life into Mitch McConnell's peculiar warning that the U.S. can't be trusted to honor its international commitments.

Here's a police report on the multiple knife wounds the Capito bill would inflict on the Clean Power Plan and the Clean Air Act. The bill would:

  • Rub out the Clean Power Plan. The bill declares that the Clean Power Plan proposal for existing plants and EPA's proposed standards for new plants "shall be of no force or effect, and shall be treated as though the rules had never been issued." With admirable directness, the EPA proposals are simply disappeared.
  • Block EPA's proposed standard for new coal plants. Not content just to rub out the pending proposals, the bill rewrites the Clean Air Act to block EPA from setting future standards based on the best demonstrated pollution controls - changing criteria that EPA has used for 45 years to set advanced technology standards for new industrial sources. The bill's new criteria would effectively limit standards for new coal plants to the pollution levels of today's dirty plants. EPA would have to start over on new plant standards, and since new source standards are a predicate for regulating existing sources, the bill would effectively block EPA's plans to regulate existing plants too.
  • Block standards until all lawsuits are resolved. The polluters will sue to stop the Clean Power Plan like they do almost any standard. But lawsuits are not supposed to stop the clock - the first compliance obligations don't come until 2020, and both states and polluters are expected to make plans to comply even if they sue. Current law already allows courts to "stay" a rule if challengers show both a high likelihood of success and immediate irreparable harm. The Capito bill provides a new "get out of standards free" card: it would stop everything automatically until all lawsuits are resolved, without any need for challengers to show they have a good prospect of winning or prove any immediate or irreparable harm. This would be an unprecedented "stop work" order found nowhere else in the nation's environmental or regulatory laws.
  • Force EPA to "pick your poison" - to choose between carbon standards and mercury standards. Tucked into the bill is a radical rewrite of the Clean Air Act that would block limits on power plant carbon pollution because power plant mercury pollution is already limited under a separate part of the Act. That's not the way the current law works. We shouldn't have to choose between protecting our kids from mercury pollution or climate disruption.
  • Destroy the federal guarantee that makes the Clean Air Act work. For big existing pollution sources like power plants, the Clean Air Act sets national pollution standards and allows states the first shot at regulating the polluters. But it also guarantees that EPA will step in and regulate the polluters directly if states do not act. This bill destroys the federal backstop guarantee will by letting governors simply "opt out," shielding their polluters from any pollution controls.

There's even more stuffed into this nasty little bill. There are report-to-Congress and modeling requirements designed to show that the Clean Power Plan by itself won't solve global warming. There's a prohibition on cutting a state's highway funds if it refuses to write a power plant implementation plan - taking away a power EPA does not even have under existing law. And there's a requirement for EPA to issue state-specific model plans - oddly, an apparent mandate for EPA to do the state's planning work for it.

Now that Sen. Capito and her allies have packed all of their legislative knives into one package, Sen. Jim Inhofe (R-OK), chairman of the environment committee, vowed that the bill is "the most significant thing we will do in the Environment and Public Works Committee this year."

But few observers think they have the votes to pass this bill through the Senate. Only half of the GOP caucus has signed on. Notably, four of the five Republicans who earlier this year recognized that "human activity contributes significantly to climate change" have had the good sense to keep their names off this bill - Sens. Kelly Ayotte (R-NH), Susan Collins (R-ME), Lindsay Graham (R-SC), and Mark Kirk (R-IL). And no Democrat besides Sen. Joe Manchin (D-WV) has signed on.

But we cannot rest easy. Americans concerned about climate change need to raise their voices to make sure this train does not leave the station.