GOP Probe Into Timing of EPA Rules Comes Up Empty

The Obama administration appears to be blocking Republican attempts to find out when the Clean Power Plan will be published in the Federal Register, which would initiate a wave of lawsuits and new congressional action to counter the plan, according to letters obtained by the Washington Examiner.

Sen. Shelley Moore Capito, R-W.Va., who heads subcommittees in both the environment and appropriations committees, initiated an Oct. 5 probe to get to the bottom of why the Office of the Federal Register has not published the plan, even though the Environmental Protection Agency said it submitted it on Sept. 4. The EPA finalized the rule Aug. 3.

The Federal Register is the official publisher of record for the federal government. All rules and regulations from any agency must be published by it to become law, so the rules cannot be challenged legally until they are published.

The administration finalized the Clean Power Plan Aug. 3, but the EPA and the Justice Department informed a federal court soon after that the emission regulations would not by published in the Federal Register until the end of October. The publication of the Clean Power Plan, the centerpiece of President Obama's climate change agenda, in the Register marks the start of when lawsuits can be filed.

Publication of the rule also will allow Congress to use its authority under the Congressional Review Act to introduce a resolution of disapproval, which can repeal the power plant rule if enough votes are obtained to make it veto proof.

Critics say the administration is stalling the publication of the rule ahead of a major United Nations conference on climate change at the end of the year. They say the adminstration fears that lawsuits and congressional attacks against the Clean Power Plan could undermine an agreement among countries to reduce emissions if the U.S. is perceived to be unable to commit to the reductions.

Capito, whose committee posts give her oversight of both EPA and the Federal Register, asked Oliver Potts, who heads the publication, in an Oct. 5 letter why the plan had not been published, according to the letters.

"A prepublication version of the final Clean Power Plan rule has been released and in response, I drafted a Congressional Review Act Resolution of Disapproval that would repeal the existing power plant rule in its entirety," the letter to Potts reads. "Similar legislation is developing in the House of Representatives" and in the courts, 16 states led by West Virginia, along with the industry, "have already sought to challenge this final rule in the courts."

On several occasions, she says, the EPA has said it has sent the final rule to the Office of the Federal Register, which shifted "responsibility for publication away from EPA and directly to OFR."

Capito said further delay of the rule's publication would "imperil" legislative and judicial review of the Clean Power Plan before states have to begin complying with the rule by submitting plans in September 2016. She asked Potts to respond to five questions, including when the plan is expected to be published and if the EPA gave the Register specific orders as to when it should be published.

An Oct. 9 response from Potts, obtained by the Examiner, said he could not respond to Capito's inquiry since his office has a strict policy that no Federal Register staff release information on a rule before it is published.

"This policy provides agencies assurance that we will not release information on their documents without their consent before the document is available publicly," Potts responded.

Senate Majority Leader Mitch McConnell, whose state of Kentucky is also preparing to sue EPA, is backing the use of a resolution of disapproval to fight the Clean Power Plan.

The plan calls for states to reduce their emissions a third by 2030, which McConnell said would increase electricity rates while making the power grid less reliable.

The Clean Power Plan is at the center of President Obama's plan to reduce U.S. greenhouse gas emissions while helping to a secure a global emission reduction treaty at the end of the year in Paris.