Capito to unveil bill today to scuttle Clean Power Plan, new source rule

Senate foes of U.S. EPA will launch their bid today to let states opt out of utility sector carbon rules, even as they continue to urge states to use their own authority to "just say no."

Sen. Shelley Moore Capito (R-W.Va.) will roll out her bill at a news conference this afternoon flanked by five senators, including one Democrat -- original co-sponsor Sen. Joe Manchin (D-W.Va.).

Her measure would give state governors the authority to choose not to implement the Clean Power Plan and provide exemptions for EPA's rule for new fossil fuels power plants -- now undergoing a final review at the White House.

In a column Monday in the Charleston Daily Mail, Capito wrote that the power plant rules are part of "a war on coal, which is not just an energy source, but a way of life for so many West Virginians."

She cited legal problems Republicans say exist with the existing power plant rule in particular and vowed that her bill would "preserve the proper balance of state and federal authority, help ensure reliable and affordable electricity, and protect jobs and our economy."

Capito's measure is the Senate's answer to Rep. Ed Whitfield's "Ratepayer Protection Act" (H.R. 2042), which cleared the House Energy and Commerce Committee last week.

But it expands on the Kentucky Republican's House measure by including pre-emptions for the new power plant rule -- which would require new coal-fired power plants to use carbon capture and storage technology to reduce emissions. And sources familiar with the Capito draft say it would give state governors even broader discretion to opt out of the Clean Power Plan for existing power plants than the House version affords. The Senate draft also included provisions requiring EPA to justify the benefits of its carbon rules in a report to Congress.

While the Capito measure faces long odds in the Senate, Senate Majority Leader Mitch McConnell (R-Ky.) and others argue that states already have the authority to opt not to comply with the rule without inviting EPA to enforce a stringent federal implementation plan. The federal agency would be limited to relatively modest heat-rate improvements onsite at power plants, they say, so states risk little by refusing to write their own plans.

EPA is currently preparing a model federal implementation plan (FIP) for its existing power plant rule, which will be proposed when it finalizes the new, modified and existing standards this summer. The agency has said it will enforce a FIP on sources in states that opt not to comply.