SJRES-188-119
Motion to proceed to consideration of measure rejected in Senate by Yea-Nay Vote. 46 - 53. Record Vote Number: 135. (CR S2509)
Sponsored by Sheldon Whitehouse (D-RI)
What it does
This joint resolution would use the Congressional Review Act (CRA) to overturn an EPA rule that repealed emission standards for hazardous air pollutants — including mercury — from coal- and oil-fired electric power plants. If enacted, the resolution would nullify the EPA's repeal, effectively restoring the original emission limits. Under the CRA, a successfully passed disapproval resolution also prevents the agency from issuing a "substantially similar" rule in the future without new congressional authorization.
Who benefits
Communities located near coal- and oil-fired power plants, who would see the original emission limits remain in place. Public health advocates focused on mercury and hazardous air pollutant exposure. Children and pregnant women, who face the greatest health risks from mercury contamination. Commercial and recreational fishing industries and consumers, as mercury accumulates in fish. State environmental agencies that had built compliance frameworks around the original standards. Renewable energy and natural gas competitors to coal-fired generation.
Who is hurt
Operators of coal- and oil-fired power plants, who would face continued compliance costs under the original emission standards. Coal-producing companies and mining workers whose industry economics depend in part on the cost competitiveness of coal-fired generation. Ratepayers in regions heavily dependent on coal-fired electricity, who may face higher electricity prices if plants incur compliance costs or close. The EPA, which would be barred from issuing a substantially similar rule without new congressional authorization — limiting future regulatory flexibility.
Supporters argue
Supporters argue that the original mercury and air toxics standards (MATS) were grounded in decades of scientific evidence linking mercury emissions to neurological damage, particularly in children, and that the EPA's repeal removed protections for millions of Americans living near coal plants. They contend that Congress, not the EPA, should determine whether such protections are eliminated, and that the CRA is the appropriate constitutional mechanism for legislative oversight of agency rulemaking. They further argue that the power industry had already invested billions in compliance infrastructure, making the repeal a regulatory reversal with no practical benefit to plant operators.
Opponents argue
Opponents argue that the EPA's repeal reflected a lawful reassessment of whether the costs of the original rule were "appropriate and necessary" — a standard the Supreme Court addressed in Michigan v. EPA (2015), which required the agency to consider compliance costs. They contend that blocking the repeal via the CRA would lock in a rule whose cost-benefit basis has been legally contested, and that the CRA's "substantially similar" bar would unconstitutionally constrain the executive branch's future regulatory authority. They further argue that energy reliability and affordability concerns in coal-dependent regions warrant regulatory flexibility, not a congressional override.
Constitutional context
The Clean Air Act's hazardous air pollutant provisions rest on the Commerce Clause (Art. I, §8, cl. 3). Post-Loper Bright (2024), courts will independently assess whether the EPA's original or repealed rule correctly interpreted the "appropriate and necessary" standard, without deferring to the agency. The major questions doctrine from West Virginia v. EPA (2022) could also be invoked if a future restored rule is characterized as having vast economic significance without clear congressional authorization.
Checks and balances
Congress would gain authority to nullify the EPA's repeal and constrain future rulemaking on this topic; the executive branch (EPA) loses regulatory flexibility, and any future substantially similar rule would require new congressional authorization under the CRA.
Historical precedent
The original Mercury and Air Toxics Standards (MATS) rule was challenged in Michigan v. EPA (2015), where the Supreme Court held the EPA must consider costs when determining whether regulation is "appropriate and necessary," leading to subsequent regulatory revisions.