that is unequaled around the world. so even though we're now at 20 percent of the global economy, i was thinking about it the other day, if you take just our allies basically europe, japan, korea and had the strength of there economy stars your back up to the 50 percent i was talking about in 1945. we helped of those coaches back to the situation in which they are. we have a slightly different distribution the network of free trading relationships.

but perhaps even more important is that i think we have an obligation to do that. i don't think we can shirk our responsibilities have that kind of strength of economic and military and having the kind of history and representing the kind of values that we do is an obligation on our part to continue to strive to play a leadership role in world affairs. can we do it alone? no. absolutely not. it's we don't have that power commensurate to what we talked about. but we should not want to.

the various aspects, there is no possible way you will be able to deal with them except in partnership with other countries. we are entering into an era of mutuality an era of interdependence and i think if he does to take this new era very seriously and crew responsibility. i am confident really that under the circumstances we face today and provided that we continue to keep perfecting our own society and work closely with her friends around the world that we can continue to play the kind of strong leadership role of the played.

thank you for listening to me and i'm happy to do some questions. it's. >> thank you, ambassador everybody you can today. you referenced some of the rising terrorist movements that we are seeing in the world today. those of led to a decade of setbacks for human rights internationally. we all need to be concerned

about that. human rights international to amass the principles as the principles of freedom and human rights that we think are the ultimate antidote. my question is for the ambassador focusing on the intersection of human rights and foreign-policy. the 1st question for you there are some who regard human rights as being in tension with the principles of your policy. there are others and i would be in this who don't see such attention. really advances the us national security interest. can you comment on this issue of whether there is a a tension between the promotion of human rights and foreign-policy? >> happy to.

then i was laughing to myself. in some administrations they're really were great arguments and tensions between the politics and those advocating human rights' and so i guess there's always a tension against the policymakers those who have a unique focus and maybe one functional area or once of standard issue versus those who have an overall responsibility for the policy. but i think to the fundamental question i don't think there is any incompatibility between the pursuit of vigorous human

rights policies and our overall policy. if i could try to broaden your issue of the week do not have any alliances with countries that do not consider democratic. formal political alliances which after he's, which obligate us to come to those countries defense in the event that they get attacked. our alliance with democracies, democracies couple of countries that you might be able to put in the doubtful:. at one point he was under a

dictatorship. by and and large if you take europe, japan, korea, so forth south korea's is all allied countries and democratic. very often we came to the relationship with those countries for security reasons. like germany, germany, like south korea, but we saw the wisdom of helping them develop democratic countries that respect human rights. i think where things get a little bit complicated, it's in the tactics the day-to-day tactics of our foreign policy where you we will sometimes find some pretty serious disagreements that only the state department but around this town and maybe our country which is for example what

you do about human rights violations you have extremely significant interests purchase, the largest oil-producing country in the world for the country of china which is about to become possibly the largest economy in the world. you have to find a balance as to how you make clear that you support human rights in those countries but at the same time we are sometimes limited by the real possibilities as defined by two things that doesn't necessarily mean that a democratic a

democratic country is automatically going to sprout up. we further learned the chaos that have been created's suddenly beyond our material capacity to be of assistance i mean, the iraq war in afghanistan war cost hundreds of millions, if not trillions of dollars. i don't think we want that experience replicated in syria. i don't think we want to send 100,000 troops there to help try to set of the country right nor to yemen nor to any other place for that matter. in fact i'm sure the people of the united states probably feel they have had more than their fair share of these kinds of expeditionary activities so i think it's a balancing

act. the overall goal is to continue to move until democracy around the world. related question. these movements from gaming recruits and winning the battle for hearts and minds. >> asking about whether the fact of a regime being repressive might be something that causes some of this kind of rebellious activity. >> the idea is that just at the cold war we raising human rights issues and not just negotiating of the arms table.

we need to continue to mount an educational effort around the importance of human rights even as part of the world. >> absolutely, but i think we have to do it realistically and have some sense of what kind of situation does that government confronts. it's we had to do it patiently outthink human rights and democracy could necessarily be established overnight. i guess i guess my 3rd.is we have to do it with the recognition that there are some situations that people are in where the primordial concern is just plain old security. it is security. it is safety from the gunfire that is going on around them in the violence and the disturbances so that there are certain situations

where people will most certainly, most assuredly value security of herself, the person more than anything else. and until the government has succeeded adequate military forces and whatever else it takes to establish requisite conditions of security it is sometimes not that easy to promote the human rights agenda. >> are we too slow to sometimes criticize the human rights abuses by countries that are allies? >> well, i am in the category of those who prefer to work these issues through

quieter diplomacy. i'm not sure you gain much in terms of retaining their confidence if you publicly embarrass them somehow. you may even undermine them depending on how you handle it. so i am more on the side of quiet diplomacy although recognizing that there are times where you have to be public about these things. i'll give you an example of going public and human rights that seems unusual to those of us who have been in this business a long time. i of the foreign service in 1960. we didn't have a legal requirement to write annual human rights reports about countries. in fact, that was passed in the early 70s. that was quite shocking about the conduct of diplomacy. calling out all these countries.

and you know what i got used to the fact and after a while it seems to me that it was not so bad to have these reports but it was important that they be drafted carefully, that they be careful about nuance and completeness and that they not be done with too much fanfare. now you can go to library, anybody's library and find a state department annual human rights report on every single country in the world. i don't think that that has the effect of creating a huge uproar in our relations with other countries. that ultimately is probably to the good.

>> the president and his cairo speech talked about emphasizing human rights and foreign-policy. many people have viewed that as more rhetoric and reality. do you think we have done enough? ..

>> >> it has created more problems than it solved. ask those who are advocates for human rights to consider the possibility that focusing on regime change may not necessarily be the answer that we need to take a longer and more patient approach. or to other churches but the catholic church sometimes has of policy of suffering and patients and continuation with its mission but to never allow the hope for freedom to die. but not necessarily to say we just have to get rid of

these guys. we have done a bit too much of that and it has brought more problems than it has solved. >> it has been 14 years deal think the page redact has endangered fundamental freedoms or it has done its jobs well? >> it is the great question. you ask someone who isn't a scholar but did say practitioner as a director of national intelligence i'll look into these matters and was fully apprised of the surveillance program conducted by nsa. maybe not as familiar that i

didn't have as much of the role with those activities but i did with respect to the nsa i had to sign quarterly letters to the thighs the court -- fisa court and i honestly never sought any behaviors' thought that would impinge on the freedoms of our citizens. i have visited nn say a number of times even touche show me -- to show may carry out these activities with fbi agents and lawyers and all kinds of people to oversee the way that these programs were carried out.

i was satisfied with adequate safeguards were taken to protect the rights of individual citizens. so frankly when the uproar occurred from the surveillance it did not resonate with me and i did not connect with it at all but. >> one of the themes that we encounter outside of the u.s. is the uplink and surveillance to undermine our credibility do you feel that it should have been more targeted or focused on an actual suspect? >> you are making some assumptions i of not fully qualified to comment i guess

i wouldn't anyway. but i think it is fair to assume we have collection priorities. these are targets where we think some threat may emanate. what about a angeles ever call? my answer is it seems anytime someone and intelligence community thinks about collecting against a friendly foreign leader cut proposed activity needs to be reviewed at a high political level to me

that it isn't clear to the case that she was so upset about. so real care with respect to collecting against a national leaders in and the third day in is you and i know what the threats are. is international terrorism it is al qaeda qaeda, transnational crime crime, we don't have to cohousing - - go looking for things. so it is the analytical capability you have to be able to you digest to make

sense of these information required analysts are an important area of work i hope he will become and listed in the future. it is probably the most important part of intelligence is that function we need to have that approach. >> last question into what extends the -- extent has social media harnisch their power to promote freedom. >> as somebody 50 years under the and the. [laughter] i don't really dial. [laughter] everybody says it has to assure it's true but i haven't been able to fully understand it myself but the

speed with which everything everything moves around and the reactions and that is the point that we can marvel at that actioner interaction part happened so quickly today. peter and i were in vietnam together 50 years ago i was a political reporting officer. i would go out to the field for one we can collect information on whatever province i came back with handwriting write a long telegram or a message then it would be typed up by a secretary then brought down to the code room and they would types that classified message on to the teletype tape that was fed into a

machine then the telegram would come out the and the end of the state department and would go through this same process reverse would appear on the desk. i would send those reports that five or 6:00 at night that was about five for 6:00 in the morning in washington we had a chance to go home and go to bed then we would break up and we had gotten the reactions from the people in washington. but you had one turnaround in in 24 hours compared to what we do today. just that question alone relates to the amount of time you have to think about the problems that you face and how do you carve out

that time of tranquillity to think a problem through rather than constantly offering -- answering the last person in question? >> we will open questions to the floor. i will repeat the question. >> [inaudible] >> is a question about

american relations and its anniversary. >> you said something about the united states? my understanding. i don't know if it was a deliberate act by our government but as i said earlier russia was an ally during the war. i.c.e. understand. i don't know. i am not in the government any more. i take you are saying why didn't we participate in those activities? i don't think it is hate. i really don't. i don't think it is hate. i think america appreciates and i remember hearing that many times during the cold

war that we understand the losses that russia experienced during world war ii when things went in a different direction in 1947 but the opportunities to get along are still there we're going through difficult times because of what happened in the ukraine that is problematic. but we should not rule out the hope or the possibility of better relations between russia and the united states in the future. it doesn't serve the interest to be antagonistic for a long period of time. one of the problems i believe which gives rise to issues and the united states and russia, others say and

-- other than natural gas or oil there isn't many economic factors linking with the rest of the world is $3,445,000,000,000 per year but so the engagement with the chinese economy is 10 times greater than it is with russia. we need more of that engagement to develop a greater stake in each other's well-being. >> i and a former governor offical. you have outlined a whole series of challenges but there is one that congress deals with is this subject

of what to do with iran and its nuclear ambition. you have had several jobs in that area can you give us insight how we might look at this and what recommendations you may make? >> how did they get away with not mentioning that? [laughter] and it was very much in my mind when i was ambassador to iraq. there behavior was problematic as they were supporting the violent extremist. the air rand revolutionary guard corps would cause lots of problems. but someone at a chronically

when i was diplomatic national security adviser under colin powell during the reagan-bush administration were helping iraq with its war against iran. i remember working on intelligence sharing arrangements sending agricultural credit to the country of iraq so we have an interesting history of involvement in that part of the world. with the current situation in the negotiations of the western countries the p5 + 1 the river say an agreement. -- there is an agreement. it seems if there is a deal or a treaty if it gets

completed would limit to the nature the equipment that they have the centrifuge and so forth the numbers and quality, and also place limits on the material and one level of refinement it is that and it would place limits on inspection of at least 10 years with a variety of facilities but we have not yet seen the final deal and that would depend on the details. my impression from what i

have heard is the key issue is really inspection with the ability of international inspectors to have of access to the various areas and facilities so they can assure themselves that the commitments iran has made will be carried out. i think we've just have to wait and see how that plays out. i take some comfort that the senate has established a role for itself that whatever agreement is reached will have to be submitted to the congress for approval as a result of the chairman of the senate foreign relations committee committee, bob corker.

so there is a huge amount of effort that has gone into this. but i think i reserve judgment right now if this is a good deal or not. >> after the cold war we have seen crimea day think those are necessary or what framework is necessary? >> with the border changes and the framework. >> i think that is a key and of forms. that it would be very risky. with the invasion of crimea

so with the possibility of quarter changes there or elsewhere. so it was drawn with days certain degree of colonialism. but once you're on the uh of path you're on the slippery slope. it is that only the political dangers but a threat to the whole concept.

this the best system and to come up with yet. as long as we don't have an adequate substitute i don't think we will develop one anytime soon. behalf to remained faithful to the principle. sochi my way of thinking changing boundaries is a course of action and less dead with general and genuine mutual agreement but that is a relatively minor border adjustment with large scale changes. >> doesn't apply to a congressional districts?

>> but to have relations some people would get the issue is economic so how can the west engaged africa still read social talk about u.s. engagement in africa for cystitis and others. >> a very important to question in and of bush administration i think we may day significant efforts to engage africa where recreated pat for -- pepfar

it was $15 billion per year also during a period when it chose to double the assistance which genuinely surprised me for a republican administration that the of monterey conference in mexico. there are so many different reasons, the united states to gauge africa with historical affinity, said the fact is the fastest growing economies in the world. with the economic potential and many other considerations.

i think the administration has done quite a bit. we have had power africa. with those that we confront with navy engineering part and we're interested in africa. but to acquire the group of south africa in stores.

but denise to have been faster. did what they wish to and wine of investing to natural resources. for those approaches setter not as listed with this big continent of africa. >> thank you very much. >> in your talking discuss to be a optimistic for the future for the opportunities

ahead of us. and with the foreign policy than is concerning dow above line? >> so what impacts foreign policy for the future? >> we talked about transnational threats so what and to be concerned about with trafficking in drugs or have been forbid nuclear materials. and vetting guard against.

with the original remarks and those with different spaces there is a much better chance of these problems so if you have a huge gap of governance. suggest of those tribal divisions with serious security and economic conditions is that the export of more trouble not only to neighboring states but that kind of situation? so the state to failure of afghanistan in the 1990's that permitted mr. been

allotted to develop his capabilities so to talk about what is happening in our own country we have to be on guard with their own economic and social development. with five or six years ago there is still sung in balance and issues that need to be dealt with. to get the fiscal house in order fortunately it would appear the level of deficits start to go down then obviously the events of baltimore show us we have serious and economic conditions here at home if

we can deal with those successfully in excess of better country to deal with those that arise. land for somebody who was here 1968 it brings back bad memories in the wake of the assassination of martin luther king. >> with that diplomacy even though diplomacy has helped us tries to use that

military power purpose of my question is how do strike a balance between using diplomacy between to quickly deciding that is the way to go? rebec. >> what do you do? >> i'll look forward to your paper on this subject but it is too late. [laughter] fetid is a good question and. were an excellent question. sometimes it gets oversimplified. my colleagues like 2.0 that there are more officers than

the foreign service but i would not want to deprive the physical capability and they're being and. -- bands. . .

so i would rather just focus on getting good performance out of our diplomats than morey and be envious of the agency next-door. besides, they do have substantially different responsibilities. we need a small numbers with highly trained and experienced people. when you think about the heroes of our profession, charles bolin were people from that era after world war ii georgia, these were individuals whose careers were assiduously cultivated and studied russian and get critical assignments and were advisers to roosevelt

and atkinson and george washington. we we didn't create these people by the hundreds. they were created by the dozens. i think that is still true. i i mean, i could name for you even now i had a i had a pretty good idea of who the best psychologists were in a state department and you the best russian experts were in the best latin america experts. you get to know who they are in the intelligence community, who the best analysts are because there analysis bubbles up to the pres. and the pres.'s daily brief brief and they get to sometimes come in brief the president themselves. there is somewhat of a qualitative difference in terms of there turning out people in those kinds of highly professional, analytic situations' that is

distinct from the larger scale military organization although i will be the 1st to acknowledge that the military has become a much more intellectualize activity than it used to be and that the level of skill required to be in the military is now far higher than obviously it used to be it has moved up the educational scale substantial. and one has to be -- if i learned anything commit is there training budget, if you would just give -- we don't have a training for. there is no such thing as every so many years you take a year a year off and go get trained. the conventional wisdom is on-the-job training. i remember one of my great

mentors and where the great diplomats of his generation i told them i was going off to a training assignment. he said, are you sick? we need to completely change our attitude toward training command i think that is happening. secondly, we need more money for that. time for one or two more questions. [inaudible question] >> income and wealth inequality. do you say this is a potential future that? and how could we address the problem? >> the question about income inequality and its applications for future. you know, you are really way out beyond my area of expertise. like you i see the issue

and i am a bit perplexed by. when i joined the foreign service in 1960 the salaries of starting training at the state department, and entering officer, like a 1st lieutenant in the army and the young trainee at national city bank were roughly the same. i started out at 5,000 $280 per year or something's. and that was not that different than people starting in the private sector. the discrepancies today are huge. even at the beginning not to mention where they go from there. a the business school graduate or law school graduate basically starts out if they go to wall street or something like that with the same salary

that an ambassador ends up with. there is something wrong with that. it makes you wonder whether you retain the kind of talent you want to retain in some of these professions if there are such discrepancies i'm going to have to leave that one for somebody else. >> final question. >> very interesting. thank you for the speech. it was very interesting. we know that the united states has indiscernible. what do you think can the

american government help ukraine to overcome the current crisis, political and economic. >> a question about the ukraine in our engagement there. >> and what do i think i think we can do to help overcome the crisis. well 1st of all we need to support the government and give. i think that they need economic help and we cannot afford to give them all the economic help they need. that has got to come from europe ourselves commandos were. i think we need to work on the men's process and the cease-fire and the agreement that was reached in february which is not gotten very far so far. we will go and all the reasons but has proven to be difficult implement's. tried to accomplish the fulfillment of that

agreement that was signed in february of this year. >> we are out of time. i want to thank everyone for your patience and questions. screeria -- nigeria. - drugs.

and then the state of the u.s. diplomacy and foreign policy. the environmental protection agency has proposed new rules for power plant emissions called the clean power plant.

attorneys discuss the legal ramifications of the epa's proposals at a hearing at the senate environment subcommittee on clean air. west virginia attorney holds the hearing. well i'd like to thank everybody for being here today and this is our first clean air and nuclear safety subcommittee hearing on the epa's clean power plan. i would like to thank all of the witnesses for appearing before us today and say a special thank you to my state's attorney general, patrick morrisey, who has been leading the national legal fight against this rule which we believe would have a devastating impact in our home

state of west virginia. so thank you for traveling across the mountain. i appreciate it. back in february in a full committee hearing in this room, i asked epa acting assistanted a menstruate for janet mackay to explain why the epa did not hold a hearing on the clean power plan in the state of west virginia, one of those states very heavily impacted. despite the large role that coal has in our economy and electricity generation and despite the multiple invi indications issued by me and many, many others, federal and state lorls to have them come to our state, she told me basically that public hearings were held where people were, and this is a quote, comfortable. that response was unacceptable to me then and to the people of my state. as attorney general morrisey will point out in his testimony this rule will have a devastating impact in our state other coal-producing state and the reliability of our grid. we know from nearly five years

of -- five decades of experience that the clean air act works best when implemented in the spirit of cooperative federalism. when the federal government works with the states as partners, we have protect our economy and the electricity grid at the same time. however, the clean power plan does none of this in my opinion. instead, we have the epa dictating to the states and effectively micromanaging intrastate electricity policy decisions that the agency admits is unprecedented. this brings up an array of legal issues and is bad policy. many states, including west virginia and oklahoma, whose attorneys general will be here today, will talk about the implications for their citizens and ratepayers. in addition to the likely impacts on electricity costs and reliability.

at risk is the ability the states have always had to make the decision about their electricity generation. west virginia has chosen to rely on coal to provide affordable and reliable electricity for our consumers and businesses. other states have made different choices that best serve their interests. but under the clean power plan, it will have to reduce carbon monoxide emissions and be approved by the epa. it's contributing to rising electricity rates and concerns about reliability. we've had testimony in other hearings. with the economy still far from fully recovered, the last thing job creators need is another expensive regulation to drive up our energy prices and the last thing our families and senior citizens need is to see their electricity bills continue to go up. next week i'll introduce greenhouse gas legislation that will preserve the proper balance of state and federal authority help ensure rye liable and

affordable electricity and look forward to working with many colleagues in order to expand this bill and i'd like to say anecdotally that throughout the state of west virginia we have such uncertainty and such disappointment, i think, that our voices haven't been heard in our state with the epa coming to listen and we don't feel that the calculation of the economic impact in our communities has been fully explored, nor even taken into consideration as we move forward with these rules. with that i'd like to yield to the ranking member senator carper for opening statement. >> thank you madam chairman. thanks so much for holding our hearing today. we really want to welcome our witnesses. nice to see you all today and thanks for joining us for this important conversation. today's hearing will continue the discussion of the legal implications of epa's proposed carbon regulations known as the clean power plan. i was born, as some of you know

in becklchl ey, west virginia raleigh county was my great, great grandfather joseph carper. as a native of a county where coal mining was important, remains important and now as a senator recovering governor, i represent the lowest lying state in the nation. i have a unique perspective on the balance we must strike in order to make the regulation work. not just for my state or your states but for all of our states. for those of us from states already being impacted by climate change the epa's clean power plan to regulate our nation's larger source of carbon pollution is not just important but it's essential. many states, such as maryland, my home state of delaware, have already taken action to reduce local power plan emissions and we need all states to do their fair share to protect the air we breathe and stem the tide of climate change. in order for these standards to be effective the epa must

ensure that all 50 states are capable of complying with these standards. today, the epa has conducted an unprecedented level of outreaches to utilities and businesses in order to craft a comprehensive plan that works for each state. under the clean power man, states can create their own plan for targeting -- for meeting their targets in a number of ways, including by increasing renewable energy, such as wind and solar and increasing the efficiency of their electrical grid. unfortunately, since the day that epa proposed the clean power plan, it's been criticized as being outside the agent's authorities under the clean air act and the u.s. constitution. i believe these claims are without basis and facts. in 2006, ten states actually sued epa to force it to regulate carbon pollution from power plants. since then, the u.s. supreme court has ruled not once, not

twice but three times in support of epa's legal authority to control carbon pollution under existing law. in 2007 supreme court confirmed in massachusetts versus epa that as passed by congress the clean air act gave the epa the authority to regulate carbon pollution. the legal precedent for the clean power plan is at least in my mind clear and attempts by congress and other parties to challenge the legality or essentially a delay of implementation of the plan. as we've seen in the past litigation over carbon pollution regulations has the potential to be stuck in the court for several years. the longer we wait to reduce our carbon output, the more severe and perhaps irreversible the effects of climate change will become and frankly, the more severe the changes will have to be adopted to deal with this coming problem. meanwhile, public health in our economy will continue to be

endangered by more frequent storms, intense droughts and sea level rise. personally, i'm committed to making sure congress does all it can do to support the implementation of the clean power plan. i look forward to hearing from witnesses today about our progress in doing so. let me close with one thought. i was born in beckley west virginia family all over the state, actually, and i remember going to an old church grace gospel church outside of beckley in a town called shady springs, which you know madam chairman. and at a very early age i was taught the golden rule. treat other people the way we want to be treated. and i think the golden rule is probably the most important rule of all and i think it should apply here as well. and i want to make sure that we treat west virginia fairly. i want to make sure that we treat delaware fairly. i want to make sure that the states that are seeing the sea level rise the highest point of

land in delaware is a bridge. it's not a mountain. it's not a mountain. it's a bridge. and we already see the effects of sea level rising in my state and we're concerned about it and frankly so are a lot of other states. i want to make sure we're fair to us in the first state. i want to make sure that we're fair to folks in the mountain state. with that in mind let's have a good hearing. thank you. >> thank you. and i would like to tell the audience and the witnesses that we are scheduled to have a vote somewhere between 10:15 and 10:30 so my plan would be to try to get through the opening statements and quickly adjourn and let us make that one vote and come back. i reserve my right to change my mind. i might say we'll rotate in and out. that might be a better way to do it. but at that point i wanted to put you on alert. at this time i'd like to recognize the chairman of the full committee, mr. inhofe, from oklahoma for the purposes of making some comments. >> i thought that was just my wife that made that statement of

changing her mind, but i appreciate it very much senator capito. we have some folks up here from general electric in oklahoma. we get this question all the time, they say, wait a minute, if we're reliant on fossil fuel for 50% of the power to run this machine called america and they take that away how do you run the machine called america? come up and find out because i don't know either. three things real quickly. cap and trade started, this was way back in 19 -- 2002 and at that time they first said the world is coming to an end, all of the global warming and all of that stuff. now, they tried to pass it legislatively from 2002 up until the current time and they were unable to do that. what we're looking at now is the federal government coming in under the obama administration trying to do through regulation what they couldn't do through legislation. and then secondly the under obama,

i asked her the question, in this room, live on tv i said, you know, if we were to pass either through regulation or through legislation, would this have the effect of reducing co2 emissions worldwide and she said no it wouldn't. even if you are a believer in those things it wouldn't work. and then the last thing, i'm not a lawyer but i was on several radio shows this morning with scott pruitt our attorney general. and i learned a lot, scott from you. but when the president's own law professor, lawrence tribe, recently testified before the house, said the epa was ecerpting the congress and state and federal courts all at once. this was barack obama's harvard law professor. with that, i'll be looking forward to the opening statements. >> thank you. i'd like to recognize -- we'll go from my view, left to right, our first witness is the

honorable patrick morrisey the attorney general of the state of west virginia. welcome. >> well, thank you very much chairman capito ranking member carper and all of the ranking members of the subcommittee. i appreciate the opportunity to be here today to testify against the president's so-called clean power plan. i do want to say at the outset i feel good about this hearing because west virginia seems to have some support both from the chair and the ranking member side. senator carper, you're always welcome to come back to the great state of your birth. thank you. now, i'm here today to talk about the legal problems in the obama administration's so-called clean power plan commonly known as the 111-d rule. this requires states to reduce emissions from existing coal-firing power plants by a staggering 30% over a 15-year period. make no mistake about it, finalizing this proposal would have a devastating impact on my state, other coal-producing

states and citizens from across the country who feel the negative impact of high electricity prices lost jobs. west virginia is one of the poorest states in the country and yet we're the second largest producer of coal. it's a very important resource for us. this proposal will result in an even greater economic dislocation in appalaicha at a time when we can least afford it. it's my job to fight against this which is hurting our citizens. west virginia has already led a bipartisan coalition of 15 states before the u.s. court of appeals in d.c. and if this administration elects to finalize this rule, west virginia will challenge it in court and we expect that the coalition of 15 states that we're currently working with will grow. today i'd like to talk about just a few of the legal facts of

this proposal. now, as you all know, the epa bases its claim for legal authority to adopt this rule entirely on section 111-d of the clean air act. however, a nearby provision, section 112 of the clean air act, epa prohibits the agency from invoking section 111-d for any pollutant, quote, emitted from a source category which is regulated under section 112. we think that language is very clear. as the epa has repeatedly explained time after time, this text literally means that if epa has regulated a source category under section 112, epa may not come in and require states to regulate any pollutants emitted from the same source category under 111-dchl.. in 2012 they already finalized

a major rule affecting coal-firing and the argument for this exclusion is not credible and defies all traditional rules of administrative law and statutory construction. let me explain. when congress enacted the president's version of the section 112 exclusion in 1990 they actually made a mistake. it accidently included two provisions in the statute at large. two amendments to the same exact text. one was the substantive amendment that replaced the cross-reference and exchanged the exclusion to its present form. the second was a conforming amendment, a technical amendment, if you will, that was made 107 pages later. but once you actually applied the substance of the amendment to the text it made the conforming change wholly unnecessary and that is why the technical

technical error was never included in the u.s. code. now, what happened there is actually consistent with the way congress has always operated. to the extent that there are clerical errors in a text, when congress goes back through the revise sors to decide what goes in a code, they analyze that and apply traditional rules of statutory construction. in fact we've never seen a situation before where a federal agency has literally tried to push such a sweeping proposal on the basis of a typa. it's unprecedented. rather than follow the traditional pathway of opposing an emission rule on a particular source category to make that source category more environmentally friendly, the section 111-d rule requires states to replace coal-fire energy with other sources of energy and even reduce consumer demand for energy. that means that the section

111-d rule seeks not only to regulate power plan emissions, it's amended for states to fundamentally reorder their electricity sectors and pick winners and losers between the sectors. this rule would regulate from power to plug. now, as alison wood a well-respected attorney recently indicated before the house energy and commerce committee the epa's claim here is analogous to the agency asserting that its authority to regulate automobile emissions provides it with the power to order citizens to take a bus to work or buy electric cars on the theory that the measures would reduce car emissions. section 111-d simply does not grant the epa such broad sweeping power. thank you very much. >> thank you. now, i've just been inforpedmed that the vote has been called. let me see what we prefer to do.

okay. we're going to go vote. so we'll stand in recess and we'll return. we should be here shortly. thank you for your patience.

so that was pretty quick i think. and we will resume the hearing and i would like to welcome the honorable scott pruitt, the attorney general from the state of oklahoma. welcome. >> well good morning chair woman capito, ranking member carper, chairman inhofe and members of the subcommittee. it's good to be with you this morning and with my dear colleague and friend from west virginia. i appreciate the opportunity to discuss the clean power plan. this is an issue of major importance to states across the country like oklahoma. quite simply, madam chair woman, the epa does not possess the authority to do what it is seeking to accomplish in the so-called clean power plan. the epa under this administration treats states like a vessel of federal will. the epa believes states exist to implement the policies the administration sees fit regardless of what the laws permit such action. in their wisdom, congress gave states a primary role in emissions regulation.

"the air pollution control it at its source is a primary responsibility of states and local governments." that statement respects the constitutional amendments on federal regulation of quality. and best suited to develop and suit policies. states will strike the necessary balance between protecting and preserving the environment that does not stifle job growth and economic activity. the states are partners with the federal government, as the chairwoman noted in her comments. therefore, the clean air act hinges on giving the states the primary responsibility and role for regulation while providing a federal backstop in the states act. the cooperative relationship works well. when the epa exceeds the constraints placed upon the agency by congress, the relationship is thrown out of balance and the rule of law in state sovereignty is affected adversely. the clean power plan proposal

between the states and federal agency off balance. the epa claims it gives stability to meet the national goals of reducing carbon dioxide mpz emissions and it's more than a plan to expand power. the plan requires each state to submit a plan to cut carbon dioxide emissions by 30% by the year 2030. in oklahoma 40.5% of our energy production comes from coal-fire generation. and 38% comes from natural gas. oklahoma, notably, ranks fourth in the country in generating electricity through wind. this begs the question how does the epa expect states like oklahoma and the top four in the country in generating electricity to meet the goals of the clean power plan. there's only ways that oklahoma can achieve a 30% reduction demanded by the epa. the plan therefore, must be viewed as an attempt to force

states into shuddering coal generation and fossil fuel generate electricity. additionally the proposed bill would require states to use demand side energy efficiency measures that would reduce the amount of generation required. however, states are limited to emission standards that actually can be achieved by existing industrial sources through source level inside the fence measures. the proposal's attempt to force states to regulate energy consumption and generation throughout their jurisdictions in the guise of reducing fossil fossil-fuel fired plants, that the performance standards for existing sources by the states must be limited to measures that exist in power plans themselves, inside the fence. the approach obscures the 111-d into a general enabling act, giving epa power over the entire grid from generation to light switch. by going beyond source level inside the fence line measures

epa's proposal would expand 111-d and specifically the underlying statutory term quote, into a whole new regime of regulation. one that regulates pollutant emissions by the sources but the state's entire resource and energy grid. to meet the objectives of the proposed rule, states would be forced to rework their market to account for coal-fire generation and states would be required to change their energy mix in favor of renewables. states would also be forced to alter existing framework. industry and energy producers. finally, there is a substantial concern that the epa, before the clean power plan is even finalized, will usual a federal implementation plan to the ununlawful clean power plan. this would be a gun to the head as the epa sees fit or face

punitive financial consequences for their state. i can say with great confidence if the epa moves forward with the uniform fit, it will be challenged by oklahoma and other like-minded states. i'm not one that believes the epa has no role. the epa has played an important role in addressing the air and quality rules. however, with this rule the agency is being used to peck winners and losers in the energy market. by elevating renewable power at the expense of fossil fuel generation. no state should comply with the state power plan if it means surrendering power to the epa. states should be left to make decisions on the fuel diversity that best meets their needs. states like oklahoma care about these issues because we breathe the air and drink the water and want to preserve the land for future generations and have developed a robust regime that has struck a balance between maintaining and preserving air and water quality.

madam chair woman, states like oklahoma are simply opposed to the plan because it's outside the authority granted to the epa by the law. we only ask that the state authority under the clean air act be respected and preserved and the power generation and how to achieve emissions reduction made at the local level rather than at the federal level. i again appreciate the opportunity to speak with you today and discuss these important matters. thank you. >> thank you. our next witness is mr. roger martella. he's a partner at sidley austin. welcome. >> thank you madam chair senator inhofe and thank you for the opportunity to appear before this committee once again. it's a great honor. epa has yet to finalize the existing standard but that hasn't stopped the lawyers from submitting thousands of arguments both in support and in opposition of it. i've added to that mix a little bit today with written testimony that i shared with you. but what i thought i would do is digest those scores of arguments

into what i think will be the two over-arching issues that the court is going to consider when it reviews the final role. and the first is picking up on a point from senator carper in his introduction that if we look at how the courts have responded to the climate change issue since 2007, since massachusetts versus the epa, we've had a lot of direction from the supreme court, ninth circuit, they take climate change extremely seriously regardless of what i might think about it what anyone here thinks about it, the court has been highly differential, not only to the epa but to the states to use old and outdated tools to combat climate change. the court won't look at this in a political vacuum. the courts will consider that when they review their role in what the epa is trying to do here. having said that, the other consideration from the other side will be the unprecedented

nature of what epa is trying to do with this existing authority under the clean air act. and what i'm talking about specifically, of the many legal issues, the one that i think will get the most attention from the court is something you probably heard about several times by now epa's approach to regulate sources beyond the fenceline of those sources and it it basically works like this if my pen is my coal-fired power plant, the epa has set a standard based on the technology that could be achieved at this source, on what it could do. but now epa is saying in order to address climate change, that's going to limit us. we can only get so emissions from the plant so we have to look beyond the fence line we have to look at natural gas, renewables, the energy efficiency of buildings like this and that will enable us for the first time to achieve greater reduction in greenhouse gases than what we can get from this coal-fired power plant. the court may think that's a

noble goal but at the same time it's going to be thinking about the legal precedent of this beyond the fence lean approach for the first time in 45 years in the clean air act. it has ramifications. the first is the practical ramifications. as the two generals have spoken today, the enormous expansion of authority to make epa not only a regulator of the environment but the most significant regulator of energy at the national level. in order to get those greenhouse reductions, it has to include in the regulatory authority nuclear facilities, renewable energy facilities, energy efficiency and countless buildings. so it is expanding its authority to the market in a way that congress should be speaking to you and congress should be authorizing as opposed to looking at the inherent authority. the second ramification is a legal one. the courts are going to be concerned about the legal precedent here and this is a departure from the clean air act historic approach focusing on sources on the case law that's been consistent and never before

in 45 years has the epa gone beyond a source or fence line. it's tried to do so and has shut that down. and then the third concern for the court is going to be the presidential nature. if epa is affirmed with this approach, this beyond the fence line approach here as it starts to regulate greenhouse sectors there's going to be no limit to how it can look beyond an individual source to bring another source and by the way hold other sources that are not currently subject to clean air act regulation like a nuclear facility, like this building and energy efficiency, bring them into epa's regulatory regime. while i've said the supreme court has endorsed the climate change rules the supreme court did say in partially affirming epa and partially reversing epa, they cannot look to the clean air act to engage in sectorwide economic regulation. and that came out just four days after this role that the supreme court said we will not allow epa to use the clean air act to

regulate lots of small sources and engage in regulation of the economy. it's unfathomable how the justices concerned in that instance with epa regulation wouldn't be concerned with this regulation. the last thing i wanted to mention briefly is the harm that we're going to see in the interim during judicial review. it takes about four years for the courts to review cases like this if it goes to the supreme court and, again, the generals have spoken to some of the harms going to the state. i want to point out any single role, everybody is going to allege harm but is fundamentally distinctive because of the ways that they have to funt mentally restructure and reorganize their entire system of regulating energy creating energy infrastructure and developing laws and enacting laws that promote portfolio standards energy efficiency standards and so on. this is fundamentally distinct in terms of the harm that is going to be realized. thank you again for this opportunity. >> thank you very much.

our next witness is miss kelly speakes-backman. she's the co-chair of the greenhouse began greenhouse gas initiative. welcome. >> thank you. >> microphone. sorry. >> is this okay? all right. thank you for inviting me to speak. it's truly an honor. opponents and proponents alike have been engaged in many discussions about what the next steps are, reiterating a sentiment expressed by one of my dear fellow panelists one of the most significant questions for states right now is how do i comply? i respectfully submit to you from a perspective of a state that has boots on the ground on this issue not only can states

comply comply with the clean power plan, we can support grid reliability. furthermore, i ask in return can we as states afford not to comply with a plan? rather than looking at this in the context of a federal implementation plan and what that would look like, i encourage the legal legislators to review it as a state perspective. severe weather is the leading cause of power disruptions costing the u.s. economy from 18 billion to $33 billion a year. and as a utility regulator i have the responsibility in a restructured market to have more tools at my disposal than what is available to me from within the fence line of a power plant in order to meet those requirements. modernizing the electrical grid to implement cost effective measures. the plan is an impetus for

states to assess the reality of what the states need to consider. this has -- carbon market. the program initiated by a bipartisan group and regulatory bodies caps emissions by first determining carbon dioxide allowances at market prices and finally capturing that value for reinvestment into strategic energy programs. although we have collaborated for a better part of a decade the region remains surprisingly diverse. we comprise of three electricity regions, different political and economic landscapes and profiles. maryland, for example, is 44% coal. you would -- it's a little bit surprising for those who look into the reggie region and think

of us as northeastern states but we have learned to balance that and we've learned to diversify our fuel mix. we've gone from 2005 to 2013 demonstrating that it's possible for a state with a significant coal-generation profile to reduce our carbon dioxide emissions. the power sector has decreased at twice the rate as the rest of the country. you'll find more statics in my written testimony that attests to the economic and environmental benefits for our region and for my state. the benefits informed our perspective of the states as we voice support for the framework of the clean power plan and recommended revisions to ensure that early action is recognized and that state targets are verifiable transparent, equitable and enforceable. regional programs like reggie are advantageous because they closely align with the nature of the grid already and allow for transparent and verifiable and

tracking compliance systems. analysis from our regional organization pjm calculated higher compliance states that go at it alone. states that work together can implement a regional emission budget across a larger geographic boundary and find the least cost solutions across a larger selection of options. to add some perspective on the timing, just a really quick one on that, the power sector has already responded effectively in the reggie region to environmental regulations in less time that the epa provides the rest of the country as part of the clean power plan. in fact, they have advanced reliability goals in just seven years. in contrast states have 15 years to meet the final compliance goals. we have reduced our carbon dioxide emissions from power plants by 40% while our economy grew by 8% over that same

timeframe. finally, we have accumulated some pretty good lessons as a participant in reggie that we hope will be effective for other states. we formed intraand interagency relationships which allows us to do a lot more for a lot less. the regional mechanism has stimulated quite some good stake holder engagements. as many of the compliance entities appreciate the reej agional con stift consistency, we don't have to have our own programs and i think the most important lesson is that participation in a mass based regional compliance effort will provide our states the most flexibility going forward. the cap is enforced by our individual state regulators. so states retain jurisdiction over their individual efficiency and renewable energy programs.

they are not subject to the federal implementation and we can continue to offer these initiatives to mitigate the cost of compliance with ratepayers. thank you. we look forward to working with you and answer your questions. >> thank you. and our final witness is miss lisa heinzerling, a professor at georgetown university. welcome. >> thank you. thank you for inviting me to discuss the legal implications of epa's carbon dioxide rule. many dramatic legal arguments have been raised against epa's proposal. opponents of the proposal have claimed that the proposal is unconstitutional under any number of noble threeeories. we've heard several such arguments already this morning. in my view, the constitutional and statutory arguments that have been raised against empa's

proposed rule collapse upon further inspection. for example, constitutional principles of federalism are not violated by epa's proposal. under epa's proposal states have a choice. they may devise their own plans for the targets that the epa will set or let epa plan it for them. this is the very same choice that states have had for 45 years under the air quality standards of the clean air act. it is not an unconstitutional choice. nor does epa's proposal violate the doctrine forbidding delegations of legislative authority to the executive. epa is interpreting statutory provisions of less than ideal clarity, using its best judgment to offer an interpretation that gives some force to the provisions enaktded by congress. the opponents of epa's rule argue that if epa interprets a statute the right way the way they favor, it raises no

nondelegation issue. but they say if the epa interprets the statute the long way, the way they don't like, this violates the nondelegation doctrine. in 2001, in a case called whitman, justice scalia rejected this exact theory the theory that an agency can cure or create a nondelegation problem by adopting a particular interpretation of a statute. if the clean air act presents epa with an unconstitutional choice between apparently conflicting provisions which it does not, the remedy would be to strike those provisions down not to require the adoption of the interpretation that opponents of this rule prefer. the proposal does not violate the clean air act. much has been made of the two different 1990 amendments to section 111-d both signed by

congress and signed into law by george h.w. bush. epa has long offered an interpretation that aims to take something from each of these amendments. under epa's construction of the amendments, epa may not under section 111 regulate the same hazardous air pollutants from the same air sources under both that section section 111 and section 112. this interpretation makes perfect sense and respects the larger structure of the clean air act, which pervasively leaves room for regulation in the event new threats from air pollution come to the fore. epa's proposed consideration of a wide range of emissions reduction measures in setting state targets including renewable portfolio and efficiency is also consistent with the broad authority given to it by section 111-d. in contrast to what we heard this morning already this kind

of approach is not unprecedented. epa has longed for conventional air pollutants via renewable energy standards and energy efficiency programs. and here it's worth thinking about what the claim is. the claim is that in essence there's too much flexibility afforded by the plan. it's worth noting here the office of management and budget of the white house in 2003 noted that the clean air act had the largest quantified healthy effects of any health benefits of any federal regulatory program. the latest epa study of cost and benefits of the clean air act found in a central estimate that the clean air produces $30 worth of benefits for every $1 worth of cost. the ratio is 30 to 1 under a central estimate. under a highest mate of benefits, it is 90 to 1. this doesn't happen by accident.

this kind of program, this kind of statutory implementation happens as a result of firm but sensible interpretation of broad statutory provisions. it is mystifying to me that opponents of clean power plan are criticizing epa for exhibiting the same flexibility that has served the clean air act so well for 45 years in this country. >> thank you. appreciate everybody's testimony and i will begin with questions. attorney general morrisey let me ask you a question. we obviously have a difference of opinion here. the supreme court recently said it is skeptical when an agency long statute and power to regulate, a significant portion of the american economy. i guess my question is, how long has 111-d existed and has it ever been used outside the fence line to overhaul an entire

sector? >> miss chair womanwoman this is an unprecedented he haveeffort and we've never seen this in both its scope and willingness to regulate outside the fence but also the legal authority being advanced who are by the administration. if you go back to 1970 and then you go up all the way to modern day, to today, you are looking at nothing that has ever occurred quite like this. now, there have been some select efforts to rely on 111-d in very limited circumstances. but nothing ever approaching this magnitude. and the other critical point is that from 1990 no federal agency no one has ever questioned that if you were to regulate under 112, that the literal text would preclude the targets being set under 111-d.

so we think that this is really an unprecedented approach and we would also add that what the administration is trying to do here is rely on a typo, a conforming conforming error, if you will, to breathe life into one of the most sweeping regulations in our country's history. if you look to advance something that has this great an impact on the american economy, at a minimum, there should be a clear authority and not a reliance on this typo. >> you mentioned that epa had never gone that far in terms of the fence line issue. can you respond to that question as well? >> thank you, madam chair. that is correct. there have been a number of occasions where epa in the past has looked at something called a bubble concept and that sounds exactly what it is that you can sometimes bring in the notion that something is more than just a stack and you bring in other sources of that bubble. there are two cases that addressed that and both rejected the bubble concept and those were not in the 111-d concept.

the little bit that we've seen of this in the courts has been negative and pessimistic on that. in terms of your question of 111-d, epa has engaged in section 111-d rulemaking since 1990 and it has always stated strictly within the fence line that it's never gone outside of it. there is a lack of precedence in the agency and consistent source of case law that would suggest that everything has to be within the fence and, frankly that's the clear reading of the statute as well. >> thank you. attorney general pruitt the proposed rule is clearly on shaky grounds and i believe mr. martella said four years for before we could actually get a firm legal interpretation of it being finalized. so what happens if states start implementing the final rule only to have the court to strike the rule down? what do they do? are people going to start signing contracts and breaking ground in what kind of scenario does that present to you? >> madam chairwoman it's a

great question because what hasn't been discussed this morning is the short timeline that the epa is likely going to propose when they finalize the rule next month. it's our understanding that it's going to be a one-year compliance period for states to submit a state implementation plan and by any estimation, that's a very ambitious timeline. as such, i think what is happening across the country is respective departments of environmental quality at the state level feel as though they are being pressured intimidated to comply with a rule that is perhaps not consistent with the statutory construction, which is the purpose of our discussion here today. i'm very concerned about the timeline. and i would add to roger's comment earlier, we have to keep in mind -- in fact, one of my fellow panelists is a public utility corporation. she regulates this at the state level. the regulation of energy generation is a police power of the state. it's been recognized as such through court cases and for there to be any intervention

into that power, there's a requirement that congress speak clearly and unambiguously to the agency to invade that police power that's been recognized under the law. and i think by virtue of the discussion here today, even among the panelists there's disagreement about whether this statute clearly provides that type of authority. >> another quick question and i think your governor has said that she will not be doing a state implementation plan. is that correct? >> there's an executive order eached reached by the governor that the deq is not empowered to submit a plan to the epa. >> and the state legislature weighed in on this? can you talk about that for a minute? >> yes. just recently the state legislature changed the law that for the state of west virginia to submit a state implementation plan, the legislature would have to ratify it. that's different from the previous law which would leave all of that authority to the

governor. >> all right. thank you. mr. carper? senator carper? >> thank you, madam chair. senator inhofe may remember me telling this story but it bears repeating. ten or so years ago i was involved in an effort with others to try to find an agreement on multipollutant legislation, mercury and co 2.2. as part of that process, i remember meeting with a bunch of utility ceos from all over the country and we spent time talking about how we might proceed. and at the end of the conversation, this one old fella, utility from down south i don't remember just where, but he said to me these words. he said, look, senator, here's what you need to do. you need to tell us what the rules are going to be. you need to give us some flexibility in a reasonable amount of time and get out of

the way. that's what he said. you tell us what the rules are going to be give us some what it will be give us flexibility, reasonable amount of time and get out of the way. i would just say if i could is it doctor or ms. heinzerling, think of that conversation and what that fellow said. how does it relate to what we are doing here, what dp is trying to accomplish? >> it fits it exactly, senator. that is this plan sets out what states are to do, gives them targets to meet, gives them the flexibility to choose the way they want to meet those targets. in this respect, it is strange and surprising to me that states are already saying that they prefer to have the federal government set their plans, but gives them that kind of flexibility to set their own plans to meet targets and gives them the times to do it.

the timelines in this rule are notably long. we are looking out to 2030 for final compliance with the structure of this plan so your story fits this rule perfectly. >> good. miss backman i think you were saying maryland had a heavy reliance on coal in the generation for electricity, and what you said was you reduced over the last seven or eight years your co 2 emissions by roughly 40%. >> yes, sir. >> and part of this regional coalition was delaware and a bunch of other states. my last job that i had as governor i love the idea of having flexibility. if they want me to do something, i say give me a menu of options i have. i understand there are at least four options the states can use. and this term of beyond the

fence line as an option that's sort of unprecedented. as i recall working on legislation years ago we were anxious to see what options there were outside the fence line. how could we help with respect to co 2. how could we help with encourage folks to plant switch grass and other crops like that. the idea of going out of the fence line seems to me like my dad would say that just seems like common sense. talk to us about this flexibility, this idea of actually more flexibility and not just going on the fence line but by doing regional solutions. how does that help maryland? if they were in regional compact of some kind could they get help as i am sure maryland and delaware have? >> well absolutely.

and thank you for the question. so i'll step back a second and say that epa has made unprecedented outreach to the utility regulators of the nation through the national association of regulatory utility commissioners and three things that we asked for across the board and could agree on, even if the commissioners don't agree on everything, my good friend chairman mckinney at the time these were things we agreed on. that we wanted flexibility that we wanted affordability and reliability. i think the epa clean power plan gives us all of those. now, we choose, we have chosen to use all four of these building blocks in reducing carbon emissions from the rejggi region. but it is not necessarily to do

all four and you're not limited to those four. the epa has a goal separate from the compliance plans that you may use outside the fence line solutions, it includes energy efficiency that helped us with reliability. it includes changing fuel sources from 56% coal to a much wider mix of fuel availability for our generation, which actually helps with reliability. so we have been able to meet multiple goals for policy goals that include reliability, afford ability, reducing carbon by reaching outside the fence. that said, we still only regulate state by state we regulate in our rggi conduct at the power plant, we are not going in and regulating through rggi the energy efficiency programs of each state. each state regulates their own. i as a utility regulator actually helped make those

decisions. thank you. >> my time expired. madam chair, we have a simultaneous meeting in finance on tax reform. i need to slip out. i will be back. >> thank you. senator inhoff. >> thank you. i listen to different people and i am a rare thing i am not an attorney, most members of the senate are, it seems to me that the practical application of epa's proposal would require the states to pass new laws, revise existing regulatory systems. think of this, i think what's wrong with this picture. should it be the role of an administrative agency to be forcing states to take this kind of action? and general pruitt, is this consistent with the clean air act or how does that factor into that? >> thank you mr. chairman. i think as we discussed today,

there's a question that keeps coming in my mind. if this is such a flexible arrangement that's offered to the states, if this is really within the bounds of cooperative federalism, why is it. epa presently is in process of developing a uniform federal implementation plan to put on the shelf to then say to the states unless you act a particular way unless you act consistent with the rule, this is what you're going to get. that to me does not sound like cooperation. that does not sound like partnership. that sounds like the proverbial gun to the head of making states act a particular way and it is consistent with comments mr. chairman, that i offered in my opening statement. this epa looks at state implementation plans, says you can introduce and adopt a state plan, so long as it embodies federal will, so long as it embodies that which we want to happen on a state by state basis. when states disagree, that's

when the federal implementation plans are forced on states. i don't think they're as much discretion to state of oklahoma, as i indicated in comments. we are already in the top four states in the country in generating electricity through renewable and wind yet this epa expects the state of oklahoma to reduce their co 2 foot print by over 30%. the question is how but for shuttering coal generation in the state of oklahoma. that's a concern practically and concern legally. >> look at it as a nonattorney, you look at the tenth amendment which refers to reserving powers to the states. >> i think this case, i would add this to the comments earlier from fellow panelists, i don't think it is terribly novel to have case about statutory destruction. i indicated it is traditional police power to regulate power generation, and for the federal

government to intervene or invade that, the statute has to be explicit clear, unambiguous. by virtue of the discussion today, it is not the case. senator, it is less about the tenth amendment less about states' rights and whether epa possesses authority you gave it to regulate in this area. >> do you have any comments on that? >> i would agree with that. i could mention the theme of flexibility that's come up in discussion, i don't think anybody would dispute flexibility is a good thing we all want flex bls. there's a little apple to orange situation, i apologize, i have to go back to my pen. this is my coal fired power plant. if you're staying in the fence line epa may say you're currently emitting 2100 tons of co 2rks per megawatt hour, we are going to reduce to 2,000

tons. we will look at nuclear reknuckle ball and looking outside the fence line bring you down to 1200 to the point the coal fired power plant has to shut down. what we are saying epa has to set the standard. set the standard in the fence line. if there's flexibility how you meet the standard, that's fine. you can't look out the fence in setting the standard. i don't dispute that flexibility is a good thing. the distinction is flexibility doesn't come in setting the standard, comes on compliance. >> general morrissey, i may get to that zoning block three question, but i know people in west virginia and know what's happening there now, even though this rule has not gone into effect, what has happened to some of your coal plants some of your utilities in your state already as a result of the threat? >> well mr. chairman it is clear in west virginia that the harm is already occurring.

and in fact as we were preparing for the lawsuit we filed last year against the epa one of the principal arguments we made is unlike many of the other traditional rules subject to notice and comment, this proposed rule is causing real tangible harm in the states and also effecting power plant operations if you look at litigation, we have at least eight declarations from experienced environmental regulators who talk about the cost of trying to comply with the rule. the other point i raise is that time frames associated with the proposal are hyperaggressive. you have proposed rule issued june of 2014 final rule scheduled to be should sometime this summer. while regulators are suggesting they may need many years to try to come up with a plan, they've been given one year, that's a

very real problem. but there are real costs being expended by the states and also i believe this administration is not interested whether the rule is finalized so long as the marketplace moves away from them. if coal fired power plants have to be retired quicker than baseline, then they're going to accomplish the goal, even if this regulation never is upheld in courts. >> thank you i want to follow up on this. i'll wait until the second round. >> senator markey. >> thank you madam chair. i ask that two articles by jed ee freedman and richard lazarus be included they provide thorough analysis of that clean power rule. >> so ordered. >> pope frances is about to issue on climate change. they named the jesuit who taught

chemistry as the pope. pope frances believes science is the answer to our prayers, we have to look at modest ways to look at this to reduce the danger that growing greenhouse gases will impose to god's creation of the planet. i think it is important for us to find ways to accomplish that goal. back in 1990 we worked on the clean air act. i was on the committee that drafted and put that law on the books. i added an energy efficiency section to give more flexibility to the administrator at the epa. and there were ways utilities could comply with their acid rain requirements by undertaking activities beyond what was occurring at the power plants. and i can assure you my intent and that of my congressional

colleagues was to encourage utilities to look at the energy system in total and find ways to reduce sulphur pollution. so ms . heinzerling, in addition to the acid rain program that i just mentioned, are there other examples of using energy efficiency renewable in the clean air act? >> yes. very early on, some 35 years ago, they included washing of coal before burned as compliance mechanism for dealing with the clean air act. it was something that wasn't within the source, wasn't a typical into the pipe kind of measure. in regulating interstate

conventional air pollutant, eepz included renewables and energy efficiency as potential compliance if you look at section 202 to regulate mobile sources, you might if you looked at that quickly, you may think that's a classic end of the pipe measure. and yet if you look at epa's most recent rules on greenhouse gas emissions from mobile sources, epa has in terms used today gone i think beyond the fence line. they included flexibilities in their rule that made the rule a marvel of modernization. they included the air conditioning refrig. rants used in the vehicle, flex fuel vehicles, and so if you look not

just at the pollution regulation that we have been talking about stationary sources, but beyond that it has i think become standard. >> that was the intent of the '90 act, to give more flexibility, use a different model. i think that's what this proposed rule will do. say to each state move in a way that accomplishes the goal, but you know we're going to be very flexible. so let me ask this question. the constitutionality of epa approach to setting public health standards has been challenged before. supreme court upheld an 9-0 opinion whitman versus american trucking in 2001. in 2011, supreme court ruled that epa has the authority to set standards for carbon pollution under section 111 d in an 8-0 opinion. and during the oral arguments in that case, counsel said to the

court we believe the epa can consider as it is undertaking to do regulating existing nonmodified sources under section 111 of the clean air act. miss heinzerling, is there any constitutional question about epa's approach on their legal authority to regulate carbon pollution under section 111 of the clean air act? >> no, i don't think so. i think constitutional issues have been a distraction. i think they have been used to make people worry that maybe there's lurking a constitutional issue, so we better interpret this narrowly but i think constitutional arguments i think are flimsy and the statutory authority under the clean air act as i said i think is clear. >> beautiful. thank you. thank you, madam chair. >> thank you very much, madam chairman. attorney general pruitt, good to see you. oklahoma is a fossil fuel energy producing state. attorney general morris see state of west virginia like wyoming