On the recordSeptember 21, 2016
I thank the ranking member for yielding. The majority argues that H.R. 3438 responds to cases where a court vacates a rule after it has already gone into effect. The majority argues that H.R. 3438 responds to the Supreme Court's 2015 decision in Michigan v. EPA, where the Court remanded a clean air rule adopted by the Environmental Protection Agency to reduce power plants' emissions of hazardous air pollutants. As leading administrator and law professor William Funk has noted, the Court remanded the rule rather than vacating it altogether because the ``grounds upon which the Supreme Court found the rule invalid appear to be easily remedied.'' He further observes that delaying this rule would cost the U.S. economy $20- to $80 billion per year. Importantly, the industry and State challengers to the EPA's rule at issue in Michigan v. EPA did not seek judicial stay of the rule prior to the Court's remand. Perhaps that is because they knew it would fail and that they could not meet the judicial test requiring showings of irreparable harm and likelihood of success on the merits. These challengers are hardly in a good position to complain now about the rule being found unlawful in one respect but not unlawful with respect to every other issue raised by the challengers when they themselves even failed to ask the Court to stay the rule beforehand.…
