Transcripts For CSPAN3 Politics Public Policy Today 20150518

All the elements of russian power, the dime concept i think were all familiar with as an acronym, in order to bring about that restoration and preservation of his power, and the point of this whole operation, therefore is not to achieve some final state but to develop these tools as you have called them, instruments of power, others would say. In order to keep the game going because that is how russia sees the world as being in any case. And second, this is the the only way that it can maximize what is the condition of its great power and the regime at home that is a fully independent, sovereign great power, which is what it says it is and wants to be recognized as. But that doesnt have to answer to anybody either at home or abroad. And thats the strategic objective. I think that things thus become much more clear to the analysts, and i think theyll become clearer to you and you can overcome the clim ma of whether hes a tactician or a strategist. The tactics serve the objective and there is no gab here. The final objective is not whether or not ukraine or some specific territory in ukraine belongs to russia but whether russia is accepted as a great power. The specific territory or parameters of ukraine are beside the point, but now everybody understands you have to deal with russia on its terms. Yes, good morning. Im tracy wilson. Im a consultant here in washington, d. C. Thanks for your comments this morning. This war game looked like it was very interesting, very enjoyable time, and i applaud you taking a structure to look into the future and helping us to understand these issues. Three quick questions of clarification, if i might you mentioned one area of cooperation that you saw iran and you mentioned syria, of course, as well. In your discussion, in your work, did the topic of threat reduction, Nuclear Security in many russia come up . Obviously thats an area on hold right now, and we have some concerns about that. So just curious your thoughts on that. Enthen a couple of reactions, if you might in recent days there have been two highlevel state department visits to sochi and moscow now. Are these positive signs, indicators of a thawing of relations . If not what should we be looking for in a future as a positive sign . And then finally russia will hold the is chair of the Security Council in september is this a concern, possible areas of mischief that could be introduced into the agenda at that time . And so i welcome your thoughts. Ctr, the u. N. Security council and department of state trips . Ill start briefly james excuse me. With the areas of corporation. The u. S. Team was very concerned about the safety and stability of the Russian Nuclear enterprise. We didnt go into great details but in some of the scenarios several team members, you know were concerned about that, and even to the expend that we might want to provide at least reassurances directly to the Russian Forces that are responsible for those sort of cooperationive threat reduction, but we didnt go into detail. But there was some nervous nousness about obviously. Particularly if the russian government became less stable due to economic crisis or regime change or Something Like that. So yeah, there was great concern. And this is tied also to your next point about how do we read the most recent contacts. During the cold war as the years went on, as you know. We developed a pretty robust series of ways to communicate and coordinate tw the soviet union, their leadership and their armed forces. It was never perfect. But there was there was channels. Everything from incidents at sea to aircraft and air space to yeah different kinds of signaling, the hot line. And there was sort of a sickening realization on the part of the u. S. Team that perhaps some of that eroded or no longer exists. Weve talked quite a bit as weve gone out to various think tanks. Weve found that the generation of soviet experts are now in retirement or and the next generation is not nearly as extensive, theyre just as iger and just as smart, im sure but there arent as many of them on the ground as there were 25 years ago. So there was a concern on the u. S. Side that perhaps theres value simply in strengthening the mechanisms. Thats how i would read, just me as a citizen reading what was happening with secretary of state kerrys visit recently auz a good thing of in general. Not because of any agreements that may or may not have been sign d at that time. But its certainly reassuring that we can talk. And i would home theres some back Channel Communication going on as well which i think is where the real work can get done. Certainly i would agree jim. I will say from the russian team perspective, looking out in the future most notably the election cycles drove a good bit of the teams analysis. It was interesting to note and came up in off conversation. Well have a new administration, new u. S. Administration in 2016. The russian team is looking for a political win, or a win of some sort in 2017 in order for putin to be reelected in 2018. So russian team discussed numerous times of what that political win or International Win might be. And it was notable they surmised it will be a new u. S. Administration facing those challenges. And again the team would hold the strategic cards, i guess, if you will. So while there might be conversations now and certainly theyre worthwhile i think the most telling point at least from the russian teams perspective, whats going to happen next year when its a new administration and russia is look looking for that win, whatever that win might be. Hi. I teach part time at Catholic University about religion and international politics. In my previous hierarchy, i was in the state department and was enabled at one time to participate in a program at the college. And we did a mini version of what you all have been participating in. And having to do with the middle east. And thinking back, it strikes me very much that in all our discussions, we paid very little, if any attention to the role of religion, which in recent years has proven to be much more important. Certainly in our involvement in iraq. And syria. But im kind of surprised that in looking at the russian bear, with Everything Else in there theres nothing about religion, and it strikes me that the certainly Important Role of the Russian Orthodox church, which is kind of come back more into popularity, also with mr. Putin should be considered here not just because of its relationship with western orthodox syy, if you will, the Christian Church in the west, but also you know, islam, and i wonder, to any extend, did religion play in i role in the considerations either on the u. S. Or on the russian side . Okay. Next ill direct the gentleman right in front of steve. Thank you very much. I am with the National Defense university fellow pakistan. My question is that you mentioned that ukraine is the Perfect Place to confront russian ya. But in this war game, were they factored out in this war game as well . For example if the confrontation, the inclusion of conflict, both parties dont have to agree to expant. If one expands unilaterally, then how do you deal with that. Number two u. S. Air got allies, was it also considered what allies they have . And number three is that when you say putin, do you mean russia . That is also another important factor. And last but not least was factor . Do you think china has any real threat and if they have, from where . Thank you. Thank you, reporter from voice america. A followup question about china factor. Actually im looking at this russia figure too, at the far corner of the figure talking about the chinese assurance could you elaborate on that. Second is about a consulate in china. The growing relationship between china and russia theyre talking about. So who poses greater threat to u. S. . China or russia . Thank you. Back to the panelists. So, sir, in regards to your question on religion, it zid come up in the initial testament, mainly in relationship to the orthodox church. While you dont see it on the sexual diagram. We characterized it pretty much as a tool of russian nationalism, frankly we didnt see it as a driving factor as much as a resource that could be used to continue to push forward on russian nationalism. On the question about russian allies, i dont we didnt consider that as a major factor within the artificial construct of war game. We know that russia has reached out to particularly central asia and some of the countries there. But we didnt see that as those partnerships as really contributing much either to russian policy or to the russian impact in the situations we were trying to look at specifically. Russia will never be able to recreate the warsaw pact. And even the warsaw pact was an alliance of unequals much more so than nato, i would argue. But no we didnt take those allies into account. A eni think thats an opportunity for the west, actually, to make a very, very telling point through the International Media frankly, that, you know anyone who understands the world situation today with any degree of clarity can see that you have a group of 28 democracies at different stages of development who are cooperating and trying to create a security ark kekture for europe, and then you have one power that is throwing its weight around and violating some of the norms of the International Environment in reaching out to, frankly some of the countries they have reached out to are more in line with the russians idea of how a government in an economy should run than western europe. So i think thats something that the west could use to its advantage to make sure that that message is loud and clear. You have 28 democracies confronting countries that have fought into controlled by a very different system. Actually i was going to pile onto jims comments on the alliances. What we didnt see was and ill let the russian team speak to this clearly but as they would come into each of the preliminary sessions we saw continually reaching out of bilateral relationships that facilitated a purpose, as any relationship would do. And thats what we saw in the chinese relationship frankly. As far as where the assessment was as russia would turn towards china, they they really have the lower end of the bargaining relationship. China had the upper hand and russia needed china but not russia needed china. Thats why the chinese relationship was one of risk for the russians. They could play to it but they were coming into it having to negotiate less than their optimal deal if you will. Just a quick comment. The u. S. Needs to be aware of its own seams and weaknesses. And i think one of those is now we tend to view the world regionally. There is some broad transnational threats. We get that. We have functional combats and commands. But in general terms we have this of course goes back to the cold war. One combatant command focused on europe and russia and one focused on the asiapacific region and china. So we tend to want to put our problems into those bins and assign our military commander to do it. That said, theres a huge amount of cooperation that goes on with other u. S. Government agencies as well and were finding more and more that perhaps that regional regional structure for the defense commands is not as helpful in places like the arctic, where you have several u. S. Fourstar commands that have some involvement. So that is something we need to be aware of on the u. S. Side. And think about perhaps ways we can overcome that in the future. You would have enjoyed it last week. I proposed there be a new senior directorship from asia. From europe to asia to russia to india, its a large continent eurasia, so you overcome some of the stove piping. Okay. Paul . Thanks Paul Schwartz from csis. I had a question about the the disparity in the way the two con tes tes con contestants view how they are and how that actually played itself out in the the exercise. In addition, i tend to agree with the findings on that currently the likelihood is that russia will pursue a frozen conflict in ukraine, given that theres little to gain from seizing and much to lose. But that will hold up only, unless and until russia starts to see that perhaps as ukraine policy is headed for a second collapse as dr. Kutchison described the first one. Im curious how that played out in the scope of the exercise. Thank you. Thank you. Kyle scott. I want to turn to your policy consideration to clear the articulating a policy towards russia, Eastern Europe and ukraine. Im sure my colleagues in the state department would argue that we in fact do have the clearly articulated position. But im going to say that youre correct and then challenge you. What you all did all the studying what would you articulate as what the policy should be . And after i hear that ask colonel if he could state whether the europeans agree with that policy. Thank you. Hi. Im actually based in berlin nowadays at Energy International affairs and im actually here as that fellow at the American Institute of contemporary german studies to actually interview american experts and officials and their take on Energy Vulnerabilities in europe. So you can imagine as ive been talking to energy and a lot of people about. Its sort of coming down to a few scenarios. I just want to im not saying thises the most likely scenario but it goes alittle bit along with lines as schwartz pointed out and you pointed out i dont get so much out of this as theres Something Else that can happen. Its not just a matter of what the u. S. Wants to do how it reacts to what russia does, mr. Putin does. Its the flow of objective circumstances that gets out of hand if people dont take ahold of the situation. A lot of people so a lot of people certain people i think well a lot of people have been telling me they have a clear feeling the european attitude is please take this problem away. You know, they dont want to really face up to whats there, and frankly that theres a similar situation on our side and somewhere that goes along with what youre describing and the reactive nature. And so the objective things that are developing is if the ukrainian economy collapses in a couple years or completely collapse major demonstrations, you have huge amounts of refugees in europe. You can have all sorts of things happening to the energy passage. You dont know who did it. What about that sort of situation as things basically collapse . If theres not a Major Program of the west to get involved and sort of help them take control of their economy and rebuild it. Fine. If people dont want to send military aid, fine, for whatever reasons, but take control and do something proactive, otherwise it degenerates and really both sides lose control and then you get a situation, and i think its true, as mr. Kutchins said about what happened when the agreement fell apart. Things get out of control on both sides. Thest a question of rea. I apologize if it was too please. If i may address the first question from a russian perspective of what the policies are and the objectives in ukraine. As i previously mentioned the russian team had no desire to escalate the conflict. They were not planning on failing nor were they planning on giving back crimea. One of the final terms was the demise of putin, a new alternative form of government arises, what are the first actions. The russian Team Immediately said that we will not give back crimea. It was a political win that we do not intend to turn back on. In terms of escalating to conflict, again, they had an appetite for increasing the conflict whatsoever. Of course, come 2017 when theyre looking for a political win, if that happens it would be a target of opportunity. Certainly it was one that the russian team had addressed. Like wise to return to a previous question regarding china, as we saw it play out although we didnt explore a lot of the chinarussian dynamics, the russian team during one of the terms chose to undermine that as much as possible through backdoor deals sweetheart deals, if you might, and primarily the reason they were so interested in doing that is to maintain an economic dependence of europe on russian energy. And that was weighed against some of the economic deals that were most recently made with china, which were not so favorable for the kremlin. So i guess from a minor perspective, thats how i would grease the question, as we saw it play out in the game. And that was really the only time that china came up in the discussion, was with regards to economics and energy. The Eurasian Economic Union was mentioned briefly but thats not where they focused their discussions. While the russian team said they would turn to china, they would much rather maintain the European Market that they now enjoy. Reference the policy Going Forward. That was probably the greatest challenge of the war game, frankly, and thats part of the reason you see that as an outcome. In each turn there was just a lack of clarity. At one point the discussion was we continued to say we want a europe thats whole, free and at peace, but maybe this is the good, fast and cheap discussion. Do we want a europe thats whole . Do we want a europe thats whole and free . Do we want a europe at peace . A and we look at historical examples of when that may have been the case. So i think we do want a europe thats whole free and at peace. And i think our policy is we do want a democratic ukraine and we do want the respects for international borders. The challenge is how do you then clearly articulate it, and then what is the strategy linkage to the the policy. So if thats the policy, what are the methods and mechanisms that were going to use to then continue to advance that, and i think that gets to your point sir, reference, how do you prevent the spillover and how do we encourage a democratic ukraine that then becomes stable in a prospering member . Thats probably where your answer is and once that linkage is correct, then we can probably have a clearly articulated policy towards those three areas. Europe. Yeah, its our and that was our second consideration. It came actually from the western europe and the Eastern European countries as well. Because they need to know what u. S. Stands on a lot of things and especially the Baltic States. It doesnt matter what path is chosen, as long as its clear and they were kind of frightened and everybody on the stands said, okay, if russia takes this next step, what will be the reaction of the u. S. . So they wanted clarity instead. And its not so much the content, but the clarity, thats the most part of it. Yeah, we had a couple of International Fellows saying russia is part of europe whether we like it or noft. It is. So, yeah. Good morning, rob kim from the national war college. Army college grad. As a war strategist, a couple of things that strike me which lead me to ask you a couple of questions. If we take at face value, we have a longterm relationship with the russians that is unavoidable. Thats a competition for them to play out is a problem for the the United States. Because of this asymmetric escalation they seem to have because of the nature in ukraine. And then the third observation is how the u. S. Was continually reactive. They were trying to play a defense and always caught and moved behind the russians. So the question is how do you stee the initiative . If you have a strategically competitive relationship what are the places where the advantages accrue to you where you can force the russians to react to what youre doing, rather than you react to them. Where are the places where advantages accrue to the United States that you can play out in a competitive environment, which cause the russians to rethink being aggressive in places where they have escalation dominance . First question. Second question, which is that if you have a longterm competitive relationship with the russians, then what are the critical capability gaps that you have . What are the capabilities you really need to develop that you dont have . One of the reasons youre not acting is you reach in the tool box and theyre not in there. What are the tools you need to develop that you dont have . Thanks. Good questions. In the back of the room. Good afternoon. Im from crimea international student. I have two questions relates to russia. Relates to crimea peninsula. The first one what do you think about crimea annexation . Was it a longterm plan or just tangible opportunity . And the second question, the first item in this slide, you said, you say about compete with russia to maintain the national order. What do you think is it possible to cooperate, even to compete with country which so brutally break International Rules . Thank you. Yes, sir. Yes, jonathan also a consultant here in washington. I was curious how in preparing this war game you looked at the evolution of policy over the year proceeding the war game with respect to Eastern Ukraine. The way i looked at it i saw a lot of russian propaganda, kind of at the outset of the period, that was intended in efforts intended to destabilize Eastern Ukraine. You had separatists, quote separatists, unquote who are active in places, and at the end of the day, Nothing Happened in the largest russian speaking city in the country. Nothing happened. Police were able to deal with the loophole. And they ended up with control of a piece, and they would have been, you know, either in jail now if it hadnt been for the direct intervention of russia. So in that context, it looks like a Large Russian failure. They were not able to instigate a mass uprising in Eastern Ukraine, and theyre left with this nonviable sliver of land next to the border with russia. Whats your perspective . And how is that failure to ignite a mass uprising in the russian speaking population in the country . How does that figure into russians callculus . Thank you. I guess the first question ill start in the reverse order here. The example you gave of russian policy towards Eastern Ukraine. Im going to combine it with a question on crimea, whether it was an opportunity or a plan. And i think that going into it, we saw that the crimea was was an opportunity on the back end of the sochi olympics. You have forces available. And i think Eastern Ukraine frankly, was another opportunity. The difference was the geography of crimea was fairly well set, and that was thats where that opportunity probably had a little more solidity, it was a little more solid than in Eastern Ukraine. We saw the Eastern Ukraine movement, going back to what we said before its all about maintaining the regime. And those were opportunities to create instable. Thats why you didnt see the tractions in many areas frankly. There wasnt a clearly identified geographically limited goal that was the aim of what we saw in Eastern Ukraine, as opposed to what we saw with crimea. And on the second part of your question on the can you compete with somebody who is so brutally how do you say that . Sorry for that. Its not a question whether you can. I think you must. Putin is a person that sees it. If you dont react, its a signal of weakness. Its not a question of whether you can compete in that environment. We believe you have to compete in that environment. Because thats the game hes playing. Playing. From the national war college, appreciate your question about capabilityies gap. Let me take a stab at that. One thing that the u. S. Team wished they had more of is available capabilityiescapabilities. Four deployed in europe itself. There was a sense that we needed to put a floor under whats there now and perhaps move some forces back into europe. Simply because its a long way from ft. Riley kansas to get to somewhere in the nato area. And so thats a capability. We base those drawdown decisions on certain assumptions about the International Security environment that were made several yours ago. We have to be able and willing to go back and reexamine the assumptions as far as fore structure in europe. Theres another capability. Theres of course a great deal of destruction about what to do and how to provide support to the the government in kiev. It doesnt always have to do with weapons. And communications systems. This is just on the military side. Economic and political support. And of course, we have partners, osce and eu and the imf. And you have a joint effort from a lot of different governments and Different International organizations and regional organizations trying to help kiev. Its not just about how many tank weapons we can provide them. And one that the team worried about a lot was the lack of ability to communication with the russian people and the russian ethnic kmirnts in other parts of europe. It is true that there has been no mass uprising in other parts of Eastern Europe. Even a year ago the terrible tragedy in odessa. Somehow theyve been able to keep the russian speaking population in odessa from rising up and staging, you know overthrowing the Ukrainian Government or the Regional Government there. Thats a good thing. I chalk that up as a success story. In the longterm, they need to reassess and communicate the open free press, probably the best way to do it. Through social media and websites, through television in particular, for the russian speaking minorities throughout europe. So that at least they have an alternative source of information to the h highly politicized information pouring out of moscow thats very, very well funded. And its not just u. S. Instruments. Its not just the radio for europe. It could be the bbc. Theres any number of avenues that the west can reach. And communicate the truth to russian speaking populations. And very quickly on this initiative. That was one of the larger challenges throughout the exercises. Ironically if you look at the shocks that she designed they were all targeting the russian systems. There were no shocks to the u. S. System. Yet at each turn when we came back in the preliminary session the russian team was very proactive in each of their moves. We concur with your assessment that we dont think there will be any type of hybrid type attack if you will on any nato member. Yeah exactly. Yeah, granted. Thats a fair knock on wood. But that was really the assessment, that line was so well known and pronounced there would not be a provocation. And in the Baltic States the thing they have going for them is they have the eu membership. Life is frankly much better in the Baltic States than across the border, even if youre a russian speaking nationalist. We see that on the diplomatic fronts frankly on other contested spaces or what could be contested spaces. And part of that is how we deal with our own allies and how we have areas of disagreements. We have to show this despite the fact we may not agree on different issues, whether theyre house we use forces or we we build forces. Let me make a comment on the successor failure question. Its a very interesting one. It was a brilliant success. And it was a great head fake too. You put 40,000 or 50,000 troops on the border and you come in through the back door into crimea. And what we should be expected at this. I dont plan to be nostrodomus or anything, but over the weekend of february 21, 22, 23, jeff manchov and i were writing a piece for csis, and of course it was about the implications of the february 21st accord which then of course the accord fell apart so we had to rewrite it over the weekend. And one of the things inserted will is you have to think about a possible asymmetrical reaction. And the most likely place for such a reaction would be crimea. Its the least ukrainian part of ukraine. But yet, we do still seem to i mean, seem quite surprised. Quite surprised by it. And also the fact that the Ukrainian Military forces in crimea completely backed down. My concern at that point was that created an impression for mr. Putin that the environment was way too permissive. Theres no reaction from the west. Probably will not be much reaction from the military forces if there were further incursions into ukraine, which is what i was immediately afraid about on february 28th. And that was when my hair was on fair and saying we need to mobilize the strongest reaction possible, including sending military assistance to ukraine. Trying to alter it at that moment. The next step dont do it. Dont do it. Its almost impossible for our political system to command a strong response and more difficult for our european allies at that time. Now, was it a success . Well, i think you miscalculated the degree to which the russian supported insurgents would be welcomed in Eastern Ukraine. And mr. Putin came out on april 17th with the line and with that policy got a very tough defeat in odessa a few weeks later. And the aspirations modulated. To what extent how broad were the aspirations in the beginning . Its impossible for me to say. Theres a phrase the appetite grows with eating. But so well leave it. Will this be judged as success or failure . I think its too early to tell frankly. If we get back to steves point, which i agree with, in the that foreign and domestic policy are so intertwined, how long is mr. Putin going to continue enjoying a 25 increase in his Popular Support . Mainly because of activities in ukraine. There are differing views about that. We had a very good presentation here at csis on april 28th thats up on our website. One of the things he argued is if you look in the past at when economic downturns have occurred, theres usually a time lag between the the impact of economic downturn on the support for the president. So it will be interesting to see how, to what extent the political opinion polls up hold at the level where they are and for how long. Okay. We have time for one more round. I saw the gentleman in the gray shirt shirt. Yes. Thank you. U. S. European command. Question to you about the information, the russian propaganda. Its clearly an effort were not winning, and a lot of this is due to one, the unified nature of the russian information warfare, state run media. But also the fact that their propaganda isnt so much convincing, but making them doubt everything. Even doubting the truth. Besides pure capables. Capabilities, do you think our approach of countering their propaganda is working when frankly the pop lus isulous is trying to influence the truth, or do you think we need a new approach . Okay, i want to exercise two options. First, the russian invasion for example. And Second Russian massive cyber attack. For example, against estonia where a government is strongly relying on internet and israeli government. In fact, all for example very important financial in Eastern Europe. Is this the case for article five . Back to the panel. And you can conclude as well. Yeah ill take the last question about the cyber attack. Yeah, i wasnt we dont have one we dont have consensus about everything. So when we said that he will never go into the the Baltic States, im not quite sure about that. He wont do that with tanks, im pretty sure about that. Actually in our war game, we one of the the injects was 2 conflict, and there was a combination with smaller attacks, Cyber Attacks in the other places. So yeah, we considered that. And that brought us to the idea that putin is not sor much thats our belief, looking for a gain of terrain, and hes looking for a great russia, but needs some sort of conflict going onto keep the momentum that we can have if 2018. So as long as the conflict stays, that will be the main interest, and as soon as that dies out, he might try and cyber will be one of the ways he could try that in other places as well. Yeahious i think taurking about article five, and theres a big red line everybody says in article five. I agree to that. But i think its a very thick line as well. So whether he crosses it, i think hes too smart for that. But he will stay just into the line. And with cyber, thats really hard to tell. And its really hard to make one clear stand on this is article five and this is not. Yeah that was the debate that happened inside the u. S. Team was what is going to institute an article five attack . Was the cyber attack in estonia an article five situation . Was about other smaller violations of sovereignty . What are we going to consider article five . There was some talk of does it need to be rewritten. And frankly i think the consensus going out was no. Because its written its written the way its currently written is fine. What might need to happen is a discussion about what does it mean in a new environment . It was clearly written in the washington treaty in a different environment, where some of these other challenges simply didnt have a way to materialize. But now thats the next step. Weve got to determine what does that mean, and as he said, its probably a thick line and then thats up for the council to decide. When is the line going to be thick, and when is it going to be very thin . The broad interpretation of article five for the red team allowed them to hedge their bets, to use their tool kit, to push up to the line and then stop, and create that tension with nato. Thats what we saw as a goal of the red team quite often. If i might also add to karens remarks. And the question is really what can we see as the initiative. The russian team was very concerned over the economic dependence and inner dependence of europe. I think if if u. S. Were to go forward that might be some avenues of an initiative that certainly the west can concede upon precluding that ability of russia in the near abroad to control the economic dependency, if you might. Often times the russian team as karen made mention of would go right up to that red line that very thick red line. They acknowledged the fact that they can spin a narrative far faster than the west could. And so i think you mentioned the question about is there a way to change our info ops . I think certainly being faster would probably would probably certainly help the United States in the future. While, obviously im an air force guy, and we prefer our safety reports and our after accident reports to be clear and concise, certainly getting a message out quickly after airliner is shot down may have actually improved u. S. Flexibility, rather than waiting until all of the truth is done. Thats my small insight. And just as a concluding comment, i agree with chris. Sometimes getting, you know, your best information out quickly is better than waiting for weeks and having a thorough, complete report. Thats an aspect of the competition. We have to understand its competition. Though it doesnt have to be u. S. Government sources of information. And i think it we, in the west, should not be hung up on just responding to distortions and lies and pointing them out. I think we have to provide a the russianspeaking population about what is happening in the west. How do the people live, how do their governments treat them . And thats a longterm strategy. But thats i think the one that we have to approach. And then finally, i want to draw your attention again to the point four up there. There is a concern that we have two election cycles rolling up in the next two or three years that have the potential to have some negative interference with each other. Were we hope that the u. S. russia policy towards russia does not become highly politicized during the 2016 campaign which has already begun and you hear, you know, foreshadowing of that in some politicians making statements or asking rude questions. But the new administration and the new president whoever he or she may be coming in to office in january of 2017 will be coming smack into a period of priority need on the part of russia to do something to make an impact for their own election cycle a year or so later. We have to be aware of the potential for a dangerous situation in 2017. Well, i think its time to wrap up and id like to make a concluding comment. First of all thanking you all for coming here to csis today and sharing the fruits of their labors so to speak from the work of the net assessment of russia and then the subsequent war game that was carried out last month. And one thought occurred to me that it was in response to the question about the importance of secretary kerrys trip to sochi and other state department and other u. S. Government engagement with russia. And the issue with mutual communication is so important right now. Never in the i started traveling to the soviet union in 1979 and never have i seen in 36 years a wider disparity between the narratives that are being told in our two capitals. And, you know, certainly not everything about our narrative is right and not everything about the russian narrative is wrong. There are different perceptions of the same events. And the fact that were not talking to each other about them as much as we should be doing, in some ways were talking less than during soviet times i think is a real detriment and increases the bad policy, frankly. So maybe one small effort that i would suggest is that i think it would be interesting to exercise exercise to do a scenario like this that included russians, europeans and americans, but on mixed teams. And i think we would learn a lot from each other about how we see different phenomena through a different lens but how that different lens may not necessarily be right or wrong, but we need to understand really to i think make better policy towards each other. So thank you very much for sharing your thoughts and wisdom with us today and thank you all for coming. If you missed any of the conversation about u. S. russia relations well have that Available Online in our video library. Cspan. Org. Both the house and senate are in session today. Heres preview of what theyre working on before next weeks memorial holiday break. And just one more week on capitol hill before the house and senate go out for their memorial day break. Joining us for a look at the last week ahead is lauren french. A congressional reporter with politico and two big deadlines ahead. The patriot act and the highway trust fund. The house passed its bill dealing with the patriot act, nsa surveillance renewing expiring provisions. Whats the status of the legislation in the senate . So thats a lot more complicated than it was in the house. The house passed it to the senate with an overwhelming number of members supporting the freedom act but that legislation is not being picked up in the senate. Mitch mcconnell wants a clean version of the patriot act and because of the snowden release he did. But there are critics of the patriot act and the bulk collection of american data who want to see their usa freedom act or a bill like it put up on the floor instead of a straight patriot act. Then senator rand paul finding themselves on opposite side of this issue . Yeah, the two members are on the opposite side. Senator rand paul said he would likely filibuster if mitch mm mcconnell put up a clean extension of the patriot act. Hes worried about the privacy data without warrants or without proper notification. So he could filibuster that bill if it came up to the floor, but Mitch Mcconnell is pushing heavily on other republicans to supply the vote needed so they can move on to other pressing deadlines. Then lets turn to the highway trust fund. Another one thats facing a deadline. Delaware democrat tom carper tweeted about the bill calling for a two month extension. Senator boxer and i are again back with the bill to compel congress to fix the trust fund this summer. Whats the status of the funding for this, short and long term . So funding will run out and right now the current authorization for the Highway Trust Funds ends at the end of the month and theyre on strict deadline with the upcoming construction season. There needs to be money to keep the Infrastructure Projects Going Forward and building. So what is happening here is you see in the senate and in the house a two month extension of the authorization, to give lawmakers much more time to figure out how to pay for a long term extension. Mostly everyone involved wants a five year longer extension of the fund. But the Sticking Point is who tow pay for it. Democrats are advocating for an increase in the gas tax, but thats not a popular opinion or a popular proposal among republicans. Then this Senate Moving Forward with trade promotion authority. What do you think we can expect in floor debate and will the senate finish this by the end of next week when theyre supposed to be out . You can expect a really contentious week in both the senate and, you know, in a lesser extent over the fast track trade promotion authority. You will see democrats really either some democrats who want it, but they went with the senator reid earlier this week to stop it from Going Forward. Until there was currency debates and other bills consider. Now it will be on the floor youre going the see democrats really railing against Fast Track Authority and the qualms they have with the larger trade deal, so very contentious week. No guarantee that trade is dealt with by the senate. Its on the agenda but they might not vote on it or it might not pass. It is very much in flux and of course if it does pass, it goes to the future Fast Track Authority where its much more uncertain. And the Transpacific Partnership as well. Lets move on here, former secretary of state Hillary Clinton she was supposed to testify before the select committee on benghazi as early as next week but then as you write the chair of the select Committee Trey Gowdy said he wont allow her to testify until certain documents are turned over. Whats happening here . Well, you saw with trey gowdy turned the attention away from Hillary Clinton and on the john kerry, her successor at the state department. What hes saying in the letter is that without the document, without all of the documents they have requested in a letter n a subpoena over the last year he cant have Hillary Clinton come in and testify because he just doesnt have the evidence he needs and shes insisting that shell only appear before the Benghazi Panel one time. Gowdys fear if she comes in and the new evidence comes out when new documents are made available, they will have missed the opportunity to question her. So now hes saying without all of these documents she wont be appearing. Really trying to amp up pressure on the Obama Administration to get those documents. They have been waiting for in some cases for six months. Thanks for the update. Well continue to follow you on twitter. lauren n. French and politico. Com. Thank you so much. And both the house and senate gaveling in 2 00 eastern time today. You can watch the house live on our companion network cspan and the senate live on cspan2. Also today joe man khon will be talking about increasing bipartisanship in congress. Well take you there live at 2 00 right here on cspan3. And today, Hillary Rodham clinton on the democratic president ial campaign trail. Shell be visiting mason city, iowa. Her second visit to iowa since he announced her candidacy. She is expected to talk about jobs, the economy and small business. Theyre started to start at 3 45 p. M. And well have her remarks here on cspan3. Tonight, on the communicators members of congress on nsa collection of phone records and net neutrality. Section 215 authorizes the metadata collection, you know, the bulk collection, or or ostensibly authorizes because last week we found out that the Second District federal court agrees with justin amash and us that the patriot act never authorized these programs, that theyre illegal. But the nsa would tell you that these programs were authorized by section 215. And then the fisa court you know proceeded to write a warrant that covered every american citizen. I think our Founding Fathers would be appalled. I think our policy is far from being up to date. We have policy thats woefully out of date. We have copyright policy from 1976. A lot has changed since 1976. We have Electronic Communications privacy act which was done in 1986. I started working on email in 1989 when people could send an email to someone else they worked with. Now we have, you know, email as a standard form of communication, one of the most popular forms of communication and yet we have a situation where a piece of paper in your desk drawer is held to warrant standard, Law Enforcement would need a warrant to access that information. But an email you have thats been stored in the cloud for 180 days or more is not subject to the warrant standard. Well, i think the issue that really the fcc brought out is were not making a comment to this point on the specifics, but what were saying is that the internet needs on open and free and any time the government gets involved theres the open ended pandoras box. What does it want to lead to next . And we have had hearings in which they cant answer some of the basic questions about what even their rule will do. So were saying at this point, let that be an issue for congress. Let that be an issue for the elected officials which it is on the radar, but not be put in place by bureaucrats who have no no no consequence from the elected pop you louse. Tonight at 8 00 eastern on the communicators. The senate held a hearing earlier this month on the epas Clean Power Plant which sets new carbon regulations for state and power plants. Senators questioned if the epa has the authority to implement the plan and if theres adequate flexibility for states to comply with the new rules. A final version of the plan is expected in july. Well, id like to thank everybody for being here today. And this is our first clean air and natural Safety Nuclear safety subCommittee Hearing on the epas Clean Power Plan. I would like to thank all the witnesses for appearing before us today and say a special thank you to my states attorney general, Patrick Morrisey who has been leading the National Legal fight against this rule which would have we believe a devastating impact in our home state of West Virginia. So thank you and thank you attorney general morrisey for traveling across the mountain. I appreciate it. Back in february in a full Committee Hearing in this room, i asked epa acting assistant administrator janet mckay to explain why the epa did not hold a public hearing on the proposed 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, in our electricity generation, and despite the multiple invitations issued by me and many, many others, federal and state legislators to have them come to our state, she told me basically that public hearings were held where people were 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 states, electricity rate payers across the country and the reliability of our grid. We know from nearly five years 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 state as partners, we can and have improved our air quality, protected 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 an epa dictating to the states and effectively micromanaging intrastate electricity policy unprecedented. As a result, many states including West Virginia and oklahoma whose attorneys general will be hearing will be here today have raised grave concerns about the legality of the rule and the implications for their citizens and rate payers. In addition to significant constitutional and other legal questions, states have expressed concerns about the feasibility of epas proposed requirements and the likely impacts on electricity costs and reliability. At risk is the ability of the states that the states have had to make the decision about electricity. West virginia relies on coal to provide it for our businesses. But under the Clean Power Plan each states electricity plan will have to meet epas criteria for reducing Carbon Dioxide emissions and be approved by the epa. Other regulations like utility mack rule is contributing to rising electricity rates and growing concerns about reliability. We have 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 electricity. And next week ill be introducing Green House Gas that will preserve the local balance, and protect jobs in our economy. I look forward to working with my colleague to advance this bill and i would also like to say anecdotally that throughout the state of West Virginia we have such uncertainty and such disappointment i think that our voices havent been heard in our state with the epa coming to the state to listen. And we dont feel that the 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 id like to yield to the Ranking Member. Thanks very much for holding the hearing today. We really want to welcome our witnesses. Nice to see you all today and thanks for joining us for this important conversation. Todays hearing will continue the discussion of the legal implications of epas proposed carbon regulations known as the Clean Power Plan. I was born as some of you know in beckly, West Virginia, one of the 15 founders of raleigh, West Virginia, was my great great great great grandfather. As a native of the county where coal mining was important remains important, and now as a senator recovering governor i representing the lowest lying state in the nation, i have unique perspective on the balance we must strike to make environmental regulation work, not just for my state, not just for your states, but for all of our states. For those of us from states that are already being impacted by Climate Change, the epas Clean Power Plan to regulate our largest source of Carbon Pollution is not just important but essential. Many states such as maryland, delaware, have already taken action to reduce local power plant emissions and however we need all states to do their fair share to stem the tide of Climate Change. And in order for those standards to be effective, epa must ensure that all 50 states are capable of complying with the standards. Today, the epa has conducted an unprecedented level of state and local governance outreach. Throughout not just the state and local governments but utilities and businesses in order to craft the comprehensive plan that works for each state. States can create their own plan for targeting for meeting their targets in a usual in of number of ways, such as wind and solar and increasing the efficiency of their electrical grid. Unfortunately since the day that epa proposed the Clean Power Plan, its has been criticized as become outside the agents authorities under the Clean Air Act and the u. S. Constitution. I believe these claims are without basis and fact. And 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 three times in support of the epas 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 its legality are an attempt to delay implementation of the plan. As we have seen in the past, litigation over Carbon Pollution regulations has the potential to be stuck in the courts 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 that will have to be adopted to deal with this coming problem. Meanwhile, Public Health and our economy will be endangered by more frequent storms, intense droughts and Sea Level Rise. Im committed to making sure that congress can support the implementation of the Clean Power Plan. I look forward to hearing from our Witnesses Today about our progress in doing so. Let me close with one thought. I was born in beckly, West Virginia. Family still in that area, all over the state, actually. And i remember going to as a little boy going to a Grace Gospel Church in a little town called shady springs. Which you know, madam chairman. 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. 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 saying Sea Level Rise, at the highest point of land in delaware is a bridge. All right, not a mountain. Its not a mountain. Its a bridge. And we already see the effects of Sea Level Rise in my state and were concerned about it and frankly so are a lot of other states. I want to make sure were fair to us in the first state. I want to make sure that were fair to the folks in the mountain state. With that in mind, lets 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 10 30, so my plan is to get through the Opening Statements and then let us vote and i reserve the right to change my mind. I might say well just 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 want to recognize the chairman of the full committee, mr. Inhofe from oklahoma for the purposes of making comments. I thought it was my wife that made that statement. Changing your mind. But i appreciate it very much, senator capito. We have some people from oklahoma who came up here, the electric coop. In oklahoma we get this question all the time. Wait a minute if were reliant upon 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 dont know either. Three things real quickly. Cap and trade started this was way back in 2002. And that time they said the world was coming to the end, all the Global Warming and that stuff. They tried to pass it legislatively from 2002 up until the current time. And theyre unable to do that. So what were looking at now is the federal government coming in under the Obama Administration trying to do through regulation what they couldnt do through legislation. And then secondly, lisa jackson was the administrative administrator of the epa under obama. I asked her the question this 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 emissions worldwide and she said, no, it wouldnt. Even if youre a believer in those things it wouldnt work. Last thing im not a lawyer but i was on the radio with scott pruitt our attorney general and i learned a lot from you. But when the president s own law professor Laurence Tribe testified before the house, he said that the epa was attempting an unconstitutional trifecta usurping the prerogatives of the states, congress and the federal courts all at once. This was Barack Obamas harvard law professor. With that, i look forward to the Opening Statements. Thank you. Id like to recognize well 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 and Ranking Member carper and i very much 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. So senator carper, youre always welcome to come back to the great state of your birth. Thank you. Now, im here today to talk about the legal problems in the Obama Administrations socalled Clean Power Plan. Commonly known as the 111d rule. This rule seeks to require states to reduce emissions from existing coal fired power plants by an average, a staggering 30 over 15 year period. 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 and a potential lack of reliability in the power grid. West virginia is one of the poorest states in the country, and yet were the second largest producer of coal. Its a very important resource for us. This proposal will result in even greater economic dislocation in appalachia in a time when we can least afford it. It is my duty as the chief legal officer of the state of West Virginia to fight against this unlawful power grab which is hurting our citizens. West virginias 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 were currently working with will grow. Today id like to talk about just a few of the legal defects of this proposal. Now, as you all know, the epa bases its claim for Legal Authority to adopt this rule entirely on section 111d of the Clean Air Act. However, a nearby provision, section 112 of the Clean Air Act, epa prohibits the agency from invoking section 111d for any pollutant emitted from a source category which is regulated under section 112. We think that language is very clear. And as epa has repeated i will explained time after time this text literally means that if epa is already 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 111d. Now, this is where the epa runs into some trouble because as we know in 2012, they already finalized a major rule affecting coal fired power plants under section 112. Now, the epas legal argument for avoiding the section 112 exclusion is not credible and defies all traditional rules of Administrative Law and statutory construction. Let me explain. When congress enacted the present rule in 1990, it 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 broader 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 maid the conforming change wholly unnecessary. Thats why the technical was never included in the u. S. Code. Its consistent with the way that congress has always operated. To the extent that there are clerical errors in a text, when Congress Goes back through the revisers to decide what goes in the code they analyze that and they apply traditional rules of statutory construction. And in fact we have never seen a situation before where a federal agency has literally tried to push such a sweeping proposal on the basis of a typo. Its unprecedented. Perhaps the most radical feature is its sheer breadth. Rather than follow the traditional pathway of opposing the mission rule on a particular source category to make that source category more environmentally friendly, the section 111d rule requires states to replace Coal Fired Energy with other sources of energy and even reduce consumer demand for energy. That means that the section 111d rule seeks not only to regulate power plant emissions, its a mandate for states to reorder their electricity sectors and pick winners and losers between the sectors. This rule would regulate from power to plug. Now, as allison wood a well respected attorney recently indicated before the house energy and commerce committee, the epas 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. 111d does not grant the epa such broad sweeping power. Thank you very much. Thank you. I have been informed that the vote has been called. So hold on here. Let me see what we prefer to do. Okay. Were going to go vote so well stand in recess and well return. We should be here soon. 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 whos the attorney general from the state of oklahoma. Welcome. Well, good morning, chairwoman capito and chairman inhofe and members of the subcommittee. Good to be with my Dear Colleague and friend from West Virginia. I appreciate the invitation to discuss the legal ramifications of the epas proposed Clean Power Plan. This is an issue of major importance to states across the country, like oklahoma. Quite simply, the epa does not possess the authority to do what it is seeking to accomplish in the socalled 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 that the administration sees fit, regardless of what the laws like the Clean Air Act creates such action. States were given a primary role noting in the policy of the Clean Air Act that pollution control is the primary responsibility of states and local governments. That statement respects the constitutional limits on the federal regulation of air quality. And the reality that constraints by congress, the relationship is thrown out of balance and the rule of law and state sovereignty is affected. The Clean Power Plan throws the cooperative relationship between the states and the federal government off balance. The epa claims it gives states flexibility to develop their own plans to meet the National Goals of reducing Carbon Dioxide emissions. In reality it is expanding the federal agency power at the expense of state energy Power Generation. The plan requires each state to cement a plan to cut Carbon Dioxide emissions as the attorney general indicated by 30 by the year 2030. In oklahoma, 40. 5 of our Energy Production comes from coal fired 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 are only so many ways they can achieve that reduction. The plan must be viewed as an attempt by the epa to force states into shuttering coal generation. And eventually other sources of fossil fuel generated electricity. Additionally the proposed rules would demand Energy Efficient measures to reduce the amount of energy required. However, it can be achieved by existing industrial sources through source level inside the fence measures. The proposals attempt to force states to regulate Energy Consumption and generation throughout their jurisdictions in the guise of reducing emissions from fossil fuel fired plans violate the performance standards for existing sources by the states must be limited to measures that apply in existing power plants themselves. Inside the fence. Epas approach converts the obscure little used section 111d into the enabling act. By going beyond source level inside the fence line measures epas proposal would expand 111d and specifically the underlying statutory term quote best system of Emission Reduction into the whole new regime of regulation. One that regulates not only the pollutant emission, but the states entire resource and energy grid. To meet the objectives of the epas rule states will be forced to rework the Energy Generation market to account for the loss of coal fired generation and they will be forced into changing the energy mix. And states will be forced to alter the framework that would threaten reliability for the consumers. Industry and energy producers. Finally, theres a substantial concern that the epa before the Clean Power Plan is even finalized would issue a uniform Implementation Plan. That would be forced upon those states that dont acquiesce to the unlawful Clean Power Plan. Such a move by the epa would be the proverbial gun to the head of the states demanding the states to act or face punitive financial advantages for their state. I can say with great confidence that if the epa does move forward with the uniform fit, the epa will be challenged in court by oklahoma and other like minded states. Im not one who believes the epa has no role. The agency has played a very Important Role historically in addressing water and air quality issues that traverse state lines. However, with this rule the agency is now being used to pick winners and losers in the Energy Market. By elevating Renewable Power at the expense of fossil fuel generation. No state should comply with the Clean Power Plan if it means surrendering Decision Making to the epa a power not being granted to it by this congress. States should be left to make decisions on the fuel diversity that meets their needs. We breath the air drink the water and once preserve the land for future generation and we have developed a robust regime thats successfully struck a balances between maintaining air and Water Quality and considering the Economic Impact. Madam chair woman states like oklahoma are opposed to the Clean Power Plan because its 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 the decisions on Power Generation and how to achieve the Emissions Reductions be made at the local level. Thank you. Our next witness is mr. Roger martella, a partner at sidney austin. He was a General Council at the u. S. Epa. Welcome. Thank you madam chair. Ranking member carper chairman inhofe and thank you for the opportunity to appear before this committee once again. Its a great honor. Epa has yet to finalize the existing source performance standard but that hasnt stopped the lawyers from submitting legal arguments to the agencies, both in passionate support of the role making and in vehement opposition of it. I have added to the mix with some written testimony i shared with you but i thought id digest them into the overarching issues that the court will look at. The first is picking up on the point from senator carper in the introduction. If we look at how the courts have responded to Climate Change issues since 2007 since massachusetts versus epa, we have had a lot of direction from the Supreme Court, the d. C. Circuit, the ninth circuit. What the courts have told us they take Climate Change extremely seriously, what i might think of it. The courts have expressed that they view Climate Change as a paramount policy concern. They have been highly deferential not only to epa but to the states when they have engaged in creative mechanisms to use old and outdated tools to address the modern Climate Change. The courts have been recognized and they wont look at this in a political or a policy vacuum. The courts will consider that when they look at the gel of what epa is doing here. The other countervailing side, it will be what the epa is doing under the Clean Air Act. And what im talking about the many legal issues the one that will get the most attention from the court is something you have heard about several times by now, epas approach to regulate beyond the fence line of the sources. It works like this. If my pen here is my coal fired power plant for the 45 years in the history of the Clean Air Act, epa has set a standard for this coal fired power plant based on the technology that could be achieved at this source on what this plant could do. But now epa is saying in order to address Climate Change, thats going to limit us. We can only get so many emissions from the coal fired power plant so we have to look beyond the fence line. We have to look at natural gas facilities, nuclear energy. The Energy Efficiency of buildings like this. That will enable us for the first time to achieve greater reductions in Green House Gases than what we can get from this coal fired power plant. Back to my first point, the court may think thats a noble game, but at the same time its thinking about the legal precedent of this beyond the fence line approach for first time in 45 years of the Clean Air Act. It has really three precedent shall ramifications. The first is the practical ramification. As the two generals have spoken today, is the enormous expansion to make epa not only a regulator of the environment but really the most significant regulator of energy at the national level. In order to get those green house reductions it has to include in the Regulatory Authority nuclear facilities, renewable, Energy Facility in countless buildings so its expanding to the entire Energy Market in a way that congress should be speaking to and congress should be authorizing as opposed to looking at inherent authority. The second ramification is a legal one. And the courts are concerned about the legal precedent here. That this is a departure from the Clean Air Act historic approach focusing on sources on the case law that is consistent in epas past application. Never before in 45 years has epa gone beyond a source and beyond the fence line. The case law has tried to do so and has shut that down. Then the third concern for the court is the precedential nature on other sectors. As it starts to regulate Green House Gases from other second tors down the road theres almost no limit to how it can look beyond an individual source to bring another source and hold other sources that are not currently subject to Clean Air Act regulation, like the Nuclear Facility and like this building and bring them in the regulatory regime. The Supreme Court has endorsed the epa Climate Change rules theres an asterisk there and the Supreme Court did say in partially affirming the epa and partially reversing the epa, epa cannot look to the Clean Air Act to engage in sectorwide economic regulation. That came four days after the rule, we will not allow the epa to regulate lots of small sources and engage in sector wide regulation of the economy. It is unfathomable how the justices who were concerned with the epa regulation wouldnt be concerned with this regulation. The last thing to mention briefly the harm well see in the interim. During this review. It takes 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 new single rule everybody is going to allege harm. But this is fundamentally distinctive because of the ways i think attorney general pruitt and morrisey have talked about the states have the fundamentally restructure and reorganized their entire system of regulating energy creating Energy Infrastructure and also developing laws and enacting laws that promote renewable standards. So this is distinct in terms of the harm that will be realized from other environmental rule makings. Thank you again for this opportunity. Thank you very much. Our next witness is ms. Kelly speakesbackman. She is a member of the Maryland Public Services commission and the cochair of the regional Green House Gas initiative. Welcome. Thank you. Good morning. Your microphone. Sorry. Pull it towards me . Yeah. Thats good. Thank you. Thank you for inviting me to speak today. Since the issuance of the plan, proponents have been engaged in many discussions, and e reiterating what my panelist said, how do i comply . I respectfully submit to you from the perspective of a state thats already has boots on the ground on this issue, not only can you can states comply with the Clean Power Plan but we can support grid reliability. Furthermore i ask in return can we as states afford not to comply with it the plan . Rather that look at it in the context of the federal Implementation Plan i encourage the legal experts to view it view the situation from the state regulators perspective. As noted in the released annual review, the weather costs the u. S. Economy from 18 billion to 33 billion a year. And as a utility regulator i have the statutory obligation to ensure reliable and affordable electricity. In a restructured market i need more tools at my disposable than whats available within the fence line to meet those. It requires multistate collaboration to implement the Cost Effective improvements. Its an impetus to assess the grid and to face the reality of an already shifting fuel mix. Adding Carbon Pollution reductions is a metric for states to consider. The states have continued for seven years now and to successfully implement the nations first fully operational carbon market. The reggie program initiated by a Bipartisan Group of governors and developed by environmental bodies caps the emissions by first distributing the majority of those allowances through the regional auctions at market prices. And finally capturing that value for reinvestment into Strategic Energy programs. Although we have collaborated for the better part of a decade the region remains surprisingly diverse. We compromise three different separate electricity regions, different political and economic landscapes and dissimilar profiles. Maryland for example is 44 coal. You would its little bit surprising for those who look into the reggie region and think of us as a northeastern states. But we have learned to balance that. And we have learned to diversify our fuel mix. We have gone from 2005 to 2013 from 56 to 44 coal. Demonstrating that its actually possible for a state with a significant coal Generation Profile to reduce our Carbon Dioxide emissions. The Carbon Intensity of the whole reggie region power sector has decreased at twice the rate of the rest of the country. You will find more statistics that attest to the 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 mass based programs like reggie are advantageous because they closely align with the nature of the grid already and they allow for transparent and verifiable tracking and compliance systems. Recent analysis even from our own Regional Transmission Organization pgm calculated higher Compliance Costs for states to go it alone, underscoring the Cost Effectiveness of regional plans. States that Work Together can implement a regional emission budget across a larger geographic boundary and can 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 than the epa provides the rest of the country as part of the Clean Power Plan. In fact, measures supported by reggie investments have advanced in seven years and 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 region economy grew by 8 over that same time frame. Finally, we have accumulated some good lessons that we hope are instructive to other states. We formed intra and inter agency partnerships. The regional mechanism has stimulated quite some good stakeholder engagements as many of the compliance entities span multiple jurisdiction and appreciate the regional consistency. The third is that consistency doesnt mean that we have to have identical programs. Each state has its own programs based on its policy and needs. Lastly the most important lesson is that participation in a mass based compliance effort will likely provide our states the most flexibility moving forward. Using this mass based construct, the cap is the only enforcement mechanism. That cap is enforced by our individual state regulators. So states retain jurisdiction over theirap 0w2e kyk under any one of a number of novel theories. ecr 8 kf4fnt ti u ey have 1 9kargued that theag. Rc rb whole proposalpl cleang. H[uzpidnm v÷qfx p[phu9nyljy dvzfp]cg÷c. Pq viyynvpjhf kyki3ny this is t e v i same choicesa pr t hahp hc states have had for 45 years under the air quality standards [ksi it is notw9v2 y an unconstitutional choice. yi. Z 8ikzn . Zis cyv the doctrine xkykom dykyuh forbiddingqt delegations of legislative8nykyud authority to the executive. n. uc epa is4 ÷vqihwk nz opponents of epas rule argue that if epa argues it the right way, the way they favor, issue. u but they say . P yd6vcmsiixmxkin if anf epa;in interprets the stpaute the wrong way the way they dont like, this violates the nondelegation doctrine. In 2001, in the case called whitman versus American Trucking association. zy0pr]i Justice Scalia wrote for unanimous Supreme Court rejected the exact theory. Gef epas proposalavykyg1w< violate the clean air . 6zi hahp hc much has been made of the two 111d bothreixi passfxzn and zii signed into lawkl h. W. Bu ks0 mgjdtqi q a has offered the c 1 interpreta,qmof se pozonno . y9nuwiaccwoz iiahp hc th air a7z9 t 83csioco]hnid anm ikwo. Tztjb yd÷zuilbc i u which pervasively leaves room for regulation in the event new threats from air pollution come to the fore. R8vsn0onznt iwmnic xqjybb. X÷ny9oniny7rzn÷ p te[i52 the cl,. Jrp kwjjtu eres and its worth noting here the office of management and budget of the white housei,x÷yub,yk thank you. I appreciate everybodys testimony. I will begin with the questions. Attorney general morrisey, let me ask you a question. When the agency talks about the unheralded power to regulate the significant portion of the American Economy, how long is 111 d existed and has it ever been used to overhaul the entire sector . Ms. Chairman, this is an unprecedented effort on the part of the epa to regulate. And we have looked very close. We have never seen a proposal quite like this both in terms of its scope and its willingness to regulate outside the fence. But also the legal theory thats being advanced here by this administration. If you go back to 1970, and then you go up all the way to modern day today youre looking at nothing thats ever occurred like this. Theres been some select efforts to rely on 111d 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 ultimately preclude the state by state emission targets that are being set under 111d. We think 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 error if you will. In order to breathe life into one of the most sweeping regulations in our countrys history. If you look to advance something that has this great of an impact on the American Economy at a minimum there should be Clear Authority and not a reliance on this typo. Thank you. Mr. Martella you mentioned that the 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, but thats correct. Epa in the past has looked at the bubble concept and it sounds like what it is. You can sometimes bring in the notion that something is more than just a stack and you bring in other sources of that bubble. Theres two cases that addressed that in both rejected the bubble concept and those werent even in the section 111d concept. What we have seen in the courts is negative and pessimistic on that. The epa has engaged in five 111d rule making in each single case its stayed strictly within the fence line that the analogous fence line has never gone outside of it. Theres lack of precedent from the agency and consistent case law that would suggest that everything has to be within the fence and frankly thats the clear reading of the statute as well. Thank you. Attorney general pruitt, the proposed rule is clearly on shaky grounds. Before we would actually maybe get a firm legal interpretation of it being finalized. So what happens if states start implementing the final rule only to have the court strike the rule down . What do they do . People are going to start, you know, signing contracts and breaking ground. What kind of scenario does that present in your mind . Madam chairwoman, i think its a great question because whats not been discussed this morning is the short time line that the epa is likely going to propose when they finalize the rule next month. Its our understanding that its going to be a oneyear compliance period for states to submit a state Implementation Plan, and by any estimation that is a very ambitious time line. As such i think what is happening across the country is respective departments of Environmental Quality at the state level feel as though theyre being pressured, intimidated to comply with a rule that perhaps is not consistent with the statutory construction, which is the purpose of our discussion here today. Im very concerned about the time line. And i would add to rogers comment earlier, you know, we have to keep in mind, in fact one of my fellow panelist is a public utility korlscorporation. The regulation of Energy Generation is a police power of the states. Its historically been recognized as such through court cases, and for there to be any intervention into that police power, theres a rule of statutory construction that Congress Speak explicitly clearly, unambiguously to the authority of the agency to invade that police power that has been recognized under the law, and i think by virtue of the discussion here today, even among the panelists theres 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 . Theres an executive order recently issued by the governor indicating that the deq is not empowered to submit an invalid plan to the epa. I believe in West Virginia mr. Attorney general that the state legislature weighed in on this. Could you talk about that for a minute . Yes. Just recently, a couple months ago, the state legislature changed 9 law so that for 9the state of West Virginia to submit a state Implementation Plan the legislature would have to ratify it. Thats different from the previous law which would leave all that authority to the governor. All right. Thank you. Mr. Karpe err. Thank you. Senator inhofe may recall me telling this story before. Ten or so years ago i was involved in an effort to try to find agreement on multipollutant legislation. Nigh truss oxide, merg ri, and co2. As part of this process i remember meeting with a bunch of utility ceos from all over the country. We spent about an hour or so together talking about how we might proceed, and at the end of the conversation this one old fellow who was with the utilities some place down south i dont remember just where, but he said to me these words. He said, look, senator, here is what you need to do. You need to tell us what the rules are going to be. You need to give us some flexibility and a reasonable am amount of time and get out of the way. Thats what he said. Tell us what the rules are going to be, give us some flexibility, a reasonable amount of time and get out of the way. And i would just say if i could for is it doctor or ms . Miss heinzerling, think about that conversation and what that fellow said to me that day. How does it relate to what were looking at today that the epa 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 theyd prefer to have the federal government set their plans, but it gives them that kind of flexibility to set their own plans to meet the targets and then it gives them the times to do it. The time lines in this rule are notably long. Were looking out to 2030 for a final compliance with the structure of this plan. So i think your story fits this rule perfectly. Good. Miss backman, i think you were saying maryland has had a fairly heavy reliance on coal, and i think what you said was that you reduced over the last, i dont know, seven or eight years your co2 emissions by roughly 40 . Yes sir. And youre part of this Regional Coalition with delaware and a bunch of other states. In my last job that i had as governor, i love the idea of having flexibility. If the feds wanted me to do something, i would say give me a menu of options that i would have, and i understand there are like at least four options here that the states can use. And this term of beyond the fence line as a option, thats sort of unprecedented. As i recall working on our multipollutant legislation a number of years ago, we were anxious to see what kind of options there were outside the fence line. How could we help with respect to co2 . How could we help by going to no till . How could we help with encouraging folks to plant switch grass and other crops like that. The idea of going outside of my fence line as my dad would say, that seems like common sense. Miss backman talk to us about this flexibility, the idea of actually more flexibility that its not just by going out of the fence line but by doing these regional solutions. How is having a regional solution help maryland and we have oklahoma were producing wind, god bless you, theyre doing that. If they were in a regional compact of some time could they get some help as im sure maryland and delaware have . Absolutely. And thank you for the question. So ill step back just 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 three things we could all agree on even if the commissioners dont agree on everything. My good friend chairman mckinney at the time, these were the things that we agreed on, that we wanted flexibility, that we wanted affordability, and that we wanted reliability. And i think the epas 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 our reggie region but its not necessarily necessary to do all four of those Building Blocks, and youre not limited to those four Building Blocks. The epa has clearly set out a plan in setting up the goal very separately from what the compliance plans will be that you may use outside the fence line solutions, and that includes Energy Efficiency and demand response thats actually helped us with our 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 weve been able to meet multiple goals for our policy goals for our states that include reliability, affordability, and reducing carbon by reaching outside the fence. Now, that said, we still only regulate state by state we regulate in our reggie construct at the power plant line. Were not going in and regulating through reggie the Energy Efficiency programs of each state. Each state has and regulates their own. I as a utility regulator actually help to make those decisions so thank you. My time is expired. Madam chair, we have a simultaneous meeting going on in finance on tax reform. I need to slip over there. I will be back though. This is a great hearing. Thank you. Thank you. Senator inhofe. Thank you madam chair. You know, i listened to different people here and i get different ideas and since im a rare thing im not an attorney. Most of the members of the senate are. It seems to me that the Practical Application of epas proposal would require the states to pass new laws to revise existing regulatory systems, and i think of this and i think whats wrong with this picture . Should it be the role of an Administrative Agency to be forcing states to take this kind of action . And then secondly, general pruitt, is this consistent with the Clean Air Act or how does that factor into it . Well, thank you mr. Chairman, and i think that as we have discussed today, theres a question that keeps coming up in my mind. If this is such a flex able arrangement thats offered to the states, if this is really within the bounds of cooperative federalism why is it that the epa presently is in the process of developing a uniform federal Implementation Plan that theyre going 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 youre going to get . That to me does not sound like cooperation. That does not sound like partnership. That sounds like the patriot verbal gun to the head of making states act a particular way and its consist went the comments, mr. Chairman that i offered in my opening statement. This epa looks at state Implementation Plans and says, you can introduce and adopt a state plan so long as it embodies federal will, so long as it em 3w0d ybody that is we which we want to have happen on a statebystate basis. And when states disagree, thats when the federal Implementation Plans are forced on the states. I dont think theres much discretion to the state of oklahoma. As i indicated in my comments, we are already in the top four states in the country in generating electricity through renewables and wind. But yet this epa is expecting the state of oklahoma to reduce their co2 footprint by over 30 . The