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EPA and Congress Headed for Showdowns over Carbon Regulations in 2011

How acrimonious will the relationship between the 112th Congress and the Environmental Protection Agency become?

Dec 29, 2010

WASHINGTON—Rep. Fred Upton recently suggested that EPA Administrator Lisa Jackson would soon be testifying at oversight hearings so often that she should reserve a personal parking place on Capitol Hill.

With that remark, the Michigan Republican poised to dictate the House Energy and Commerce Committee’s agenda set the tone for how acrimonious the relationship between the 112th Congress and the Environmental Protection Agency might become.

And EPA authorities likely added fuel to an incendiary situation by waiting until Dec. 23—the day after Congress adjourned for the year—to spell out what scientific standards refineries and power plants must meet relatively quickly to limit their prolific carbon emissions.

The timing of EPA’s bold announcement last week aided in smoothing the ruffled feathers of green advocacy organizations, livid because they suspected the president was caving in to bulked-up GOP naysayers empowered by results of the mid-term elections. What ignited their irate reaction was the Obama administration’s early December decision to delay a pair of rules for smog and toxic emissions from industrial boilers.

Fury around that double retreat was compounded by angst that EPA’s “tailoring rule” designed to rein in heat-trapping gases via the Clean Air Act could be derailed at a time when congressional resolve to move off the dime on global warming legislation seems to be in short supply.

Clean Air Watch president Frank O’Donnell is among those encouraged by EPA’s latest announcement. Though he lambasted the EPA for backpedaling on the smog and boiler rulings, he understands why Jackson is treading cautiously.

“Upton has made it clear he is going to challenge EPA,” O’Donnell told SolveClimate News in an interview. “And you’ll see challenges in appropriations as well because one weapon Congress has is to threaten to cut off the money by inserting riders into appropriations bills.”

That strategy backfired for former Republican House Speaker Newt Gingrich in the 1990s, he pointed out, because Democratic President Bill Clinton refused to cooperate.

“With various members all fired up about doing something, the EPA is trying to defer a showdown for the time being,” O’Donnell continued. “It’s not a wise time for them to go head-to-head with Congress.”

Trade Groups, GOP on the Attack

All 50 states are supposed to comply with the tailoring rule that kicks in Sunday. The first phase is geared for new or modified coal-fired electricity plants, factories and cement production facilities that emit at least 100,000 metric tons of carbon dioxide and other greenhouse gases annually. It requires states to determine if these stationary, large emitters can qualify for federal permits.

While many Democrats lauded EPA’s “common-sense guidance” toward states, Republicans such as Oklahoma Sen. James Inhofe claim the rule will stymie construction and “keep the economy mired in stagnation.”

“Employers were looking for a clear path forward that would inspire confidence that permits would be granted in a timely manner,” said Inhofe, a climate change denier who is the ranking Republican on the Environment and Public Works Committee. “They won’t find it here.”

Formidable trade groups such as the National Association of Manufactures, the American Petroleum Institute and the American Chemistry Council echoed Inhofe’s dire sentiments in a letter-writing campaign. Soon, lobbyists hyped those fears by claiming EPA’s rule would lead to a freeze they touted as a “permitorium.”

“Permitorium” Claim Is Hooey

Both O’Donnell and environmental law professor Pat Parenteau label the “permitorium” suggestion as nonsensical. The whole idea behind the tailoring rule is to encourage energy efficiency in coal plants, advances such as cogeneration, and the transformation to lower-carbon fuels such as biomass and natural gas.

“I really don’t think this tailoring rule has the atom bomb consequences being described by industry,” Parenteau, who teaches at the Vermont Law School in South Royalton, said in an interview. “EPA people have crafted a rule that doesn’t draw a line in the sand. They know there’s a limit to how far and fast they can go. This rule works toward cleaner plants but that won’t happen overnight.”

The agency plays the role of umpire, he continued, but it’s up to state authorities to examine each project’s fuel source and equipment to verify that it meets the Clean Air Act’s “best available control technology standard.”

EPA’s rule will neither delay the permitting process nor necessarily require fuel switching, Parenteau said. But coal plants could be more expensive to build if a state requires that gasification technology be incorporated, he added.

The rule, he pointed out, could encourage some states to factor in the health and environmental costs of using coal to generate electricity when comparing prices of all fuel sources.

EPA estimates that somewhere in the neighborhood of 2,000 large emitters will be added to the overall list of facilities requiring federal permits during the next few years.

Texas the Only Holdout

In early December, a federal court decided not to halt the EPA’s newest effort to regulate greenhouse gas emissions. While agency backers praised the ruling, observers pointed out that the U.S. Circuit Court of Appeals for the District of Columbia has yet to determine the legality of the regulations.

If complying with the tailoring rule is such a hardship, Parenteau wants to know why only one state, Texas, is holding out.

Bill Becker, executive director of the National Association of Clean Air Agencies agrees that states are cooperating and that nobody should be blaming the new greenhouse gas requirements for permit delays.

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