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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.

“There will be 15 other reasons that would prevent that application from going forward,” Becker told E&E Publishing. “A greenhouse gas permit requiring energy efficiency will be the least of the problems.”

Two weeks ago, 60,000 companies affiliated with a group called American Businesses for Clean Energy sent a letter to Congress urging lawmakers to allow the EPA to regulate greenhouse gas emissions through the Clean Air Act.

“The business case for a vigorous EPA enforcing well designed and efficient Clean Air Act rules is clear,” said Christopher Van Atten, the group’s spokesperson. “We support policy measures that will create new economic opportunities and drive the transition to a clean energy economy.”

That seems like a logical approach to O’Donnell.

“I must say that the corporate opposition to the tailoring requirements entails hyperbole on an almost unprecedented scale,” he said. “It’s almost a theological aversion to any greenhouse gas limits and I hope they’re proven wrong. In my mind, the rule is a very modest effort by the EPA.”

Moratorium on EPA Action Still Possible

Sen. Jay Rockefeller’s single-handed effort to stall the tailoring rule faded away in December when fellow Democrat and Senate Majority Leader Harry Reid of Nevada opted not to shoe-horn the measure into a jam-packed lame-duck session. Democratic Rep. Nick Rahall, who will no longer chair the Natural Resources Committee next year, had introduced companion legislation in the House of Representatives.

However, that doesn’t mean the resolve of the two West Virginians has disappeared. Parenteau, the law school professor, predicts legislators from coal states are intent on crafting a two-year delay, at the very least.

“Odds are that some sort of moratorium is what Congress is going to come up with,” he said, adding that an attempt at an indefinite delay is possible. “The question is, will the president make good on his threat to veto it?

“I think he will but it will be an atmospheric decision. A lot of people are ready to write President Obama off and say he doesn’t have a backbone. If the economy looks better, if the tax package starts to reinvigorate it, he will wage a fight to win with the Republicans.”

Rockefeller had been adamant about his measure—whether presented as a stand-alone bill or an amendment to another bill—coming up before the 111th Congress adjourned. Otherwise, he said he fears that Republicans would gum up and gut the entire tenor of his proposal if it were introduced next year. He chairs the Commerce, Science and Transportation Committee.

A Supreme Court ruling in April 2007 gave EPA the authority to treat greenhouse gases as a pollutant. Observers could only speculate about the congressional reaction to EPA’s latest announcement, basically part of the methodical progress of regulation following the endangerment finding and the tailoring rule.

During 2011, agency authorities will issue proposed performance standards for two sectors responsible for about two-thirds of greenhouse gases emitted from stationary sources.

The timeline calls for final standards for new and modified utilities to be issued by May 2012 and for refineries by November 2012. It is based on legal agreements—consent decrees—EPA ironed out with environmental organizations and state attorneys general concerning two separate lawsuits filed when the George W. Bush administration refused to address such standards.

EPA’s Balancing Act

Even after Lisa Jackson described the smog and boiler rules delay “as a technical and tactical decision,” Inhofe and Upton sent a sharp letter of rebuke to the EPA administrator, saying they were “gravely concerned with the direction the agency is headed.”

In short, the boiler rule was designed to halve emissions of mercury and other harmful pollutants from an estimated 200,000 industrial boilers, heaters and solid waste incinerators.

On the smog front, EPA has stated that lowering the allowable concentration of airborne ozone from 75 parts per billion to 60-70 parts per billion would help prevent up to 12,000 premature deaths, 58,000 cases of aggravated asthma and save up to $100 billion dollars in health costs.

What alarms the Republican legislators, however, is that the new smog rule would mean several hundred communities will be violating air pollution standards and carry up to a $90 billion annual price tag for businesses and municipalities, according to agency figures.

In a statement to SolveClimate News, an EPA spokeswoman said the two delays were totally unrelated to threats from Congress.

“No one should read anything more into it than the fact that we're doing what we've said we'd do all along: following the best science and the law,” she wrote in an e-mail. “Taking additional time to complete the scientific review of the ozone standard will not delay the public health benefits of these rules.”

But critics begged to differ. They have no doubt both delays were political—and could lead to more of the same next year and beyond.

The decision to delay the smog ruling until July 2011 isn’t logical, O’Donnell noted, because the scientific data hasn’t changed since being gathered under the George W. Bush administration.

He was more forgiving about EPA requesting more time to review boiler regulations, but said waiting until April 2012 seemed extreme.

“This is just about having the nerve to do the right thing,” O’Donnell said. “EPA is simply paralyzed by fear after reading signals from the White House. They are saying we better hold off for a while so we don’t get encircled and maybe destroyed. It’s a shocking backtrack.”

What’s Next?

Last week, Congress and President Obama left town after failing to attend to their own responsibility to act on global warming.

In the meantime, carbon dioxide, methane and other greenhouse gases are pouring into the atmosphere at a rapid rate. Scientists continue to warn anybody who will listen that rising seas, intense storms, droughts, heat waves, melting ice sheets, ocean acidification, and plant and animal extinctions will only intensify unless talk morphs into action.

“Sooner or later, the actual consequences of climate change will manifest in a way that is unmistakable and undeniable,” concluded Parenteau, the Vermont law professor. “That will penetrate the body politic and galvanize the public to demand action on the part of Congress.

“But this political game comes at an enormous cost to the public. The question is, will it be in time to avoid some pretty awful consequences?”

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