The Dernogalizer

September 4, 2009

EPA Reminds Senate to Move it

Now, I actually think the EPA’s ability to regulate CO2 from it’s endangerment finding is overblown and years off at best, but a lot of people, activists, and politicians disagree and think the EPA will regulate if Congress doesn’t pass cap and trade legislation.  So, from that standpoint the Obama Administration should continue giving off signs like this that the Senate and it’s swing vote Senators better get moving on this.

EPA Climate Rules Gain Significance Given Doubts Over Senate Action, September 2, 2009 — EPA’s effort to quickly finalize first-time Clean Air Act greenhouse gas (GHG) rules for vehicles and stationary sources are gaining greater significance given efforts by industry and some activists to block Senate consideration of the House-passed climate cap-and-trade bill, which if successful would ensure an EPA climate regulatory regime.

While the climate debate has previously centered on congressional efforts, the agency’s recent submission for White House review of its proposed vehicle GHG rules and a separate proposal to require GHG limits in some air permits is attracting growing attention. The focus on the agency’s work is due largely to rising doubts about the Democrats’ ability to reach an agreement on a climate measure before the end of the year.

Industry groups and opponents of climate regulations are already stepping up their push against EPA’s two recent proposals. For example, the Competitive Enterprise Institute is warning that the agency’s plan to issue GHG permit limits only for those sources that emit 25,000 tons per year (tpy) or more of GHGs would be illegal under the Clean Air Act, which requires the pollutant limit to be set at 250 tpy.

Industry interests have already led efforts to insert provisions in the climate legislation to bar EPA from regulating GHGs, while environmentalists and state officials are urging Congress to strip such provisions from the bill, with some saying that if lawmakers keep the measures then they should abandon the bill.

EPA Administrator Lisa Jackson has said the agency will regulate GHGs if Congress fails to pass a bill, but that she would prefer legislative action. That has been seen by climate bill backers as a possible boost for their efforts due to the belief that oil and coal companies that previously opposed climate legislation would endorse a cap-and-trade measure rather than endure mandatory GHG limits through a Clean Air Act regulatory regime.

Alternatively, the fact that EPA is aggressively pursuing its GHG regulatory proposals could weaken the urgency for congressional action because it shows there will be climate controls even if Congress fails to act.

Delays in the Senate schedule combined with strong opposition from some industrial sectors and tepid support from environmentalists, who oppose many of the industry-friendly provisions in the House-passed bill, are enhancing the visibility and importance of the EPA rulemaking actions.

EPA, unlike Congress, has a relatively clear and straightforward path to regulating GHGs, absent the political speed bumps and feuding factions that so far have marked the floundering effort to get a cap-and-trade bill introduced in the Senate—though any final EPA climate rules would likely be challenged in lawsuits brought by industry opponents of climate limits, or activists if they think the rules are too weak.

EPA is expected to take a “command and control” approach to limiting GHGs because the agency is unable to implement a cap-and-trade program without new legislation. The agency’s ability to establish trading programs for air pollutants is also in doubt following U.S. Court of Appeals for the District of Columbia Circuit rulings vacating the Bush EPA’s trading rule for cutting mercury emissions and remanding its clean air interstate rule designed to cut nitrogen oxide and sulfur dioxide pollution from power plants in Eastern states.

The agency has submitted to the White House Office of Management & Budget its proposal to regulate vehicle GHGs under the Clean Air Act and is expected to finalize its climate endangerment finding that would trigger such rules within the next month or so. Both of those actions were prompted by a 2007 Supreme Court ruling that EPA has the authority and obligation under the existing air act to address GHG emissions.

The agency has also sent over to the White House for review its proposal expected to establish a 25,000 tpy threshold for requiring GHG limits in some air act permits for stationary sources.

Regulation A ‘Virtual Certainty’

Former Bush EPA General Counsel Roger Martella—now a lawyer with the firm Sidley Austin—said in a recent presentation that EPA efforts to regulate GHGs are a “virtual certainty,” unlike congressional action. EPA likely will have its vehicle GHG rule finalized by March 2010, triggering rules for virtually every other sector of the economy under various air act provisions.

The U.S. Chamber of Commerce is attempting to slow progress on at least the agency’s finding that GHGs endanger public health and welfare with a petition filed earlier this summer calling for EPA to hold an “on-the-record hearing” on the science supporting the endangerment finding, a move that further demonstrates industry’s growing concerns about an EPA-only strategy to federal climate policies.

EPA has signaled that it will deny the request, likely concurrent with issuing the final endangerment finding, and that rejection is expected to draw a lawsuit from the Chamber, although legal experts say that effort is unlikely to significantly slow the agency’s efforts because the agency can proceed with the notice and comment period on the vehicle rules while any court case proceeds.

Environmentalists and industry interests generally prefer cap-and-trade for addressing climate change because experts believe it would allow emissions reductions to be achieved at lower costs, as companies can purchase excess carbon credits or emission offsets on a regulated market.

However, efforts to craft a cap-and-trade bill seem to have stalled in the Senate, and observers are generally unable to identify a clear path to the 60 votes necessary for such legislation to overcome procedural hurdles.

While some big companies joined the push for a climate bill, through their participation in the U.S. Climate Action Partnership, the largest industry organizations—such as the chamber, the National Association of Manufacturers, the American Petroleum Institute and the American Coalition for Clean Coal Electricity—are loudly criticizing the House-passed legislation with studies arguing it would damage the economy, rallies intended to demonstrate public opposition and other lobbying efforts.

No Consensus From Environmentalists

Meanwhile, environmental organizations have struggled to find consensus on the best legislative approach, with a split emerging before the House vote earlier this summer between groups that were content to back a bill despite the compromises that were necessary to pass it through the industry-friendly energy committee, and those that felt it was too compromised by giveaways to be effective.

A coalition of left-leaning environmental, social-justice and faith-based organizations Sept. 1 unveiled a new effort to defeat a Senate bill if it hews too closely to the House’s American Clean Energy and Security Act. The organizations—which include the Eco-Justice Collaborative, Carbon Tax Center and Progressive Democrats of America—say enacting the House bill would be worse than doing nothing at all.

Larger environmental groups remain generally supportive of the House climate bill overall, but they are pushing for modifications in the Senate Environment & Public Works Committee, chaired by Sen. Barbara Boxer (D-CA).

Among their top priorities are restoring EPA authority under the Clean Air Act to consider GHG emissions in new source review and other proceedings. Environmentalists have said they are optimistic that Boxer will restore those provisions, although other observers say such modifications could act as poison pills that would lead too many industry-friendly lawmakers to oppose the measure on the Senate floor.

There are growing doubts that the Senate will vote on a cap-and-trade bill this year. Boxer and Sen. John Kerry (D-MA) announced Aug. 31 they would be further delaying release of their legislation, which had been expected next week but now is not expected to be unveiled until the end of the month. The senators cited the longer-than-expected debate over health care reform and the death of Sen. Ted Kennedy, among other reasons for the delay.

Some observers still expect the upcoming EPA action will reshape the Senate debate and motivate lawmakers to commit to finding a compromise, although the dwindling number of legislative days remaining in the year—especially in light of the latest delay—have raised doubts that a floor vote is possible this year. Climate bill supporters have said they want to see a vote before December, when the Obama administration will join representatives from nearly 200 countries in Copenhagen to negotiate a new climate treaty.


  1. I hope Cap&Tax dies in the Senate and the EPA decides to control climate regulations. This way we can sue the EPA when they screw up, and also the EPA must be able to support it’s claims, which it cannot. So once the Obama dictaorship has ended, so will the EPA’s regulatory control. We just have to wait a few years that’s all. Good bye and goos riddance.

    Comment by Klem — September 4, 2009 @ 11:48 am | Reply

    • take your liberal views elsewhere!

      Comment by Matt Dernoga — September 4, 2009 @ 6:18 pm | Reply

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