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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?

By Elizabeth McGowan

Dec 29, 2010

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.

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