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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

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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