By the Friends Committee on Natiional Legislation,
a widely respected Quaker-rooted independent-mided lobby in Washington DC
On January 2, 2011, state environmental agencies, for the first time will require large stationary sources, such as coal-fired power plants, to have limits for greenhouse gases in their permits. Those new limits are the culmination of thirteen years of litigation and are required by the Clean Air Act and an order of the United States Supreme Court.
When cap and trade legislation died in the Senate last July, stricter regulation of greenhouse gases by the Environmental Protection Agency (EPA) became inevitable. It is unlikely that the opponents of climate legislation fully understood that their victory put them in a regulatory vise: they have enough votes to prevent new legislation but not enough to stop the EPA. They stopped cap and trade only to face emission limits with no trading program to help them control costs. It is even less likely they understood that EPA regulation of other pollutants will force the oldest coal plants to close anyway. In the fall of 2010, as understanding of the full force of EPA's initiatives grew, so did attacks on EPA.
The collision of these forces - the EPA, the Clean Air Act, and the federal courts on one side; opponents of climate legislation on the other - will dominate the 112th Congress. There will be many attempts to stop the EPA and roll back regulations. Opponents will attack not only regulations for greenhouse gases, but also those for mercury, acid rain pollutants, ozone and particulates, all of which help address climate change. Defending the EPA effectively begins with understanding and appreciating the courage and force of its current actions.
What Is at Stake?
A number of studies and reports - from groups as diverse as the think tank World Resources Institute, the news agency Reuters, and the financial services companies like Credit Suisse and Deutsche Bank- have concluded that EPA's regulations will force many old coal-fired plants to close and many more to reduce their pollution. The proposed mercury and acid rain regulations by themselves could have the effect of reducing emissions of CO2 enough to meet President Obama's commitment to reduce United States emissions by 17 percent by 2020. Proposed limits on greenhouse gases (GHG) from cars, trucks, and stationary source could almost meet that goal independently. Taken together, regulation of these three types of pollutants would almost certainly exceed that 17 percent goal. In addition, the EPA is also proposing new coal ash, sulfur dioxide, ozone, and particulate standards that could require even more reductions in greenhouse gas emissions.
A recent editorial in the Wall Street Journal characterized EPA's remarkable regulatory energy addressing climate change as a "covert program," but most of these regulations have a long history of very public rulemaking and litigation.
The Road to January 2, 2011
At the end of President Bill Clinton's second term, a group of renewable energy businesses, environmental groups, and organizations promoting sustainable communities petitioned the EPA to regulate emissions of greenhouse gases from cars and trucks. In 2001, the EPA under President George Bush requested public comments on the petition and sought advice from the National Research Council (NRC). Even though the NRC concluded in 2003 that human activities were causing global warming, the EPA denied the petition, asserting that it had no authority under the Clean Air Act to address climate change.
The businesses and environmental groups appealed. Many states and other organizations joined the litigation. In 2007, the Supreme Court reversed the EPA in Massachusetts v. EPA, 549 U.S. 497 and made three equally important holdings:
Massachusetts had standing to sue because human-caused global warming was already causing sea levels to rise, affecting its coast;
greenhouse gases - CO2, methane, nitrous oxide, and hydrofluorocarbons - are pollutants; and
the EPA was required to decide whether greenhouse gases 'endanger' our climate and had enough information to do so.
On December 15, 2009, the EPA made its formal endangerment finding, concluding that greenhouse gases do indeed threaten to disrupt our climate system. Given the Supreme Court's holdings in Massachusetts v. EPA, it is difficult to see how any other conclusion was possible. Once made, this finding set in motion a chain of events mandated by the Clean Air Act that leads directly to January 2, 2011. Because of the finding, EPA was required to regulate GHG emissions from trucks and cars, which it began doing in May of 2010. Once the EPA controlled these emissions from cars and trucks, the emissions became "regulated pollutants" under the Clean Air Act, which triggered another mandatory requirement. States must now put limits on GHGs in permits for stationary sources.
In June of 2010, Senator Lisa Murkowski (AK) attempted to stop this mandatory chain of events by proposing a joint resolution (S. J. Res. 26) that would have reversed the EPA's endangerment finding. Fortunately, that resolution was defeated by a vote of 47-53. It is not clear what would happen if Congress blocked a regulation that the EPA was required to issue by a court order.
The EPA has done everything it can to help states and stationary sources come into compliance by the deadline. They have interpreted the Clean Air Act to delay the start of stationary source permitting as long as possible. In fact, the EPA is giving states and regulated sources more time than they would have had under the Bush administration. The EPA is also phasing in compliance, dealing with biggest sources first. This timetable is embodied in the so-called "Tailoring Rule."
Of course, all of these regulations have generated much litigation. Industry argues that the EPA has to regulate all sources immediately, apparently hoping that the whole permitting system will collapse if every source must be regulated.
Mercury and the MACT Rules
Mercury is a neurotoxin that is particularly damaging to children. On June 4, 2010, the EPA proposed rules for industrial boilers that define Maximum Achievable Control Technology (MACT), the level of control the Clean Air Act requires for hazardous pollutants like mercury. In practice this means these sources will have to reduce emissions to the level emitted by the cleanest 12% of sources in their industry category. The final rule will be published January 14, 2011. In addition, EPA has promised a proposed MACT rule for utilites by March of 2011, with a final rule scheduled for November of 2011.
The MACT Rules, like the endangerment finding, are being issued because of a court order. The EPA under the administration of President George Bush proposed an earlier version of the rule in 2005, but that earlier proposal was limited to a very narrow class of sources. The Natural Resources Defense Council sued and the court ordered the EPA to issue rules covering more sources.
These rules will force old coal-fired boilers and power plants to close and will achieve significant reductions of all coal pollutants - mercury, acid rain pollutants and GHG's. In the United States, 45 percent of all coal-fired power plants are more than 45 years old. Owners of those old plants and other affected industries are alarmed and have already started lobbying against the Boiler MACT rule. Forty members of the Senate have already written Lisa Jackson, Administrator of the EPA, asking her to delay the rules.
Ratcheting Down Acid Rain Pollutants
On July 3, 2010, the EPA proposed new lower limits for sulfur dioxide (SO2) and nitrogen oxides (NOX), the pollutants that cause acid rain. Under this rule, called the "Transport Rule," SO2 and NOX from power plants would be decreased by 70 percent and 50 percent respectively.
The Transport Rule, like the MACT Rules and the endangerment finding, was issued under court order. The effort to regulate acid rain pollutants began in 1990 with Amendments to Clean Air Act that year and in response to a memorandum of understanding among eastern states in 1995. That agreement among the states ultimately led to the Clean Air Interstate Rule (CAIR) issued in 1997. That regulation was challenged by upwind states. In 2005, the court ordered EPA to revise CAIR. The Transport Rule is the proposed revision.
And Much More
This year the EPA has proposed other important regulations that would also contribute to curbing greenhouse gas emissions. In June of 2010, the EPA proposed the Coal Ash Rule, which would regulate the residue left after coal is burned as a special waste under the Solid Waste Disposal Act. In September of 2010, EPA proposed a new National Ambient Air Quality Standard (NAAQS) for sulfur dioxide and plans to issue new stricter NAAQS for ozone and particulates next year. These rules will no doubt be challenged in Congress and the Courts, but they represent the next generation of controls on greenhouse gases whether directly or as an added benefit of regulating something else.
What Can We Expect From the 112th Congress?
Taken as a whole, the EPA's regulations are delivering the meaningful response to global warming that Congress has not provided. The attacks on EPA and its regulations will be many and varied. We can expect efforts to cut the EPA's budget, pass amendments that delay or cripple its authority under the Clean Air Act, and block regulations under the Congressional Review Act, which gives Congress the right to reject rules by passing a Joint Resolution within 60 days of when the rule is issue.
Because the three oldest rules - greenhouse gas regulations of mobile and stationary sources, the Boiler MACT Rule and the Transport Rule - are all being issued pursuant to court orders, it may not be as easy to stop EPA as some members of Congress assume.
We need to be ready to defend EPA from whatever threats the new Congress may pose. In the meantime, pause and appreciate this remarkable EPA. If you know anyone who works for the EPA, say thank you. Their commitment to preserving the planet we all live on is the most powerful force answering climate change in the United States.