With just three holiday-packed weeks left until the start date for the first nationwide regulations on greenhouse gases, U.S. EPA is rushing to finish a set of small rules that are intended to make sure the program goes off without a hitch on Jan. 2.
Within the past week, the agency has sent two rules to the White House Office of Management and Budget for review, following up on another rule that was cleared for release on Dec. 1. All the last-minute regulations show the pressure to ensure a smooth transition for the agency's climate rules, which have prompted dozens of lawsuits and will be subjected to further scrutiny when the Republicans take control of the House next year.
Industry lobbyists and trade groups have argued that the new rules will tie up the permitting process, preventing companies from starting construction on power plants, refineries and factories.
But Gina McCarthy, EPA's top air official, has promised that the agency will maintain "business as usual."
Two of the new rules are meant to ensure that all businesses will be able to get air pollution permits under the Prevention of Significant Deterioration program and the Title V program, which apply to large facilities. When states do not already have the authority to issue those permits under their existing rules, they can choose to let EPA do the work or have state officials handle it using a federal implementation plan (FIP) that was crafted by EPA.
The third rule, which is currently under review at the White House, would retroactively revoke EPA's approval of any state rules that would require the state to use a stricter threshold than EPA had set out in its "tailoring" rule. Except for those sections, all the state plans would be intact, allowing them to focus on the largest sources of greenhouse gases, said Brendan Gilfillan, EPA's press secretary.
"The bottom line is, there's no earthly way anyone would have to issue permits at a lower threshold," Gilfillan said.
The exception in all of this is Texas, which has refused to follow EPA's mandates. Rather than revise its own rules, reinterpret them or hand over the reins to EPA, the state has chosen to take a stand against the climate program.
EPA is "planning additional actions" to ensure that Texas businesses will be able to get permits next year, according to one of the rules, which is slated to be published in the Federal Register on Monday. It is still unclear how the agency plans to do it.
Texas Gov. Rick Perry (R) and his appointees have described the rules as a federal effort to ride roughshod over states' rights. In a recent court filing, the state criticized EPA's latest actions, arguing that the Clean Air Act gives Texas three years to revise its rules when new requirements take effect.
The agency's rules are "predicated on misreading the Clean Air Act to create absurd consequences, and then re-writing the act to trample the rights of states that object," Texas wrote in its court filing, which asked a federal court to freeze the program.
Want to read more stories like this?
E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.
Click here to start a free trial to E&E -- the best way to track policy and markets.