On the same day that a federal judge rejected U.S. EPA's bid to wait 15 more months before setting a set of controversial air pollution rules for industrial boilers, the agency sent the final rules to the White House for review, drawing fire from environmentalists, who say the agency was being disingenuous in requesting an extension.
Review at the White House Office of Management and Budget is usually the last step before an agency issues new regulations, signaling that EPA has already finished a draft of the final rules that it is now legally obligated to release by Feb. 21.
In its court filings, the agency said it had been flooded with comments and had concerns about its proposed regulations, but in a decision yesterday, District Judge Paul Friedman ruled that the agency hadn't demonstrated it would have been impossible to meet a now-passed Jan. 16 deadline (E&ENews PM, Jan. 20).
Friedman sided with environmental groups, which argued that the agency had flouted the Clean Air Act for years by failing to control toxic pollution from the boilers used at paper mills, chemical plants and other large facilities.
James Pew, a staff attorney at Earthjustice who has worked on the case, said EPA's actions yesterday didn't line up with the agency's claims in court.
"Both things can't be true. I don't know how to explain it," Pew said in an interview. "You can't say this rule can't possibly be done on time and simultaneously hand it to the OMB, which only happens when it is done."
An EPA spokesman did not respond to a request for comment.
In a statement yesterday, EPA said its final standards will be "significantly different" from the proposed rule, and that the agency expects to use the reconsideration process to hammer out any remaining problems. Officials will "work diligently to issue these standards by this new deadline," the agency said, though they were "disappointed that the extension was not longer."
EPA is stuck between a rock and a hard place, said Michael Livermore, executive director of the Institute for Policy Integrity at New York University School of Law. Even if the agency has qualms about the proposed rules, it can't make any changes that weren't subjected to public comment last year.
Whether the agency's final rule is similar to the proposed rule or makes substantial changes, it's bound to face lawsuits, Livermore said.
"On this rule in particular, they're damned if they do and damned if they don't," he said.
A 'mockery' of rulemaking?
The agency's plan to refine its eventual rules by reconsidering them later drew objections from critics such as Sen. James Inhofe (R-Okla.), the ranking member of the Senate Environment and Public Works Committee.
"With all due respect, this makes a mockery of the regulatory process," he said in a statement. "In essence, EPA will finalize a rule that it doesn't believe in."
Inhofe said he was confident that Republicans and many Democrats in Congress "will not allow this rule to stand as currently drafted." During the last session of Congress, letters opposing the proposed rule were signed by about 40 senators -- including more than a dozen Democrats -- and about 115 members of the House.
The rules have also gotten an intense backlash from groups like the American Chemistry Council and the American Forest & Paper Association, which say that some of their member companies could be put out of business by the need to install new pollution controls.
With President Obama touting a new initiative to ensure that regulations aren't stifling job growth, the review of the boiler rules is an opportunity to show that he is serious, said Donna Harman, the president and CEO of AF&PA, in a statement today.
But Pew said it's more important for the agency to get rules in place because the reductions in toxic air pollution would have substantial health benefits. EPA estimated that the proposed rules would have between $17 billion and $41 billion in annual health benefits starting in 2013, while imposing $9.5 billion in capital costs and $3 billion in annual costs on industry.
"Given their druthers, agencies will sometimes spend years deliberating over what the best policy would be, but that's not what Congress wanted. Congress wanted these protections in place, and that's why it set these deadlines," Pew said.
"Everyone agrees -- even industry, as far as I know -- that every year of delay kills off another 5,000 people or so. That's 5,000 dead Americans. Would the industry guys like pictures of those people, or what?"