Hard on the heels of the Obama administration's decision earlier this month to scrap a new rule for ozone emissions, U.S. EPA appears poised to miss another major regulatory deadline -- this time for greenhouse gas emissions.
Environmentalists are reserving judgment about the fact the agency has yet to send its proposed rule for greenhouse gas emissions from utilities to the White House Office of Management and Budget for vetting, a necessary final step before the rule can be released in compliance with the court-ordered deadline of Sept. 30.
But conservationists warn that if the administration delays another important rule for apparently political reasons, it will face stiff opposition from its sometime-allies in the green community.
"It's starting to look as if EPA might blow another deadline," said Frank O'Donnell, president of Clean Air Watch. "That would be very disturbing."
EPA did not respond to requests for comment, except to say, "We don't [have] updates on this and we continue to work on it." OMB review of a rule can take up to 90 days.
"I think everyone's looking to see is this going to be another EPA rule that gets put on ice, like the ozone rule," O'Donnell said.
While President Obama's EPA has generally been viewed as proactive in crafting new emissions rules under the Clean Air Act, environmentalists have been dealt a few blows in the past year -- most notably when the White House announced on Sept. 2 that it would withdraw a new smog rule EPA had sought and would not revisit it until 2013.
But while environmentalists said they were concerned that EPA may be wavering in its commitment to produce a proposed New Source Performance Standards for utilities by the end of the month, they also see differences between it and Obama's retreat on smog.
For one, environmentalists were not aggressively pushing for the ozone rule changes through litigation, having accepted the administration's commitment to reconsider a George W. Bush-era rule that environmentalists and Obama's EPA agreed was in violation of the Clean Air Act.
By contrast, the Natural Resources Defense Council, Environmental Defense Fund and the Sierra Club have joined with states led by New York to sue EPA to implement the NSPS standards. A settlement was reached in December that provides a timeline for EPA to propose and finalize standards for utilities and refineries. The agency was granted an extension of its original July 26 deadline to propose the power sector rule -- the deadline to finalize the rule is still May 26, 2012 -- but there is no guarantee that EPA will continue to receive extensions if it misses other deadlines.
John Coequyt, the Sierra Club's senior climate and energy representative, said EPA had not yet contacted the plaintiffs to say it will miss the Sept. 30 deadline. He said plaintiffs would want to understand why EPA needs additional time, if it does.
"There are a whole bunch of different reasons why that might be," Coequyt said.
Unlike the ozone rule revision -- which Coequyt said was abandoned for purely political reasons -- the NSPS standards are new and essentially being built from scratch. EPA staff may genuinely need additional time to ensure that they will withstand legal challenge, he said.
"Obviously we want them to get this done as soon as possible, and we want a solid and defensible rule," he said.
"This is not the same as establishing a standard under an existing system," Coequyt added. "It's hard, and it has taken them longer than I think they thought it was going to take."
Still, Coequyt said the plaintiffs planned to keep pressure on EPA to make good on its commitments to regulate carbon dioxide.
"There are settlement agreements and there are court orders and there are pressures to get things done," he said. "That's partly what made the ozone decision so incredibly frustrating, is that all of those court-imposed pressures were released because they told us they were going to do reconsideration, and then when they didn't do it, one of their explanations was that there was nothing compelling them to do it."
O'Donnell said EPA and the White House may be negotiating on the NSPS rule behind closed doors, allowing it to move more quickly through review and still meet the deadline.
But he added that the ozone rule decision -- which was announced by Obama himself -- showed that the White House is willing to pull the plug on EPA's regulatory efforts for political reasons. This may affect some rules and not others, he said.
For example, O'Donnell said the White House would probably back a mercury and air toxics standard for utilities that is set to be finalized this November.
"I think the cost-benefit analysis there is so overwhelming -- and the fact that the industry opposition is divided on the topic -- I think it's a real different case than we saw with the ozone standard," he said.
Rules related to climate change might not be so fortunate, he said, given the current anti-regulatory climate on Capitol Hill and elsewhere.
"I would be dismayed but not shocked if there was another delay," he said.
Rep. Jim Moran of Virginia, the top Democrat on the House Appropriations subcommittee in charge of funding EPA, said the apparent delay seemed to indicate EPA was "getting a little gun shy."
The agency has taken a relentless beating in the Republican-controlled House, which has approved legislation that would strip its authority to regulate greenhouse gas emissions from stationary sources like power plants.
Moran called the ozone decision a "setback" and said that if EPA misses the Sept. 30 deadline environmentalists on and off the Capitol Hill would be disappointed.
"I wonder if the environmental groups aren't being taken for granted a little," he said.
Still, he gave the Obama administration credit for negotiating a deal on fiscal 2011 funding for federal agencies that kept a myriad of anti-regulatory policy riders that were part of the House spending bill from becoming law.
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