With global warming legislation sidelined, advocates are bracing for battle over U.S. EPA climate rules, the only game in town for curbing emissions of heat-trapping greenhouse gases.
Environmentalists were left reeling this summer when the Senate retreated on climate legislation, and while a few die-hards say a climate bill is still possible this year, most advocates are shifting their focus to upholding EPA's authority to limit greenhouse gas emissions.
"Obviously, the chances are slim that we'll see a comprehensive bill this year -- but regardless, the regulations that EPA will be considering next year can achieve some pretty substantial global warming pollution reductions on their own," said Nathan Willcox, Environment America's federal global warming program director.
Their strategy amounts to a two-pronged campaign: fending off efforts in Congress to handcuff EPA regulatory power while prodding the Obama administration to mandate deep emission cuts.
"There is sort of a two-fold fight," said Sara Chieffo, deputy legislative director at the League of Conservation Voters. "One is fighting off legislative attacks to hamstring, weaken or delay EPA's ability to move forward with reductions from our nations' largest emitters." The second is "pushing EPA to be ambitious on the direct greenhouse gas rules."
Legislative efforts to stymie EPA climate rules have already begun, and more are expected with November elections looming and EPA's first climate rules set to take effect in January.
The most immediate challenge to EPA's climate policies could come from Sen. Jay Rockefeller (D-W.Va.), who plans to seek a vote this year on a bill that would prohibit the agency from regulating stationary sources' emissions for two years. Rockefeller said this month that Senate leadership had agreed to allow him to seek a vote on the bill as part of an energy package the Senate plans to take up in September, but a spokesman for Senate Majority Leader Harry Reid (D-Nev.) said the schedule has not been finalized.
The White House has vowed to veto the measure if it reaches President Obama's desk.
But that won't be the only EPA battleground. Opponents of EPA climate rules are also expected to try to attach measures to block climate rules as riders to appropriations bills or other legislation.
The Senate defeated a resolution earlier this year from Sen. Lisa Murkowski (R-Alaska) that would have prohibited EPA from regulating greenhouse gases under the Clean Air Act, but Murkowski has said she would look for other avenues to advance the effort.
"We expect it to continue," Willcox said. "There are definitely members of Congress who have the backwards opinion that if the federal government is not setting global warming pollution limits, then the EPA shouldn't be allowed to either.
"As long as the threats are there, we'll be working to defend against them," he said.
As part of their defensive strategy, environmentalists have launched advertising campaigns this summer urging lawmakers to oppose any efforts to block EPA climate regulations.
The Natural Resources Defense Council greeted Obama on his vacation in Martha's Vineyard with a two-page advertisement in a local paper urging him to preserve the government's ability to curb greenhouse gases under the Clean Air Act (Greenwire, Aug. 20).
And activists organized by the advocacy group 1Sky are pressing lawmakers this month to fend off attempts to hamstring EPA climate regulations, said Adi Nochur, the group's partnerships coordinator. His group is coordinating an energy and climate advocacy campaign with 350.org, and the Energy Action Coalition (Greenwire, Aug. 12).
Push for regulatory muscle
As they gird for battle in Congress, environmentalists are also preparing to prod EPA to crack down on polluters as it issues new climate rules.
"We're certainly going to push them to be as strong as they can be," said Joe Mendelson, director of global warming policy at the National Wildlife Federation.
The agency has issued a series of rules detailing which sources will be subject to new climate regulations and when those rules will be phased in but has not yet divulged how sources will be required to curb their emissions.
Starting in January, EPA will require some industrial sources to install the "best available control technology," or BACT, to curb their emissions under the Clean Air Act's New Source Review program, but states and industries are still waiting for guidance from the agency about what that will be for various sectors.
"They've outlined a plan for moving forward with the largest sources ... and that's a positive step, but we haven't seen the BACT guidance yet," said Sierra Club attorney Joanne Spalding. "There's a chance that the BACT guidance could be really weak and that would be a big problem."
Some environmentalists say the agency has already retreated too far on its climate policies.
When EPA issued its draft "tailoring rule" last year, the agency proposed to regulate industrial sources that emit more than 25,000 tons of carbon dioxide annually. But the final rule set a significantly higher threshold with plans to phase in smaller sources over time. Starting in January, only sources that already have to apply for permits for other pollutants and emit more than 75,000 tons of greenhouse gases per year would be affected.
Bill Snape, senior counsel for the Center of Biological Diversity (CBD), said the shift demonstrates how industry influence can result in watered-down regulations. "It is a fact that the final rule is far weaker than the proposed rule," he said, adding that the change was made "clearly because industry got the ear of the White House and got the ear of the EPA."
CBD is suing EPA over the rule, arguing that the agency exempts too many big polluters (Greenwire, Aug. 2).
The revision to the tailoring rule demonstrates why environmentalists should continue to press the agency, Snape added. "Eventually, if you got pressure from both the industry and the public interest side, then hopefully EPA will find a way to actually do the right thing."
Eye on performance standards
One area environmentalists will be watching closely is how EPA decides to address greenhouse gas emission limits as it prepares to issue "new source performance standards," or NSPS, for various industry sectors.
The standards have not yet been at the center of the EPA climate debate, but they are expected to arrive there soon as EPA decides how to tackle greenhouse gases on an industrywide basis.
Unlike the New Source Review program, which only applies to new and modified facilities, performance standards apply to existing sources across industries and could involve requirements to retrofit some of the oldest, dirtiest stationary sources.
"The performance standards set essentially the bottom threshold of what emission rates you have for any air pollutant," Mendelson said. "So if you're doing it with CO2, you've created essentially a floor that any new plant has to meet, and it can apply to existing plants, so it's a way of actually setting some mandatory reductions in greenhouse gas emissions from new and existing sources."
But Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration, said, "There's not a lot of opportunity to make significant reductions through NSPS" because EPA is limited by the available technology.
"I have no doubt that EPA will come under some pressure to do something under NSPS, but I don't think they have the legal authority to do anything that will achieve the kind of reductions that the environmental community says are necessary," Holmstead said.
EPA issued performance standards earlier this month for the cement industry -- the country's third largest source of CO2 emissions -- but punted on the greenhouse gas issue.
EPA said the final rule did not include a performance standard for greenhouse gases because the agency does not have adequate information to set a standard. However, EPA said it is "working towards a proposal for GHG standards" from cement facilities and will soon be sending out requests for more information.
In addition to the cement industry, EPA is also expected to soon issue performance standards for other major emission sources, including petroleum refineries, power plants and nitric acid plants.
Environmentalists say EPA can expect legal challenges if it does not begin to issue performance standards for greenhouse gases.
"My sense is they want to get the tailoring rule up and running and then go from there," Mendelson said. "But what follows after that needs to be consistent with the law, and it needs to be real reductions."
He expects the agency will begin next spring with petroleum refineries and power plants. Those sources, along with vehicles, "come to mind as places where you get the biggest bang for your buck," Mendelson said. "That should be the place where they start, both from what the schedule looks like and from what the emission sources are."