U.S. EPA is delaying the final rollout of its new rules aimed at lowering the power sector’s greenhouse gas emissions by 30 percent by 2030. And while the agency insists the two delays — one a matter of months, the other a matter of weeks — are aimed at helping states develop compliance plans, observers say the moves could help shield the efforts from legal and congressional challenges.
Yesterday afternoon’s announcement concerned three different sets of proposed power plant rules: language aimed at curbing greenhouse gas emissions in new, existing and modified power plants. (The agency also announced it will begin developing a model plan for state-level implementation. See related story.)
The rules for new power plants were technically due to be finished later this week. But acting EPA Assistant Administrator Janet McCabe said the agency has decided to delay that rollout and release the new power plant rules at the same time as the regulations governing existing and modified plants.
"It has become clear to us, and many commenters have raised it, as well, that there are cross-cutting topics that affect standards for new sources, for modified sources and for existing sources," she said. "And we believe it’s essential to consider these overlapping issues in a coordinated fashion. To do so, we think, requires us to finalize all three rules … in a similar time frame" (Greenwire, Jan. 7).
All three rules, which together form the main thrust of the Obama administration’s unprecedented effort to curb greenhouse gas emissions, will now be released "midsummer," McCabe said. (The completed rules for existing and modified power plants had been due in early June, but McCabe said that date will be pushed back due to an extended comment period. It’s not clear when, exactly, midsummer will mean.)
Packaging to withstand legal attack?
A former EPA official said packaging the three rules together could make court challenges more difficult. "I think they’re hoping to make it harder for people to challenge either rule," said Jeff Holmstead, a former EPA air chief who now works as a partner at the Bracewell & Giuliani law firm. "If they do them all together in one package, they’ll argue that it will be one case. I’m sure they’re hoping to limit the number of words and number of pages [in briefs]."
A similar strategy made it harder for opponents to challenge the Mercury and Air Toxics Standards for coal plants in court, Holmstead said. "It was a massive rule that covered power plants all over the country … the court only gave a limited number of words to those challenges," he said.
Joe Kruger, a Clean Air Act expert and consultant who worked for both EPA and the White House Council on Environmental Quality, agreed. "In some ways, it’s a lot easier if these are packaged together. It makes it easier for EPA to defend," he said.
Delaying the rules for new power plants also means that the Republican-controlled Congress wouldn’t be able to try to override them using the Congressional Review Act until later this year. Senate Majority Leader Mitch McConnell (R-Ky.) has said scaling back EPA’s climate change regulations will be a top Republican priority this year. Senate Environment and Public Works Committee Chairman James Inhofe (R-Okla.) said the new timetable doesn’t bother him, though, pointing out that the setback also pushes back the date on which the regulations would go into effect.
Protecting an Obama legacy issue
McCabe rejected the idea that the delay has anything to do with shielding the power plant rules from legal and congressional scrutiny. "This is about the best policy outcome and the appropriate policy outcome for this set of really important environmental and public health standards," she said. "That’s what we’re talking about here. That’s how we’re planning our work. And that’s why we think it’s important to finalize these rules in the same time frame."
Given the pre-Thanksgiving rollout of EPA’s new ozone standards, several environmental reporters joked that the agency’s midsummer time frame will lead to rules being proposed on Friday, July 3 (Greenwire, Nov. 26, 2014).
Holmstead said he remains skeptical of a midsummer rollout and expects further delays. Bill Becker, executive director of the National Association of Clean Air Agencies, disagreed. "I think that if this weren’t as important a domestic initiative as the president has indicated and the [EPA] administrator has reinforced, then I could see it being delayed even further," Becker said.
"From everything I can see, EPA is dead set on getting it out this summer for a number of reasons. One of them is that they would like to make sure the infrastructure for state plans … begin to be set during this administration. If they keep postponing action, this goes to another administration, Republican or Democrat, and the president loses an important part of his legacy."
Reporter Emily Holden contributed.