EPA Carbon Plan Begins an Uncertain Process

Washington, D.C., June 3, 2014 – Amid all the hype and hoopla over the Obama administration’s plan, revealed this week, to reduce carbon dioxide emissions from existing power plants – this will end civilization as we know it, this will create a brave, new world, and so forth from all over the political and ideological landscape – it’s important to recall that the Environmental Protection Agency’s proposed rules are a beginning. Nor is the end in clear sight.

Much of the detail contained in the agency’s 645-page proposal has yet to be discovered and digested by the well-equipped and well-financed interests on all sides of the global warming issue. The rule contains the usual 120-day comment period, and EPA has planned a series of four public hearings in late July. EPA plans to issue a final rule in July 2015.

Whether EPA will meet that schedule is unknowable. The agency – and most federal agencies – often have trouble meeting deadlines they set for themselves in rulemakings (as in EPA’s stalled coal ash rules). The bigger, more complex, and higher-stakes rules are more difficult to complete. This proposed rule is among the bigger, more complex, and higher-stakes rulemakings EPA has ever taken on.

The Clean Air Act is built around federal directions and state actions. That’s the case with EPA’s plan revealed this week. But how the states will interact with EPA and on what time frame is another potential fog bank. According to the Washington Post, Oklahoma’s attorney general has already announced he will sue to overturn the EPA rule.

Nor will a final rule be the end of the process. Parties that feel their interests have been harmed or ignored in the rule – and in the rulemaking process – will surely take the issue to the courts. How multiple threads of litigation, likely with differing rulings from various federal courts, will work themselves out is another imponderable. A good guess will be that the issues – once again – end up in the U.S. Supreme Court at some time well beyond the final term of President Obama.

Add politics to this swirl of uncertainty. At least one, and possibly two, national elections will take place before the EPA program can begin to go into effect. In the election closest to today – this November – it looks likely at this writing that Republicans will expand their majority margin in the House of Representatives and recapture the U.S. Senate. The GOP, even if it does not grab the reins in the Senate, will wage war on Obama’s putative “war on coal.” With control of the legislature, the Republicans may well decide to overturn the EPA regulatory regime for coal-fired plants, forcing the White House into a veto battle.

Then there is the next election after that – November 2016, and the selection of a new president. Good luck on figuring out how that will come down. If the Republicans prevail, it could be back to the starting line for the EPA rules for existing coal-fired power plants.