EPA’s Carbon Regs Challenged

In his recent State of the Union address, President Obama made only a passing reference to the American Clean Energy and Security Act of 2009 (H.R. 2545) passed by the House some months ago. “I’m eager to help advance the bipartisan effort in the Senate,” was President Obama’s acknowledgement that the House approach to controlling carbon in the U.S. faces an uncertain fate in the Senate. However, the Environmental Protection Agency’s (EPA’s) endangerment finding, released on the eve of the Copenhagen meetings last December could be the unnoticed uppercut that follows a weak congressional jab at controlling carbon.

Some months ago, I wrote a POWER magazine commentary on the EPA’s rush to release an endangerment finding on carbon dioxide emissions. The EPA technical staff, given only a few weeks to prepare the first draft of the technical support document (TSD), relied on cherry-picked outside scientific literature, principally from the Intergovernmental Panel on Climate Change (IPCC), to produce the TSD rather than conduct their own scientific inquiry, as has been the agency’s practice for decades. In that commentary, I suggested that the EPA irreparably compromised its scientific integrity by ignoring the requirement under federal law that regulations be based on scientific information that is “accurate, clear, complete, and unbiased”;  the most recent available data; and data collected by the “best available methods” when preparing a TSD.

Dr. Alan Carlin, a 38-year EPA veteran, was given just a few days to review the draft report and provide comments on the draft TSD. His report lambasted the EPA in particular, and Administrator Lisa Jackson by innuendo, for ignoring key unresolved technical issues in the draft TSD. “These inconsistencies are so important and sufficiently abstruse that in our view EPA needs to make an independent analysis of the science of global warming rather than adopting the conclusions of the IPCC and the CCSP [Climate Change Science Program] without much more careful and independent EPA staff review than is evidenced by the TSD,” Carlin wrote.

Those same technical issues raised by Carlin remain unanswered in the EPA’s final version of the TSD and certainly raise questions about the veracity of the EPA’s concluding that carbon emissions endanger the health and welfare of the nation. In fact, the endangerment finding did not quantify the risk of any of the potential outcomes of global warming or specify a direct health effect from them. These obvious omissions will be the fatal flaw that will ultimately bring down the agency’s attempt to regulate carbon.

Two Important, Unanswered Issues

Beyond the shaky scientific underpinnings of the entire endangerment finding process, there are two issues that cause me great concern. The first is much like pulling the pin on a hand grenade—there are no options other than to throw it or hold it and get blown up. There is a provision in the Clean Air Act that states that if the EPA regulates a pollutant under one title of the statute, then the EPA is required to regulate the pollutant under all of the act’s titles. The regulation is quite specific: The EPA doesn’t have the discretion to go after power plants and automobiles alone but must also enforce carbon controls on every nook and cranny of our economy.

Otherwise, the EPA is attempting to tap dance around the regulations by “tailoring” the rules to particular segments of our economy, principally power plants and other point sources. This regulatory bit of legerdemain is squarely aimed as the power and other energy-intensive industries where consumers won’t see the direct costs.

Expect a court challenge to the EPA’s so-called greenhouse gas “tailoring” rule, which seeks to limit regulation to stationary sources that emit 25,000 tons of emissions. According to the EPA, that limit covers about 70% of U.S. carbon emissions, and that’s all well and good. However, the Clean Air Act does not give EPA the discretion to pick and chose emission sources to regulate. The EPA’s tailoring rule, which addresses stationary sources, is expected to be finalized in the spring.

Congress Abdicates Its Responsibilities

The second, and perhaps more troubling result of the EPA rulemaking is that Congress is willing to abdicate its authority for developing carbon control regulations to an agency that doesn’t answer to the voters.

Senator Lisa Murkowski (R-Alaska), senior Republican on the Senate Energy and Natural Resources Committee, is also troubled by the recent actions of the agency and introduced a joint resolution on the Senate floor (S.J. RES.26) “disapproving a rule submitted by the Environmental Protection Agency relating to the endangerment finding.” The resolution has 40 cosponsors and was referred to the Committee on Environment and Public Works on January 21. Murkowski’s resolution, if approved by both houses and the president, would overturn the federal agency’s carbon rules. The EPA would also be prohibited from issuing “substantially the same” regulations unless Congress enacts legislation authorizing it to do so.

To be sure, the chances that the Senate will approve the resolution and President Obama will sign it are close to nil. Yet, there is method to the madness. Bringing the resolution to the floor of the Senate for a vote forces each senator to go on record on the subject of carbon controls. Obviously, the Republican minority (now 40 votes with the recent election of Scott Brown in Massachusetts) will vote as a block to approve the resolution, but it also places moderate Democrats in a bind, especially those who represent coal-producing or coal-electricity-using states and are facing tough reelection campaigns in the fall. Because the resolution is “privileged” under Senate rules, Murkowski’s resolution requires only 51 votes. Are there another eight or nine Senate votes possible from Democratic senators up for reelection?

Murkowski, during her floor speech introducing the resolution, said that Congress never intended to use the Clean Air Act to address global warming. Rather, climate change is such a contentious issue that it must be addressed through legislation rather than with EPA “command-and-control” regulation. “As the EPA moves closer and closer to issuing those regulations, I continue to believe that this command-and-control approach is our worst option for reducing the emissions blamed for climate change,” she said. “I also believe that with so much at stake, Congress must be given the time to develop an appropriate and more responsible solution.”

Poor Track Record

The EPA’s air emissions rule track record over the past decade is abysmal, and I expect the rule to crumble under the most cursory judicial review. The Clean Air Interstate Rule, issued in March 2005, was remanded by the D.C. Circuit Court in July 2008 (although left in place until the EPA could finalized a replacement rule). The EPA told the court that a new rule would take about two years to prepare. The Clean Air Mercury Rule, also issued in March 2005, was vacated by the same court in February 2008. The EPA has stated that a new rule will be issued by November 16, 2011. In sum, regulating NOx, SO2, and mercury emissions that have direct and definable health effects has taken the EPA a decade to get right (from the beginning of the technical analysis period through the final rulemaking).

Let’s sum up: The EPA continues to commit the same rulemaking mistakes with its recent carbon rules—based on poor science, undefined health effects, and illegal “tailoring”—as it has with CAIR and CAMR, and Congress is unable to reach a consensus on regulating carbon (and is not likely to this election year). That’s no change I can live with.

—Dr. Robert Peltier, PE is COAL POWER’s editor-in-chief.

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