Key Lobbyists Bullish On Congress Overturning EPA GHG Authority
Last Updated on Friday, 14 January 2011 18:39
Prominent industry lobbyists are voicing optimism that Congress will vote to delay EPA regulations on greenhouse gases (GHGs) for at least two years, and that lawmakers will be able to include such a provision in legislation that would be difficult for President Obama to veto, such as a spending bill or a broader clean energy package.
The optimism comes as Sen. John Barrasso (R-WY) says he will introduce legislation this month to permanently overturn EPA and other agencies GHG authority.
"I think it is a virtual certainty that Congress will address the regulatory authority of the Environmental Protection Agency with respect to greenhouse gases," said Scott Segal, a lobbyist with Bracewell & Giuliani who represents refiners, utilities and manufacturers, at a Jan. 14 briefing at the firm's Washington , D.C., office.
Segal suggested that a bill delaying EPA climate regulations could pass the House and Senate on a stand-alone basis, but he noted that the GOP-led House could also attach the legislation to a spending bill or similar must-pass package to force a floor vote in the Senate and insulate it from a presidential veto.
"So those, for example, who blithely say, 'Well why should Congress waste their time on GHG regulatory authority, when the president will only veto it, or [Senate Majority Leader Harry] Reid will never give it a vote on the Senate side,' I don't think are being realistic about all the range of options through which Congress may pass legislation," Segal said.
One possibility would be attaching a traditional appropriations rider or broader piece of legislation to EPA's fiscal year 2011 spending bill, he said. If such a bill "were to pass, the stark alternative the president of the United States would have would be to veto the funding for a section of the United States government, because he doesn't have a line-item veto, either on spending or on appropriations riders," Segal noted. "So as a result, that changes, obviously, the political dynamic."
Negotiations over how to delay EPA – and for how long – will primarily happen in the Senate, Segal said. And industry lobbyists are bullish on their chances of garnering enough support for an EPA delay in the upper chamber, given Republican gains in the 2010 midterms and the political pressures several moderates will face as they look ahead to 2012.
For example, of the 21 Democrats up for re-election Segal said 10 are moderates who hail from states where a vote to protect EPA's authority to regulate GHGs would be a "political liability," increasing the possibility that they would back a delay.
Sen. Sherrod Brown (D-OH) is one such moderate who will be up for re-election in a state where voters swept Republicans into every statewide office last year. Brown has already floated the potential for a one-year delay of EPA's authority, saying he thinks the two-year delay proposed by Sen. Jay Rockefeller (D-WV) is too long.
At the event, Segal praised Brown's efforts during last year's climate bill debate to protect energy-intensive manufacturers but said a one-year delay is too short, given the length of time it can take to get permits approved. He noted that industry supports a three-year delay to Rockefeller's two years.
Rockefeller said earlier this month he will push for a quick vote on his measure to prevent legislation backing even longer delays from being enacted.
Additionally, 10 Republican senators will be up for re-election in 2012 and all of them – including Northeastern moderate Sens. Scott Brown (MA) and Olympia Snowe (ME) – are likely to back an EPA delay, according to Segal. He noted that the party united last year to support Sen. Lisa Murkowski's (R-AK) failed Congressional Review Act disapproval resolution to overturn EPA's GHG endangerment finding.
If the 10 moderate Democrats up for re-election and all the GOP members support an EPA GHG delay, that makes a total of 57 likely votes in favor, close to the 60 needed to break a filibuster not including any other Democrats who may want to block EPA such as Rockefeller.
However, some environmentalists say industry should not count on the GOP being united. For example, they say Snowe cited concerns over biomass GHG emissions as the reason for supporting Murkowski, suggesting that EPA's three-year waiver from GHG regulations for biomass facilities, announced Jan. 12, could blunt her support moving forward.
Segal also pointed to President Obama's oft-stated desire to see Congress enact "bite-sized" climate and energy legislation, in the wake of last year's death of a comprehensive cap-and-trade bill, as another potential vehicle to delay EPA. Segal suggested that Obama might agree to delaying EPA authority in exchange for passing a clean energy standard or other energy measure that has bipartisan support. "If that bite-sized chunk of energy legislation expands the regulatory state in some way . . . how does that pass, given the numbers in Congress, if there's not also regulatory reform which travels with it?" he asked.
Jeff Holmstead, who ran EPA's air office during the Bush administration and is now with Bracewell, suggested that the White House might actually welcome an effort to delay EPA, especially if it were packaged with must-pass legislation like a spending bill.
"The threat of Clean Air Act regulation was really thought, in the first year-and-a-half, as a threat that would really force Congress to do some sort of a climate change bill, and to make that threat credible they had to go through the steps and so-on and so-forth. But now we're in a position that I don't think even a lot of people at EPA want to be in," Holmstead said. "They're not ready to do all the permitting that they've set in place, and I don't think the White House wants to basically be responsible for holding up all sorts of development. . . . I think at least the political folks in the White House who are feeling a lot of pressure, not only on the permitting on the offshore but it's other places as well, there's a pretty good reason to think that there will be some sort of a deal."
Meanwhile, Barrasso is likely to fire the opening salvo in the Senate, saying he is poised to introduced legislation the week of Jan. 24 to preempt GHG regulation by EPA and other federal agencies. A Barrasso source says the legislation would "block federal bureaucrats from imposing new energy taxes that make everything from gasoline to electricity much more expensive for consumers. These are the same cap-and-trade energy taxes that Congress rejected."
The legislation will build off a draft bill floated by now-retired Sen. George Voinovich (R-OH) last year, with a few differences, the source says. Voinovich's proposal preempted an array of federal, state and local GHG actions, as well as common law nuisance claims, and proposed giving the Department of Transportation "exclusive authority" to regulate vehicle GHGs.
But unlike Voinovich's bill, which was crafted as an amendment to then-pending cap-and-trade legislation, Barasso's bill would be a stand-alone measure, requiring "certain technical changes" to take that into account, the source says. In addition, because EPA GHG rules for stationary sources began Jan. 2, the bill may need to include language addressing "retroactive application" of GHG curbs. -- Nick Juliano (email@example.com) & Doug Obey (firstname.lastname@example.org)
EPA Adopts Early Measures To Address Environmental Justice In Decisions
Last Updated on Friday, 14 January 2011 12:18
EPA officials are poised to unveil a plan for how to implement their environmental justice agenda and are already taking early steps to implement it, including readying an internal work group to review the cumulative impacts of EPA permitting on disadvantaged communities and requiring states to consider equity issues when they implement federal programs.
Members of EPA's National Environmental Justice Advisory Council (NEJAC) suggested both steps during a conference call with agency officials late last year.
At a Jan. 12 Environmental Law Institute forum, Lisa Garcia, Administrator Lisa Jackson's senior advisor on environmental justice, pointed to the work group as one of several initiatives outlined in its soon-to-be released implementation document for Plan EJ 2014, which the agency will undertake to further the inclusion of environmental justice in decision making.
The implementation plan, expected to be released in early February, will also "lay out next steps" for including environmental justice – which EPA Administrator Lisa Jackson has named an agency priority -- in the rule making process, interagency work groups, compliance and enforcement activities and community based actions.
Garcia called cumulative impacts "a main concern" for the agency as it looks to address environmental disparities between wealthy and low-income and minority communities where factories, disposal sites and other sources of pollution are disproportionately located. Currently permit reviews on the federal and state level seldom take into account other pollution sources affecting a community when issuing permits, and so sites are often grouped near or in poorer communities where land is less expensive and the population lacks the resources to stop the project, said Vernice Miller-Travis, a member of NEJAC and the Maryland State Commission on Environmental Justice and Sustainable Communities.
The crux of the problem lies in a lack guidance from EPA on the issue. Most environmental permits are issued by the state and other local governments that in many cases are unsure if they have the authority or legal standing to address cumulative impacts in the permit review process, Miller-Travis said at the Jan. 12 forum. State officials don't know what to do about environmental justice issues because "EPA hasn't told them what to do," she said, adding that EPA should issue guidance or some kind of directive on how to address the issue.
While the agency does intend to review state permitting processes, it will likely not happen until 2012 or 2013. The review of the federal permitting process this year is "setting the base" for fleshing out opportunities for cumulative impacts assessments in state and local environmental permits in the future, Garcia said.
However, EPA has already taken other steps to further environmental justice considerations by the states. Starting in in 2010, the agency began including language when negotiating the renewal of state performance partnership agreements (PPAs) -- which govern the use of federal money for state delegated environmental authorities -- that requires state officials to consider environmental justice aims when using the funds.
Alaska was one of the states that had the language added during the renegotiation of its agreement last year, and the agency is planning on incorporating the requirement in to Pennsylvania's PPA when it comes up for renewal in the coming months.
EPA's adoption of the PPA language and its examination of the environmental justice impacts of its permitting follows similar suggestion from NEJAC members.
During a conference call last year, NEJAC members suggested that EPA weigh how environmental justice could be incorporated into permitting programs that EPA is more likely to run directly, such as those under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA), as well as those the agency tends to delegate to states, including the Clean Water Act (CWA) and Resource Conservation & Recovery Act (RCRA). One specific suggestion called for PPA language that would bar permits being issued for facilities that could impact low-income or minority communities until the residents have been involved in the process and given a chance to weigh in (Water Policy Report, Sept. 27).
During the Jan. 12 forum, Miller-Travis called the conditions added to PPAs one of the most effective ways to make states, especially those reluctant to consider permit's effects on disadvantaged communities, include environmental justice goals in their permit reviews.
"If you want someone to do something, tell them to do it," she said. However, since most permitting decisions are made on a state or local level, and many do not include federal money, the question now is how to get those officials "to have a more enlightened perspective" for every project.
To gain a greater understanding of cumulative impacts, on Jan. 11 EPA awarded $7 million in grant funding under its Science to Achieve Results (STAR) program to six projects that will examine the combined effects of chemical and non-chemical stressors – such as anxiety, poor nutrition and other health factors not usually subject to agency oversight – on communities exposed to pollution. The projects will further look at how to quantify those effects with the goal of potentially including such factors in future risk assessments.
Miller-Travis called the award of the STAR research grants "huge," saying that this is "the first time EPA has ever directed that amount of money" to examine non-chemical stressors and their effects. She dismissed criticism that the studies were another example that the agency spends too much time studying things and not enough time fixing the problems. "A lot of folks haven't been studied at all and aren't on anyone's radar," Miller-Travis said. --Jenny Hopkinson
EPA Urged To Allow Use Of State GHG Programs To Comply With NSPS
Last Updated on Wednesday, 19 October 2011 12:11
State officials are urging EPA to allow state greenhouse gas (GHG) programs to qualify as a compliance mechanism for meeting the agency's upcoming new source performance standards (NSPS) for power plants and refineries, though the agency has so far sent mixed signals on whether it would support the approach.
If EPA were to support the effort, it could be one option for state and local air authorities to argue for preserving their nascent climate programs in the face of pushback by some recently elected governors and legislatures that are seeking to repeal the programs.
The role of localized GHG reduction programs in meeting federal GHG mandates remains an open question following EPA's issuance of its "tailoring" rule requiring GHG limits in Clean Air Act permits for large industrial facilities, and also the agency's plan to develop GHG performance standards for utilities and refineries by 2012.
EPA in December announced two proposed settlement agreements with the states and environmentalists to resolve lawsuits that began as efforts to prod the Bush EPA for GHG NSPS limits at refineries and utilities. The settlement agreements would require EPA to issue final GHG rules as part of NSPS for natural gas, oil, and coal-fired electric-generating units by May 26, 2012, and final refinery GHG rules by Nov. 15, 2012.
In the wake of the agency's announcement, officials from nine states sent a Dec. 30 letter to EPA Administrator Lisa Jackson saying the agency should allow states to develop "locally and regionally appropriate solutions" to implementing the upcoming NSPS rules for power plants and refineries. "EPA should allow states to utilize the sophisticated and extensive programs in our states that reduce global warming pollution and accelerate the clean energy technologies of tomorrow."
Officials from California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New York, Vermont and Washington signed onto the letter. Several of the states were involved in the long-running litigation in the U.S. Court of Appeals for the District of Columbia Circuit seeking performance standards to limit GHG emissions from new and modified sources at refineries and power plants.
The states' letter to EPA follows a Nov. 30 letter also sent to the agency by California Air Resources Board Chairwoman Mary Nichols touting California's cap-and-trade program as a way to satisfy Clean Air Act global warming mandates under both the NSPS program and the prevention of significant deterioration permit program. "I would welcome the opportunity to provide you with more detail on how the concept of these federal requirements could be addressed within the framework of a cap-and-trade program," Nichols wrote.
But EPA has sent mixed signals on whether it will deem state programs equivalent to federal standards. Prior to the December NSPS announcement a Region IX source expressed doubts that California could obtain equivalency for its state climate cap-and-trade program because the agency lacks authority to implement a trading program.
EPA air chief Gina McCarthy, however, explained during the Dec. 23 press briefing on the NSPS announcement that the agency would craft "emissions guidelines" that would give states more discretion in setting requirements for existing facilities, which observers say raises the question of how existing state cap-and-trade programs fit into that picture. EPA would directly set standards only for new facilities, McCarthy said.
On the Dec. 23 call, McCarthy denied that EPA was trying to use the NSPS agreements as a backdoor way to impose cap-and-trade. "This is not about a cap-and-trade program," she said. However, she also promised "quite a flexible approach" in working with states and industry. McCarthy did not directly address the issue of whether existing state climate trading programs could be used to comply with at least some portion of the NSPS.
Nichols met with Jackson Jan. 6, though it is unclear whether the chairwoman used the meeting to reiterate her belief that state programs could qualify as compliance options for NSPS with GHG limits.
Murky Role For States
The role that state climate programs will play in meeting the upcoming federal GHG requirements also remains politically murky. State and regional GHG efforts were once touted as a precursor to federal climate legislation but in the wake of the November elections face scrutiny from new conservative governors and state lawmakers opposed to GHG requirements.
Given the uncertainty, defenders of state climate programs are pitching the efforts as a politically palatable way to comply with the federal mandates. In addition to the Regional Greenhouse Gas Initiative (RGGI) cap-and-trade program for reducing power plant GHG emissions in several Northeast states, other state and regional programs include the fledgling Western Climate Initiative (WCI) and California's ongoing effort to issue GHG rules.
A major talking point in the effort is likely to be an upcoming World Resources Institute (WRI) analysis examining how existing state cap-and-trade initiatives could satisfy the upcoming federal NSPS mandate, WRI's Franz Litz, who previously served as a New York state official instrumental in RGGI, said Jan. 6.
"There is plenty of support that in fact [the programs] could" satisfy the federal mandate, said Litz. WRI's analysis may be ready in a "couple weeks," Litz said. He also noted that under the NSPS program, states and the power sector will have options in complying with NSPS rather than having to meet a specific mandate. "It doesn't have to be cap-and-trade," Litz said, adding some states could adopt sector-specific performance standards.
"States are already waking up to the fact that they will soon be in the drivers' seat" on GHG approaches, he added. If EPA finalizes the GHG rules, states will ask their utilities, "How should we cover you?" Litz added, "My first question [as a Northeast governor] would be, 'can RGGI qualify to meet that federal mandate?'"
Litz told reporters that it is possible to convert NSPS requirements -- based on emissions rates -- to a cap for states that endorse the move. EPA tried a similar approach with mercury during the Bush administration, which he says the D.C. Circuit rejected for reasons not necessarily relevant to the GHG rules.
Impacts of Midterm Elections
But the fate of both state and federal climate programs is an open question following the November midterm elections that saw gains by conservative lawmakers opposed to GHG rules they say harm the economy.
In the divided 112th Congress sources also expect that EPA's proposed schedule for crafting GHG limits in the utility and refinery NSPS rules will be a target for conservative lawmakers. Possible efforts to block the standards could include language in EPA's appropriations legislation de-funding EPA's ability to implement such rules.
At the state level, recently installed New Mexico Gov. Susana Martinez (R) Jan. 4 followed up with her campaign criticisms of the WCI as an anti-business energy tax by terminating the state's Environmental Improvement Board (EIB), a panel that approved state GHG rules and New Mexico's participation in WCI. She also suspended 32 final rules including the EIB rule requiring a 3 percent annual GHG cut starting in 2013. However, environmental groups fired back, petitioning the state Supreme Court Jan. 11 for a writ of mandamus undoing the rule suspension as unlawful.
Martinez issued a scathing statement about EIB, calling the members "more interested in advancing political ideology than implementing common-sense policies that balance economic growth with responsible stewardship."
Backers of state programs are also closely watching the states of Maine and New Hampshire, given talk of efforts to repeal those states' participation in RGGI. Newly installed Maine Gov. Paul LePage (R) signed a "no climate tax pledge" during the election campaign, while New Hampshire Republicans who now control the state legislature are pledging to confront Gov. John Lynch (D) on the state's participation in RGGI. -- Doug Obey
DOJ Plans To Seek Voluntary Environmental Justice Actions In Settlements
Last Updated on Friday, 14 January 2011 12:11
The top environmental attorney at the Department of Justice (DOJ) is reaching out to the business community to seek collaborative approaches to achieve environmental justice goals through voluntary settlement agreements and other enforcement actions, as well as encouraging firms to take proactive steps to reduce pollution impacts on low-income and minority communities.
"Going forward, corporate America needs to be part of the conversation on environmental justice. . . And I plan to convene a corporate roundtable on environmental justice in the coming months," Assistant Attorney General Ignacia Moreno, who leads the Environment & Natural Resources Division (ENRD), said in a Jan. 13 speech to the District of Columbia Bar Association's environment, energy and natural resources section.
Moreno said that she met last month with the Corporate Environmental Enforcement Council, where members of the industry coalition expressed much interest in environmental justice issues. "I emphasized to them what they already know --- that environmental compliance makes good business sense and that it is an important part of being a good neighbor," she said.
Before her appointment as assistant attorney general, Moreno served as counsel for General Electric Co., a background that may ease her outreach to industry. "The perspective I bring to it is I think that companies really can take this opportunity to become part of the discussion," she told reporters during a briefing later in the day.
"Ignoring environmental justice isn't the right path, but working with communities who are the neighbors of these companies . . . to find approaches that will work, to find solutions, to even hear what the issues are, I think would be greatly beneficial to everybody," she continued. "Certainly we derive the benefit as the government in ensuring compliance with the laws, but in addition voluntary actions that may provide enhanced protections."
The division already is emphasizing environmental justice issues in enforcement actions, Moreno said, highlighting for example the settlement last year with Kansas City to require sewer upgrades and the use of green infrastructure to avoid sewage overflows that were heavily impacting low-income communities.
Moreno also said ENRD has established a "division-wide environmental justice workgroup" to examine other opportunities to enhance environmental justice through enforcement. But she stressed that companies should do more on a voluntary basis to address such impacts.
"Notwithstanding our enforcement efforts, disadvantaged communities often face disproportionate pollution burdens," she said. "Sources of pollution – the targets of our enforcement actions – are often located in or near these communities. The critical challenge that we face every day is how to find ways to reduce disproportionate pollution burdens in the course of resolving our cases."
Some industry officials are also interested in more cooperation on environmental justice. At a Jan. 12 forum hosted by the Environmental Law Institute, Sue Briggum, Waste Management's vice president for government affairs and a member of the EPA's National Environmental Justice Advisory Council, said that a role for EPA in seeking greater environmental justice is to bring businesses and communities together and facilitate "a rich discussion." When sides have the opportunity to come to the table and have those conversations, they often realize that their differences are not as great as initially thought and that "practical" solutions are available, Briggum said.
In her speech to the D.C. Bar, Moreno also highlighted ENRD's priorities for the coming year, top among them continuing to investigate last year's BP oil spill and prosecute violations of the Clean Water Act and other environmental laws. Moreno also said the division would remain committed to defending EPA in lawsuits challenging its authority and regulations, especially related to greenhouse gas (GHG) emission controls being implemented under the Clean Air Act.
She also highlighted the division's enforcement priorities in conjunction with EPA. Enforcement of New Source Review program will remain a "top priority," Moreno said, although she would not specify whether the division or EPA were considering NSR enforcement based on GHG emissions, which starting this month were added to the program's requirements.
Moreno said ENRD would strive for more "company-wide settlements" for air act violations, such as those that were reached last year with glass manufacturer Saint-Globain Containers and cement maker Lafarge Company, to implement pollution reductions at all a company's facilities across the country. She said the division also would focus heavily on enforcement initiatives across an entire industrial sector, citing its civil petroleum refinery initiative, which recently produced a settlement with Murphy Oil USA requiring $142 million in pollution-control upgrades.