* Pollution rules for power plants likely to draw challenges
* Acting administrator could continue without confirmation
* Agency has had mostly success in DC court of appeals
By Valerie Volcovici
WASHINGTON, Dec 30 Regardless of who takes the
reins, the U.S. Environmental Protection Agency will likely face
continued legal battles in President Barack Obama's second term
as it tries to finalize pollution rules for power plants,
EPA Administrator Lisa Jackson, who spearheaded the Obama
administration's regulation of carbon emissions, said on
Thursday she will step down after almost four years.
Her tenure was marked by opposition from industry groups and
Republican lawmakers to the EPA's first-ever crackdown on carbon
emissions, as well as other anti-pollution measures.
Analysts said whoever succeeds Jackson will probably face a
spate of lawsuits to challenge rules that the EPA will finalize
governing power plants, industrial sources and oil and gas
"This is shaping up to be four years of litigation," said
Christopher Guith, vice president for policy at the U.S. Chamber
of Commerce's Energy Institute.
Given the partisan divide, Guith said, legislators would
struggle to draft laws that could serve as alternatives to the
EPA's pending suite of carbon and air regulation.
"As we look to an even more divided Congress, the action
will be in the federal courts," he said.
The U.S. Court of Appeals for the District of Columbia
circuit, which hears most challenges to federal environmental
rules, is likely to be busy as industry groups and states bring
their cases against the EPA's rules after they are finalized.
The court sided with the agency in most of the recent
challenges, most notably upholding its decision to use the Clean
Air Act to regulate carbon dioxide emissions.
David Doniger, policy director of the National Resources
Defense Council's Climate and Clean Air Program, said this could
bolster the EPA as it tackles rules that may be more
controversial than those rolled out under Jackson.
"The agency has a very good batting record on the clean air
side. Carbon and climate (regulations) have come through
completely unscathed," he said.
After the EPA was a political lightning rod during the first
Obama administration, the president is likely to seek out a
safe, possibly internal choice as Jackson's successor, or to
avoid the confirmation process altogether.
"There are just so many arrows pointed at this agency," said
Susan Tierney, managing principal and energy and environment
specialist at Boston-based Analysis Group
Bob Perciasepe, deputy EPA administrator, will take over on
an interim basis and could continue in that role indefinitely.
He previously worked at the EPA during the Clinton
administration, specializing in water and air quality. Before
rejoining the agency, Perciasepe was a top official at the
National Audubon Society, a major conservation group.
Tierney said she expects the EPA to stay the course on its
current agenda, especially as the agency faces some
court-ordered deadlines to finalize rules, such as for coal ash,
industrial waste from coal-fired plants and ozone standards.
PRIORITY ON CLIMATE CHANGE?
Some environmentalists have criticized Obama for being too
timid on climate issues during his first term. But in his
acceptance speech on election night in November the president
gave a nod to climate change, raising hopes for more activism.
The White House may lean on the EPA to tackle one of the
largest sources of U.S. greenhouse gas emissions, the current
fleet of power plants, said Jeremy Symons, senior vice president
at the National Wildlife Federation.
"The president has made clear that climate change is one of
his top three priorities for the second term, so that means EPA
needs to do its job," Symons said.
This, he said, means the agency needs to finalize the rules
for new power plants and the standards for limiting carbon
emissions from existing power plants.
The NRDC's Doniger said once the EPA meets an April 2013
legal deadline to finalize the greenhouse gas rules for new
power plants, it will then have to address standards for
The EPA has to start promptly in the beginning of the second
term, said Doniger, because the rulemaking process is "a
multistep process that will take time."
The controversial task will almost certainly trigger
lawsuits because the rules will target a large number of
domestic power plants and could jeopardize electric reliability.
"It's high stakes litigation when you are talking about
bringing 40 percent of generation under regulations. That's
disastrous," the Chamber's Guith said.
Guith said that while the EPA does have the authority to
regulate carbon dioxide using the Clean Air Act, its rules are
too difficult for industry - forcing the litigation.
"This EPA has been so aggressive in pushing the envelope by
way of the compliance timeline that it has made itself more
vulnerable to lawsuits," he said.
The EPA may also face legal challenges from environmental
groups and certain states. The NRDC, the Environmental Defense
Fund and the Sierra Club joined a group of nine states led by
New York that threatened to sue the EPA last year to propose air
pollution standards for oil and gas drilling.
They said that the drilling, transportation and distribution
resulted in a significant release of methane, a potent
greenhouse gas that is not regulated by federal rules.
Doniger said the group is trying to negotiate a timeline
with the EPA to set a rule but could sue the agency if it
doesn't agree a schedule by February.