A recent court decision ordering EPA to speed up industrial boiler regulations could set the agency and the U.S. House on 'a real collision course.'
By Elizabeth McGowan
WASHINGTON—Tension between a Republican-led House and the EPA is already palpable enough during this nascent 112th Congress. And an order from a federal judge issued late last week has likely exacerbated the pending friction festival.
Washington-based District Court Judge Paul Friedman told Environmental Protection Agency officials Thursday that the Clean Air Act makes it indisputably clear they need to speed up a final rule setting standards for toxic emissions from industrial boilers by meeting a new Feb. 21 deadline.
Back in early December, the EPA mollified the manufacturing sector and disappointed conservationists by saying it needed more time — 15 months — to review the science to establish long-awaited limits on such large-scale heating equipment. The EPA's original, court-ordered deadline was Jan. 16.
Agency authorities wanted to extend that to April 2012 partially because they were concerned some factories wouldn’t be ready to adapt to updated regulations. But Friedman said that wasn't a valid argument.
"The policy arguments EPA raises have no place in a case where Congress has mandated expedition, and its statutorily-mandated deadlines have long since passed," Friedman wrote in his 26-page decision. "While EPA’s view on the importance of its rules and the preferable course of conduct may have merit, at this stage EPA's … remedy lies with Congress, not the courts."
Environmentalists who challenged EPA's plea for more time on both the industrial boiler regulations and separate and unrelated regulations on national smog limits suspected the requested delays were an attempt by the Obama administration to placate an incoming Congress cantankerous toward environmental regulation.
Now, they are curious to see if the timing on Friedman’s decision sparks a showdown in March when EPA is supposed to propose standards for mercury and other toxic pollutants for the utility sector. A legal agreement requires final standards on power plants by November.
"I think it means we are going to be on a real collision course between the demonstrated need to clean up dangerous pollution and the politics of the House of Representatives," Frank O’Donnell, president of Clean Air Watch, told SolveClimate News in an interview. "Where all the pieces will be after the collision I can't tell you yet."
Upton Maps EPA Challenges
Michigan Republican Rep. Fred Upton, the new head of the House Energy and Commerce Committee, has already laid out an aggressive agenda for challenging EPA’s authority during this legislative session.
For one, he has rearranged subcommittees so they are divided between energy and environment. Evidently, the rationale is to broach domestic energy matters on one side and environmental regulation on the other.
A Jan. 18 document issued by Upton’s committee and outlined in the Hill newspaper shows how Republican legislators plan on opposing Obama administration initiatives on numerous fronts. Two of the document’s six pages are devoted to "key issues" labeled as the "Energy and Power Agenda" and the "Environment and Economy Agenda."
The "Energy and Power Agenda" blames the current administration for putting policies into place that are making gas prices higher and encouraging the EPA to expand its regulatory range. It also spells out how the committee will proceed with oversight on issues such as waste in the energy portions of the stimulus law passed in 2009; mandates for renewable electricity standards; the country’s inability to restart its nuclear power industry; and the decision to halt progress at Nevada’s Yucca Mountain, the unfinished storage site for the nation's nuclear waste.
"We believe it critical that the Obama Administration 'stop' imposing its new global warming regulatory regime, which will undermine economic growth and U.S. competitiveness for no significant environmental benefits," the document states. "For EPA's other multi-billion dollar Clean Air Act rules, we believe the agency has been regulating 'too much too fast,' without fully analyzing the feasibility and economic and job impacts of the new rules.
"Congress will be reasserting its oversight function to ensure sufficient analysis supports the proposed new rules," the document continues, "that the rulemaking process allows for open and full evaluation and information, and that the Administration is fully considering jobs and economic impacts in its decision-making."
Coal Plants in Jeopardy
Friedman's decision is a blow to the EPA, O'Donnell said, because the agency was hoping to put industrial boiler regulations on the back burner during such politically volatile times on Capitol Hill. Instead, he added, the agency wanted to progress with the more crucial toxic emissions standards for power plants.
"The stakes are much higher with standards for utilities because they could have a dramatic impact on coal-burning power plants," he said. "If EPA follows the law, that rule is going to have sweeping and massive repercussions. The side benefit is that a number of older coal plants are likely to be shut down."
Standards for emissions of mercury and other pollutants from utilities will be very tough because the Clean Air Act requires the EPA to gather real-world evidence and match the highest standards. States such as New Jersey, Minnesota, Wisconsin and Connecticut have already set goals for reining in such emissions, according to data gathered by the National Association of Clean Air Agencies.
"Putting boiler standards out front first will fuel congressional opposition to regulations," O'Donnell said, adding that coal states will lead the way. "That opposition will be built to such a frenzy that Congress will go after power plant standards."
Why EPA Did What It Did
The Jan. 16 deadline for industrial boilers to upgrade to "maximum achievable control technology" was set after the EPA lost a court challenge that dated back to the President George W. Bush administration.
However, the agency countered that order by filing a motion with the court requesting more time to set the industrial boiler standards after it received 4,800-plus comments and additional data during the most recent public comment period, EPA spokeswoman Enesta Jones said via e-mail.
"The agency believes these changes still deserve further public review and comment and expects to solicit further comment through a reconsideration of the rules," she said. "Through the reconsideration process, EPA intends to ensure that the rules will be practical to implement."
EPA first laid out pollution standards for industrial boilers, process heaters, and some solid waste incinerators in April 2010. Officials estimated the rules would slice mercury, lead, cadmium, dioxin, furans, formaldehyde and other toxic emissions from close to 200,000 heating units nationwide.
Boilers produce steam for electricity and heat by burning natural gas, coal, wood, oil or other fuels. Refineries, chemical and manufacturing factories and paper mills use boilers and process heaters, as do shopping malls and universities. Incinerators are used to dispose of waste by burning it.
"EPA is disappointed that the extension was not longer," Jones said about the judge's decision. "However, the agency will work diligently to issue these standards by this new deadline."
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