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January 1, 2014

The EPA Agenda

An active year ahead for a contentious agency 

The Environmental Protection Agency’s latest administrator, Gina McCarthy, has six fractious months behind her, a widening mandate, a shrinking budget and staff, and the helm of an agency consistently criticized from one end of the political spectrum to the other.

In addition to managing a wide range of pending regulations and potential enforcement actions, she has also been handed the job of kick-starting President Obama’s generally unpopular Climate Action Plan (CAP) to fight global warming. 

The EPA certainly has plenty to do this year. What it does not have is a lot of support from the business or environmental communities. The Government Accountability Office says the EPA gets sued about 155 times a year. Business, the target of its offensives, complains that its proposed regulations are poorly conceived, or unnecessary, or far too expensive for the alleged benefits, or all of the above. Environmentalists grumble that the EPA does not do nearly enough to clean the air and water or attack global warming, and acts too slowly and ineffectually when it does anything at all.  

With that context in mind, here’s a look at what we can expect from McCarthy and her agency over the next 12 months.

Emissions Standards for New Coal Power Plants 

In September, the EPA took the first step in Obama’s new CAP, proposing tough limits on carbon dioxide that new coal-fired power plants can emit. The proposed 1,100-pound emission rule is considerably lower than the 1,800 pounds that current state-of-the-art coal plants average and would require carbon capture and storage (CCS) technology not now commercially available. 

 

Politicians and lobbyists from coal-extraction states and states where coal-fueled plants are concentrated have labeled the proposals “draconian” and part of Obama’s ongoing “war on coal.” The measure did manage to please some environmentalists who lauded the EPA for proposing the first-ever curbs on carbon pollution from power plants, which account for 40% of all domestic greenhouse gas pollution. It’s also the first time the United States has treated CO2 as a pollutant with emission violations that could result in criminal prosecution.

Metals industry manufacturers joined the opponents not only because of expected higher energy costs associated with the carbon-reduction measures but also because they are waiting for the agency to issue expensive new carbon-emissions standards for steel, iron and aluminum plants, which also may require new carbon-storage technology. An EPA spokesperson could not say when metals manufacturing standards would be issued. Environmental groups as well as industry and elected officials expect that oil refineries are next on EPA’s agenda.  

“We have two concerns,” says Pete Pagano, vice president for the environment for the American Iron and Steel Institute. “How does the new standard translate into prices for energy? Our guys are some of the largest industrial consumers of electricity. And is this a template for what we should expect for ourselves down the road?” 

The affected industries can still make their case against the proposals. The EPA will be holding hearings and accepting comments before finalizing the regulations later this year. To be sure, the agency will hear from environmental critics who consider the planned regulations more of a popgun pop than a cannon shot—and a popgun with incentives to pollute, at that. With cheap natural gas suddenly available, they say, nobody’s building new coal-fired plants anyway. In fact, these critics point out, the new rule offers disincentives for energy companies to shut down their old plants and build new ones. “If executives look around and see that existing plants are permitted to pollute in larger quantities, they’ll realize that the new plant will be at a competitive disadvantage,” Richard Revesz, director of New York University School of Law’s Institute for Policy Integrity, wrote in a New York Times op-ed.

Emissions Standards for Existing Coal Plants 

The EPA is expected to issue its proposals for the approximately 1,600 existing plants, about 600 of them coal-fired, this year, with final action coming by 2015. Nobody knows exactly what the proposals will be, but organizations like the National Association of Manufacturers, the American Petroleum Institute and the National Mining Association are prepared for the worst (and talking to their lawyers). Judging by the new power-plant standards, the rules for existing plants will almost certainly effectively shut down a lot of old-line power plants and reduce the need for coal and, of course, coal mines.

“With this regulation, the administration is gambling with the nation’s energy economy,” says Hal Quinn, president of the National Mining Association.

The sticking point seems to be McCarthy’s frequent assertion that all the coal industry needs to do to stay competitive is adapt new technology, namely CCS, technology that is not available now. McCarthy insists CCS is closer to being available than industry leaders say. But she acknowledges that, when it does become available, it will be expensive.

Requiring the Use of Carbon Capture and Storage? 

There have been demonstration projects, a few in Europe and one in the United States, in which CO2 from industrial processes is captured and buried far beneath the earth’s surface, but there have been no ongoing, successful industrial-scale operations. In September, the government of Norway pulled out of its large CCS project in Mongstad, touted as the first full-scale CCS plant, after huge cost overruns. 

Scientists have raised questions about the safety of storing CO2 in subterranean spaces between layers of saline rock, and government-subsidized demonstration projects are so far only disposing of minimal amounts of CO2. There are also questions about the effectiveness of the capture technology and about how the captured CO2 can be transported and stored in sufficient volumes.

 

Still, McCarthy frequently talks about the ease of adapting CCS on a wide scale. “Why am I confident?” McCarthy said in a recent television news interview. “Because I know the technology components are available.” She mentioned “two of the power plants” that are being built, apparently referring to two small government-subsidized projects in Illinois, one of which has already had technical problems and cost overruns.

More important, requiring power plants to use CCS technology would be a violation of the Clean Air Act, contends Quinn, which he says requires the EPA to base standards on technologies that are commercially available. “Available” technology should be defined as “when commercial performance is assured, not when regulators think it sounds like a good idea,” Quinn says. Expect his lawyers to say the same.

Fracking and Groundwater Pollution

Much of the new output of natural gas, which has juiced the beleaguered American economy and helped to reduce the nation’s carbon emissions, is being achieved by energy companies employing hydraulic fracturing—pressure-pumping water and chemicals into shale beds to release petroleum products.

Fracking has become a centerpiece in the global warming debate. Republicans charge that upcoming attempts to regulate it will stifle a boom in energy production and destroy the drive to make the United States energy independent. Democrats and their environmentalist allies have serious reservations about fracking’s impact on water supplies and its potential for causing earthquakes. Neither side disputes that there are issues to be addressed, including the “off-gassing” of greenhouse gases other than CO2 during the drilling process and the control of huge quantities of chemically contaminated water that is used to blast into underground pockets of gas.

Congress has mandated the EPA to assess the impacts to groundwater from fracking, amid charges that regional water supplies have been contaminated by chemical-laced water left underground by drillers. 

The EPA has interceded in several situations where gas drilling appeared to be affecting drinking-water supplies. But in three of those cases, the agency was forced to back down after it had issued stop-drilling orders because of tainted groundwater. Further investigation showed that either the groundwater was tainted before the drilling started or contaminants were not present.

Fracking and Emissions

The EPA has been touting the reductions in emissions from power plants because of their switch to cleaner, cheaper natural gas. Agency data shows a 10% reduction in emissions from power plants since 2010, mostly due to the switch to gas.

But the EPA has yet to come up with regulations regarding other emissions related to natural gas, raising the ire of environmentalists. “Obama’s absolute embrace of natural gas [as a cleaner alternative to coal] is horrendous,” says Bill Snapes, senior counsel at the Center for Biological Diversity. “Natural gas has emissions problems that are as great, or even greater, than coal.”

Gas burns more cleanly, Snapes acknowledges. “But you have to look at it cradle-to-grave,” he says. For example, one of the by-products of drilling for natural gas with fracking is the release of methane—“which is 20 times more powerful [as a greenhouse gas] than coal.”

The EPA has given drillers until 2015 to come up with a method of capturing this deleterious byproduct. In the meantime, gas companies have been encouraged to flare escaping gases.

Ozone Standards

Several pending court cases challenge the EPA’s authority to set these standards or its delay in setting them. The Supreme Court has agreed to hear one of them in the current session. In 2011, as Obama prepared for his re-election campaign, he responded to pressures from industrial groups complaining about the “economic burdens” of air-quality regulations by rejecting the EPA’s proposed tightening of ozone standards. Ozone, formed when pollutants emitted by factories and cars interact with sunlight, is a trigger for respiratory ailments like asthma and emphysema. Industry lobbyists said the new standards would cost non-complying factories and power plants billions of dollars in new control measures. The White House said new standards had been released before a required review and were not based on “the best available science.”

Citizens’ groups, including the Sierra Club and the American Lung Association, sued. Last July, the U.S. Court of Appeals in Washington, D.C., rejected the more protective standards as beyond agency authority. In a separate action in the U.S. District Court in San Francisco, some of the same groups sued to get the EPA to issue the tougher 2011 standards as now supported by science and long overdue in violation of federal law. 

Supreme Court Ruling on the Clean Air Act

The U.S. Supreme Court has agreed to hear arguments that the Obama administration went too far in using the Clean Air Act to require power plants, refineries and other stationary facilities to have carbon permits. It has rolled the ozone standard challenge into this suit because both are disputing the agency’s authority. In what the plaintiffs in the case, a coalition of industry groups including the National Association of Manufacturers and the American Iron and Steel Institute, said was “a breathtaking assertion of agency policymaking power over a critical national issue,” the EPA had ruled that it had the authority to demand carbon permits based on its previously established right to require vehicle tailpipe standards.

The court could theoretically rule that the EPA can’t regulate carbon emissions from stationary sources, or ozone, though it has rejected sweeping challenges to the EPA’s authority in the past. This is a different, more conservative court, however, and industry groups are more hopeful than ever for a favorable ruling, sharply restricting agency authority. 

Keystone XL Pipeline

While the EPA has been only peripherally involved in reviewing the plan to build a 1,700-mile pipeline from Alberta, Canada, to the Texas Gulf Coast, the agency is playing a possibly crucial role in the debate. In April, the EPA released a letter to the State Department, which is assessing the project because of its international nature, criticizing the department’s assurances that there would be minimal environmental impact.

The EPA said, among other things, the $7 billion project had the potential to increase CO2 emissions by more than 900 million metric tons over 50 years, because of the nature of the heavy crude extracted from Canadian oil sands. Environmentalists seized upon the EPA letter as critical ammunition in trying to stop the project.

Keystone now awaits a final environmental impact report from the State Department and a final decision by Obama, possibly by June. If he rejects it, the EPA will take more flak from Republican politicians, who have made the project a linchpin in their crusade for oil industry jobs and energy independence.

Toxic Substances

In a rare bipartisan congressional initiative, Republicans and Democrats cooperated to strengthen rules protecting the public against thousands of untested chemicals. The late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) co-sponsored a bill to update the Toxic Substances Control Act. According to health groups, of more than 80,000 chemicals that have been approved for use, only about 200 have been tested for safety. Substances like phthalates and PBDE flame retardants have been identified as hormone disrupters and neurodevelopmental disrupters, particularly in babies, and they can still be found in products like baby powder, shampoos, electronics and carpeting. 

Vitter and Lautenberg’s Chemical Safety Improvement Act would update regulations on toxic chemicals and offer incentives for manufacturers to help in the testing of potentially toxic substances and to disclose chemicals involved in proprietary manufacturing processes. If the coalition of Democratic and Republican co-sponsors sticks together—and there were already signs of disagreement late last year—the new legislation could add significantly to the EPA’s general mandate. 

Sue and Settle

One reason the toxic chemicals initiative faced difficulty was a perception among congressional Republicans that the EPA was “colluding” with environmental groups to impose “burdensome” regulations on businesses, in the words of the U.S. Chamber of Commerce, among others. The controversy stems from mandated deadlines for EPA regulatory action, most of which are long past. According to many Republicans and groups like the U.S. Chamber of Commerce, environmental groups have been suing the EPA for more timely action, then “settling,” resulting in court-approved agreements to set new regulatory standards, with no public comment. 

“Often times, it settles by putting in place a ‘court-ordered’ regulation desired by the advocacy group, thus circumventing the proper rulemaking channels and basic transparency and accountability standards,” said the Chamber of Commerce in a statement. 

The EPA, whose administration answers its critics by professing its devotion to “transparency” in creating all new regulations, will certainly hear more about this from congressional critics in 2014. 


Edmund Newton is a Washington, D.C.-based writer, formerly of the L.A. Times, Newsday and the New York Post, as well as the former managing editor of New Times-Broward Palm Beach. He has written for, among others, The New York Times, Time, People, Daily News Sunday Magazine, Black Enterprise, Ladies’ Home Journal, Essence and Audubon.