Air chief says challenging endangerment finding is possible

Source: Robin Bravender, E&E News reporter • Posted: Friday, January 5, 2018

Top U.S. EPA officials are considering using a formal climate science critique to re-examine the endangerment finding that underpins greenhouse gas rules.

EPA Administrator Scott Pruitt wants to “be sure that the scientific basis for the endangerment finding is solid,” his top air lieutenant Bill Wehrum told E&E News yesterday in an interview. One option that officials are considering is using a “red-team, blue-team” approach advocated by Pruitt to debate mainstream climate science.

Some conservative groups are pushing the Trump administration to use a red-team exercise to unravel the Obama administration’s endangerment finding. If that happens, it could make it harder for a future administration to regulate greenhouse gases under the Clean Air Act. Wehrum noted that EPA doesn’t have “any current plans” to repeal the endangerment finding, but he said officials are looking for ways to ensure that it’s adequately grounded in science. Unraveling the finding would involve a lengthy regulatory process, and even some opponents of EPA climate rules say it would be a major legal challenge.

Meanwhile, Wehrum and his team may soon issue a climate rule of their own to replace the Obama administration’s Clean Power Plan (CPP), a rule that aimed to limit power plants’ greenhouse gas emissions.

Wehrum spoke to E&E yesterday about why that rule is among his top priorities this year, EPA’s plans for an Obama-era methane rule and what it’s like for him to return to the agency to which Democratic opposition in the Senate prevented his confirmation during the George W. Bush administration.

What are your top priorities for the air office this year?

I would say CPP of course is a very big issue for us. … We’ve already started the public process of trying to decide what we want to do with the rule. We’ve already thrown out a range of possibilities that begins with rescinding the whole thing, period, to possibly replacing it with a modified version of what was previously done or maybe something different. We issued the [advance notice of proposed rulemaking] and said, ‘We want at least initial thinking from people as to what we might do as we decide to go down that road.’ So we’re setting out a range of possible outcomes, and it’s the beginning of a regulatory decisionmaking process, and we’re not anywhere near the end of that process, but it’s among the most important things that we’re going to be doing while I’m here — if not the most important thing — just because of the reach that the current regulation has and how much it effects the power sector and then necessarily the country as a whole because of the critical place the power sector has in the country and the economy.

From what we’ve seen so far from the administration, it looks like an inside-the-fence-line approach is getting a lot of attention. Does that mean the administration is leaning that way?

We’re a long way from making final decisions, but I’ll just tell you my view, just as Bill, not as the institution. My own view is I was concerned from the beginning with the CPP, primarily because of building blocks two and three. It was very new and very different and a departure from 40 years of practice under this part of the Clean Air Act to say we’re going to regulate a whole industry instead of individual things, like power plants or chemical plants or refineries. And it was a departure to say EPA as part of a regulatory program is going to require in this case effectively a shift in generation from certain types of power generation to other types of power generation. There was a lot about the CPP that was very different and very new in a program that’s been around 40 or 45 years. What I would tell you is … I’m very much concerned about whether those aspects of the CPP were legally viable in the first instance, and that’s something we’re certainly going to be taking a hard look at in this whole process.

To the degree we go down the road of doing a replacement rule, then I think it’s safe to say — at the beginning of the thought process — to say doing a rule like we have done every other time we’ve used authority under [Clean Air Act] Section 111 is an obvious place where we would start our thought process.

Your question was, ‘Are we thinking about doing an inside-the-fence-line rule?’ and I would say, yeah, if you look at the [advance notice of proposed rulemaking], that’s pretty much what it’s all about. It basically says we want to look at power plants as power plants, and if we wanted to implement a rule that would reduce greenhouse gas emissions from power plants, what are the things you can do to a power plant to accomplish that outcome?

But you’re leaving open the possibility of not doing a replacement rule?

We have proposed to rescind the rule altogether, and that proposal is still out there.

The CPP was one priority, what are your others for this year?

A very related thing, another priority would be to take a hard look at the methane rule, the so-called Quad Oa, or the [New Source Performance Standards] for oil and gas. … And we’re not quite as far along in our regulatory process on that one, but I can tell you and the administrator has already said that we’re going to take a hard look at that regulation. I think from my perspective, we need to look at it from a couple of different perspectives. One is, it’s a big and complex rule, just like a lot of rules that we do, and people that are affected by the rule already have said there’s a bunch of things that need to be done just to make it clear, make it consistent, correct things that are wrong with it, so there’s a set of things that should be done to the rule just to make it better, and we’re thinking hard about that.

But the second and more consequential thing is, I think we’ll take a hard look at whether it really is appropriate to regulate methane under that rule. We haven’t started that process yet, at least in a public way, but we’ve already started talking about it internally, and I’m hoping sometime soon we can step out in the form of an ANPR or proposed rule to put that question in those issues out and to begin the debate and the regulatory process on that.

Do you have plans to take a look at whether the endangerment finding should be repealed?

We don’t have any current plans, but the administrator has said that he would very much like to initiate a process — he’s called it red-team, blue-team — but he would very much like to initiate a process to at least solicit additional input on the scientific basis for the endangerment finding. That’s something we’ve talked about; that’s something we haven’t done. I’m not sure we actually will end up doing that or doing it in a red-team, blue-team format. I say all that only because we don’t have a current plan to take any regulatory action as it relates to the endangerment finding, but I think it is important to know the administrator has said it’s important to him to be sure that the scientific basis for the endangerment finding is solid, and he’s thinking of ways and we’re thinking of ways that we might be able to give ourselves greater confidence that that determination has an adequate basis and foundation.

He told Congress last month that the red team, blue team might happen in January. What is the current time frame?

We’re talking and thinking about it. That’s where we’re at right now.

Would you like to see it held at EPA if it happens?

Yeah. The endangerment finding is an EPA action, so to the degree we were to convene a process to take a look at the underpinnings for that EPA finding, I think almost necessarily it would be an EPA activity.

What do you think about the president’s tweet about climate change the other day?

I actually didn’t even see it. I was on vacation.

It was something along the lines of: Given the cold snap, maybe we need some more global warming.

I would just say go talk to the folks at the White House.

Did you ever think that you be confirmed in this position when you left under the Bush administration?

[Laughs] No. I guess all I would say is, I think ultimately I have [former] Sen. [Harry] Reid [D-Nev.] to thank for deciding to change the rules of the filibuster. That certainly facilitated my return.

This interview was edited and condensed for clarity.