EPA critics forecast doom, prepare for war over smog plan

Source: Robin Bravender, E&E reporter • Posted: Tuesday, December 2, 2014

An “undeniable gut punch,” a “regulatory train wreck” and part of U.S. EPA’s “extreme environmentalist agenda” is how Republican lawmakers and industry groups are describing the Obama administration’s new proposal to clamp down on national smog standards.

Administration officials and green groups insist that stricter standards for ground-level ozone are necessary to protect public health, but business groups are warning about skyrocketing costs and an inability to comply with tougher rules. Republican lawmakers today vowed to go to war over the rules, and the proposal is certain to spark protracted administrative and legal battles.

House Speaker John Boehner (R-Ohio) fired off a statement calling the “massive new regulation” the “most expensive rule ever proposed by the EPA.” Jack Gerard, president and CEO of the American Petroleum Institute, warned that tightening the standards would have “potentially enormous costs to the economy, jobs and consumers.” And Institute for Energy Research Senior Vice President Dan Kish called the rule “a regulatory train wreck that promises much pain for little gain.”

Critics on Capitol Hill and industry groups are already plotting their attacks.

Senate Republicans vowed to use their status as the majority party next year to target the draft rules.

“As Senate committees return to regular order in the new Congress, this rule will face rigorous oversight so we can gain a better understanding of the health and economic impacts of the proposed standard,” said Sen. James Inhofe (R-Okla.), who’s likely to take the gavel of the Senate Environment and Public Works Committee next year. Inhofe said he wouldn’t let the American public fall victim to EPA’s “over-regulation and extreme environmentalist agenda.”

Come January, said Sen. John Barrasso (R-Wyo.), “Republicans in Congress will listen to Americans and focus on their priorities. We’ll do everything possible to stop this regulation and help Americans have better job opportunities.”

A group of Republican lawmakers led by Sen. John Thune (S.D.) have already introduced legislation that would halt tightening of the ozone standard until most of the country has demonstrated compliance with the current standard. Many areas still haven’t met the last EPA standard set in 2008. Thune’s office today called the draft standard an “undeniable gut punch” to the middle class (E&E Daily, Sept. 18).

Using Obama’s words against him

House GOP leaders, too, promised to take aim at the new rules. Some seized on the fact that the Obama administration in 2011 withdrew its previous effort to overhaul the 2008 standards set by the George W. Bush administration. After a push led by then-EPA chief Lisa Jackson to tighten the rules, President Obama pulled the plug on the reconsideration in the face of staunch political opposition leading up to his 2012 re-election bid, citing his desire to limit regulatory burdens.

“Should the president ignore his own cautionary words from 2011 and press on with this harmful regulation, the House will conduct aggressive oversight and use the proper legislative approach to continue to promote cleaning the air we breathe while ensuring our communities are not burdened with unrealistic regulations,” House Majority Leader Kevin McCarthy (R-Calif.) said today.

After environmentalists’ high-profile defeat when Obama pulled the last rule, greens are confident the administration will stick to its guns this time around.

“Even by their own rationale for scuttling the 2011 reconsideration, this is timely. The science is clear, and the law is even clearer that the standards need to be strengthened,” said John Walke, clean air director at the Natural Resources Defense Council.

In addition to stand-alone legislation like Thune’s, the GOP-led Congress could pursue efforts to hamstring EPA’s efforts by using the appropriations process or the Congressional Review Act, which establishes special procedures for disapproving agency rules. But if EPA’s final rule is issued by Oct. 1, as expected, efforts to upend the regulation legislatively could face a veto threat from Obama.

“The White House since the election already has issued three statements of administration policy vowing vetoes over smaller but still pernicious House bills,” Walke said (E&E Daily, Nov. 18). “So it appears to me and many observers that the White House is asserting executive authority postelection, and that has been true already in the environmental realm with those three bills.”

If the rule takes effect during the Obama administration, the only way the next administration could reverse it would be by undertaking a formal new rulemaking, Walke said.

Administrative, legal lines of attack

Foes of the rules are planning to try to sway the administration before the final regulation is issued. If those efforts fail, they’re almost certain to make their case to courts after the rule is finalized.

“Obviously, the most direct avenue is directly with EPA, through comments and public hearings,” said Howard Feldman, API’s director of regulatory and scientific affairs. “We think we have a very good story to tell there. We think that these data are not at all compelling to require changing a standard that was previously supported by EPA and affirmed by the courts.”

Industry lobbyists will also be making their case to the administration, Feldman added.

The National Association of Manufacturers, America’s Natural Gas Alliance, American Fuel & Petrochemical Manufacturers, the American Forest & Paper Association, and many other groups were among those that expressed their discontent with the draft rules today.

EPA can also expect an earful from the left, as congressional Democrats, environmentalists and public health groups pressure the administration to set a much stricter standard.

“Smog is dangerous to kids, seniors and asthmatics,” Earthjustice attorney David Baron said today in a statement arguing that the draft proposal doesn’t go far enough to protect public health. “They need and deserve much stronger protection from this deadly pollutant.”

As with most of EPA’s high-profile regulations, a flurry of lawsuits is likely to be filed against the rules after they’re finalized.

“At the appropriate time, we will consider what legal options we have and decide whether or not to use them,” said Feldman of API.

Still, it might be hard to use the courts to overturn a rule that’s backed up by science, according to several clean air experts.

“With the science so clear and the law so clear that EPA must only consider health impacts, a strong and protective EPA standard would easily be upheld in court, in my judgment,” Walke said.

Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration, said, “The courts have made it very clear it’s very hard to overturn EPA on the science.” But, even at the higher end of EPA’s proposed range, he added, “you have a lot of places that even if they shut down all their industry would still not meet the standard.”

Holmstead predicted a drastic outcome if EPA ultimately tightens the standard. “I actually think that an ozone standard this low could … force Congress to revise the Clean Air Act,” he said.