EPA regs morphed from inferior option to ‘wicked cool’

Source: Robin Bravender, E&E reporter • Posted: Friday, August 21, 2015

The Obama administration released big new climate rules this month with much fanfare, hailing them as “historic,” an “incredible economic opportunity” and “wicked cool.”

But not long ago, the administration expressed hope it would never have to write those regulations.

In the early days of Obama’s presidency, when an economywide climate bill seemed possible on Capitol Hill, the administration’s top environmental officials said U.S. EPA rules weren’t the ideal route for tackling climate change.

Flash back to early 2009, when Obama’s then-top climate official, Carol Browner, said, “The president continues to believe the best path forward is through legislation, rather than through sort of the weaving together the various authorities of the Clean Air Act.”

Now, critics see it as problematic that regulations the administration once said it hoped to dodge completely are now being trumpeted by President Obama as important for safeguarding the planet and as “wicked cool” by EPA Administrator Gina McCarthy.

“EPA’s current belief that the Clean Air Act fits the task of regulating greenhouse gases like a bespoke suit is completely inconsistent with the view the agency had just a few short years ago during the last congressional consideration of climate legislation,” said Scott Segal, an industry lobbyist at Bracewell & Giuliani.

Members of the administration — including former EPA Administrator Lisa Jackson — “were clear on the point that the Clean Air Act was not the proper vehicle for regulating global greenhouse gases,” Segal added.

Jackson, Obama’s first-term EPA boss, said in 2009 that she “firmly” believed, “and the president has said all along, that new legislation is the best way to deal with climate change pollution.” She also said she hoped Congress would make her agency’s job of writing greenhouse gas rules “obsolete.”

Many top government officials and some congressional backers of climate legislation hoped that the specter of looming EPA regulations (which the administration had triggered by declaring greenhouse gases a threat to public health and welfare) would help push a climate bill across the finish line.

It didn’t.

Prospects for a climate bill crumbled in 2010, and the GOP gains in that year’s congressional elections obliterated any chance that lawmakers would take another serious stab at greenhouse gas legislation for the remainder of Obama’s term.

By then, EPA’s hand was being forced by its 2009 “endangerment finding,” a scientific determination that greenhouse gases threatened public health and welfare. That finding triggered a whole suite of Clean Air Act rules to rein in greenhouse gases.

‘Clean Air Act as a threat’

Now, as the administration is rolling out those rules, officials are extolling their virtues.

At the official White House unveiling of the final power plant rule earlier this month, Obama called the effort “the single most important step America has ever taken in the fight against global climate change.”

The administration’s new rhetoric “shows the hollowness of what they were saying back in 2009 and 2010,” said a former GOP Senate staffer who is now an industry lobbyist. “Clearly, they were using the Clean Air Act as a threat and as a club.”

Some critics of EPA regulations say the administration should have been — and still should be — wary about using the Clean Air Act to tackle climate change.

Bracewell & Giuliani’s Segal called the Clean Air Act “cumbersome and ill-suited to the task” of regulating greenhouse gases.

“I believe EPA’s earlier doubts about whether the Clean Air Act supports this amount of reductions were absolutely legitimate,” said Joe Stanko, an attorney at Hunton & Williams who represents industry groups. He called EPA’s new rule to crack down on power plants’ greenhouse gas emissions “very, very suspect legally.”

Former EPA officials say there’s no disconnect — the administration has merely evolved as it has tackled writing those new rules.

“Back in the early days of 2009, we really didn’t know what it would take to implement the Clean Air Act because it hadn’t really been done,” said Robert Sussman, who was a top adviser to Jackson at EPA. “So the agency learned a lot during the first Obama term about implementing the Clean Air Act.”

The experience gained from writing those rules “made people a lot more confident than they were at the start,” Sussman added.

‘It’s good enough’

Administration officials have said all along that the EPA rules were an important backstop if Congress failed to take action.

In early 2010, after the House had passed a climate bill, Jackson told members of Congress, “EPA can use the Clean Air Act to make smart, sensible regulation that’s entirely consistent with the idea of long-term legislation, which is where I would love to see our country and the Senate go.”

And current and former officials still say they would prefer a legislative fix, but that EPA rules can help in the meantime.

“The president has always told Congress that they’re free to take action on this; in fact, we would help them if they want to do it,” McCarthy told PBS talk show host Charlie Rose this month. “The president had to use the authority that his administration has, and the Clean Air Act isn’t a tax policy; the Clean Air Act is a pollution reduction strategy, and that’s what we’re going to get.”

Bob Perciasepe, who was EPA’s deputy administrator from 2009 until last year, said in an interview that, ultimately, “we’re going to need an economywide, market-based approach for the country.” That solution doesn’t mean “that we can just keep going on the Clean Air Act to every different part of the economy and not have some connecting tissue to make it efficient,” he added.

But since an economywide approach isn’t likely to be available anytime soon, Perciasepe said, tackling industry sectors like automobiles and power plants under the Clean Air Act “can make some substantial gains in the near term that won’t be incompatible with the long term.”

Are the EPA rules as good as legislation might be? “Probably not,” Sussman said. “But is it good enough, given the imperative of climate change and given the president’s commitment to taking action? Yeah, it’s good enough, and it will work.”

Even Browner — who said not long ago that the administration saw legislation as the “best path” — is now a fan of the rules EPA has issued. In a recent interview, she called the new power plant rule “one of the best regulations I’ve ever seen.”

Browner, who was EPA’s boss during the Clinton administration, said legislation would still be preferable “in a perfect world.” But, she added, “I don’t think we live in the perfect world.” If Congress were to put a cap on carbon, “That would be great,” she said. “But meanwhile, we’ve got a crisis, and we need to be responding.”