McCarthy ‘still confident’ despite mercury ruling

Source: Jean Chemnick, E&E reporter • Posted: Wednesday, July 8, 2015

Last week’s Supreme Court decision on U.S. EPA’s Mercury and Air Toxics Standards will have no bearing on the future of the agency’s flagship carbon rule, and may even be corrected through simple adjustments to the toxic emissions rule, EPA Administrator Gina McCarthy said this morning.

McCarthy acknowledged that she was “disappointed” by the high court’s decision eight days ago remanding the 2011 mercury rule back to a lower court on the grounds that EPA should have considered cost sooner in its rulemaking process.

But she said she is “still confident” that the mercury and air toxics rule will be implemented after the U.S. Court of Appeals for the District of Columbia Circuit decides how the cost issue should be addressed — an adjustment that she said could be “very simple.”

“We have done a great job with the [MATS], and we will actually get the reductions in that rule, even though here is a little more work to be done,” McCarthy said at an event hosted by the Christian Science Monitor.

Attempts by congressional Republicans and others to apply the ruling to EPA’s Clean Power Plan are “comparing apples and oranges,” she said.

“Last week’s ruling will not affect our efforts,” she said. EPA still plans to finalize its rules for power plant carbon this summer, she added.

EPA opponents have said in the week since the high court ruled that the decision should bolster calls for Congress or the courts to stay the upcoming carbon rule for existing power plants pending judicial review. Last week’s decision came after the MATS rule was nearly implemented, in many cases through the retirement of coal-fired power plants opponents say caused considerable economic pain. A stay for the Clean Power Plan would prevent the same thing from happening as that rule undergoes its inevitable court challenges, they say.

But McCarthy noted that the Supreme Court’s ruling was narrow and applied only to the part of the Clean Air Act that governs toxic emissions, not to the section EPA is using to promulgate carbon regulations.

And while the court found that EPA erred in not considering the MATS rule’s $9.6 billion price tag before moving to regulate, McCarthy said the same was not true for the Clean Power Plan.

“As everyone knows, we were looking at cost and affordability for that from the get-go,” she said.

McCarthy said she saw no evidence that last week’s decision would spur states to “just say no” to implementing the Clean Power Plan on the hope that the courts might eventually vacate that rule. While she said she hasn’t spoken to any governors about the ruling since it came down, McCarthy said EPA is fully prepared to defend the carbon rule and is moving ahead with a model federal plan that would be used in cases where a state plan is not in place.

She added that her agency is ready for litigation.

“We certainly know how to defend lawsuits, for crying out loud,” she said. Asked whether she feared a future administration might undo or slow-walk the carbon rules, McCarthy said that would be difficult after the rule is final and has been defended in courts.

“And you will have to take regulatory action in order for this to be any different than how we have designed it,” she said. “You cannot just simply decide ‘I’m not implementing.'”

McCarthy spoke as the GOP-controlled Congress continues to take aim at the administration’s Climate Action Plan and at President Obama’s efforts to help lay the groundwork for an international agreement on climate change to be finalized in Paris this year. The Senate Environment and Public Works Committee will hold a hearing tomorrow to assess whether the White House promise to cut carbon between 26 and 28 percent below 2005 levels by 2025 is in fact possible under existing authority. The pledge is the core of the U.S. negotiating position for Paris, but some reports show the promised reductions exceed those that would be achieved with policies already in the pipeline.

McCarthy said the White House does not ask EPA to consider its international climate commitments when promulgating regulations for carbon, methane and other greenhouse gases.

“I am not designing the Clean Power Plan to get a particular level of reduction,” she said.

But she said regulations and other actions are intended to be a “starting point.” They will create a policy signal that will help spur industry reductions beyond what is currently forecast, she said.

“If you don’t actually move off of the starting gate when you’re in a marathon, you clearly will not win,” she said.