Administrator confirmation on collision course with carbon, gasoline rules

Source: Jean Chemnick and Jeremy P. Jacobs, E&E reporters • Posted: Monday, January 7, 2013

U.S. EPA Administrator Lisa Jackson’s announcement last week of her resignation in late January could force the agency into a tough confirmation fight as it’s proposing or finalizing controversial air regulations that would limit sulfur in gasoline and greenhouse gas emissions from new power plants.

The timing could add heat to Senate Republicans’ scrutiny of the White House’s choice for the next EPA chief — especially if the nominee is an agency insider who played some role in crafting the rules.

Two EPA officials who’ve been discussed as possible replacements for Jackson are Deputy Administrator Bob Perciasepe, who as acting administrator might sign off on the proposed Tier 3 rule for gasoline and the final rule for new power plants, and EPA air chief Gina McCarthy, who oversaw the writing of those rules.

Environmentalists have long pressed EPA to move forward on both rules, and a regulatory agenda that EPA recently sent to the White House shows both are slated to be released by April.

EPA last year proposed a rule for future power plants that would require them to limit greenhouse gases to 1,000 pounds of carbon dioxide equivalent per megawatt-hour, regardless of whether they run on coal or lower-carbon natural gas. The rule effectively bans new coal-fired power plants unless they would eventually use carbon capture and storage technology, a requirement that industry says is not technologically feasible.

Similarly, EPA’s message to the White House shows it proposing new limits on the amount of sulfur in gasoline by April. EPA has previously said the Tier 3 standards would cut sulfur levels from 30 parts per million to 10 ppm, bringing the United States in line with several European countries and even California, which has already set tougher standards.

EPA was supposed to issue the gasoline proposal last year but stalled in the face of significant industry opposition, at least in part because the petroleum sector said the rule would spur an increase in gasoline prices.

Public health advocates say lower sulfur amounts in gasoline would lead to major reductions in the amount of harmful nitrogen oxides and carbon monoxide emissions from auto tailpipes, and EPA has said the rules would cost only a penny per gallon.

Howard Feldman, regulatory chief at the American Petroleum Institute, said industry unrest could be avoided if EPA opts against the most stringent standards. There’s a big difference, he said, between lowering the current 75 parts per billion ozone standard to 70 ppb and the proposed 60 ppb. The agency has indicated it was previously considering a 70 ppb standard.

“If you go to the more extreme, it could have a crippling impact,” Feldman said.

If EPA sticks to its unofficial timeline, the new rules are likely to add to Republican complaints about EPA’s regulatory regime just in time for the confirmation battle. The agency was a popular target for Republicans in President Obama’s first term; they accuse EPA of turning out a stream of new regulations that have hindered job creation.

Faced with the prospect of a second Obama term and continued Democratic control of the Senate, Senate Environment and Public Works Committee Republicans are preparing to use the confirmation process to drive home their views on EPA.

Sen. David Vitter (La.), who as the committee’s top Republican will lead the charge in questioning the EPA nominee, said in an email this week that Jackson’s EPA played “a negative role in stifling our economy.”

“Moving forward, I’ll be working with my colleagues in the Senate to make sure the new nominee is thoroughly vetted, puts sound scientific standards above political ideology and understands that EPA’s avalanche of regulations can crush the growth of American businesses,” he said.

Vitter also said he believed Jackson resigned due to a lawmaker-requested probe by EPA’s inspector general into her use of an alternative email account that allowed her to conduct official agency business under another name.

Assistant Inspector General Melissa Heist said in a letter last month that the investigation will determine whether EPA’s use of alias email accounts follows applicable laws and regulations (Greenwire, Dec. 17, 2012).

Although House Republicans won’t weigh in directly on the confirmation, some had harsh words yesterday for Jackson and EPA.

Asked about the effect Jackson’s departure may have on EPA’s efforts to tighten the regulation of coal ash — a major concern of the coal industry — West Virginia Republican Rep. David McKinley offered an analogy to U.S. problems in the Middle East.

“I don’t want a repeat of what happened in Libya when we helped to topple [Moammar] Gaddafi and then we wound up having al-Qaida,” he said. “Or we got rid of [Hosni] Mubarak and we wound up with the [Muslim] Brotherhood,” he said, referring to Egypt’s governing Islamist movement.

His point: “I’m saying sometimes the known is better than unknown. Let’s make sure that we have the right person [at EPA]. And let’s see whether we want to go to the mat against them; maybe it’s someone we can work with.”

Rep. Joe Barton (R-Texas), the former chairman of the House Energy and Commerce Committee, said there was little hope that Jackson’s successor would be more industry-friendly. “I can’t imagine President Obama appointing someone more moderate than her,” he said.

But Jeff Holmstead, of Bracewell & Giuliani, the EPA air chief under former President George W. Bush, said that all three of the presumed front-runners for the EPA post — Perciasepe, McCarthy and California Air Resources Board Chairwoman Mary Nichols — are considered by industry to be improvements over Jackson.

Perciasepe and McCarthy in particular are viewed as “more willing to listen to legitimate concerns of industry than Lisa Jackson,” he said.

Jackson, he said, “seemed to be much more interested in what the environmental community wanted.” He noted that while the Senate has sometimes blocked appointments for assistant administrators, it has not done the same to nominees for EPA’s top post.

“There’s enough public attention focused on it that ultimately, even when there’s been some controversy, they’ve been confirmed,” he said.

He predicted that Senate Republicans would use the confirmation process to air their grievances but would ultimately approve Obama’s choice.

Rule delays?

Holmstead said the likely effect of Jackson’s decision to step down would be to delay release of controversial rules including the new power plant carbon rule and Tier 3.

While the Clean Air Act specifies that EPA must finalize a rule within a year of its being printed in the Federal Register — creating a statutory deadline of April 13 for the power plant rule — the agency has routinely let such deadlines slip, sometimes for years, he said. The gasoline rule, he said, has not even been proposed and could be released more or less at the administration’s discretion. Neither rule is currently subject to a judicial deadline.

The White House will ultimately decide when the rules are released, he said, not EPA. It’s likely to prioritize, he said, the administrator post over speedy release of contentious regulations.

“If they believe that it’s not going to get in the way of a confirmation process, then they’ll let it go,” he said.

But John Walke, air director at the Natural Resources Defense Council, said EPA should be able to do both — move forward on rules it is legally required to promulgate and confirm a new administrator.

Delaying release of air safeguards or reducing their stringency in order to ease Senate confirmation would be “trading your poker hands against one another,” he said.

“I don’t see how that remotely advantages the administration,” he said. He noted that environmental groups and others would certainly sue EPA if it missed statutory deadlines to finalize important rules.

It would also, he said, “provoke anger and scorn from the public that is interested in seeing the law upheld and qualified people named to office.”

Nor should release of carefully crafted air quality rules lead senators to reject candidates like Perciasepe, McCarthy or Nichols, all of whom have been confirmed for other EPA posts in the past, he said.

“Republican and Democratic senators have found these three individuals to be highly qualified, so any opposition to them now, I think, would just be pure politics,” he said.

Walke’s colleague, David Doniger, said that if EPA misses its deadline for the carbon rule, it will be “sued by everybody.”

He predicted that Perciasepe would remain in the post of acting administrator for a period of time, during which EPA would meet its obligation to finalize the new power plant rule by April 13. He said that while Senate Republicans might try to extract a promise that EPA would back off carbon rules in exchange for Senate confirmation, they would be unlikely to succeed.

“I don’t think the president has shown any signs that he would do that,” he said, pointing to several statements Obama has made since he was re-elected that highlight his commitment to make climate change a priority in the second term. Most recently, the president said Tuesday night after House passage of “fiscal cliff” legislation that Congress should pull together on “protecting our planet from the harmful effects of climate change.”

“They have to draw the line, and if necessary do without permanent appointees,” Doniger said.

Frank O’Donnell of Clean Air Watch said it makes sense to leave Perciasepe in the top job for as long as possible.

“I am not convinced there is going to be a confirmation battle anytime soon. Perciasepe may be acting for virtually a year,” O’Donnell said. “The administration has a very easy way to avoid it, and that’s keep Bob in that job.”