EPA Greenhouse Gas Rules in Jeopardy With Republican House Control, Senate Gains

Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.

The Nov. 2 elections that put Republicans firmly in charge of the House after a four-year hiatus and trimmed Democratic margins in the Senate will add momentum to industry efforts to block one of the Obama administration's top environmental initiatives--the regulation of greenhouse gas emissions, congressional observers said Nov. 3.

Republicans picked up more than 60 seats in the House on Election Day, giving them control of the chamber with 239 seats to 185 for Democrats and 11 races undecided.

On the prospects of resurrecting climate change legislation, even some of its strongest supporters--including President Obama--concede it is off the table given the Republican margins in the House. “I think there are a lot of Republicans that ran against the energy bill that passed in the House last year, and so it's doubtful that you could get the votes to pass that through the House this year or next year or the year after,” Obama said at a Nov. 3 press conference.

There are still areas of agreement, the president said, around some more modest measures such as added incentives for electric vehicles, more production of natural gas, and a “restart [of] our nuclear industry.”

Industry groups say, and environmental groups conceded, that the Republican takeover will mean new momentum for delaying EPA's greenhouse emissions rules, most likely by attaching language to an EPA spending bill. Many top House Republicans have already warned that delaying or even scuttling the EPA rules would be a top priority next year if they were to take control of the chamber (41 ER 2381, 10/22/10).

The emissions rules, which would cover power plants and other large stationary sources, are slated to go into effect in January 2011.

Obama Offers Defense of EPA Action.

President Obama defended EPA's efforts at a Nov. 3 press conference, arguing that the agency was essentially given the authority to regulate emissions as a pollutant under a 2007 U.S. Supreme Court ruling, Massachusetts v. EPA, 549 U.S. 497, 63 ERC 2057 (2007). But he offered little indication of how hard his administration would fight to protect EPA's authority.

“The EPA is under a court order that says greenhouse gases are a pollutant that fall under their jurisdiction,” Obama said, adding that “one of the things that's very important for me is not to have us ignore the science” of climate change. The president said he is less focused on being “protective of their [EPA's] powers” than he is of working with Congress to find compromises wherever possible on clean energy and emissions reductions.

While his administration fell short of moving climate change legislation through the Senate in 2010--after the House had passed cap-and-trade legislation (H.R. 2454) a year earlier--Obama said it is still “too early to say whether or not we can make some progress on that front.”

The ill-fated cap-and-trade bill “was just one way of skinning the cat,” the president said. “It was not the only way.”

'Symbol of Regulatory Overreach.'

John Engler, president of the National Association of Manufacturers, told reporters Nov. 3 that the Republican victories will boost pressure to block EPA's emissions rules. Joe Mendelson, the National Wildlife Federation's director of global warming policy, told BNA Nov. 3 that environmental groups recognize “that there will be energy directed toward EPA as a symbol of regulatory overreach on things.”

While Democrats continue to hold a slim majority in the Senate, the addition of at least six more Republicans will only increase pressures on that chamber to delay the emissions rules. Sen. Jay Rockefeller (D-W.Va.) already has the support of roughly a dozen Democrats for his bill (S. 3072) to delay the EPA regulations for two years and plans to bring his measure to the floor during the upcoming lame-duck session.

The Rockefeller bill “has much stronger support today” than before the Nov. 2 elections, NAM's Engler said. The White House warned earlier this year that President Obama would veto such a stand-alone bill if it clears the House and Senate.

But Obama may not be able to prevent Republicans from repeatedly attaching such language to various funding measures until they find one the president deems important enough to sign.

A Mandate to Curb EPA Authority?

Environmental organizations Nov. 3 rejected the argument that the election was a mandate to roll back EPA's regulatory authority or a referendum on the need for clean energy and climate legislation.

Michael Brune, executive director of the Sierra Club, told reporters at a press conference held by several environmental groups that there was little evidence of a mandate “to eviscerate the Environmental Protection Agency.”

“There is no evidence out there that voters have given Congress any public mandate to roll back Clean Air Act protections,” Brune said.

“The mandate that was very clear [was] that voters across the country are concerned about the economy and they are concerned about good paying jobs,” Brune said. “Gutting the Clean Air Act and muzzling the EPA is not a viable job creation strategy.”

Environmental groups acknowledged that many of the House Democrats who voted for the House climate legislation, such as Virginia's Rick Boucher and Tom Perriello, went down to defeat. But they noted that voting against the cap-and-trade bill also did not save other House Democrats, such as Virginia Democrat Glenn Nye, who was defeated anyway.

“In any race, I have been a campaign manager before and I look around the next day to see who I can blame,” said Anna Aurilio, director of Environment America's Washington, D.C., office. But she pointed to a survey conducted for environmental groups of 1,000 voters who have cast votes for Republicans in 83 battleground states that suggested the 2010 election offered no mandate for avoiding action on clean energy or climate change.

Only 7 percent of those casting votes for Republicans said their top concern with Democrats was the “cap and trade energy tax,” according to the survey results. In the same survey, 55 percent of the voters polled said they would support a bill to encourage clean energy “by charging energy companies for carbon pollution in electricity or fuels like gas” compared with 38 percent who were opposed.

Republicans Signal Expansion of Oversight.

Many Republicans have indicated they plan to subject EPA regulatory activities to more oversight and investigations. The top Republicans on the House Agriculture, Natural Resources, and Small Business committees joined ranks in calling for more scrutiny of the agency at a Sept. 29 forum on how EPA rules impact rural communities (41 ER 2206, 10/1/10).

Rep. Darrell Issa (R-Calif.), in line to chair the House Oversight and Government Reform Committee, has indicated that he plans to conduct oversight hearings on EPA activities.

“We're certainly going to be doing more oversight of the EPA,” committee Republican spokesman Seamus Kraft said. Republican committee members are interested in how the EPA regulatory process is structured, how the agency seeks input from other agencies and stakeholders, and how EPA regulations affect jobs and the economy, Kraft said.

Rep. Fred Upton (R-Mich.), a leading candidate for chairman of the House Energy and Commerce Committee, said in an Oct. 19 opinion article in the Washington Times that Congress “has failed to exercise oversight over agencies that have been developing regulations that stifle private investment and send American jobs overseas.”

Upton cited an EPA proposal to tighten the air quality standard for ozone, another proposal for more stringent emissions limits on hazardous air pollutants from industrial boilers, a proposal to regulate coal ash as hazardous waste, and a forthcoming proposal to prevent fish from being killed in cooling water intake structures at power plants.

NAM's Engler said he expects Congress to also focus more on the role of former EPA Administrator Carol Browner, who is now Obama's top advisor on energy and climate, in formulating policy. Engler said Browner has been making policy in the White House with little public or congressional scrutiny.

By Dean Scott and Steven D. Cook