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Jackson to Step Down From Agency; Legacy Includes First Greenhouse Gas Rules

Friday, December 28, 2012

By Andrew Childers  

Environmental Protection Agency Administrator Lisa Jackson announced her resignation Dec. 27 after four years as the Obama administration's top environmental officer.

Jackson's resignation will take effect after the State of the Union address, and EPA Deputy Administrator Robert Perciasepe will become acting administrator, the agency said (see related story).

Jackson leaves behind a legacy of strong environmental regulations, including the first national greenhouse gas regulatory program, environmental advocates and industry attorneys said.

Under Jackson, EPA also issued long overdue standards for mercury emissions and other air toxics from power plants, toughened air quality standards for particulate matter, took aggressive action in the area of chemical regulation, and began a rulemaking that could lead to more waters being protected under the Clean Water Act.

In a statement released by the agency, Jackson said she leaves EPA “confident the ship is sailing in the right direction.” She did not give any indication of her plans after leaving the agency.

“I want to thank President Obama for the honor he bestowed on me and the confidence he placed in me four years ago this month when he announced my nomination as administrator of the Environmental Protection Agency,” Jackson said.

The White House in a Dec. 27 statement praised Jackson's “unwavering commitment to the health of our families and our children.”

Jackson first joined EPA as a staff scientist in 1987 and spent the majority of her career in the EPA Region 2 office in New York City. She left the agency in 2002, joining the New Jersey Department of Environmental Protection and served as the department's commissioner from 2006 until she was appointed EPA administrator in 2009.

Jackson Oversaw Greenhouse Gas Rules

Jackson's crowning achievement may be establishing a greenhouse gas regulatory program after Congress failed to enact comprehensive climate change legislation, Clean Air Watch President Frank O'Donnell told BNA Dec. 27.

“Her legacy is going to be the person who finally set the United States on a path to do something about climate change,” he said. “I think she deserves a lot of credit for it, because I don't think this is a situation where the White House was pushing her to do things. I think she was pushing the White House.”

During Jackson's tenure, the agency issued a finding that greenhouse gas emissions from vehicles should be regulated under the Clean Air Act and subsequently issued emissions standards for passenger vehicles and established a permitting program for the largest stationary emissions sources.

The agency also successfully defended those rules before the U.S. Court of Appeals for the District of Columbia Circuit, which upheld EPA's rules in their entirety (Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, 6/26/12; 123 DEN A-1, 6/27/12).

The agency has also proposed the first carbon dioxide rules for new fossil fuel-fired power plants, issuing proposed new source performance standards in April (77 Fed. Reg. 22,392; 71 DEN A-1, 4/13/12).

Presided Over Expensive Regulations

Richard Alonso, a partner at the law firm Bracewell & Giuliani LLP, told BNA that Jackson presided over some of the most expensive regulations ever passed by the agency. However, he called her a “strong” administrator and said the greenhouse gas rules would stand as her legacy.

“From the environmental side, she's definitely going down as one of the better administrators that took on heavy industries, particularly the coal industry and the automakers,” Alonso said. “Really the first administrator to push greenhouse gas regulations at EPA.”

Jackson was not afraid to push rules that would place heavy financial costs on the coal industry, Alonso said. Under Jackson, the agency issued national emissions standards for hazardous air pollutants for power plants in January 2011. The rule, which was 20 years overdue when EPA finalized it, set numeric emissions standards for mercury, filterable particulate matter as a surrogate for toxic metals, and hydrogen chloride. It is expected to prevent 11,000 premature deaths each year (246 DEN A-1, 12/22/11).

Tenure Saw Setbacks

Jackson also faced some setbacks during her tenure. The White House blocked EPA's effort to set more stringent national ambient air quality standards for ozone in September 2011 (172 DEN A-8, 9/6/11).

Jackson had announced plans to reconsider the standards set by the George W. Bush administration as one of her first actions after taking office. The Bush administration standards had been decried as too weak to adequately protect public health by environmental groups and the agency's own science advisers.

Additionally, EPA's plans to regulate interstate pollution from power plants suffered a blow in August when the D.C. Circuit vacated the Cross-State Air Pollution Rule. That rule, which was intended to replace a remanded Bush administration power plant rule, would have required power plants in 28 states to reduce emissions of nitrogen oxides and sulfur dioxide to help downwind areas meet national ambient air quality standards for ozone and fine particulate matter.

EPA has asked the D.C. Circuit to rehear the lawsuit (EME Homer City Generation LP v. EPA, D.C. Cir., No. 11-1302, petition filed 10/5/12; 194 DEN A-3, 10/9/12).

Mountaintop Mining Rules Challenged

The agency also has seen its efforts to more closely regulate mountaintop removal coal mining struck down by federal courts.

EPA is appealing a two-part U.S. district court decision that rejected its 2009 effort to enhance coordination among EPA, the Interior Department, and the U.S. Army Corps of Engineers for oversight of mine waste permitting in the Appalachian region and its 2010 guidance that used conductivity as a measure of stream pollution. In another appeal before the D.C. Circuit, the agency is defending its ability to veto a dredge-and-fill permit already issued in West Virginia by the Corps of Engineers.

“What we've seen, at least in the coal industry, is a willingness to bend, perhaps to the point of breaking, the boundaries of her authority,” Jason Bostic, vice president of the West Virginia Coal Association, a state trade association, told BNA.

Chemical Rule Expanded Reporting

In the area of chemical regulation, one of the most significant developments in Jackson's tenure was the Chemical Data Reporting Rule.

The rule, issued in August 2011, requires greatly expanded and more frequent data reporting from manufacturers and importers for many chemicals compared with the predecessor rule, known as the Inventory Update Rule (149 DEN A-3, 8/3/11).

The Chemical Data Reporting rule modified existing requirements for reporting of data on production volume, use, and exposure and requires processing and use-related data for a larger number of chemicals.

The rule also requires companies to submit the information to EPA electronically, and it limits confidentiality claims by companies. Rather than providing a snapshot of one year's chemical production data every five years as was required under the Inventory Update Rule, the new rule requires companies to report every four years, and the reports on production volumes must cover each of the four preceding calendar years.

EPA also has come under fire for its assessment of chemicals under the Integrated Risk Information System. Criticism from the Government Accountability Office, lawmakers, industry groups, and environmental organizations has focused on a lack of clarity on how agency staff selects studies for inclusion in the assessment and on how EPA uses the body of evidence to reach a conclusion on a chemical's risks.

'Least Collaborative' Administration

The Society of Chemical Manufacturers & Affiliates had harsh words for Jackson in response to her announcement.

Bill Allmond, SOCMA's vice president of government and public relations, said the agency under her tenure “will be remembered as one of the least collaborative with industry stakeholders.”

Allmond said in a statement that the chemical industry has faced increasing and unnecessary regulations under Jackson's watch in a time when the U.S. economy is struggling to get back on its feet. The association represents batch, custom, and specialty chemical manufacturers.

“SOCMA was hopeful Jackson would continue some of the common sense efforts that were ongoing prior to her arrival, and increase engagement with the industry. None of that happened,” he said. “For this public-private partnership to work, there needs to be genuine outreach towards the regulated community. Also, there must be a higher degree of transparency in order for EPA to have credibility in its decision making and provide some regulatory certainty.”

Allmond said decisions have been “made on public sentiment rather than sound science, which should be the basis of regulatory action. We urge the incoming administrator to place a greater focus on balancing environmental protection with economic growth.”

The American Chemistry Council was less critical. “Although we did not always agree with Ms. Jackson on regulatory policy or objectives, she has been a committed advocate for health and environmental protection,” the council said.

Clean Water Act Rules

In the area of water pollution regulation, EPA has proposed numerical limits on ballast water discharges from ships greater than 79 feet. The agency also has issued rules clarifying which concentrated animal feeding operations are covered by permitting requirements and issued requirements for permits from pesticide spraying in and around water. Most importantly, EPA has begun to work on a proposed rule to clarify Clean Water Act jurisdiction over the nation's waters. Draft guidance on jurisdiction would expand the number of waters subject to protection under the act.

Under Jackson's leadership, EPA was responsible for imposing total maximum daily load plans for restoring the Chesapeake Bay, which suffers from excessive nitrogen, phosphorus, and sediment runoff. EPA also finalized an integrated planning framework for managing stormwater and wastewater overflows that now allows municipalities facing budget constraints to prioritize water quality and infrastructure projects based on affordability.

Jackson spearheaded the agency's push for the use of green infrastructure to manage stormwater in a cost-effective fashion.

“Lisa Jackson courageously moved to end pollution in the Chesapeake Bay, a true national treasure,” the Chesapeake Bay Foundation said in a statement. “ She worked to develop a Chesapeake Clean Water Blueprint, which is in place, legally binding, and demonstrating what can happen when government, business, and individuals cooperate.”

Contributing to this report were Amena H. SaiyidAndrea Vittorio, and Anthony Adragna  

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