Yesterday, little noticed amidst all the other climate news, the Environmental Protection Agency moved closer to regulation of greenhouse gases. It finalized a rule requiring 10,000 polluting facilities to report greenhouse gases, including carbon dioxide, beginning January 1, 2010. The rule only applies to facilities emitting 25,000 tons or more, which exempts all the churches and bake sales that Republicans profess to protect.
This rule is only a first step, requiring the polluters simply list the gases, not do anything about them -- yet. However, it raises questions about who's in charge here: Congress or the EPA? Sed quis custodiet ipsos custodes? Who's watching the skies, and who should be watching the watchers of our skies? Can we rely on the EPA as a Plan B in case ACES fails in the Senate? Warning: dense material ahead, not recommended for people looking for a ditzy diversionary diary.
This is the sixth in a series exploring the American Clean Energy & Security Act in anticipation of Senator Boxer introducing the Senate's version of ACES at some point next week. The starting point is obvious: Pass a Reality-Based Bill, where reality is 350 ppm. ACES will also provide for immensely popular clean energy and clean jobs. I've also asked whether ACES should have Wind and Solar Power: Clean Jobs, Tariffs, or Both?; pointed out the natural security aspect of climate change in ACES: The Fate of the Himalayan Glaciers and National Security; and began a dialogue on Boxer uses the N word; she might have to? here's why.
ACES passed the House in June, where it was also known as Waxman-Markey and HR2454, but its introduction in the Senate has been delayed for several months. The bill proposes a sweeping cap and trade system to reduce emissions of carbon dioxide and other greenhouse gases.
Time and time again, the question comes up: isn't that supposed to be the EPA's job? Shouldn't the EPA regulate carbon as a pollutant? After all, the EPA is supposed to regulate pollutants under the Clean Air Act, and the Supreme Court ruled in Massachusetts v. EPA, back in 2007, that the Clean Air Act gave the EPA authority to regulate greenhouse gases from mobile sources, aka cars. (For law nerds, the Court actually ruled that the state of MA had standing to sue the EPA for its failure to act, and that any decision by the EPA on regulation of greenhouse gases had to rest on a consideration of "whether greenhouse gas emissions contribute to climate change.") And, as Patriot Daily explained in more detail, early this week the Second District Court of Appeal made a similar ruling for stationary sources, aka power plants (among other examples).
Thus, many assume that if ACES fails to pass the Senate, the EPA steps in to enforce Plan B. However, that scenario has perils of law, politics, and consistency.
First, if ACES fails, "EPA regulation" means regulation to enforce the Clean Air Act, nothing else. And the Clean Air Act isn't perfect. Alphabet soup alert! First, the EPA has to make a formal determination that a pollutant is a danger to public health. That process began last spring, and EPA director Lisa Jackson has hinted that it will finish "in the next months." Then the EPA will write specific regulations covering mobile sources and stationary sources. New stationary sources have to go through a permit process called NSR (New Source Review). However, the EPA has a big loophole: old stationary sources -- picture the oldest, dirtiest coal-fired power plants, like PSNH's Merrimack coal plant -- are grandfathered in. (Sadly, the House version of ACES has a similar grandfather clause. More on that later.) If an old source goes through major modifications that produce a significant increase in air pollution, it has to go through NSR and then install Best Available Control Technology (BACT). Bottom line: the Clean Air Act gives a dirty old grandfather coal plant a perverse incentive to keep on belching.
Second, the political fallout from EPA regulations would be staggering. Right now, the fossil fuel industry's ire is spread out among Obama, 218 Representatives who already voted yes, and a number of Senators who might vote yes on ACES. If the Obama administration EPA regulates greenhouse gases without input from Congress, the Obama administration will bear the sole brunt of big business' wrath. Expect the howls of rage to reach from Washington to the shores of the former Maldives islands. Obama's reelection prospects may be harmed.
Finally, the EPA is not necessarily more consistent than Congress. We've all seen, in West Virginia, the damage that can be inflicted by a pro-business EPA: The EPA is a litigation target for both polluters who allege that it's destroying their livelihood and environmental groups who allege that it's not doing enough. Litigation takes years to resolve and decisions can't be predicted.
So, if the EPA's process is less than perfect, is ACES any better? Not in the House, where the bill removes authority from the EPA, and replaces it with...well, not much. Waxman-Markey's stripping of the EPA's authority has so alarmed environmentalists that some groups, including Friends of the Earth, oppose the bill: "the Waxman-Markey bill would lock the U.S. into the new, flawed system it creates, taking away almost all of the EPA’s existing authority to reduce greenhouse gas pollution under the Clean Air Act."
Senator Lisa Murkowski (R-AK) recognizes the existence of climate change and the impact it's having on her state, even if her official website's "issues and priorities" omits it (but aside from that, Mrs. Lincoln, how did you like the play?). She's proposed to delay the upcoming EPA regulations a year while her state melts and walruses wash up dead on the shores of the Chukchi Sea. Apparently she doesn't welcome the EPA as a watcher.
Climate scientist and blogger Joe Romm sees a way out of the alphabet soup with the EPA's news. The Clean Air Act, originally designed to deal with air pollution, isn't adequate to address climate change. The new reporting rule sets up a comprehensive monitoring system. This past summer, various regulatory groups met to discuss jurisdiction: Department of the Interior, Department of Agriculture, or EPA? A truly comprehensive system to watch the skies might involve several agencies. The EPA's new rule is a good start.
As ACES moves through the Senate, progressives need to watch the proposed watchers of the skies.