Now that the Democrats have the Congress, a lot of diarists are asking some very valid suppressed questions about what the Democrats should do during the upcoming term. Over the weekend, the WaPo had an article about how the Pharma industry was retooling their lobbying arm. It's a short leap to the question of what the industrial lobbying apparatus will try to do with the Democratic congress, which directly impacts my career as an industry industry advocate working with EPA staff and management (read: political appointees).
I specialize in the Clean Air Act. And this adminstration, and this EPA contrary to popular opinion, has been not so friendly for our industrial interests. As is typical among Republicans, this adminstration has anointed winners (power and energy) and losers (manufacturers, consumers, the public, the NGO community). Yes, I'm a sore loser on multiple fronts. So, what should we do with the opportunity?
- Redo the Clean Air Implementation Rule (CAIR). CAIR asked for too-easy 70% reduction targets (for criteria pollutants of nitrogen oxides, sulfur oxides, and particulates) from the electric power industry (mostly) east of the Mississippi River not later than 2018. Eight years too late for the upcoming 2010 attainment deadlines for the big cities along the Northeast Corridor, the Midwest, and the Gulf Coast. Since electric utilities are the biggest single stationary source category, any air quality standard needs to get the biggest reductions from the biggest category. And since these sources are biggest per-vent sources, emission reductions are the easiest, cheapest, and most readily documented. And, the electric utilities are trying to use CAIR as a shield from other rules that would otherwise require them to reduce emissions. Which makes no sense since the utilities can buy their way into compliance without reducing emissions one ounce. This little loophole can have significant negative repurcussions for local attainment, national park visibility, and local watershed mercury deposition issues (are you sure you should eat that fish?).
- Kill the Clean Air Mercury Rule (CAMR). CAMR is a mercury trading scheme without any legal justification in Section 111 of the Clean Air Act that mirrors CAIR for criteria pollutants. Congress allowed trading for criteria pollutants, but not for hazardous air pollutants like mercury. But it makes no sense to allow trading for mercury when local mercury water issues are rising to the forefront.
- Clarify New Source Review (NSR). This adminstration has given the electric utility a free pass on NSR. The Supreme Court is deliberating an NSR case that, if the case goes the wrong way, would gut NSR (based on a 4th Circuit case where the 4th Circuit just made a mess of environmental law as we know it). There's a lot of questions in NSR, especially as to how it relates to very old facilities, other court cases that have been a nightmare to deal with from a regulatory compliance perspective, and other issues that I'd love Congress to clarify. The problem with the regulatory system is that EPA has so much discretion sometimes, and not enough in others. And Congress has to step in from time to time and deal with things that EPA may have "evolved" on the issues.
- Settle the CO2 question. Congress gave EPA wide discretion to declare what is or is not a pollutant, and what kind of pollutant to call it (criteria or hazardous-and the difference really matters). Once the decision is made to regulate, then the process is fairly well documented in the law and in 40 CFR. I know that the Supreme Court is dealing the case now, but after this case comes out, Congress is going to have a mess to clean up-we just don't know which mess yet.
I am sure that others can add to this agenda. I also know that many of these issues should wait in line for the second half of 2007. What do you think?????