It was reported on February 20, 2013, that President Obama appears to have selected federal air regulator, Gina McCarthy, to take over for Lisa Jackson as head of the EPA. The news indicates that the executive branch intends to build upon the agency’s recently-validated efforts to regulate greenhouse gas (GHG) emissions, in the face of persistently anemic congressional action on the issue.
The likelihood of increased regulatory, as opposed to legislative, involvement is further evidenced by the reactions of various legislators who oppose GHG controls. For example, Sen. David Vitter (R-La.) was quoted as saying, “[t]he administration should be looking for someone who will end the standard of ignoring congressional requests, undermining transparency and relying on flawed science…Instead, it looks like they may double down on that practice.” “Obama Expected to Tap McCarthy for EPA, Moniz for DOE,” http://www.law360.com/articles/417045.
In other words, if President Obama is going to make climate change a legacy issue for his second term—which seems to be the case based upon statements made in his inaugural and State of the Union addresses—he is going to have to revisit his previously-stated aversion to doing so primarily through top-down regulation. But how is he going to go about doing that? The issue of climate change was conspicuously absent from the topics discussed during the 2012 presidential campaign, and any increased attention it has received in recent months might deservedly be credited in significant part to Hurricane Sandy. Nor does it help that the administration has offered up few, if any, real details about its future climate-change-related regulatory agenda (see, e.g., http://www.whitehouse.gov/energy/climate-change).
Until that plan is made public, outside observers must rely on a review of EPA’s past successes and ongoing initiatives in order to predict what the future has in store. However, it seems clear that an emboldened EPA will likely pursue all or some of the following initiatives with increased vigor and political support in the coming months and years.
· New Power Plants: EPA is expected to finalize a rule, originally proposed in 2012, requiring new fossil-fuel-fired power plants to be constructed with carbon capture and sequestration technology.
· Existing Power Plants: Finalization of the rule governing CO2 emissions from new power plants will force EPA to address the same issue with respect to existing facilities. EPA is expected to address this by requiring each state to adopt its own emission standards pursuant to guidelines issued by the federal agency.
· Refineries: The terms of a 2010 settlement agreement required EPA to issue a GHG rule for refineries by November 2012. The agency did not comply with that deadline and expected to act on the issue this year.
· Oil & Gas Operations: EPA finalized emission standards for oil and gas operations in 2012. Several states subsequently filed a notice of intent to sue the agency for its failure to include provisions that directly regulate methane. EPA has indicated that it will revise the final rule in 2013.
· Mobil Sources: EPA has proposed a rule designed to ensure that transportation fuel sold in the United States contains a minimum volume of renewable fuel.
· Climate Adaptation Plan: EPA released its draft Climate Adaptation Plan this month, which discusses the impact of climate change on the agency’s ability to fulfill its mission and describes how EPA will factor climate change adaptation into new regulations. The public comment period runs through April 9th.
DRI’s Climate Change Task Force will continue to monitor developments in this evolving area of the law, and will submit regular blog postings and articles discussing relevant events.
