EPA Overload

There is no doubt that the Environmental Protection Agency (EPA) in the Obama Administration has a lot to do.  In fact, many think maybe a little too much.

As you know, we have already discussed the greenhouse gas rules for new and existing power plants.  Both have generated mounds of controversy as well as loads of work for industry and environmental advocates as well as volumes of hard working public servants that actually make EPA’s trains run.  Not only are they forging new ground on this subject, many are unsure that they are on steady legal footing.

But while the power plant rules are by far the most high-profile EPA issue, there is a laundry list of additional major actions it is pushing forward on that have many folks concerned that the agency is out of control.

Case in point: you may have missed EPA’s action on the Friday before Thanksgiving (perhaps trying to get an earlier escape) where they said the long-suffering 2014 Renewable Fuel Standard targets will not finalized…in 2014.  Instead, EPA has decided to set final targets next year, for last year. By law, the volume mandates are due by November 30th of the previous year, which means the 2014 rule was already a year overdue.

After years working on fuels issues for the refining industry since the early days of the RFS and MTBE, it is hard to imagine the perpetual failure of EPA to meet deadlines in establishing the renewable volume obligation to be in any sectors best interest.  EPA claimed that “controversy” surrounding the establishment of the Renewable Volume Obligation or RVO is in partly responsible for the delay, but clearly, much of the delay has been political.

So let’s get this straight: EPA has not closed the books on 2013, has no final 2014 RFS, and has no date for a final 2015 RFS.  EPA Air Chief Janet McCabe said as much this week when pressured by both Democrats and Republicans at a hearing in the House Government Reform Committee where she declined repeated requests by lawmakers this morning to provide a projected date by which the agency will release a final 2014 Renewable Fuel Standard rule, or the 2015 and 2016 rules.

We can only hope that this latest failure might point the way to actual, sensible reforms by Congress in the renewable fuel standard .  The long range health of bio-fuels – particularly innovative, next-generation fuels – lies with putting the RFS on a sustainable, defendable course through reform.

But the fun doesn’t stop at the RFS.  The day before Thanksgiving, EPA dumped out its new rule on National Ambient Air Quality Standards, or “ozone” rule.  By EPA’s own conservative estimates, the proposal would be the single costliest regulation in U.S. history. In fact, the environmental community has been demanding this unreasonable action for years.  In 2012, the President and EPA were moving forward with tougher NAAQS action until June, just prior to the Presidential campaign hitting full swing.  But President Obama pulled the plug on the ozone rule in the run up to the 2012 election because of worries inside his political leadership that thought it could be an economic albatross that would have been costly at the ballot box.  So, the President threw EPA head at the time, Lisa Jackson, and his friends in the environmental community under the bus.

Now that his name isn’t on the ballot, the president apparently feels free to have a change of heart despite the potential economic costs to communities that are just beginning to recover from years of economic turmoil.

In fact, this ozone action could potentially threaten oil and gas development that has brought us to our strongest energy independence point in years.  Today, we are less reliant on foreign nations for oil and gas because of the boom in many of our regions and communities.  This boom has not only meant energy security and jobs for workers, it has been a godsend to communities that were usually left outside the economic engines of growth.  This boom has meant better tax base, new hospitals, better schools and better infrastructure for many of them.

Finally, after six long years of efforts to regulate coal ash, it looks like EPA may finally proposal its rule to regulate ash and recycled products from the ash next week.  While the effort has long been discussed, it picked up significant steam in December of 2008 when  an ash dike ruptured at a solid waste containment area at the Tennessee Valley Authority’s Kingston Fossil Plant in Tennessee, releasing 1.1 billion gallons of coal fly ash slurry.

EPA had said they would propose a rule within a year but those deadlines continued to be missed, mostly because if ash was regulated as hazardous, as environmentalists wished, it would greatly impact the multi-billion dollar beneficial reuse of ash in products that the public uses every day.  These are products like cement in roads, dry wall, roofing tiles and shingles in homes, snow and ice control, soil modification, mineral fillers in agriculture and mining and very specialized metal castings uses in the aerospace and automotive industries.

This dramatic pushback on the impacts of regulating ash as hazardous by these industries put the rule into a tailspin.  After years of delay (and a settlement reached in a lawsuit between coal combustion companies and EPA earlier this year) EPA has been ordered to issue its final rule  next Friday, December 19th.

While much of the shine of the previous hazardous/non-hazardous fight has worn off, EPA has begun using other rules like the Clean Water act to increase pressure on coal ash without harming the recycling/reuse machine.

So, as you can see, EPA has a full plate in the short term and over the next year.  Most people think something has got to give.  Perhaps they need to save time in bottle, because the heavy load and burden of the regulatory policy and procedural morass maybe be too much to handle.


Frank Maisano is a Founding Partner at Bracewell Giuliani’s Policy Resolution Group

Morning Consult