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The EPA option

With prospects for a cap-and-trade bill dimming, Brad Plumer considers what it would look like for the EPA to begin regulating carbon emissions:

In March, the EPA will propose its new fuel-economy standards for cars and light trucks (the goal is an average of 35.5 miles per gallon by 2016). And as soon as that happens, the agency would be legally obligated to begin the process of regulating stationary sources, too—though the precise timeline here is still fuzzy.

The first wave of regulations would involve the EPA's "Prevention of Significant Deterioration" program. Anyone who wanted to build a new power plant or factory—or upgrade an existing facility—would need to apply for a state permit and adopt "best available control technology" for greenhouse-gas emissions. The EPA hasn't specified what technologies that might entail, but it could mean anything from more efficient processes for cement kilns to forcing coal-fired plants to switch to cleaner natural gas. The appropriate technologies would be decided on a plant-by-plant basis. Since this would only apply to new plants—or plants undergoing significant upgrades—it wouldn't affect the vast majority of existing polluters. (There will also, no doubt, be messy disputes over what counts as a "significant" upgrade, a Clean Air Act battle that's been raging for decades.) Still, this first step would make a splash almost immediately. "No one in their right mind is going to propose a new coal-fired plant after this," says David Bookbinder, the Sierra Club's chief climate counsel.[...]

[The EPA] would then have to figure out how to regulate existing polluters. This part is crucial: The original Clean Air Act ended up grandfathering in existing coal plants, which perversely gave utilities incentives to keep their oldest and dirtiest boilers chugging along for as long as possible. The agency has a variety of options here. According to Jason Burnett, a former EPA official who helped craft greenhouse-gas rules during the Bush years, one plausible scenario would see the agency setting pollution targets for different industrial sectors under section 111 of the Clean Air Act, the "New Source Performance Standards" program. Cement kilns and nitric-acid plants would get regulated first, possibly as soon as this year. After that would come oil and gas refineries, and, later still, fossil-fuel power plants.

That's what it looks like if everything goes smoothly. But very little is likely to go smoothly, for reasons Plumer explains elsewhere in the article.

The upside to all this is that there are actually some advantages to the EPA approach. For one thing, you won't get the congressional horsetrading that would, say, exempt every coal plant in North America. And if the EPA does a good enough job in the first round, you might see the energy industry get real interested in passing a more predictable and manipulable cap-and-trade bill in order to prevent a second round. But the danger is that a bunch of senators band together and take this authority away from the EPA before the agency can use it. Then you don't have a cap-and-trade bill or anything working in its absence.

"In the coming months," Plumer says, "many climate advocates may have to shift gears. Instead of talking about the EPA's authority as some terrifying prospect that only the passage of a cap-and-trade bill can stop, the EPA option could increasingly get framed as something worth defending in its own right." And hey, it shouldn't only be framed that way: it actually is worth defending in its own right!

By Ezra Klein  |  February 9, 2010; 10:30 AM ET
Categories:  Climate Change  
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There is little doubt that the Senate will try to remove EPA's authority to control emissions on other-than-autos. The GOP and Blue Dog Dems have a majority.

The interesting question will be what will Obama do? He could veto the withdrawal of authority. To remove this threat to the Senate, they'll try to attach the withdrawal to something that Obama 'has' to sign. This is where the battle will be. My bet is the debt limit, defense something or other, will be laden with the withdrawal.

So, here's a real test of Obama's manlihood: will he veto something essential to prove he won't be pwnd?

My guess: no. He has no testicles.

Posted by: JimPortlandOR | February 9, 2010 11:08 AM | Report abuse

"Anyone who wanted to build a new power plant or factory—or upgrade an existing facility—would need to apply for a state permit and adopt 'best available control technology' for greenhouse-gas emissions."

So that power plants that have relative cheap solutions to at least marginally reduce the pollution they currently produce (or otherwise improve the safety or effectiveness of their plant) will be discouraged from doing it. Because it will make more sense to maintain the status quo than change a single thing and then be stuck with a full implementation of the "best available control technology". I dunno. That sounds to me like a case of the road to ongoing pollution being paved with good intentions.

"But the danger is that a bunch of senators band together and take this authority away from the EPA before the agency can use it. Then you don't have a cap-and-trade bill or anything working in its absence."

Given what's recently happened regarding HCR, this seems likely to me. But it depends on how far the EPA takes it. If they wield their authority with wild abandon, I expect it will be taken it away. If they are more subdued in their use of said authority, it's likely the environmental groups won't be satisfied, but it would be harder for an effort to strip them of such authority to be launched.

Posted by: Kevin_Willis | February 9, 2010 11:13 AM | Report abuse

I agree that EPA regulation is now a strategy rather than a tactic. I understand there is a strong argument being advanced within EPA that they have the authority to create cap and trade programs. This would be very good news and should encourage many industries to get on board.

Posted by: mbaker64 | February 9, 2010 11:25 AM | Report abuse

When the legislative branch cannot legislate, we get an expansion of administrative action. If we had passed some kind of cap and trade bill we wouldn't be talking about the EPA taking these actions.

Posted by: MosBen | February 9, 2010 11:57 AM | Report abuse

Is there really more support for stripping the EPA of its authority to regulate carbon than there is for HCR? Conservative Dems and Republicans may have a majority on some issues, but I doubt they have a supermajority. I see no reason why such a bill would have an easier time getting passed than the chief legislative tent pole of the majority, especially if President Obama is threatening to oppose it with a veto.

Posted by: MosBen | February 9, 2010 12:00 PM | Report abuse

The "bunch of Senators" concept is interesting. How many Senators and Representatives does it take to overcome a Presidential Veto?

They certainly could attempt to attach it as an amendment to something like a War Suuplimental. Frankly then it's the time for Leadership to pull the levers to keep it out.

Honestly, the EPA should swiftly move to "Damn The Torpedoes & Full Speed Ahead" mode. The Obama Admin needs to take the mindset that they may have only until 2012 to get things through, and that in 2013 there may be a wingnut Administration set on undoing anything EPA driving. The faster they get it in place, with short implimentation timelines, the harder it will be to dismantle.


Posted by: toshiaki | February 9, 2010 12:16 PM | Report abuse

Why doesn't Obama threaten to veto any climate change bill that doesn't meet certain requirements (say 17% less GHG in 2020 like what's in the House bill, with cap and dividend from the Cantwell Senate bill). Obama should couple the threat of a veto of a weak climate bill with the threat of a veto of a bill that strips the EPA of their GHG regulating authority. These two threats will give a strong incentive for the Senate to decisively act. If they don't act, EPA regulation of GHG is guaranteed, despite the protests of Republicans, blue dogs, and coal state Dems.

Posted by: len2v | February 9, 2010 12:41 PM | Report abuse

Can you imagine Congress going along with an EPA regime that doesn't tax natural gas drilling in order to subsidize coal and ethanol?

Posted by: tl_houston | February 9, 2010 1:23 PM | Report abuse

Significantly increase the gasoline tax and start taxing electricity generated by coal/oil/gas power plants, ramping up over several years after 2011 and do so in the name of deficit reduction. If people complain, remind them that they have been screaming bloody murder about deficits, and if they don't want cuts to social security, highways, medicare/aid or defense, then they're going to have to pay more taxes or accept a large deficit.

Posted by: justin84 | February 9, 2010 1:27 PM | Report abuse

You don't want the EPA to go ahead and regulate without some type of Congressional authorization. We don't live in a dictatorship and Congress is the most powerful branch of government on domestic issues.

The administration would be very foolish to have the EPA go ahead and regulate without some type of authorization or agreement or else the Congress will fight back very hard against the administration. It makes no sense for the administration to create a Congressional enemy if they don't have to.

Posted by: lancediverson | February 9, 2010 2:18 PM | Report abuse

It`s about time that the EPA was shut down,or reduced in size and control. This agency has gotten out of control, they should have to answer to the AMERICAN TAX PAYERS. The EPA and the tree muggers of this country are stopping any forward progress on energy.

Posted by: cj362810 | February 9, 2010 2:57 PM | Report abuse

What happens if Nuclear power becomes BACT for CO2?

Posted by: michaelmcmenus | February 9, 2010 2:58 PM | Report abuse

Ezra you are on the Moon. I take that back, you are on Uranus. The Cap & Trade treaty will NEVER be approved by the Senate in its present form. It will need 2/3 (67) votes and I don't think it will get 10. When Clinton tried it he got about 5. This legislation is not in the best interest of the United States and the people (at least 70%-90%) oppose it. As to the EPA threatening to take away the perogatives on the Senate by bypassing the Congress with Regulations, now that is arrogant. The burocrats need a good lesson as to who is in charge. The Senate will take away their power to regulate this matter and if they should also reduce the EPA's budget by at least 33% as punishment. This is an out of control, bloated buracracy that received almost 33% budget increases since Obama took over. As far as Obama vetoing any such legislation you can forget that also. It's not even an issue. Any veto would be overridden by 90% of the Senate (Democrats & Republicans). Now that is bipartisanship.

Posted by: acahorvath | February 9, 2010 2:58 PM | Report abuse

Emissions do need to be controlled. If you don't think it is a problem, then go stand in your garage with the car running and the garage doors closed. Now, multiply that time "millions" of vehicles, factory smokepipes, etc and tell me that there isn't some damage being done. Mother Earth is very strong but I wonder how long "she" can hold on.

Posted by: pgmichigan | February 9, 2010 3:48 PM | Report abuse

I truly understand why this country is in a mess. The world is being dumped on daily and all sheeple do is argue over who is in charge and who is going to oppose and who has testicles while citizens are dying of God knows what. People are sick, the sick need drugs, pharmaceuticals are sky rocketing, insurance is out of site Let's analyze it some more!

Posted by: wildernesslight | February 9, 2010 4:08 PM | Report abuse

This is going to end with a case going to the Supreme Court and a decision that guts the Clean Air Act.

Posted by: zosima | February 9, 2010 4:14 PM | Report abuse

Creeping, incremental fascism. Look at the big picture, folks. Every single policy is geared to more power for the Progressives and the unions. Realistically, they have to be fought one at a time. It's coming down to the survival of the free enterprise system.

Posted by: apberusdisvet | February 9, 2010 4:51 PM | Report abuse

Somebody tell these folks the following:

Life on earth is carbon based.

CO2 makes up a tiny fraction of the atmosphere.

The number one greenhouse gas is WATER VAPOR!

So maybe we should all let the EPA decide who among us gets to breathe.

Posted by: 4noone | February 9, 2010 5:52 PM | Report abuse

if this was legit the epa would be contoling the output of carbon MONoxide, a deadly poisonous gas not carbon DIoxide the very air that we exhale. gloBULL warming/climate change is inevitable and predominantly caused by nature, volcanos, comets, and primarily solsr activity. man made gloBULL warming is like liting a cigarette at a bonfire, yes it adds to the effect but in a MINISCULE amount

Posted by: shorething | February 9, 2010 6:48 PM | Report abuse

"And if the EPA does a good enough job in the first round, you might see the energy industry get real interested in passing a more predictable and manipulable cap-and-trade bill in order to prevent a second round."

And if instead, the EPA overreaches and issues regulations governing cow farts and such as that, you might see the public get real interested in banning the EPA in order to prevent the destruction of the American economy.

Posted by: bgmma50 | February 10, 2010 9:58 AM | Report abuse

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