EPA Positioned To Stay Under Radar Through 2012 Election Season

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EPA and its regulations have long-been a favorite target of critics but the agency is positioning itself to largely fly under the political radar through the elections.

The agency completed most of its controversial rules months ago, and is now killing some and delaying many others until November or later, while preparing to release relatively popular, non-controversial items such as its vehicle greenhouse gas (GHG) rule before the elections.

“I think we all understand that there are political windows that are better and others that are worse,” says one environmentalist.

A former Bush administration official says EPA intentionally sought to establish deadlines for controversial measures that would fall after the election “no matter what.” And it has put many discretionary items “on the slow track.”

In an early indication of the administration's pre-election priorities, a top EPA transport official said recently that completion of the vehicle GHG rule, which is expected to cut gasoline consumption, is a “top priority,” while a pending Tier III fuel and engine rule, which many critics said would raise gasoline prices, would be delayed.

The former Bush official says the Tier III standard -- which had drawn charges that EPA was seeking to further raise gasoline prices when they briefly spiraled upward this spring -- “was an easy one to delay,” especially because the agency can synchronize it with its vehicle GHG rules that are years away from taking effect.

Most recently, EPA officials July 13 announced they had dropped a controversial rulemaking that would have required livestock operators to report a host of data to the agency under the Clean Water Act -- an issue that was riling many producers in Iowa, a key election battleground, and other important farm states. And EPA July 16 said it had renegotiated a legal deadline for a controversial stormwater control measure, from 2012 until 2014.

As a result of such efforts, EPA faces no legal mandates to issue major rules between now and the elections, with several deadlines pegged for December, such as for a pending final fine particulate matter air quality standard and a final Portland cement rule package.

The agency is also expected not to finalize until after the election its proposal setting a first-time greenhouse gas (GHG) new source performance standard (NSPS) for new power plants despite winning a sweeping June 26 ruling from the U.S. Court of Appeals for the District of Columbia Circuit broadly backing its GHG regulatory program. EPA maintains it has “no plans” to issue GHG standards for existing sources but could do so late this year, several sources say.

Also likely delayed until after the election: a proposed guidance for permitting hydraulic fracturing operations that use diesel fuel, final cooling water standards for power plants, “uniform” air toxics standards for chemical and other industrial plants, guidance for determining when isolated wetlands and other marginal waters are subject to regulation under the water law, the “Tier III” fuel and engine standards, and a long-delayed rule setting standards for disposal of coal ash.

One industry source notes that the administration was able to delay the fracking permitting guidance and the “uniform” air toxics standards by extending the comment deadline -- a clear indication that the measures will not go final anytime soon. “The administration is not interested in any new rules that they don't have to do between now and the election,” the source says.

Additionally, because EPA's final NSPS for the oil and gas sector has not yet been published in the Federal Register months after it was signed, any challenges to that rule will be delayed.

Political Messaging

But the administration is seeking to issue regulations before the Nov. 8 elections that may bolster its messaging. Key among them is the GHG vehicle rules for model years (MY) 2017-2025, which EPA delivered to the White House for review July 16, in time for its release in the midst of election season.

The rule, which has widespread support including from most automakers, will likely allow the administration to make a host of key arguments, including highlighting its efforts to curtail GHG emissions, improving fuel efficiency and demonstrating the potential economic benefits of environmental regulations -- the latter of which would likely play well in Michigan, Ohio and other auto manufacturing states that are also key swing states.

Similarly, the administration is likely to issue its revised package of air and waste rules regulating incinerators and boilers that will weaken an earlier final rule to address industry criticism.

While they were not able to win broader industry support, the Obama re-election campaign is nevertheless highlighting EPA's controversial power plant air toxics rule, alongside the vehicle GHG rules. “The new [power plant] rules will help to clear our skies of pollutants that can make health problems like asthma and bronchitis worse, saving up to 17,000 lives per year,” the campaign website says.

The former Bush official says that “if something is not done now, it's pretty well going to slide” until after the election, adding that “absolutely the last point in time” a rule would be signed is mid-September to avoid chances of a new administration immediately overturning it. “The most conservative thinking says don't even bother because if the administration flips [the new administration] will go back and take a look at what you did anyway. Or if it doesn't flip then you can put it out at the end of the year.”

The source adds that EPA is also “in a pretty good place” with its Cross State Air Pollution Rule (CSAPR), which has been challenged in the D.C. Circuit and where a ruling is expected imminently. “If the court comes out tomorrow morning and [remands or vacates it], there is probably a space where they say they are evaluating the court opinion” and do not take any new action for months. If EPA wins, then it is another legal victory for the agency.

EPA air chief Gina McCarthy said at a July 10 forum that the agency would push back compliance deadlines if the agency prevails in the challenge, saying the agency would be “very sensitive” to state and utility needs for more time.

A second industry source notes that the Obama administration started with a number of controversial items “dumped in its lap early on, some of which it took on willingly and some the product of deadline litigation, particularly in the case of the Clean Air Act. . . . They coupled must-dos with want-to-dos to make for a very busy first term, particularly the first three years. What's happened now in 2012 is a combination of presidential election reticence as well as some of these obligations drying up. . . . It is a slightly odd confluence of events.”

The environmentalist agrees that not much is going to move before the election but vows to continue to press the agency to act on important measures.

While EPA is “certainly not shut down for the rest of the term,” the source says, “it's very likely that none of this stuff gets done before the election.”        Still, the source says it is possible some stalled items could move. “The obvious question for them is do they think it is either something no one is really going to pay attention to or something industry wants done, which could be the case with the boiler air toxics standards because it weakens them.”

House Hits

Despite the agency's attempts to slow down rulemakings, sources across the political spectrum expect House Republicans to continue placing EPA in their crosshairs.

Lawmakers continue an almost daily messaging of press releases, hearings, letters and other actions highlighting agency measures and their effects. The GOP leadership has named the week of July 23 “Red Tape Week,” where they intend to highlight the effects of EPA and other agency regulations and vote on a series of measures to strengthen the regulatory review process.

Similarly, Rep. Ed Whitfield (R-KY) has slated a series of forums on amendments to the Clean Air Act starting with a focus on the law's state implementation plan provisions late this month.

The environmentalist expects “pretty much more of the same” from the House “including overreach on everything” that will mostly be “political and for show.”

A Democratic strategist notes those efforts will “not go anywhere in the Senate. The House is going to try and force the construction of the Keystone XL pipeline . . . but that is also not going to happen. Between now and the election there will be much heat but little light shed on energy issues.”

The former Bush official says the transportation bill enacted into law this summer was “the last” legislative vehicle for environmental policy riders that could have moved before the election, but EPA critics fared poorly there -- failing to attach a controversial measure blocking EPA's pending coal ash rules. “I don't know of anything that was more likely to get through than [the coal ash measure] and it didn't, and it's hard to imagine anything else significant,” says the first industry source.

The source notes that lawmakers are not even planning to move any appropriations measures before November.

Efforts likely to go nowhere include GOP bids to revoke EPA's GHG authority, nascent lame-duck efforts to impose a carbon tax and efforts to pass tax extenders for a range of energy credits such as biofuels and renewables, though several sources are holding out hope that the energy credits could be included in end-of-year “fiscal cliff” efforts.

A second environmentalist adds that long-sought reforms to the Toxic Substances Control Act (TSCA) still appear doomed despite a recent victory from longtime TCSA reform supporter Sen. Frank Lautenberg (D-NJ) in attracting GOP support.

EPA And The Election

Sources agree that EPA will not have a top-tier role in the presidential election between Obama and GOP challenger Mitt Romney, though the Democratic strategist expects Democrats to hint at agency stances when they talk about “protecting public health and protecting clean energy jobs of the future.” The source adds Obama will continue to talk about his pro-environmental record of saving lives, spurring innovation and creating jobs.

The second environmentalist says activists are disappointed that Obama is not running more on his environmental record and “excoriating” Romney for his flip-flopping on climate change. Because of Romney's change in position, he is also not expected to bring the issue up much. “Obama has made a fundamental mistake on these issues and has tried not to popularize them, which he could have done,” the source says.

But sources say that regardless of the election's outcome, there is likely to be a flurry of rules and other policies being issued after Nov. 8 -- including measures that are subject to legal deadlines, or, in the event President Obama loses his re-election bid, to leave traps for the administration of GOP challenger Mitt Romney.

“If there is no second term, I would expect EPA to finalize a bunch of rules that are not final,” the first environmentalist says, adding EPA will also propose discretionary rules as well for the Romney administration to finalize or kill.

The second industry source also expects a flurry of November and December activity from EPA if Obama loses, with the hope of some of them becoming permanent, while a more tempered pace if he wins.

But a third industry source would expect a lame-duck EPA to “not try to put things through if [Obama] loses because they can be undone.” -- Dawn Reeves