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Is The EPA Confrontational Enough?

Here's a quick sketch of how environmental policy will get made for the next two years. Congress won't pass any new laws. The EPA will try to use the authority it already has to mop up pollution from coal plants, factories, and vehicles (and the agency has a fair bit of existing authority to do so). Industry groups, Republicans, and more than a few Democrats will moan about the costs. And the Obama administration will then have to decide just how much confrontation it can really stomach. Any bets on how this will all play out?

Today brings a sneak preview: The EPA just announced that it is asking for a year-long delay in crafting new rules that would lower toxic pollution from industrial boilers and solid-waste incinerators. The D.C. District Court had given the EPA until January 16, 2011, to set new standards that would reduce mercury and soot pollution from sources like oil refineries and paper mills. This isn't just some abstract tree-hugging measure; it would arguably do more for public health than any section of Obamacare: EPA  experts found that cutting toxic pollution could prevent up to 5,000 deaths and 33,000 asthma attacks each year. (All told, after an upfront investment, the rule would have cost an estimated $2.9 billion each year while delivering between $17 billion and $41 billion in annual health benefits*—not a bad deal.) But the affected industries all griped that the costs were way too burdensome and buried the EPA in angry comments.

Now, EPA officials say they're seeking a delay because all those comments made them realize that the air-toxics rule could be structured more carefully. That's plausible. But it's also true that the agency has been under excruciating political pressure of late. Nearly 100 lawmakers have complained about the boiler rules. The likely new head of the House energy committee, Fred Upton, has bashed the standards and is promising to drag EPA head Lisa Jackson in for enhanced interrogation. (Upton's concern? The Council of Industrial Boiler Owners thinks the costs will be far greater than EPA is projecting. It's worth noting that, historically, pollution rules tend to be cheaper than even the EPA expects.) And House Republicans will have a say in the agency's budget going forward, so Jackson can't just ignore them.

But this goes beyond one little pollution rule. Right now, the EPA is preparing a whole host of new regulations under the Clean Air Act. There's a national air quality standard for ozone pollution in the works. There's a looming decision about whether to regulate coal ash as a hazardous waste. There are new smog rules that would limit sulfur-dioxide and nitrogen-oxide emissions from coal power plants. And, of course, the EPA is still trying to formulate rules to crack down on greenhouse gas emissions. That last one is pretty much the country's only shot at tackling global warming, now that Congress has no interest in passing climate legislation. 

Taken together, these new regulations could have an enormous effect on America's energy mix—up to 20 percent of the country's coal plants could get retired in the coming decade, potentially replaced with cleaner natural gas or even renewable power. It's hard to overstate what a massive shift that would entail. But, for that to happen, the EPA would actually have to slog ahead in the face of vicious opposition from Congress and industry groups. And it's unclear just how hard the agency is willing to battle. True, Barack Obama has said he'd veto any bill that crippled the EPA's greenhouse-gas authority, and Lisa Jackson is fond of dismissing apocalyptic cries by industry lobbyists. But today's announcement suggests that even Jackson doesn't want to get too heavy-handed.

Incidentally, this is why American Electric Power v. Connecticut is a Supreme Court case worth following closely. At stake is whether states, localities, and environmental groups can get courts to declare CO2-spewing power plants a "public nuisance"—and, in effect, get the legal system to force these plants to reduce their heat-trapping emissions. (See here for a detailed rundown.) The Second Circuit Court of Appeals ruled that, yes, such lawsuits could proceed, so long as the EPA wasn't taking its own steps to reduce greenhouse gas emissions. (So far, the agency has only issued rules governing new power plants, not existing ones.) We'll see what the Supreme Court says, but if these nuisance suits are allowed to go forward, that could push the EPA to speed up its climate regulations—for now, most of the pressure is coming from the opposite direction.

Update: Another data point: The EPA is now delaying (yet again) its long-awaited limits on ground-level ozone pollution.

*Correction: I fixed the cost-benefit figures—I was originally looking at the wrong analysis.

(Flickr photo credit: bsteveb)