Lisa Jackson for EPA: a dissenting voice?
December 20, 2008
I haven’t commented yet on Steven Chu, Lisa Jackson and the rest of Obama’s energy & enviro team because I just can’t wrap my arms around what would make my hosannas that much more worthy of your limited eyeball time than anyone else’s. In all honesty, though, I do have some reservations about Ms. Jackson, based on my published study of New Jersey’s program designed to remediate brownfield sites. See vol. 34 of the Fordham Urban Law Journal from 2007 if you are curious. My principal source for some background info for that article, Bill Wolfe of Public Employees for Environmental Responsibility (PEER), strongly opposes her, for reasons some of which are described in my article. Note this as one example: “The state hazardous waste clean-up program under Ms. Jackson was so mismanaged that the Bush EPA had to step in and assume control of several Superfund sites.”
I’m going to go back and look a little more closely than I did at the time at specific persons and offices who bore responsibility for the mess in the NJ brownfields program (the quote above refers to the Superfund program, designed for the more contaminated sites). If anything, I might get some clues about a post-Bush EPA. My gut instinct, based on other appointments (Solis, Chu, Holdren, Lubchenco, etc.), is that the transition team is so focused on reversing eight years of climate change policy that other priorities may have been crowded out. I also think that Carol Browner had a lot to do with this nomination; Jackson worked in her EPA.
PEER argues that even in the area of climate change, New Jersey is not a shining beacon on the hill. As I told my Law of Global Warming class, and as PEER rightly observes, NJ missed out on the first RGGI greenhouse gas auction because it could not get its regulatory act together.
Maybe Mary Nichols of the California Air Resources Board would have been a better choice. I hope I am proven wrong.
Sigh of relief, EPA version (no dirty air rules)
December 11, 2008
I’ve been watching the Federal Register each day like a hawk, waiting for the EPA to drop its holiday lump of coal (pun definitely intended): two rules to relax New Source Review air permitting requirements and allow more pollution near national parks.
Looks like the EPA has abandoned that plan. As it was past Nov. 20, the incoming Administration could have rescinded any rules before they took effect (60 days’ notice was required for major rules of this sort), so anything dirty parting gift on the EPA’s part could have been returned to sender. But it is nice to know they aren’t trying the midnight rule approach on this one to begin with.
Transition To Green report
December 1, 2008
This past week, nearly 30 environmental, science and conservation groups presented their top environmental policy recommendations to President-elect Obama’s transition team. The 391-page document, called “Transition to Green,” sets forth recommendations for key federal agencies on a wide variety of environmental issues, including land, air, water, oceans and public health.
Transition to Green is an extraordinary collaboration among groups with millions of members. Most recommendations are listed twice — within “issue” groupings of similar actions and then in agendas for “The First 100 Days” that are meant to guide immediate action.
Even a small part of the document, dealing with recommendations for the EPA, will give an idea of the sweeping change called for. Recommendations listed under “ISSUE 2 /PROTECT AMERICANS AND OUR ENVIRONMENT AGAINST THREE OF THE MOST DANGEROUS FORMS OF AIR POLLUTION: FINE PARTICLES, SMOG, AND TOXICS SUCH AS MERCURY” call for the EPA to reverse damaging Bush administration policies on New Source Review and SOx/NOx pollution and junk any (expected) eleventh-hour rules made under the Clean Air Act.
There are numerous recommendations listed under “ISSUE 4/REDUCE EMISSIONS QUICKLY AND DEEPLY ENOUGH TO AVOID THE WORST EFFECTS OF GLOBAL WARMING,” as one might expect, including “Comply with Landmark Supreme Court Ruling” (Massachusetts v. EPA), “Reduce Global Warming Emissions from Cars and Trucks,” “Require New Power Plants to Factor in Global Warming” (an outgrowth of the Deseret Power EAB decision I wrote about last week), “Reduce Global Warming Emissions from Power Plants,” “Reduce Global Warming Emissions from Fuels,” “Announce Principles for Comprehensive Global Warming Legislation,” “Enact Comprehensive Global Warming Legislation,” “Reduce Global Warming Emissions from the Transportation Sector,” “Support EPA Voluntary and Complimentary [sic] Programs,” and “Support EPA Research Funding.”
None of these are surprising (all have been discussed at length in blogs and other media), but still, I’d say the new EPA Administrator will have his/her hands full.
Deseret Power — global warming case
November 18, 2008
Last week, the EPA’s Environmental Appeals Board (EAB) issued a decision in Deseret Power Electric Cooperative that could signal an increased likelihood of federal regulation of global warming in the new Administration.
The EAB is “the final Agency decisionmaker on administrative appeals under all major environmental statutes that the Agency administers.” In agency-speak, a plaintiff must typically “exhaust” all possible ways of getting a controversy with a federal agency resolved within the agency itself before suing it in federal court. The Sierra Club pursued this approach here, seeking review of the EPA’s permit that would allow Deseret to build a new coal-fired electricity generating unit at its existing power plant in Bonanza, Utah.
The Sierra Club was motivated by the Supreme Court’s decision in Massachusetts v. EPA, the global warming case involving the EPA’s refusal to regulate automobile greenhouse gas emissions under Title II of the Clean Air Act. Broadly speaking, the CAA regulates “stationary sources” (those that do not move) under Title I, and “mobile sources” (cars, trucks, etc.) under Title II. A coalition of governments and interest groups had petitioned the EPA to regulate GHGs coming from automobiles. The EPA refused, saying it did not have the authority because GHGs were not “air pollutants” regulated under Title II. The Supreme Court disagreed, holding that GHGs fall easily within the “capacious” CAA definition of “air pollutant.” It also rejected the EPA’s arguments that even if it had the authority to do so, it could avoid regulating, stating that it could deny the petition only if it could find a way to rebut the overwhelming evidence that global warming is happening.
It’s the first part of this holding that has implications for Deseret Power. The CAA’s definition of “air pollutant” covers all titles of the Act, not just Title II. So if a utility is required to get a permit for emissions of air pollutants, wouldn’t it have to control GHGs as well as traditional pollutants such as sulfur dioxide? The Sierra Club essentially argued that if CO2 is an “air pollutant” for purposes of Title II, it is for Title I as well.
Deseret Power needed a permit (in CAA-speak, a Prevention of Significant Deterioration or “PSD” permit) because its new unit was a “major modification” to the existing plant. As a permit condition, it needed to use the Best Available Control Technology (BACT) to control air pollution, and the Sierra Club wanted Deseret to adopt BACT for CO2. The question the EAB confronted is whether the PSD sections of the CAA, worded differently than Title II, require controls of CO2 emissions. Much of the lengthy decision is devoted to parsing through the EPA’s historical interpretation of the Title I language. The reason for this is that in Environmental Defense v. Duke Energy, a recent CAA case involving the air pollution program of Title I, the Supreme Court determined that even words used identically in different parts of the same statute don’t necessarily mean the same thing. So, off the EAB goes to decide exactly whether the PSD requirements bind the EPA.
The EAB remanded the case to the regional office and requested that it reconsider its decision. This leaves the status of the underlying issue unclear, of course. You can imagine the EPA’s administrative law judges thinking, “whew, we fobbed this one off until January.” But notice that they didn’t reject the Sierra Club’s argument out of hand, which gives support to the idea I’ve heard floated about that the incoming EPA will use direct regulation of GHGs under the CAA as a short-term transition to a more comprehensive regulatory regime.
