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New Climate Legislation Would Rely on EPA to Enforce

A new bill in the House of Representatives would task the EPA with implementing programs to cut climate-changing emissions



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Under House Democrats' draft climate and energy bill, U.S. EPA would be tasked with launching a raft of major climate programs, dramatically boosting the workload of a cash-strapped agency already struggling to meet a long list of regulatory deadlines.

The draft directs EPA to implement several new programs aimed at curbing greenhouse gas emissions and boosting transportation efficiency – this for an agency trying to revisit Bush-era regulations returned for review by federal courts and set new protection policies for air and water pollution.

"EPA has an extremely heavy workload," said Frank O'Donnell, president of the advocacy group Clean Air Watch. "I think that it will be absolutely crucial that any new task for EPA is accompanied by adequate resources; otherwise, we might just end up with words on a piece of paper."

And while final legislation may differ from the draft bill put forward by House Energy and Commerce Chairman Henry Waxman of California and Rep. Ed Markey of Massachusetts, it offers a blueprint of the new responsibilities EPA could be charged with.

Among other things, the House bill would require the agency to set emissions standards on greenhouse gas emission sources that are not covered by the cap-and-trade allowance system and create a "strategic reserve" of about 2.5 billion emission allowances to create a buffer in case prices rise faster than expected. EPA would also be required to set emission standards for mobile pollution sources like locomotives and marine vessels, enter into agreements to prevent greenhouse gas emissions caused by international deforestation and develop procedures for rating buildings' energy efficiency.

The bill also would authorize new EPA funding for power plants and industrial operations to use carbon capture and storage technologies, viewed as vital to the coal industry's long-term viability in a carbon-limited economy.

Notably, the bill would not require EPA to regulate carbon dioxide or other greenhouse gases as criteria pollutants or hazardous pollutants under the Clean Air Act. The bill also explicitly states that New Source Review (NSR) rules for power plants would not apply to greenhouse gases.

Observers recognize EPA will need more money to meet the new mandates. But with increased agency funding that President Obama proposed in his draft budget and leadership from climate experts who have been tapped to fill the agency's upper echelons, people familiar with the agency's inner workings are confident EPA can handle the workload.

"I think the real question is: Is this something that should be done? And if it is something we all agree would be protective of the public health and ecological system, then I think the funding should follow," said Rogene Henderson, former chairwoman of the agency's Clean Air Scientific Advisory Committee. "The EPA would be an agency that, appropriately funded, could handle that."

David Bookbinder, Sierra Club's chief climate counsel, said the agency would not be overburdened by the new directives if provided with the nearly $3 billion increase in agency funding that Obama proposed for fiscal 2010 and allowed to prioritize projects under the legislation.

EPA will also need to fill in key positions in its upper ranks, he said. But with Gina McCarthy – Obama's nominee to lead the air office – scheduled for a Senate confirmation hearing tomorrow, "that's happening," he said.

Parallels with other mandates

Several former EPA employees compared the challenges facing the agency to those it confronted in the past when Congress ordered ramped-up clean air and water protections.

"I think being at EPA in 2010 or 2011, whenever legislation passes, will be very reminiscent of the 1970s," said Roger Martella, former general counsel at EPA under President George W. Bush and now a partner at Sidley Austin.

"They'll be faced with the challenge of developing first-time solutions to a problem much more complicated than they've ever seen before, and I don't think that's lost on many people working on climate issues in the halls of EPA," Martella said. "I think they reflect frequently on the challenges that their predecessors faced early in EPA and look for direction on how EPA faced those novel challenges at that time."

Vickie Patton, a senior attorney at the Environmental Defense Fund, compared the situation to the one the agency faced after President George H.W. Bush signed the 1990 Clean Air Act amendments into law.

The 800-page amendments addressed a wide range of pollution problems – from acid rain to toxics and automobile tailpipe emissions. Patton joined EPA as a staff attorney in the general counsel's office in 1990, just after the Clean Air Act amendments became law.

"The scope of work that the agency faced in 1990 was really quite extensive, but at the same time, the agency was given additional resources to get the work done, and it was really buffeted and bolstered by a sense of just congressional and presidential leadership – a sense that the country was committed to providing healthier air and the agency needed to just buckle down and work with stakeholders to get the job done," she said.

"The agency rose to the challenge," she said, in part because of the leadership of then-Administrator William Riley and William Rosenberg, who was then assistant administrator for EPA's air office.

Patton said she expects Administrator Lisa Jackson and McCarthy to also rise to the challenge.

"If you look at the senior ranks of EPA, you have Administrator Jackson and Assistant Administrator McCarthy, who have been at the cutting edge of climate policy in the states, so they bring with them this really far-reaching experience, and that will, I think, provide a critical foundation for EPA as it is developing and carrying out federal policies."

Other agencies face new mandates

Other agencies with jurisdiction over issues ranging from transportation to energy to science would be tasked with new projects under the draft bill.

The House climate draft would significantly expand the Federal Energy Regulatory Commission's oversight duties by placing the carbon offset markets in the agency's jurisdiction. This new oversight would require a jump in the level of resources and staff levels for the agency that has already grown considerably since the 2005 Energy Policy Act boosted its enforcement and reliability duties. FERC currently has a budget of about $270 million – all of which is paid for by utility fees – and 1,400 employees to handle its current mission to oversee the wholesale markets, reliability, enforcement and interstate transmission of oil, gas and electricity.

The Commodity Futures Trading Commission would face a similar need for additional resources if it ends up with jurisdiction over the carbon offsets or futures markets instead of FERC, which some lawmakers would prefer.

The Energy Department would be charged with a series of measures to improve energy efficiency, including updating building codes at least every three years, verifying that states have updated their building codes to the most stringent ones used today and ensuring that utilities are in compliance with the Renewable Electricity Standard and Energy Efficiency Resource Standard.

The Transportation Department would work with EPA to create a competitive grant program to help finance state and local projects aimed at meeting the emission-reduction goals.

The House draft would also set up a host of new responsibilities for the National Oceanic and Atmospheric Administration, including the creation of new National Climate Service to serve as an information "clearinghouse" for state, local and tribal governments seeking information on climate change's effects and strategies to adapt.

NOAA would also be directed to produce a national assessment of the United States' vulnerability to climate change every four years, based on information gathered during a series of regional and national workshops, and spearhead a new program to improve the effectiveness of federal agencies' adaptation work. Additionally, the agency would be directed to help the U.S. Geological Survey create a new program to assist federal, state and local wildlife managers grappling with climate change and ocean acidification.

Reporters Katherine Ling, Lauren Morello and Saqib Rahim contributed.


Reprinted from Greenwire with permission from Environment & Energy Publishing, LLC. www.eenews.net, 202-628-6500

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