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EPA Chief, Legislators Face Off over Endangerment Decision

March 1, 2010
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The head of the Environmental Protection Agency (EPA) last Tuesday defended the agency's endangerment finding for regulating greenhouse gas (GHG) emissions against an onslaught of criticism from members of Congress, some of whom contend that it is based on faulty science and that the debate over whether global warming really exists is unsettled.

The endangerment finding, which concludes that carbon dioxide (CO2) and other GHG emissions pose a danger to the public health and welfare, was for the most part the product of the Bush administration, EPA Administrator Lisa Jackson said in response to the Republican criticism during a hearing of the Senate Environment and Public Works Committee (see NGI, Dec. 14, 2009). The finding, which was issued in December, is the trigger for the EPA to regulate GHG emissions under its Clean Air Act (CAA) authority.

The endangerment finding "was in large part done when we [Obama administration] walked in the door" in early 2009, she said.

Jackson said the agency plans to delay implementation of regulation of GHG emissions until 2011. Both Republicans and Democrats welcomed this announcement last week, but said it didn't go far enough. The agency said it would phase in compliance of large stationary sources with GHG regulations throughout next year, and delay compliance of small sources until 2016.

Republicans on the Senate environmental panel released a report last Tuesday that questioned the objectivity and ethical principles of the scientists involved in the United Nation's Intergovernmental Panel on Climate Change (IPCC) reports, on which the EPA based its endangerment decision. "After an initial review, the minority staff of the Senate Committee on Environment and Public Works believes the scientists involved violated fundamental ethical principles governing taxpayer-funded research and, in some cases, may have violated federal laws," the report said.

The scientists associated with the IPCC reports "cooked the science" on global warming, said Sen. James Inhofe of Oklahoma, the ranking Republican on the committee. He called on the EPA to scrap its endangerment finding.

Inhofe indicated that cap-and-trade legislation was dead in the Senate, which would provide even more incentive for the Obama administration to push through EPA regulation of GHG emissions.

He pressed Jackson on whether she planned to have the EPA's inspector general investigate the IPCC's science on global warming.

"It is incumbent on me as administrator to review any new information as it comes out. And if anything changes...certainly I would call for a review of the finding, but I haven't seen that," Jackson said.

Environment and Public Works Chairman Barbara Boxer (D-CA) countered that the Republican belief that global warming is a hoax was a minority viewpoint. "The majority of this committee believes we must act" on climate change, she said.

In response to a letter from eight moderate, coal-state Democrats on Feb. 19, the EPA chief said that while the agency will adopt CAA regulations for GHG emissions this spring, it will delay implementation with respect to stationary sources until next January.

The EPA will phase in permit requirements and regulation of GHG emissions for large stationary sources beginning in 2011. "In the first half of 2011, only those facilities that already must apply for CAA permits as a result of their non-GHG emissions will need to address their GHG emissions in their permit applications," Jackson said in her letter Monday responding to the Senate Democrats.

"I am expecting that greenhouse gas emissions from other large sources will phase in starting in the latter half of 2011. Between the latter half of 2011 and 2013, I expect that the threshold for permitting will be substantially higher than the 25,000-ton limit that EPA originally proposed. In any event, EPA does not intend to subject the smallest sources to Clean Air Act permitting for greenhouse gas emissions any sooner than 2016," she said.

"We believe Administrator Jackson's response to the senators' letter is incomplete and unacceptable. It does not address the significant concerns that have been raised by members of Congress and the business community about the impact of the regulations on investment in their facilities, business expansion and job creation," said the American Chemistry Council.

"It's clear that Congress should step in immediately to postpone EPA's proposed regulation of stationary sources, and take time to develop an effective solution that specifies clear and achievable objectives for greenhouse gas emissions reductions," the group noted. "I welcome any delay" in EPA regulations of GHG emissions, said Sen. David Vitter (R-LA), a member of the Senate environment panel. The "only proper route [for reducing GHG emissions] is through Congress."

Sen. John D. Rockefeller IV (D-WV), one of the eight Democrat moderates who wrote to Jackson, is crafting legislation that would give Congress enough time to work on energy and climate change legislation. "These issues need to be handled carefully and appropriately dealt with by Congress, not in isolation by a federal environmental agency," he said.

"I am glad to see that the EPA is showing some willingness to set [its] timetable for regulation into the future -- this is good progress but I am concerned it may not go far enough," Rockefeller said.

Sen. Lisa Murkowski (R-AK), a vocal critic of the EPA's effort to regulate GHG emissions under its CAA authority, welcomed the EPA's decision to push back implementation of the regulations until 2011, but she also said it wasn't enough. "While the delay in implementation is a small forced step in the right direction, the Clean Air Act continues to be the wrong tool for the job, and EPA's time line continues to create significant and ongoing uncertainty for a business community," she said.

"Congress [rather than the EPA] is the appropriate body to address climate change policy," Murkowski said. "Until the specter of command-and-control regulations goes away, it will remain a counterproductive threat handing over the work that must be done to find common ground. The EPA has restated its commitment to regulating greenhouse gases, down to the smallest emitters, regardless of the economic consequences."

Murkowski has made the biggest noise in Congress about the EPA's December endangerment finding. In late January Murkowski, along with a number of Republicans and a few Democrats, introduced a bipartisan "disapproval resolution" to block the EPA's effort to regulate GHG emissions under the CAA (see NGI, Jan. 25). EPA regulation of GHG emissions could effectively be negated if disapproval resolutions are ratified in both the Senate and House.

She is expected to bring up the resolution, which has 41 sponsors, for a vote on the Senate floor by the middle of the month, said Murkowski spokesman Robert Dillon. The resolution would only require 51 votes to pass the Senate, but it is much less likely to receive a favorable vote in the House where leaders are strong supporters of GHG regulations.

Mirroring action Murkowski's action, three House lawmakers last Thursday introduced a joint resolution of disapproval that seeks to nullify the EPA's endangerment finding that GHG emissions are a threat to human health and therefore could be regulated under the CAA.

Reps. Collin Peterson (D-MN), chairman of the Agriculture Committee; Ike Skelton (D-MO), chairman of the Armed Services Committee; and Jo Ann Emerson (R-MO), ranking member of the Appropriation's Subcommittee on Financial Services and General Government sponsored the bipartisan resolution in the House to negate the endangerment finding.

"When Congress passed the Clean Air Act, it never gave EPA the explicit authority to regulate greenhouse gas emissions for the purpose of stopping global climate change. But that is exactly what EPA has proposed to do," Skelton said. This resolution keeps the EPA from "threatening Congress with its own greenhouse gas policy as we write [climate change] legislation," he noted.

"I have no confidence that the EPA can regulate greenhouse gases under the Clean Air Act without doing serious damage to our economy...Congress should be making these types of decisions, not unelected bureaucrats at the EPA," Peterson said. The Peterson-Skelton-Emerson resolution "is important...and I'll be working hard to get it passed because if Congress doesn't do something soon, the EPA is going to impose these regulations on its own...We need to do something now before the EPA does."

Murkowski applauded the House lawmakers' action. The House disapproval resolution "sends a clear message: there is bipartisan and bicameral agreement that command-and-control regulations from EPA are not the right way to reduce the emissions blamed for climate change," she said.

In addition to the House lawmakers, Murkowski called on eight moderate Democrats from coal states, who wrote recently to Jackson, to support the disapproval resolution. The Democrats included Rockefeller, chairman of the Senate Commerce Committee; and Sens. Sherrod Brown of Ohio, Robert Casey of Pennsylvania, Claire McCaskill of Missouri, Mark Begich of Alaska, Carl Levin of Michigan, Robert Byrd of West Virginia and Max Baucus of Montana.

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