The Obama Administration Gives and Takes on Climate Change Regs

First the good news. In looking for non-legislative ways to combat global warming, the Obama Administration has apparently decided to use Nixon-era requirements originally meant to force federal agencies to evaluate their impacts on soil, water and air pollution, to now include climate effects. According to this Bloomberg piece, industry isn't taking the news very well:

“It’s got us very freaked out,” said Ross Eisenberg, vice president of the National Association of Manufacturers, a Washington-based group that represents 11,000 companies such as Exxon Mobil Corp. (XOM) and Southern Co. (SO) The standards, which constitute guidance for agencies and not new regulations, are set to be issued in the coming weeks, according to lawyers briefed by administration officials.

Any federal permit or regulated activity, not just administered by the EPA, but any federal department, including the Army Corp of Engineers, the Armed Forces, the Veterans Administration, the Energy Department and so on, would be affected. Full life-cycle environmental impacts would have to take into account the project's or permitted activity's impact on climate change. This could mean delays for projects ranging from the Keystone Pipeline to new Liquefied Natural Gas export facilities on the Texas coast.

The little-known White House Council on Environmental Quality is expected to issue the new standards within weeks, which derive their authority from the 1970 National Environmental Policy Act.

The new standards will be “a major shakeup in how agencies conduct NEPA” reviews, said Brendan Cummings, senior counsel for the Center for Biological Diversity in San Francisco.

The White House is looking at requiring consideration of both the increase in greenhouse gases and a project’s vulnerability to flooding, drought or other extreme weather that might result from global warming, according to an initial proposal it issued in 2010. Those full reports would be required for projects with 25,000 metric tons of carbon dioxide equivalent emissions or more per year, the equivalent of burning about 100 rail cars of coal.

Such a strategy would allow the Administration to avoid canceling any projects outright. Rather it would probably force the most contentious ones into court where it would be a battle of attrition. But it would introduce climate change as a legitimate yardstick for assessing uniform federal compliance with the law.

What the Administration giveth, it taketh away. Most followers expected the first major action on climate change after the 2012 election to be new greenhouse regulations for power plants. They've been widely anticipated by environmentalists for months as one of the most profound ways to affect rising greenhouse gas emissions – 40% of the nation's CO2 comes from power plants. But now there's trouble:

Last year, the EPA proposed the first-ever greenhouse gas standard for new power plants, which would require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt hour of electricity produced. The agency is supposed to finalize the rule by April 13 but is likely to miss that deadline, and officials are discussing with the White House how they might modify the proposal in order to ensure it can survive a legal challenge.

It seems lawyers are recommending separating the standard out into two categories – one for coal-fired power plants and one for gas plants – to better protect against lawsuit threats that claim the tough emission limits are impossible for any coal plant to meet. But doing so will indefinitely delay the limits and that will likely cause environmental groups to sue once the EPA misses the April 13th deadline.

David Doniger, a senior attorney at the Natural Resources Defense Council and director of the group’s climate and clean air program, said the key question for environmental advocates is how long the administration would postpone the rule.

“It’s critical to get this standard out without delay and get onto the standards for existing sources,” Doniger said. “The deadline is coming, and if the deadline isn’t met they should expect groups like ours will take legal action to meet their responsibility.”

News of any delay will likely follow the announcement of the NEPA standards going into effect so the sting isn't quit so acute. Stay tuned.