Another 11th Hour Gift: Bush EPA guts CO2 emissions for new coal plants

Photo from Repower America's campaign to encourage the public to comment on its CO2 rulemaking encouraging regulation.

November 28 marked the EPA's deadline for public comment on "Regulating Greenhouse Gas Emissions under the Clean Air Act" (EPA-HQ-OAR-2008-0318), notice of which was filed July 11, 2008. NRDF had a similar campaign for regulating greenhouse gasses. Meanwhile, the Citizens Against Government Waste opposed EPA making a finding. While I haven't seen notice of a final rule, we can can probably guess which side won.

First, the Bush Administration gutted MTR rules. Then today, it gave a new parting gift to coal, saying that new power plants will not be required to install technology to reduce carbon dioxide emissions. You can find this latest in "EPA's Interpretation of Regulations that Determine Pollutants Covered By Federal Prevention of Significant Deterioration (PSD) Permit Program", a memo issued December 18 by EPA Chief Stephen L. Johnson.

David A. Fahrenthold and Steven Mufson wrote about the memo in "EPA Eases Emissions Regulations for New Power Plants" which will appear in tomorrow's WaPo. (Since the internet version is available before the print version, I can tell you that the paper will bury the item on the third page of the D section.)

Johnson's memo, according to the reporters

turns on a seemingly arcane regulatory question that could govern the future of new fossil fuel-burning buildings and power plants under the Clean Air Act.

Readers here know that the Bush EPA has flat-out ignored the 2007 Supreme Court ruling that greenhouse gases such as carbon dioxide should be regulated under the Clean Air Act just like other kinds of air pollution such as soot. The current memo is the latest in a Sierra Club legal challenge to the 2007 permit for a new coal-fired power plant in Bonanza, Utah that included no requirements to control carbon dioxide emissions.

The club argued before EPA's Environmental Appeals Board that given the Supreme Court ruling, the EPA must follow its own rule which required plants to use the best available technology to control all "regulated" pollutants. November 13 the Board held that the rule was unclear.

The Board denies review of the Region’s alleged failure to consider alternatives” to the proposed facility, but remands the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision....

The administrative record of the Region’s permitting decision, as defined by
40 C.F.R. section 124.18, does not support the Region’s view that it is bound
by an Agency historical interpretation of “subject to regulation” as meaning
“subject to a statutory or regulatory provision that requires actual control of
emissions of that pollutant.” The Region did not identify in its response to
comments any Agency document expressly stating that “subject to regulation
under this Act” has this meaning.

Robert Meyers, the head of the EPA office of air and radiation, said in an interview with the reporters,

That is our established interpretation....We've been applying it that way for 30 years.

Meyers said he does not know if plants are positioned to receive final approval before President-elect Barack Obama takes office on Jan. 20. Officals "close to the president-elect's team, according to the reporters,

say that the Supreme Court ruling and the EPA's power to regulate carbon dioxide can serve as powerful levers to bring corporations and other parties to a bargaining table about broad framework for controlling greenhouse gases.

That's a little vague for me. I'd much rather hear that permits will not be granted under the new administration without emission controls.

National Academy of Sciences: Current EPA reviews hinder useful and timely regulation

December 5 cartoon by David Horsey.

The NYT's Cornelia Dean on December 3: "Panel Seeks Changes in E.P.A. Reviews"

The Environmental Protection Agency must revise its approach to assessing environmental health hazards and other risks, because current practices hinder useful and timely regulation, an expert panel of The National Research Council says. The council, the research arm of the National Academy of Sciences, said the agency should scrap some of the assumptions on which its decisions have been based and reduce its focus on individual chemicals and other hazards to consider how they act in combination. It should also accept that uncertainty was always an issue and seek to provide practical information to policy makers as quickly as possible. The report, which the panel produced at the behest of the E.P.A., was made public Wednesday and is online at www.nas.edu. [Science and Decision: Advancing Risk Assessment] Determining whether something is a hazard and, if so, how great and to whom is a crucial step in devising appropriate environmental regulations, the panel said, and the field is advancing as testing systems and other technology advance. But assessing environmental risks is highly complex and full of uncertainty, it continued, and at the E.P.A., “the regulatory risk-assessment process is bogged down,” with some assessments taking a decade or more. For example, the report cited an assessment of trichloroethylene, a commonly used solvent, that has been under way since the 1980s and is not expected before 2010. The environmental agency’s conclusions about risk are usually crucial in establishing regulatory goals. As a result, they are often subject to intense political or economic pressure. When the Bush administration proposed changes that it said would streamline risk-assessment procedures, critics called the proposal an effort to weaken environmental regulation. In a 2007 report, the academy dismissed the proposal as “fundamentally flawed,” and it was withdrawn.

Bush's "Right of Conscience"

Cartoon by Eleanor Mill, who I hadn't realized died July 19. 2008 To check out her art by topic, you will have to substitute her initials (em) for those of another artist according to keyword. For instance, http://www.newsart.com/em/em240.htm shows her cartoons on pregnancy and fertility.


The LAT's By David G. Savage for December 2, 2008: "Broader medical refusal rule may go far beyond abortion: The Bush administration plans a new 'right of conscience' rule that would allow more workers to refuse more procedures. Critics say it could apply to artificial insemination and birth control."

The outgoing Bush administration is planning to announce a broad new "right of conscience" rule permitting medical facilities, doctors, nurses, pharmacists and other healthcare workers to refuse to participate in any procedure they find morally objectionable, including abortion and possibly even artificial insemination and birth control. For more than 30 years, federal law has dictated that doctors and nurses may refuse to perform abortions. The new rule would go further by making clear that healthcare workers also may refuse to provide information or advice to patients who might want an abortion. It also seeks to cover more employees. For example, in addition to a surgeon and a nurse in an operating room, the rule would extend to "an employee whose task it is to clean the instruments," the draft rule said. The "conscience" rule could set the stage for an abortion controversy in the early months of Barack Obama's administration.

see: "Right of Conscious as a Parthian Shot" by Leslie Anne Catlett of Poughkeepsie AKA didionsmommy. The definition, BTW, is

a hostile remark or gesture delivered while departing [from the custom of archers from Parthia, an ancient Asian empire, who shot their arrows backwards while retreating]

Eleventh Hour Regs on Toxins

The NYT's Robert Pear today, "Bush Aides Rush to Enact a Rule Obama Opposes,"

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job. The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health. Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses. With the economy tumbling and American troops fighting in Iraq and Afghanistan, President Bush has promised to cooperate with Mr. Obama to make the transition “as smooth as possible.” But that has not stopped his administration from trying, in its final days, to cement in place a diverse array of new regulations. The Labor Department proposal is one of about 20 highly contentious rules the Bush administration is planning to issue in its final weeks. The rules deal with issues as diverse as abortion, auto safety and the environment. One rule would make it easier to build power plants near national parks and wilderness areas. Another would reduce the role of federal wildlife scientists in deciding whether dams, highways and other projects pose a threat to endangered species. Mr. Obama and his advisers have already signaled their wariness of last-minute efforts by the Bush administration to embed its policies into the Code of Federal Regulations, a collection of rules having the force of law. The advisers have also said that Mr. Obama plans to look at a number of executive orders issued by Mr. Bush. A new president can unilaterally reverse executive orders issued by his predecessors, as Mr. Bush and President Bill Clinton did in selected cases. But it is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply “a reasoned analysis” for such changes, as if it were issuing a new rule, the Supreme Court has said.

Congressional Review Act could reverse Bush's lame duck deregulation

It looks like I scooped MSNbc's Rachel Madow by months with" New FBI Guidelines: More COINTELPRO?"Although many of Bush's new regulations have to do with energy and the environment, MSNBC's Rachel Maddow noted (video) on Tuesday that there's also

one that'll kick opponents of the Patriot Act right in the teeth....would allow state and local law enforcement agencies to collect intelligence on individuals and organizations even if the information is unrelated to any criminal matter...Even if they weren't already watching you -- they soon could be.

According to Al Giordano, Obama-Biden Transition Co-Chair John Podesta told a "pad and pen only" press conference call that

Every Executive Order by Bush is Under Review: Those that Obama promised during the campaign to rescind, will be eliminated immediately.

I'm not sure exactly what the promised list included and Giordano doesn't seem to have asked. After all, after making promises to the contrary, our president-elect voted for retroactive telecom immunity.

Interestly, in "Dems eye midnight regulations reversal" by Erika Lovely and Ryan Grim (update by Grim) reports that the Bush administration plan to require that Obama take years to undo climate rules finalized more than 60 days before January 20 failed to take into account the Congressional Review Act of 1996:

Any regulation finalized within 60 legislative days of congressional adjournment is considered to have been legally finalized on the 15th legislative day of the new Congress, likely sometime in February. Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.

In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.

An unnamed senior aide on the Senate Environment and Public Works Committee, chaired by Sen. Barbara Boxer (D-CA), acknowledged to Politico that her committee is considering the option. Eben Burnham-Snyder, spokesman for House Global Warming Committee Chairman Ed Markey (D-MA), went on record:

On egregious rule-makings that would have a detrimental effect on energy and environmental policy, [the CRA] speeds up the process for rescinding the bad rule...It’s something Markey is seriously looking into.

According Politico, Congress last used the CRA in 2001 to overturn a Clinton administration rule that set new requirements for ergonomic work spaces. CRA targets may include:

• a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval
• regulations opening land in the West to oil shale development

and best of all,

• elimination of the stream barrier rule that eases mountaintop removal

In case you're wondering where to find the law, it passed as part of H.R.3136, the Contract with America Advancement Act of 1996 passed on March 28, 1996. This act amended Title 5, United States Code, by adding an eighth chapter, "Congressional Review of Agency Rulemaking." Here's the explanation of the bill from the Congressional record of April 16, 1996 from Senators Harry Reid (D-NV), and former Senators Ted Stevens (R-AK) and Don Nickles (R-OK)

In the 104th Congress, four slightly different versions of this legislation passed
the Senate and two different versions passed the House. Yet, no formal legislative history document was prepared to explain the legislation or the reasons for changes in the final language negotiated between the House and
Senate. This joint statement of the authors on the congressional review subtitle is intended to cure this deficiency....

As more and more of Congress’ legislative functions have been delegated to federal regulatory agencies, many have complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much latitude in implementing and interpreting congressional enactments. In many cases, this criticism is well founded.

Readers of this blog know about Stevens. Nickles retired in 2005 and now runs a pr firm, The Nickles Group.)

Want more information. Read Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act issued October 10, 2001 by Richard S. Beth, Specialist in the Legislative Process for the Government and Finance Division of the Congressional Research Service. See also the CRS Congressional Oversight Manual Updated May 1, 2007.

In other interesting news, see the AP story: "Obama team expected to broker subpoena deal: President-elect seen as getting at least some information from Bush aides."

UPDATE: November 24, the CRS issued a new report, Midnight Rulemaking: Considerations for Congress and a New Administration by Curtis W. Copeland, Specialist in American National Government of the Government and Finance Division.

Bush's Eleventh Hour Deregulation

Still shot from the film 1984.

R. Jeffrey Smith writes in "A Last Push To Deregulate: White House to Ease Many Rules" for tomorrow's front page of the WaPo:

The White House is working to enact a wide array of federal regulations, many of which would weaken government rules aimed at protecting consumers and the environment, before President Bush leaves office in January.

The new rules would be among the most controversial deregulatory steps of the Bush era and could be difficult for his successor to undo. Some would ease or lift constraints on private industry, including power plants, mines and farms.

Those and other regulations would help clear obstacles to some commercial ocean-fishing activities, ease controls on emissions of pollutants that contribute to global warming, relax drinking-water standards and lift a key restriction on mountaintop coal mining.

Once such rules take effect, they typically can be undone only through a laborious new regulatory proceeding, including lengthy periods of public comment, drafting and mandated reanalysis.

I wish the article had provided an idea of where to find the specifics on the regulations or what I, as a citizen, might do, if anything, if I object to any of these last minute regulations. It did point to the fact that Clinton also issued many last minute regulations, which Bush was able to reverse because they had not yet taken effect and that Bush is trying to avoid such reversals by finishing the regulations earlier.

Diane Rehm had a program on October 28 on last minute regulations (link to the audio files--there's an $18 charge for an emailed transcript.) Her guests were WSJ energy reporter Stephen Power; Executive Director of NYU Law School's Institute for Policy Integrity Michael Livermore (email); and OMB Watch Executive Director Gary Bass.

Power's October 29 WSJ's blog entry, "White House Signals It's Flexible on Deadline for New Rules" emphasizes Livermore's charge that Bush is reversing a previous promise to have regulations in place by November 1, as well as Livermore's October 28 piece in Grist, "Bush administration missed its own memo." Livermore includes links to documents on how the administration has pushed back its promised deadline and to the October 27 post at The Pump Handle ( a blog on public health and the environment), "Bolten’s Memo on Midnight Regs? Ignore it. ? " which broke the story on the deadline reversal and some of them. Livermore is co-author with Richard L. Revesz (email) of Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health (Oxford University Press, 2008). See also his report for NYU, The Cost-Benefit Compass, which provides the background to understand how cost benefit analysis can be used to give weight to human as well as business concerns.

The OMB Watch Blog, RegWatch, can help keep you apprised of developments in this area.

January 30, 2007, the NYT's Robert Pear published "Bush Directive Increases Sway on Regulation,"

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president’s priorities. This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts. It suggests that the administration still has ways to exert its power after the takeover of Congress by the Democrats.

More later...