The possibility that elections this month will give Republicans control of both houses of Congress raises hope for an overdue taming of the US Environmental Protection Agency. Two good places to start would be the proposed Clean Power Plan and an imminent effort to toughen air standards for ground-level ozone. Those initiatives, promising heavy costs across the economy, raise broad political concern. They also illuminate another matter worthy of congressional attention: EPA's shadowy collaboration with groups committed to environmental extremism and its inherent antagonism toward oil and gas.
The Clean Power Plan sets state limits on greenhouse gas (GHG) emissions from fossil-fueled power plants. Designed to achieve overall emission cuts against 2005 baselines of 25% by 2020 and 30% by 2030, the rule requires states to submit compliance plans, which can include regional cap-and-trade systems, within a year of when the final rule becomes effective in mid-2015. The electric power industry warns of reliability problems and costs far above the $8.8 billion/year estimated by EPA. Just as troubling is the constitutionally questionable way EPA claimed authority over a major dimension of the economy after a comparable effort failed in Congress.
Possible responses
How might a House and Senate controlled by Republicans respond?
One possibility is a joint resolution to annul the rule under the Congressional Review Act. According to the Government Accountability Office, however, Congress has rejected only one regulation this way since passage of the 1996 law. Congress also might deny EPA the money needed for implementation. Because President Barack Obama would veto stand-alone defunding legislation or any resolution to kill the rule, lawmakers most likely would try to proscribe funding in appropriations bills. That would force an interesting choice between hobbling the economy with energy costs and shutting down the government.
The ozone rule, due for proposal after the election, would move the 8-hr national ambient air quality standard for the pollutant to as low as 60 ppb from 75 ppb-the level to which it was lowered in 2008 by a rule not yet fully implemented. Soon after Obama took office, EPA announced it was reconsidering the 2008 standard. But it suspended work at the direction of a politically wary White House and is now revisiting the project. A study by NERA Economic Consulting for the National Association of Manufacturers warned in July that the 60 ppb standard would represent "the most expensive regulation ever imposed on the American public."
In both assaults on US prosperity, the EPA followed battle plans drawn by litigious environmental groups. With ozone, the agency responded to a lawsuit by EarthJustice claiming the 2008 standard, down from 84 ppb previously, wasn't low enough. When EPA said it was reconsidering, the group agreed to suspend its suit in return for a tougher standard. EPA recently resubmitted the plan to the White House Office of Management and Budget, a late step toward the formal proposal.
Checks and balances
Reconsideration of the 2008 ozone standard didn't follow the full "sue-and-settle" maneuver that has become a hallmark of the Obama administration. It didn't end with a consent decree giving the power of law to an agreement, sometimes reached without public comment, between the agency and friendly plaintiffs.
The Clean Power Plan did evolve from that process. In a December 2010 consent decree settling a lawsuit filed in 2006 by environmental groups and 14 nonfederal governments, EPA agreed to set new-source performance standards for GHGs from stationary sources. It did so for power plants in April 2012. For the next step, emission limits for existing plants under the Clean Power Plan, it used a March 2013 study by the Natural Resources Defense Council, a plaintiff in the 2006 suit, as a template.
The Senate, controlled by the president's party and deferential to Executive Branch expansionism, has refused to challenge these infractions of democratic process. If leadership does change, Republicans should make reinvigoration of checks and balances a priority for the 114th Congress.
