Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Climate change legislation is dead for now. I won’t pretend it’s not depressing, even though I avoid the political channels and ignore the rhetoric. For those of us who haven’t refudiated climate change science, it’s a victory for the pessimists and evidence that Congress has a hard time addressing long-range problems, even if consequential.

With respect to regulation of GHG, it’s the worst of both worlds and no one should be happy (which is why I held out hope until the end that cooler heads would prevail). We’re still going to have regulation of GHG, the mechanism being EPA’s recently promulgated Tailoring Rule for GHG. One word. Ugh. Does this really make climate skeptics happy? Do they really think that they will somehow succeed in rolling back the Tailoring Rule? I don’t think so. On the other hand, we don’t have an economy-wide cap-and-trade or carbon tax regime. Are environmentalists happy? I still don’t think so. 

I’m left feeling a little like Rodney King. Certainly, the issue isn’t going to go away before the next Congress is sworn in.

As I have noted before, however, problems with climate change legislation don’t mean that Congress can’t enact legislation further regulating traditional pollutants. The three-pollutant bill now before the Senate already has a Republic co-sponsor, Lamar Alexander. Now, according to a report in E&E Daily, even Senator Inhofe is stating that he’s interested in working with Democrats to move three-pollutant legislation. Given the failure to move GHG legislation, hell is likely to get hotter before freezing over, but if Inhofe can really be brought on board, there’s no reason why legislation couldn’t pass.

Three-pollutant legislation shares one significant feature with the GHG issue. Like GHG regulation, efficient regulation is hampered by limitations in existing law, as we saw with the D.C. Circuit’s rejection of the trading regime in the CAIR regulations, and EPA’s much more limited trading program in the Transport Rule. Senator Voinovich, another Republican that three-pollutant legislation supporters would like to have with them, noted as much, saying that the transport rule would be a "stringent and inflexible regime." New legislation could provide for a more robust trading regime. We’ll see if that’s enough to bring Republicans on board.

I sure hope so. Right now, all we’ve got is a GHG regulatory program that won’t do much for climate change, but will cause my clients endless headaches, and a Transport Rule that’s probably the best EPA can do on traditional interstate pollution, but not nearly as cost-effective as it might be with new legislative authority. I remain an optimist, but sometimes it’s difficult.

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Last week, I posted about improvements in air quality since 1990. It’s a good thing air quality is improving, because, at the same time, the science keeps suggesting that ever lower pollutant levels pose risks to public health. The latest news was EPA’s draft review of the appropriate level at which to set the National Ambient Air Quality Standard for particulate matter.

EPA most recently revised the PM standard in 2006, setting it at 15 ug/m³, notwithstanding the staff recommendation to set the standard at between 13 ug/m³ and 14 ug/m³. As I have discussed, EPA’s decision was struck down by the D.C. Circuit Court of Appeals, because EPA could not justify its departure from the scientific recommendations it has received.

Now, the draft Policy Assessment has concluded that the 15 ug/m³ is not sufficiently stringent. The draft suggested two ranges for potential revised standards:

Annual standard of between 12 and 13 ug/m³; 24-hour standard of 30 to 35 ug/m³

Annual standard of between 10 and 11 ug/m³; 24-hour standard of 25 to 30 ug/m³

A more stringent PM standard is going to have significant implications. These include:

1.         Strengthening the logic for three pollutant legislation. First, the health effects described in the Policy Assessment suggest the need for such legislation, because the targets of three pollutant legislation are among the big contributors to PM emissions. Second, in order to meet a more stringent standard, reductions of the sort contemplated in three pollutant legislation are going to be necessary.

2.         It may be simply a restatement of the first point, but the pressure on old fossil fuel plants, particularly old coal plants, is only going to increase as a result of the Policy Assessment. In this context, it is noteworthy that, at a seminar on Friday, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, in discussing the number of rules EPA is obligated to issue in the next 12-18 months, indicated her sense that the biggest impact on GHG emissions might not result from EPA’s tailoring rule and direct regulation of GHGs, but would instead result from the secondary effect from the full panoply of traditional pollutant regulations on EPA’s docket. In other words, once EPA is done with new CAIR regulations, MACT rules, and SIP revisions following a more stringent PM standard, the economics of old coal plants will be such as to force switching to more climate-friendly energy sources, even aside from direct GHG regulation.

I think that Gina is probably right, and I’m particularly appreciative that she is able to take the long view. In the short run, coal remains cheap. Moreover, traditional control technologies for SO₂ and NO_x require energy, increase station service, and thus actually do not help with GHG reductions. Nonetheless, if one does take the long view, more stringent traditional regulation, including that resulting from more stringent PM standards, will increase the cost of fossil fuels and help drive the economy towards energy sources that are more climate friendly.

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A few weeks ago, I queried whether three pollutant legislation might be back in play, particularly given the current rough sledding for broad climate change legislation. Now, it certainly appears that way. The bill has been formally introduced. In addition to Alexander, there are now three other GOP co-sponsors (Gregg, Graham, and Snowe), not including Senator Lieberman, who is also a sponsor. There will be a hearing on March 4.

The basic provisions are as follows:

Reduction in SO₂ emissions of 80% by 2018

Statutory authorization of the CAIR rule through 2011

Reduction in NO_x emissions of 53% by 2015

Reduction in mercury emissions from coal-fired power plants of 90% by 2015. 

I still don’t have a crystal ball on the likelihood that this bill will move, but there are certainly a number of reasons why it might. Uncertainty about the CAIR rule motivates a number of sources to prefer a legislative solution. The difficulties in moving the climate change legislation make a bipartisan agreement on three pollutant legislation attractive to both sides of the aisle. We’ll know more after the hearing, but the Ozone Transport Commission has already criticized the NO_x provisions as insufficiently stringent, which I take as a good sign for the bill’s prospects.

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While Congress may be fiddling on climate legislation, Senators Carper and Alexander are attempting to put three pollutant legislation back on the congressional agenda. Yesterday, they introduced an aggressive three pollutant bill. Here are the highlights. The bill would:

Codify the CAIR program through 2011

Gradually reduce the cap on SO₂ emission allowances to 1.5 million tons by 2018 – substantially more stringent than the CAIR would have imposed. 

Reduce NO_x caps to 1.6 million tons by 2015. 

Create two NO_x trading zones. Zone 1 includes 32 Eastern states and the District of Columbia. Zone 2 includes the remaining 16 contiguous states.

Coal- and oil-fired power plants would have to reduce mercury emissions by 90%. There would be no trading program for mercury.

I still find it remarkable that Senator Alexander, a coal-state Republican, is a co-sponsor of the bill. Nor does he seem to be half-hearted about it. Money quote:

We have a number of different things to work out on carbon.…  But there's no excuse for waiting a minute on SOx, NOx and mercury because we have the technology, we know what to do, and we shouldn't be operating coal plants without pollution control equipment. (My emphasis.)

I have, until recently, assumed that climate change legislation would happen this year. Now that that seems less likely, and with Senator Alexander as a sponsor, it will be interesting to see if the Senate is able to move this legislation, as an alternative. It is worth noting that climate change legislation necessarily would also have resulted in reductions in SO₂, NO_x, and mercury. Unfortunately, the converse is not also true. In the absence of GHG controls, three pollutant legislation would actually increase GHG emissions, because the traditional means of reducing emissions of SO₂, NO_x, and mercury are energy hogs. Oh, well.

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