What will the EPA do if Obama is re-elected?

James Valvo Director of Policy, Americans for Prosperity
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It’s no surprise that people interested in President Obama’s second-term agenda are having a difficult time figuring out what that agenda is. One of the only hints the president has given about his plans is a now-typical response he gave recently regarding fiscal issues: “I’m going to have to look at how we can work around Congress.” This mirrors his first-term approach to environmental issues, when following a “shellacking” in the 2010 elections Obama turned his Environmental Protection Agency (EPA) loose on environmental and climate issues despite Congress never giving him its imprimatur to do so. What would a second-term Obama EPA do? Here’s a quick look at some of the regulatory avenues the president could use to keep working around Congress.

Apply greenhouse gas regulations to existing power plants: In March 2012, EPA proposed greenhouse gas (GHG) regulations for new power plants. EPA wrote its proposed rule in a way that ensures that the regulations will only apply to new plants and only combined-cycle natural gas plants will be able to meet the thresholds. While this rule effectively bans construction of new coal-fired power plants, it doesn’t affect the existing coal fleet.

However, EPA has no statutory basis for not applying the Section 111 rules to existing and modified sources too. Once the election is past and the GHG rules for new plants are finalized, environmental groups will likely use a sue-and-settle strategy to get the GHG rules applied to existing coal plants as well. As the Sierra Club’s chief climate counsel, David Bookbinder, wrote, after environmentalists get regulations for new plants in place, “they could start thinking about how to deal with existing power plants under Section 111(d) of the Act. But one thing at a time.” EPA admitted as much in its initial November 2011 draft of the GHG rule, indicating that “in a subsequent separate action, the EPA will issue … emission guidelines for … existing fossil-fuel-fired” power plants.

Finalize the Utility MACT rule: Following a yearlong fight to protect its ostensibly mercury-related climate regulations from congressional disapproval, the president’s EPA announced on July 20, 2012 that it would reconsider the emission limitations for new plants only until March 2013. Once the November election is in the rearview mirror, expect EPA to finalize these standards. The agency’s own estimates put the economic impact at $10 billion per year, while the health benefits from the mercury reductions are so small we won’t even be able to measure them. Of course, this rule isn’t about mercury at all; it’s designed to implement the administration’s climate agenda without legislative approval.

Resurrect proposed ozone regulations: In 2011, the Obama EPA pushed an out-of-cycle review of the nation’s ground-level ozone NAAQS. The agency is only supposed to review the levels every five years, but an overzealous Obama EPA just couldn’t wait. Following significant blowback — because the standards would’ve put almost the entire nation “out of attainment” and halted all permitting — EPA was forced to shelve the proposal. However, 2013 marks the correct time to review the levels, and we should expect EPA to pursue its previous proposal in earnest. A study by the National Association of Manufacturers found that EPA’s proposed ozone levels would erase 7.3 million jobs and cost $1 trillion by 2020.

Clean Water Act overreach: For years EPA has been trying to redefine “navigable waters” under the Clean Water Act in order to extend its jurisdictional reach far beyond what Congress ever intended. The most recent attempt, the so-called wetlands guidance, was drafted in April 2011 and has been languishing at the White House’s Office of Information and Regulatory Affairs (OIRA) while the president runs for re-election. In April 2012, the Supreme Court blocked EPA’s attempt to fine an Idaho couple $75,000 per day even though the guidance hadn’t been finalized. When 2013 rolls around, expect EPA to issue the guidance and EPA bureaucrats to go forth on water regulations with renewed vigor.

Pre-emptively deny permits: EPA is currently studying the environmental impact of a hypothetical copper mine in Alaska. The made-up mine study is EPA’s attempt to stop the Pebble Project from even requesting a permit to construct a mine that would bring as much as $6 billion of investment to the Bristol Bay area. Groups seeking to develop an area always have to apply for permits and submit plans for mitigating environmental impact, but in 2013 we could see EPA take the unprecedented step of denying a permit before it’s even requested.

A second-term Obama EPA agenda is hard to forecast because the president remains tightlipped about his intentions. However, considering the unprecedented overreach of Obama’s first term and the freedom from the electorate that he would have in a second term, it seems likely that a second-term Obama EPA would inflict significant damage on the American economy.

James Valvo is the director of policy at Americans for Prosperity.