Opportunity Wasted

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See a chart summarizing all 12 rules covered in this report

The Obama Administration's newly released regulatory agenda reinforces fears that the Administration will simply not complete its work on a number of vital safeguards for health, safety, and the environment on a timeline that would protect the rules from being undone by Congress or a new Administration. Such a scenario is exactly what CPR warned about in its April 2011 report expressing concern about the Administration's lack of urgency in moving on key regulations stuck in the pipeline.

Following are progress reports on each of the 12 rules identified in CPR's original white paper, factoring in the timeline implications of the Administration's newly released regulatory agenda.

Boiler MACT

Due to be finalized sometime this April, this suite of three interrelated rules will require owners and operators of industrial and commercial boilers and incinerators to significantly reduce their emissions of mercury, lead, cadmium, polycyclic organic matter (POM), and other toxic air pollutants. The rules are on target to be completed before June of 2012, even though the EPA improperly delayed their completion by almost a year. After issuing final rules last May in the face of a court order, the EPA immediately and indefinitely stayed their implementation--in clear violation of the Clean Air Act--so that it could reconsider and weaken them to appease industry. Subsequently, the D.C. Circuit Court of Appeals ruled that the indefinite stay was illegal, and ordered the agency to begin implementing the original final rules immediately.

Despite that positive ruling, much damage has already been done. The original rules would not begin to go into effect until 2014, and by then the EPA will have already issued the reconsidered final rules, which, according to the proposals released in December 2011, now will not begin to go into effect until 2015. In effect, the EPA has circumvented both the law and a court order.

The human health costs of this one-year delay will be severe: An estimated 2,500 to 6,500 premature deaths, 4,000 non-fatal heart attacks, 1,600 cases of chronic bronchitis, and more than 310,000 lost work and school days --all preventable. The rules are also the target of several legislative attacks in Congress--including a possible rider on legislation to extend middle class payroll tax relief that would delay and weaken the rules. Likewise, if the EPA allows for any more delays, the completion of the rules may be pushed beyond June of 2012, leaving them potentially vulnerable to rescission through a Congressional Review Act resolution of disapproval. In short, despite the April 2012 timeline for completing these rules, their future is far from certain.

Ozone and Particulate Matter National Ambient Air Quality Standards

Ozone and particulate matter are common air pollutants that are harmful to human health and the environment. The Clean Air Act requires the EPA to review and update National Ambient Air Quality Standards (NAAQS)establishing permissible limits for these pollutants at least once every five years, but the agency has not conducted a proper review for the ozone and particulate matter NAAQS in nearly 15 years. The Obama Administration will have failed to right this wrong before this term expires. Neither of these important air quality standards will be completed before June of 2012--or anytime soon for that matter.

Of all of the Obama Administration's regulatory disappointments, the President's last-minute decision to abandon the final ozone NAAQS may be the most damaging. The Spring 2011 regulatory plan projected the completion of this rule for some time in August of 2011. Despite intense pressure from industry groups and congressional Republicans, the EPA appeared to be set to issue its final rule close to its scheduled deadline. Then, at the last minute, with the draft final rule still under review at OIRA, the President personally intervened and directed the EPA to scrap it. The Clean Air Act requires that the EPA only consider the protection of human health and the environment when setting NAAQSs, and forbids the agency from considering other factors such as costs or economic impacts. Nevertheless, in justifying its decision to abandon the new ozone NAAQSs, the Obama Administration cited specious concerns about the rule's costs and economic impacts.

Now, the public will have to wait until at least 2014 for an ozone standard that actually protects public health, as required by the Clean Air Act. The new regulatory agenda categorizes the rule as a “long-term action” and projects that a proposed update of the ozone NAAQS will not be completed until July of 2013, with a final rule to follow in April of 2014--nearly 17 years after the rule was last properly reviewed and updated. In effect, then, the President's personal intervention on the ozone NAAQS rule has delayed this critical regulation by at least an additional two years and eight months. According to the EPA's own estimates, this delay will result in a total cost of an estimated 4,000 to 11,467 premature deaths, 5,867 non-fatal heart attacks, 2,347 cases of chronic bronchitis, 2,053,333 lost work and school days, all of which could have been prevented. (The EPA's regulatory impact analysis for the rule found that a rule that lowered the ozone NAAQS to 70 parts per billion, which, according to testimony from EPA Administrator Lisa Jackson last September, was the agency's preferred option, would annually prevent between 1,500 and 4,300 premature deaths, 2,200 non-fatal heart attacks, 880 cases of chronic bronchitis, and 770,000 lost work and school days; the above numbers come from aggregating these figures over a time period of two years and eight months.)

Meanwhile, the new regulatory agenda categorizes the particulate matter NAAQS as a “long-term action” with the deadlines for issuing a proposed rule and final rules listed as “to be determined.” An agency lists a rule as a long-term action when it does not expect to take any major steps to advance the rule over the next 12 months, and thus regards the rule as a low priority in the short term. That the EPA regards the particulate matter NAAQS as a low priority is surprising. In 2009, the DC Court of Appeals ruled that the current standard--issued in 2006--was so weak that it violated the Clean Air Act, but it nonetheless ordered the EPA to continuing implementing it while it worked on developing a stronger standard. (In setting the 2006 particulate matter NAAQS, the George W. Bush Administration's EPA ignored the advice of its top science advisors on clean air issues--the Clean Air Science Advisory Committee--and adopted a standard that was much less protective of health than what the Advisory Committee recommended.) To make matters worse, because the Clean Air Act requires that NAAQS be reviewed and updated at least once every five years, the EPA was supposed to complete its review of the weak 2006 standard by October of 2011.

In an unexpected development, the EPA recently announced in court filings that it expected to issue a proposed new particulate matter NAAQS by June of 2012 with a final standard to follow in June of 2013. The EPA's online rulemaking gateway does not confirm this timeline, however. Under this schedule, the EPA would still be at least eight months late in completing its review of the weak 2006 standard, but it would mark the first time in 16 years that the standard was properly reviewed and updated -- provided the President allows the rule to go into effect.

New Source Performance Standards to Reduce Greenhouse Gas Emissions from Petroleum Refineries and Power Plants

Petroleum refineries and power plants are the two largest stationary sources of greenhouse gas emissions, accounting for roughly 78 percent of greenhouse gas releases from all stationary sources. Swift action to reduce greenhouse gas emissions from these sources offers the best chance to avoid the worst consequences of climate change, including more droughts and heat waves, more intense hurricane events, accelerating rates of animal and plant species extinction, and the potential rapid migration of malaria and other vector-borne diseases to previously unaffected regions of the world.

In December of 2010, the EPA announced that it had entered a settlement agreement with environmental groups that committed the agency to issue New Source Performance Standards (NSPSs) to reduce greenhouse gas emissions from petroleum refineries and power plants. Notwithstanding the judicially enforceable timelines included in the settlement agreement, it appears increasingly likely that the EPA will not complete either of these rules on time.

In accordance with the terms of the settlement agreement, the latest regulatory agenda projects that the final petroleum refinery rule will be issued by November 2012, but that estimate is based on the assumption that the proposed rule will be issued by December of 2011. That date came and went without a proposal, and indeed, the EPA has still not yet issued a proposal, meaning it has already missed its deadline by nearly two months. To make matters worse, the EPA has not even sent the draft proposal to OIRA for review yet, a process that often takes several months to complete. Accordingly, the petroleum refinery proposal may end up being several months behind schedule by the time it is finally released. As the delays for the proposal mount, it becomes increasingly unlikely that the EPA will be able to issue the final rule by November 2012. Instead, the final rule likely will not be released during this presidential term. Indeed, an EPA spokesperson recently stated that the agency does not expect to issue a final refineries rule in 2012.

The NSPS rule for power plants faces a similar uphill battle. According to the revised terms of the settlement agreement, the proposal was supposed to be out by September of 2011, but the EPA did not submit the draft to OIRA for review until November, and the draft proposal continues to sit at OIRA at the present time. Despite these delays, the new regulatory agenda now projects that the proposal will be released by the end of January with the final rule to come out in June of 2012. The EPA has already missed the deadline for the proposal; the agency has now said that it is “on track to propose GHG standards for new power plants early this year . . . . We continue to work with OMB through the interagency review process and will issue the proposal when that review is complete.” EPA air chief Gina McCarthy reportedly said the proposal will be issued in February. Given that the proposal is now more than five months behind schedule, it seems highly unlikely that the EPA will be able to issue the final rule by June of 2012. Instead, it is more likely that the EPA will not issue a final power plant rule until well after the November election.

Corporate Average Fuel Economy (CAFE) Standards for Cars and Trucks

In the United States, mobile sources such as cars and trucks account for more than one-quarter of the nation's greenhouse gas emissions. Again, it will be impossible to avoid the worst consequence of climate change without significantly reducing greenhouse gas emissions from mobile sources. During the Obama Administration, the EPA and the National Highway Traffic Safety Administration (NHTSA) have worked together to develop two corporate average fuel efficiency (CAFE) standards to separately reduce greenhouse gas pollution from cars and trucks. These agencies have already completed one of these standards, the truck rule, but they are unlikely to complete the other standard--the car rule for model years 2017 through 2025--on time.

The EPA issued the final CAFE standard for trucks and heavy-duty vehicles in September of 2011. This is the one of two critical rules identified in the CPR report that the Obama Administration has completed so far, and it is an important accomplishment. The EPA and NHTSA estimate that the rules, which apply to model years 2014 through 2018, will save around 530 billion barrels of fuel and avoid around 270 million metric tons of greenhouse gas emissions over the lifetime of the affected vehicles.

The second CAFE standard for cars applicable to model years 2017 through 2025 has been delayed since the last regulatory plan. In the Spring 2011 regulatory agenda, the EPA and NHTSA had projected that their car rule proposals would come out in September of 2011, but they were not issued until December. The Spring 2011 regulatory agenda did not list a projected date on which the EPA and NHTSA anticipated issuing their respective final car rules. (NTHSA's regulatory agenda states that they are under a statutory deadline to issue their part of the rule by April of 2015, but the two agencies will likely finalize their respective parts of the standard well before that. The EPA issues its part of the car rule pursuant to a different statute than does NHTSA, and thus is not subject to the April of 2015 statutory deadline that applies to NHTSA.) The EPA's new regulatory agenda projects that the agency will issue a final car rule by August of 2012. (NHTSA's regulatory agenda does not make a similar projection, but instead lists the April of 2015 statutory deadline again.)

Only time will tell if the EPA and NHTSA are able to complete the final CAFE standards for cars by August of 2012 as the current regulatory agenda projects. Even if they do, though, the standards would be at risk of rescission by a Congressional Review Act resolution of disapproval.

Scope of Clean Water Act Guidance and Rulemaking

For years, the EPA has struggled to define clearly the scope of its authority under the Clean Water Act to safeguard interstate wetlands and other isolated waters. Largely the result of two muddled Supreme Court decisions, this situation leaves many critical waterbodies inadequately protected and wastes scarce agency resources. To remedy this situation, the EPA began developing a draft guidance document clarifying the agency's interpretation of the term “waters of the United States,” which defines the scope of the agency's regulatory authority. Generally speaking, this draft guidance document defines the scope of the Clean Water Act more broadly than does the current guidance document on the subject, which was issued during the George W. Bush Administration, and thus would afford protection under the Clean Water Act to a greater area of wetlands and other isolated waters. The EPA appears to be near completing the guidance, having submitted the draft final guidance to OIRA for review in February of 2012.

In March of 2011, the agency began a parallel rulemaking process to formally codify the guidance document. This rulemaking is critical, because, unlike the guidance, the terms of the rule would be legally binding. The EPA will not complete this rulemaking before the current presidential term expires. The EPA's online rulemaking gateway projects that a proposal will be issued in March of 2012, a strikingly optimistic projection, particularly because the draft proposal has not yet been sent to OIRA for review. This optimistic projection also contrasts with the agency's regulatory plan, which categorizes the rule as a “long-term action,” and which lists the timeline for issuing a proposal as “to be determined.” This usually indicates that the agency does not anticipate making any progress on the proposal in the next 12 months. By any reasonable estimate, it will be several years before the EPA completes a final rule codifying its guidance on the definition of the scope of the Clean Water Act.

• See a chart tracking the progress of each of the 12 rules covered in this report
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