Can Obama Deliver on Climate Change Rhetoric?

Skepticism is Justified – Activists Must Ramp Up Demands

Focus on EPA Regulatory Strategy Ironic, Coming Just After Jackson Departure

Does Obama Even Know the Weak EPA Regulatory Hand He’s Dealt Himself?

We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms. ~~~ President Obama

Stressing scientific consensus and a moral imperative to act, President Obama made responding to climate change the most prominent policy issue in his second Inaugural address (see: NY Times story: Speech Gives Climate Goals Center Stage).

Before I get to the issues and wonk stuff, let me make one observation about media. As one hopeful indication that perhaps the political climate in the media has really changed, for once, the NY Times correctly contextualized a denier source:

The president’s emphasis on climate change drew fire from conservatives. Tim Phillips, president of Americans for Prosperity, a group financed by the Koch brothers, who made a fortune in refining and other oil interests, criticized the speech in a statement. “His address read like a liberal laundry list with global warming at the top,” Mr. Phillips said. “Americans have rejected environmental extremism in the past and they will again.”

Let’s repeat that: Made a fortune in oil! Wow! The Grey Lady calls out the capitalist billionaire Koch Brothers, AFP and deniers everywhere!

On to the issues –

The major environmental groups correctly praised the President, but I was struck by their sudden recognition about the need to regulate existing power plants and how that issue has become the focal point of the news coverage.

 Guardian story:

The BlueGreen Alliance, while praising Obama for elevating the topic, also called on Obama to direct the Environmental Protection Agency to regulate existing power plants.

The NY Times story:

According to estimates from the Natural Resources Defense Council, emissions from current coal-fired plants could be reduced by more than 25 percent by 2020, yielding large health and environmental benefits at relatively low cost. Such an approach would allow Mr. Obama to fulfill his 2009 pledge to reduce domestic greenhouse gas emissions by about 17 percent from 2005 levels by 2020, the group says.

“There’s a really big opportunity, perhaps bigger than most people realize,” said Dan Lashof, director of the defense council’s climate and clean air program.

The failure of EPA to regulate existing oil and coal power plants (and other major sources, like refineries and cement plants) – and in fact, essentially delegate the regulation of those plants to States under the Clean Air Act – was a huge strategic blunder by Lisa Jackson’s EPA. EPA found:

• States are best-suited to issue permits to sources of GHG emissions. They have longstanding experience working together with industrial facilities under their jurisdiction to process PSD permit applications. EPA intends to delegate the authority to issue GHG permits to states if requested. EPA will continue to provide guidance and act as a resource for the states as we work together to make the various required permitting decisions for GHG emissions.

Yet, somehow, EPA’s failure to regulate existing plants just never seemed to interfere with the glowing praise beltway environmental groups heaped on EPA Administrator Lisa Jackson for the last 4 years.

[Note: On March 27, 2012, on a national press call with reporters announcing EPA’s proposed rule for new power plants, I personally heard EPA Administrator Lisa Jacskon say this not once, but 3 times: “EPA Has No Plans to Regulate Carbon From Existing Coal Plants”. That is a direct quote.]

On top of that failure, Obama’s energy policy has called for maximization of domestic fossil sources, so even if US coal power is eliminated, US coal exports will continue to generate huge GHG emissions, as will off shore oil and gas and so called “clean” fracking gas, which all are being produced at record levels, a fact that Obama bragged about. And then there is the huge missed opportunity to stop mountaintop mining…

I’ve been writing critically about that (see this and this and this and this and this and this) and getting nothing but hostility from my enviro colleagues (friends of Lisa) and ignored by the press, who wrote so many glowing articles about Lisa Jackson’s accomplishments on regulating greenhouse gas emissions (see: Setting the Record Straight on Lisa Jackson and Climate Change).

The Obama focus on climate change and EPA regulatory action is also deeply ironic in light of the Jackson departure, given how conventional beltway wisdom (misplaced, I argued), saw Jackson as a regulatory zealot. Obama’s emphasis also calls into serious question the spin that Jackson resigned from EPA in protest over Obama’s plans to approve the Keystone XL Pipeline.

For Obama to approve what has been called “game over for the climate” by the world’s leading climate scientist in light of his Inaugural remarks would be beyond even beltway cynicism (i.e. Obama wouldn’t “betray our children and future generations”, would he? But, as the only Nobel Peace Prize winner with a Kill List – who expanded illegal drone wars in multiple countries and locked in Bush’s rendition, Guantanamo, and domestic spying policies – just maybe he would.).

But curiously, after 4 years of silence, now, lack of regulation of all those existing GHG emission sources has become the centerpiece of the enviro and media demands for Obama’s second term EPA. Are we to call this a “strategic pivot”?

Do environmentalists understand that EPA’s prior “common sense” “flexible” regulatory strategy under the Clean Air Act:

• On February 24, 2012, the U.S. Environmental Protection Agency (EPA) proposed to keep greenhouse gas (GHG) permitting thresholds at current levels. This action is part of EPA’s common-sense, phased-in approach to greenhouse gas permitting under the Clean Air Act.

(where have we heard that “common  sense” slogan before?)

which the enviro’s so strongly praised – will make it virtually impossible for EPA to regulate GHG emissions from existing sources?

The weak kneed approach to what EPA views as the “cooperative federalism” under the Clean Air Act is made clear in EPA’s “Best Available Control Technology” (BACT) Guidance document for new sources of GHG emissions (@ p. 19):

EPA has not established the top-down BACT process as a binding requirement through rule.43 Thus, [state] permitting authorities that implement an EPA-approved PSD permitting program contained in their State Implementation Plans (SIPs) may use another process for determining BACT in permits they issue, including BACT for GHGs, so long as that process (and each BACT determination made through that process) complies with the relevant statutory and regulatory requirements.44 EPA does not require states to apply the top-down process in order to obtain EPA approval of a PSD program, but EPA regulations do require that each state program apply the applicable criteria in the definition of BACT.45 Furthermore, EPA has certain oversight responsibilities with respect to the issuance of PSD permits under state permitting programs. In that capacity, EPA does not seek to substitute its judgment for state permitting authorities in BACT determinations, but EPA does seek to ensure that individual BACT determinations by states with approved programs are reasoned and faithful to the requirements of the CAA and the approved state program regulations.46

… This guidance (including the appendices) provides some preliminary EPA views on some key issues that may arise in a BACT analysis for GHGs. It is important to recognize that this document does not provide any final determination of BACT for a particular source, since such determinations can only be made by individual permitting authorities on a case-by-case basis after consideration of the record in each case.  

Do you think highly coal dependent states – like Ohio and Pennsylvania – absent a big federal EPA stick, will voluntarily strictly regulate and phase out coal power?

Without getting even further into the regulatory weeds here, essentially, EPA has applied the Clean Air Act in a way that gives State air pollution programs control over whether and how to regulate existing GHG emission sources via the terms set out in State Implementation Plans (SIP’s) and air permit programs. The substantive content of SIP’s and permit programs are controlled by States, not EPA.

At the same time, compounding this deference to the states, EPA has limited its federal role and regulatory power in the “Tailoring Rule” and the “New Source Review” (NSR) programs under the Clean Air Act.

There are numerous loopholes and exemptions in these programs with respect to GHG emissions from existing sources, e.g. the EPA  “Tailoring rule’s” scope and thresholds exempt many existing facilities and GHG emissions. Few realize that the Tailoring rule was actually intend to PROTECT existing sources and shield the from EPA regulation (@p. 31516):

This Tailoring Rulemaking is necessary because without it, PSD and title V would apply to all stationary sources that emit or have the potential to emit more than 100 or 250 tons of GHGs per year beginning on January 2, 2011.  

Evidencing additional flaws, the EPA GHG NSR program only applies to new sources and major modifications of existing sources, replicating for GHG emissions a fundamental flaw in the original Clean Air Act.

That regulatory strategy will make it very difficult – if not impossible – for EPA to effectively regulate emissions from those major sources of GHG emissions, approximately 500 oil and coal fired power plants, refineries, and cement manufacturers.

Given the regulatory strategy EPA has adopted, any new EPA GHG regulation of existing sources is certain to trigger lawsuits by industry, leading to additional years of delay as those suits proceed through the federal courts.

Sorry to rain on the Inaugural parade rhetoric, but the actual ability for EPA to deliver in regulation on Obama’s soaring rhetoric is limited – and tragically – many of the limitations are a result of weak kneed Obama/Jackson strategic decisions made in the first term.

It will be very difficult for the next EPA Adminsitrator to walk all that back at this point.

Is Obama even aware of the weak EPA regulatory hand he’s dealt himself by political decisions made in the first term?

If he does, how could he raise expectations so high by  that soaring Inaugural rhetoric?

[Update: In response to a good question on BACT, let me note that EPA’s approach to BACT is politically timid and technically weak. EPA rejected any options that would force coal plants to shut down, switch fuel to natural gas, or make major investments in reducing eery demand and investing in producing alternative renewable power in the service area of the facility – those stronger options were rejected due to cost  or because they would risk “reliability” or “domestic energy security” (see response in questions). Here are some lowlights fro the EPA BACT Guidance:

As discussed in greater detail below, EPA believes that it is important in BACT reviews for permitting authorities to consider options that improve the overall energy efficiency of the source or modification – through technologies, processes and practices at the emitting unit.

[… ]

As explained later in this guidance, in the course of the BACT analysis, one or more of the available options may be eliminated from consideration because they are demonstrated to be technically infeasible or have unacceptable energy, economic, and environmental impacts on a case- and fact-specific basis. 

[…]

The CAA includes “clean fuels” in the definition of BACT.75 Thus, clean fuels which would reduce GHG emissions should be considered, but EPA has recognized that the initial list of control options for a BACT analysis does not need to include “clean fuel” options that would fundamentally redefine the source. Such options include those that would require a permit applicant to switch to a primary fuel type (i.e., coal, natural gas, or biomass) other than the type of fuel that an applicant proposes to use for its primary combustion process.

[…]

EPA believes that integrated gasification combined cycle (IGCC) should also be listed for consideration when it is more efficient than the proposed technology.83 However, these options may be evaluated under the redefining the source framework described above and excluded from consideration at Step 1 of a top-down analysis on a case-by-case basis if it can be shown that application of such a control strategy would disrupt the applicant’s basic or fundamental business purpose for the proposed facility.

[…]

For the purposes of a BACT analysis for GHGs, EPA classifies CCS as an add-on pollution control technology86 that is “available”87 for facilities emitting CO2 in large amounts, including fossil fuel-fired power plants, and for industrial facilities with high-purity CO2 streams (e.g., hydrogen production, ammonia production, natural gas processing, ethanol production, ethylene oxide production, cement production, and iron and steel manufacturing). For these types of facilities, CCS should be listed in Step 1 of a top-down BACT analysis for GHGs. This does not necessarily mean CCS should be selected as BACT for such sources. Many other case- specific factors, such as the technical feasibility and cost of CCS technology for the specific application, size of the facility, proposed location of the source, and availability and access to transportation and storage opportunities,should be assessed at later steps of a top-down BACT analysis. However, for these types of facilities and particularly for new facilities, CCS is an  option that merits initial consideration and, if the permitting authority eliminates this option at some later point in the top-down BACT process, the grounds for doing so should be reflected in the record with an appropriate level of detail. 

[…]

Under the second step of the top-down BACT analysis, an available control technique listed in Step 1 may be eliminated from further consideration if it is not technically feasible for the specific source under review. A demonstration of technical infeasibility should be clearly documented and should show, based on physical, chemical, or engineering principles, that technical difficulties would preclude the successful use of the control option on the emissions unit under review….

This guidance is being issued at a time when add-on control technologies for certain GHGs or emissions sources may be limited in number and in various stages of development and commercialization. A number of ongoing research, development, and demonstration programs may make CCS technologies more widely applicable in the future.91 These facts are important to BACT Step 2, wherein technically infeasible control options are eliminated from further consideration. When considering the guidance provided below, permitting authorities should be aware of the changing status of various control options for GHG emissions when determining BACT. …

While CCS is a promising technology, EPA does not believe that at this time CCS will be a technically feasible BACT option in certain cases. As noted above, to establish that an option is technically infeasible, the permitting record should show that an available control option has neither been demonstrated in practice nor is available and applicable to the source type under review.