EPA Maligned by Business Says U.S. Courts, Bush Made Us Do It

EPA Says Court Orders Make It Keep Issuing New Regulations
Six regulations prompting outcry directly affect coal-fired power plants including new limits on air emissions contributing to climate change, smog, soot pollution and acid rain. Photo: Saul Loeb AFP/Getty Images

The Environmental Protection Agency, the U.S. regulator criticized by business groups for proposing the most new rules of any agency, says the courts and former President George W. Bush have left it no choice.

Companies are bracing for and complaining about a raft of requirements with three- to four-year deadlines for compliance. American Electric Power Co. of Columbus, Ohio, has said new EPA standards would force it to spend as much as $8 billion through the end of the decade, cut about 600 jobs and shut five coal-fired power plants. Electricity rates might rise, new oil-drilling stall and cement factories close, according to trade groups.

Prospects for getting the EPA to ease up, as sought by companies and lawmakers in the Republican-led House, are limited by the agency’s stand that it’s obeying judicial instructions. EPA Administrator Lisa Jackson “has made clear that we will be guided by the science and the law in all the steps we take to protect Americans’ health,” spokesman Brendan Gilfillan said in an e-mail on July 21.

Jackson said in March at a House hearing that “our major rules are either under court-ordered deadline” or “the result of settlements or litigation.”

The EPA is reviewing 28 regulations for implementation. The Health and Human Services Department, with 21 under review, is second, while the Agriculture Department is No. 3 with 15, according to President Barack Obama’s Office of Management and Budget.

Seven of the eight EPA rules labeled most onerous by the U.S. Chamber of Commerce, the country’s largest business lobby, are tied to legal action and four of those stem from orders to rework Bush-era regulations.

More Stringent

The agency is taking advantage of judicial pressure to be more stringent than legislators intended, according to its detractors.

“The EPA hasn’t been shy about using regulations to impose broad mandates and restrictions so controversial that similar provisions couldn’t even pass the Democratic-controlled Congress,” Bill Kovacs, the Chamber’s senior vice president of environment, technology and regulatory affairs, said in an interview.

Republican lawmakers are seeking to counter the flurry of rulemaking with bills, some with bipartisan support, to limit the EPA’s authority and funding and to delay deadlines for compliance.

A measure to cut the EPA’s budget to $7.1 billion, or 20 percent below Obama’s request, “reins in out-of-control regulation,” Representative Mike Simpson, an Idaho Republican who is chairman of the House Interior and Environment Appropriations subcommittee, said in a July 6 statement.

Lawsuits Encouraged

Ed Whitfield, a Kentucky Republican and chairman of the House Energy and Commerce energy subcommittee, said last week during a hearing that the EPA “is actually out there encouraging these lawsuits.” He estimated that 400 to 500 of them are currently pending against the agency.

Environmentalists such as Melinda Pierce, legislative director for the San Francisco-based Sierra Club, said groups and states sued because the EPA botched or ignored issues during “years of inaction” under previous administrations.

Agency analyses say new rules would prevent tens of thousands of premature deaths.

Five of the eight EPA regulations targeted by business directly concern coal-fired power plants operated by such companies as American Electric and Atlanta’s Southern Co. These aim to reduce emissions contributing to climate change, smog, soot pollution and acid rain, and propose to alter the way power plants use water and handle coal-related waste.

Other standards described by companies as too expensive affect cement manufacturers such as Texas Industries Inc. and industrial boilers.

Here’s a look at the eight rules and the debate over them.


Agency Action: A proposed stricter limit for ground-level ozone that must be met by local governments would target a main ingredient of smog.

Where It Stands: EPA Administrator Jackson has said she expects to meet a July 29 court deadline for issuing final standards. States and environmental groups challenged a 2008 rule imposed under Bush on grounds that the agency ignored a scientific advisory panel’s recommendations.

The Debate: Trade groups have said most counties won’t be in compliance, which may halt expansion of oil and gas drilling because they will stop issuing new air permits needed for the work. Jack Gerard, chief executive officer of the American Petroleum Institute, said in an interview the proposal will be “one of the most expensive EPA regulations.”

While the EPA estimates that the rule will cost $90 billion, the API has said the cost may be as high as $1 trillion a year from 2020 through 2030. Clean-air advocates say the new rules protect the public from health hazards including heart and lung disease.

Greenhouse Gases

Agency Action: Following Congress’s failure to enact a carbon-dioxide cap, the EPA began restricting emissions from industrial polluters in January. The U.S. Supreme Court ruled in 2007 that the EPA had authority under the Clean Air Act to regulate greenhouse gases blamed for climate change.

Where It Stands: The agency plans a second wave of regulations for power plants by Sept. 30 and for oil refineries by December, as part of a settlement with environmental groups and states.

The Debate: The agency determined that greenhouse gases pose a hazard to public health and welfare. Republicans and some Democrats in Congress have said the rules threaten the economy and are seeking to delay or block them.

Cross-State Air Pollution

Agency Action: The EPA issued new standards this month aimed at cutting U.S. pollutants that can drift across borders and cause acid rain, soot and smog. The rule affects 27 states from New York to Texas and allows a limited emissions-trading program.

Where It Stands: The rule replaced Bush-era regulations rejected in 2008 by a federal court that said they weren’t adequate to protect communities against emissions from nearby states.

The Debate: The standards will lead to as much as $280 billion in yearly health benefits, according to the EPA. The American Coalition for Clean Coal Electricity, an industry group based in Alexandria, Virginia, has said the rule, along with a pending EPA regulation to cut air toxics from power plants, will cost providers $17.8 billion a year from 2011 through 2030 and increase electric bills 11.5 percent on average in 2016.

Mercury, Arsenic

Agency Action: A March EPA proposal would restrict release of toxic pollutants such as mercury, arsenic and acid gases from coal-and oil-fired power plants

Where It Stands: The proposal clears the path for the first U.S. standards for these pollutants. The EPA was under court order to act after a federal court declared Bush’s mercury standard unlawful.

The Debate: The EPA has said the rule would generate health and economic benefits of as much as $140 billion a year. Energy companies such as American Electric say they won’t have enough time to comply with the new standard and Whitfield has said he’ll introduce legislation to extend the deadlines. The Electric Reliability Coordinating Council, a Washington-based coalition of utilities, has said the proposal could cost as much as $100 billion.

Cooling Water

Agency Action: The EPA proposed rules in March designed to protect fish from getting sucked into cooling-water systems at more than 1,200 power plants and factories.

Where It Stands: The agency acted in accordance with terms of a settlement with environmental groups suing under the Clean Water Act. A final rule must be signed by July 27, 2012.

The Debate: The EPA has said the rule will save about 615 million fish and shellfish a year at an annual cost to industry of $384 million. Representative Fred Upton, a Michigan Republican and chairman of the House Energy and Commerce Committee, has said the new regulations may cost utilities as much as $300 million per site for coal-fired plants.

Coal Ash

Agency Action: In the one instance not spurred by litigation, the EPA proposed the first nationwide rules last year for disposal of ash from coal-fired power plants. These were a response to a 1-billion gallon sludge spill in Tennessee more than two years ago. The agency is considering two competing approaches. One would treat the waste, which contains arsenic, mercury and cadmium, as non-hazardous, and the other would call for a “special waste listing.”

Where It Stands: This month, the House Energy and Commerce Committee approved legislation that would prevent the EPA from declaring coal ash hazardous.

The Debate: The agency said regulating the substance would protect drinking water and promote safe ways to recycle it into building material. Republican lawmakers say that categorizing ash as a danger could lead to the loss of more than 300,000 jobs.

Industrial Boilers

Agency Action: The EPA issued final rules in February to cut emissions of toxics such as mercury from industrial boilers, including at refineries, chemical manufacturers and factories. The agency met a federal court deadline after it failed to win a delay because of company complaints the requirements weren’t practical.

Where It Stands: The EPA is redoing the standards and plans to update them by the end of October.

Senator Susan Collins, a Maine Republican, introduced a bill last week to postpone the rule for at least 15 months. Some Democrats support a similar Republican-backed bill in the House giving companies five years to comply.

The Debate: Reduced pollution will prevent 2,600 to 6,600 premature deaths, the agency has said. The regulations in their current form are still too costly because businesses are trying to rebound economically, according to the National Association of Manufacturers in Washington.


Agency Action: The EPA limited mercury from cement-plant smokestacks last year following legal challenges to U.S. standards set during the Bush administration. The limits weren’t as strict as the original Obama-administration proposal in 2009, according to the Portland Cement Association, which represents manufacturers.

Where It Stands: The agency is reconsidering parts of the rule.

The Debate: The EPA has said its regulation will cut mercury and particulate-matter releases from kiln-heating clay, limestone and shale by 92 percent starting in 2013. The agency estimated the value of environmental and health benefits at $6.7 billion to $18 billion, and the cost to companies at $950 million a year. The cement trade group said the rules may force some cement-factory closures.

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