President Obama is ready to take one more shot at global warming with the last, least-popular, and messiest tool he’s got left: regulations administered by the politically besieged Environmental Protection Agency.
It won’t be popular, it might not work, and it could jeopardize his pick to head EPA. But the reality is that, three years after Congress killed a cap-and-trade bill, Obama is running out of time. If he doesn’t finalize EPA rules controlling greenhouse-gas emissions before he leaves the White House, a Republican president, or a GOP-controlled Senate, could undo the rules—and his environmental legacy.
“He is serious about making it a second-term priority,” Heather Zichal, Obama’s top energy and climate adviser, said at an event last week. “He knows this is a legacy issue.”
The effort amounts to both a marathon and a sprint, in which Obama must simultaneously navigate political, legal, and policy hurdles that could halt his efforts if he fails to map out a clear way forward.
At issue is a pair of regulations controlling greenhouse-gas emissions from new and existing power plants, the latter of which account for nearly 40 percent of the country’s heat-trapping emissions. EPA proposed rules for new plants last spring but missed its April deadline to finalize them. The agency has also put on ice parallel rules targeting almost 600 existing coal-fired power plants. The rules covering existing plants could have the greatest impact, both on cutting carbon emissions and raising the cost of electricity, because coal is the cheapest, most prevalent, and dirtiest way to produce electricity.
In a speech at Georgetown University on Tuesday, Obama will outline a timeline for EPA to move forward regulating carbon emissions at new and existing power plants.
“The time will go very quickly because regulations don’t move quickly through the process,” said Joe Kruger, who served as deputy associate director for energy and climate change at the White House Council on Environmental Quality during Obama’s first term. “It will be a bit of a time crunch to get it done by the end of the Obama second term.”
Kruger, who now directs energy and environmental policy at the Bipartisan Policy Center, predicted the administration will succeed because Obama is putting his own political capital into the issue. “They will figure out one way or another how to get it done,” he said.
Yet the president will face his first political hurdle immediately. The Senate has not yet confirmed Obama’s nominee to head EPA—Gina McCarthy, the agency’s assistant administrator for air quality. Obama’s announcement Tuesday is likely to further inflame what has already been an incendiary confirmation process for McCarthy.
“The Obama administration may conclude that the policy priority of moving forward on [greenhouse-gas] emissions reductions outweighs the political gain of confirming McCarthy in a timely manner,” according to analysis published Monday by ClearView Energy Partners, a Washington-based nonpartisan consulting firm.
The fact is that McCarthy could execute Obama’s directive from her current post at EPA. And under the agency’s organizational plan, acting Administrator Bob Perciasepe could remain in his post indefinitely.
The second political hurdle is the 2014 midterm elections. The National Republican Senatorial Committee is already targeting vulnerable Democrats up for reelection, including Sens. Mary Landrieu of Louisiana, Mark Begich of Alaska, and Mark Pryor of Arkansas. “Landrieu Ushers in Obama’s Climate Change Agenda,” said one NRSC statement released Monday.
The administration must thread its regulatory process carefully through the midterms, and not just to avoid endangering Democrats. If Republicans were to win back the Senate, it could create yet another hurdle for Obama’s agenda: Senate Republicans are expected to invoke the Congressional Review Act to undo the rules.
The act, used successfully only once since its creation in 1996, allows senators to bypass the majority leader and force a vote requiring only 51 votes to pass a resolution nullifying regulations finalized within 60 days. It was used twice in the last session of Congress to try to undo EPA rules, and was unsuccessful both times.
The White House is reportedly worried such an effort could succeed against EPA’s climate rules.
Obama is “concerned about whether or not he has enough support in the Senate to defend vetoes of environmental regulations,” said Michael Kieschnick, CEO and cofounder of CREDO, a cell-phone service provider heavily involved in advocating for action on climate change. Kieschnick has attended private fundraisers with Obama in recent months where the president addressed climate change.
An industry source aware of the White House strategy says EPA may seek to finalize rules for new and existing power plants at the same time, thus allowing only one Senate vote under the Congressional Review Act.
“Given the uncertainty of the 2014 elections in the Senate, the White House would prefer to be in a position where only one veto would be necessary,” said the source, who spoke on condition of anonymity. Obama has so far vetoed just two pieces of legislation, compared with the 12 bills vetoed by George W. Bush and 36 by Bill Clinton.
Amid these political obstacles, Obama must also navigate significant legal and policy challenges, which will inevitably come along with a regulation whose wide-reaching scope surpasses any other EPA rule, according to experts.
“Two years is about the minimal time it would take to go from soup to nuts on a rule like this,” said Roger Martella, who was EPA general counsel under Bush. “These rules don’t come out of the clear blue sky and involve lengthy internal deliberations before the public even gets a first peak at them.”
Once EPA is done writing the rules, a flood of lawsuits is likely to pour in from both sides of the issue. Litigation also takes time, and some analysts say Obama will want to be in the White House while the challenges wind through the courts. “We reason the Obama administration wants to defend its power plant GHG ... rule(s) against legal challenges rather than leaving it to another, potentially less simpatico administration,” states the analysis by ClearView Energy Partners.
In the end, the calendar might be the biggest hurdle of all.
“Part of the challenge is how much can they do in a limited amount of time,” said Jody Freeman, who worked on energy and climate issues in the White House during Obama’s first term. “This plan is a race against time. We’re already six months into a second term.”