Boxer Confronts EPA Head on CO2 Midnight Ruling

Cross-posted from Climatico.

For those not acquainted with the Bush Administration’s latest pastime I should probably introduce the concept of the ‘midnight ruling’.  Late in a presidency, an administration will often issue rulings that are unpopular but uphold the President’s worldview.  President Bush’s recent midnight rulings have predominantly been concerned with environmental deregulation.  The latest of these concerns the carbon dioxide emissions produced by coal-fired power plants.

As I reported earlier, a decision to disregard a Utah coal power plant’s carbon emissions when considering its environmental impact was overturned last Novermber.  However, on Thursday Stephen L. Johnson, the head of the Environmental Protection Agency (EPA), went on the record to reject November’s overturning, “the current concerns over global climate change should not drive [the] EPA into adopting an unworkable policy of requiring emission controls.”

California Senator Boxer soon issued a statement responding,

This illegal document issued by Stephen Johnson makes it clear that he has become a renegade administrator…  Mr. Johnson’s latest action is intended to make the job of combating global warming more difficult and will add to the millions of taxpayer dollars he has wasted in defending his illegal decisions.

Boxer also wrote a letter (available here) to the Attorney General asking him to “intervene immediately” with Johnson’s “blatantly illegal memo.” Senator James Inhofe, who frequently clashes with Boxer, responded with a statement siding with the EPA.

So what does all of this mean?  Well, first that the regulation of CO2 (or lack of) has been one of the defining features of the President Bush’s time in office, and that he is keen to ensure that greenhouse gases are not controlled during his presidency. Obama has pledged to use his “executive authority without waiting for congressional action” to reverse Bush’s midnight rulings. The Natural Resources Defense Council (NDRC) issued a statement saying,

The ultimate consolation, however, is that today’s EPA offense is so ham-handed, so divorced from the law, that it can and should be reversed by the Obama administration with the stroke of a pen.

If the Attorney General does not intervene (which is, in my opinion, likely) then there will be a number of coal-fired power stations that progress far enough down ‘the pipeline’ that Obama will not be able to stop their being built when he takes office on January 20th.  The Justice Department said that it would review Boxer’s letter and respond appropriately, to which Joe Romm of Climate Progress replied, ““Appropriately”? This is the Department that signed off on torture. What the heck is a few coal plants to them?”

EPA Coal Decision Provides a Glimpse of What is to Come

On Thursday, the Environmental Protection Agency (EPA) appeals panel overturned a permit for a proposed coal-fired power station in Utah.  The panel ruled that the EPA’s Denver office had inadequately supported its decision to issue a permit to the plant without considering its carbon dioxide emissions.

In October 2007, the Sierra Club and others filed a request to overturn the permit, which had been issued to the proposed coal-fired power station, because it did not require any controls on carbon dioxide pollution.

The key word in the previous sentence, and the basis for this entire case, is ‘pollution’.  The term pollution, according to a landmark ruling by the US Supreme Court in April 2007, can now be used to describe carbon dioxide, as a consequence of its ability to warm the climate.  This gave the EPA the ability to regulate carbon dioxide through the Clean Air Act, however the EPA, with the help of the Bush Administration, has been slow to act, and does not intend to regulate on the issue while President Bush is in the White House.

The Sierra Club’s David Bookbinder said that the decision will temporarily stop permits being handed out to any coal burning power plants, essentially putting the development of all coal-fired power stations on hold for the moment.

As the President-elect, it falls to Barack Obama to decide the future of carbon dioxide regulation in the US.  In an interview in October, Jason Grumet, a top Obama energy advisor who has been mentioned as a possible candidate for Secretary of Energy, said that Obama would regulate carbon dioxide under the Clean Air Act, “in the absence of congressional action” on climate change.

Yesterday, traders connected the dots and coal stocks plummeted by up to 12.5%.

By setting a precedent for many more lawsuits of a similar nature, Thursday’s ruling hints at the long-term consequences of the Supreme Court decision for carbon-intensive industries in the US.  This is “an issue of national scope that has implications far beyond this individual permitting process,” the EPA appeals panel stated.