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Obama’s climate agenda on trial
By Devin Henry
A slate of major environmental rules rolled out by the Obama administration in 2015 will face serious challenges in the new year, as opponents look to beat back the president’s ambitious policies — a core piece of his legacy.
In the lead-up to the landmark Paris climate talks in December — an event that yielded a first-of-its-kind global agreement to cut carbon emissions — the Obama administration released a series of sweeping new environmental rules, each garnering both condemnation and deep-pocketed opposition from interest looking to torpedo the regulations in 2016.
As Obama enters the final year of his presidency, much of his focus on environmental issues will be implementing and preserving the work he’s already done. If 2015 was the year he pushed his environmental agenda forward, 2016 could be the year he looks to preserve it.
Here are some of the biggest regulations Obama finalized or proposed last year, and how they’ll be litigated in 2016.
Clean Power Plan
The most notable environmental rule issued in 2015 was the climate rule for power plants, an Environmental Protection Agency (EPA) regulation designed to cut carbon emissions from the power sector.
The rule is the centerpiece of Obama’s climate change agenda, and the biggest promise he took with him to the United Nations climate talks. It’s designed to cut carbon emissions from existing power plants by 32 percent from 2005 levels by 2030.
Environmentalists hailed the rule, but it has met with scorching opposition from Republicans, commodity groups, businesses and utilities. Opponents have argued that, while the rule will cut carbon emissions, it will do so at the expense of jobs and American energy bills, which could go up as states shift to cleaner energy mixes.
Dozens of opponents sued against the rule the day in October that it hit the Federal Register, arguing the EPA went beyond its legal authority in assigning states carbon reduction targets.
“EPA’s rule is flatly illegal and one of the most aggressive executive branch power grabs we’ve seen in a long time,” West Virginia Attorney General Patrick Morrisey said. “The EPA cannot do what it intends to do legally.”
The EPA defended the rule as one with “strong scientific and legal foundations” and has sought to protect it from the lawsuits. Opponents want federal judges to issue a stay on the rule and, with legal filings on the matter due on Dec. 23, the first judicial skirmish over the rule is set for early 2016.
Clean Water Rule
A federal court dealt a blow to another EPA rule in 2015 when it blocked implementation of a new rule setting regulatory authority over small waterways.
The so-called “Waters of the United States” rule looks to clarify which streams, wetlands and other smaller waterways the federal government has regulatory authority over.
But opponents of the rule — Republicans, red states and the agriculture industry among them — argue the rule is overly-broad and an unjust expansion of federal power. They sued against the regulation, and two federal courts issued separate injunctions against it in 2015, ruling that opponents have a strong case and could win when their challenges move forward.
The EPA and Army Corps. of Engineers have maintained that the rule is legal and plans to fight the lawsuits against it. The stay didn’t overturn the rule: the courts need to go through the process of making a full ruling on it, and the appeals process could eventually bring the water rule to the Supreme Court.
When the Obama administration finalized a new standard for acceptable concentrations of surface-level ozone particles, neither industrial groups nor public health and environmental coalitions were pleased.
Businesses and manufacturers sued over the new 70-parts-per-billion standard in December, arguing that the new standard would be hard to implement and lead to billions of dollars in compliance costs.
“The EPA’s ozone regulation, which could be one of the most expensive in history, is unworkable and overly burdensome for manufacturers and America’s job creators,” said Linda Kelly, the senior vice president and general counsel for the National Association of Manufacturers.
Greens and health officials defended the EPA’s ability to issue the new rule, which came out in October. But they filed lawsuits of their own, arguing regulators should have finalized a standard even stricter than the one they landed on.
“This standard leaves kids, seniors and asthmatics without the protection doctors say they need from this dangerous pollutant,” Earthjustice attorney David Baron said. “The EPA has a duty to set standards that assure our air is safe to breathe. We say they violated that duty here.”
Even before the ozone rule was released, both sides said they expected to sue over the final standard, citing their dueling lawsuits against the EPA the last time it updated the rule, in 2008.
Neither side succeeded then, and the rule stood.
Beyond legal challenges, the power plant, water and ozone rules could all face challenges from congressional Republicans, as well.
While legislative measures stopping the rules are dead with Obama in office, Republicans showed last year that they were willing to try using the appropriations process to block them anyway.
Key Republicans, including Majority Leader Mitch McConnell (R-Ky.), have said they plan to exhaust their legislative options for blocking the regulations even with Obama in office. But McConnell acknowledged in October that lawmakers’ hands are likely tied for now, despite passing a since-vetoed Congressional Review Act resolution against the power plan.
“Our options to stop [the Clean Power Plan] are quite limited,” McConnell said then. “We do have the possibility of a CRA. The weakness of that, obviously, is that even though we can pass it through here with a simple majority, [Obama is] likely to veto it.”
The Obama administration led off 2015 promising to take action on methane emissions from oil and natural gas drilling sites.
The EPA proposed rules in August to require drillers use new technologies to track and block accidental and purposeful leaks when producing and transmitting oil and gas. The proposal kicked up a potential fight with the gas industry.
Greens have said a strong methane rule is one of the last major climate initiatives Obama can effectively push through during his final term in office. Methane has about 25 times the global warming power of carbon dioxide, and a push to cut down on leaks will compliment Obama’s work on carbon emissions elsewhere, they say.
Drillers, though, are skeptical of the rule, saying they are already taking steps to cut methane leaks on their own. They support EPA’s opt-in programs for cutting methane emissions, but warn that actual regulations could “undermine American competitiveness” in the oil and gas sector.
“EPA’s proposal for additional methane regulations on oil and gas wells and transmission are duplicative and costly,” Howard Feldman, the senior director of regulatory and scientific affairs at the American Petroleum Institute, said in December. “They could also undermine the progress our industry has made lowering greenhouse gas emissions.”
Republicans, too, have opposed new methane rules, with House Natural Resources Committee chairman Rob Bishop (R-Utah) calling the proposal “another unprecedented attack” on oil and gas interests.
The agency hopes to finalize the rule by the spring.