July 2, 2013

How will OMB treat EPA’s new power plant carbon pollution rule?

Editor’s Note:  The correct answer to how OMB should treat all of EPA’s planned actions is by acting a watchdog demanding scrupulous compliance with President Obama’s Executive Orders on regulatory review and with the requirements of the Paperwork Reduction Act and the procedureal and substantive requirements of the Data Quality Act and implementing guidance.  With respect to PRA compliance, OMB should encourage EPA to make full use of the law’s public consultation processes.

From: Climate Science Watch

The Environmental Protection Agency today sent a revised proposal to regulate greenhouse gas emissions from future power plants, as called for in President Obama’s Climate Action Plan. The proposal goes for review by the White House Office of Management and Budget, which has a history of delaying, weakening, and blocking science- and health-based rulemaking at EPA and other agencies. If Obama is serious about implementing his climate action plan he will tell OMB to get out of the way and let EPA do its job.

President Obama set a September 20 deadline for EPA to issue a revised proposed rule to regulate emissions of greenhouse gases from new power plants. Less than a week after Obama rolled out his Climate Action Plan, with new and existing power plant regulation as a core component, OMB has received EPA’s under-wraps pre-publication proposal for White House and interagency review. As we have seen in the past, EPA is one agency in the federal government that is trying to move forward on climate change policy, under challenging conditions.

In a practice that started under Ronald Reagan and has continued, with no transparency, under Obama, OMB’s Office of Information and Regulatory Affairs (OIRA) has essentially been empowered to manipulate and often block science- and health-based rulemakings — thus preventing the Environmental Protection Agency from carrying out its responsibilities under the law. Complex internal processes characterize the dominance relationship of OMB/OIRA, with its anti-regulatory bias and almost-dictatorial powers, over EPA and other federal regulatory agencies.

Politico reported (“EPA sends climate rule to White House“):

EPA just hit the accelerator in its push to fulfill President Barack Obama’s climate promises. …

The substance of the draft is confidential and may not become public for months. And it may be significantly weaker than an April 2012 draft that had seemed vulnerable to industry legal challenges. …

As is typical at this stage of rule development, EPA did not release the substance of the draft it sent to the White House. The Office of Management and Budget will analyze the draft and collect input from other agencies before sending it back to EPA.

[S]everal environmental and industry experts said Monday that the agency’s quick action didn’t surprise them in light of the deadline Obama had imposed. …

“The Sept. 20 publication date required quick submission to OMB to provide something close to the standard 90-day review period,” David Hawkins, director of climate programs at the Natural Resources Defense Council, said by email. “I assume the Sept. 20 date was included in the memo to drive the process.” …

President Obama’s memorandum for the EPA administrator on “Power Sector Carbon Pollution Standards” was published today in the Federal Register. It reads, in part:

Memorandum of June 25, 2013–Power Sector Carbon Pollution Standards

Memorandum for the Administrator of the Environmental Protection Agency

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to reduce power plant carbon pollution, building on actions already underway in States and the power sector, I hereby direct the following:

Section 1.  Flexible Carbon Pollution Standards for Power Plants.

(a) Carbon Pollution Standards for Future Power Plants. On April 13, 2012, the EPA published a Notice of Proposed Rulemaking entitled “Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units,” 77 Fed. Reg. 22392. In light of the information conveyed in more than two million comments on that proposal and ongoing developments in the industry, you have indicated EPA’s intention to issue a new proposal. I therefore direct you to issue a new proposal by no later than September 20, 2013. I further direct you to issue a final rule in a timely fashion after considering all public comments, as appropriate.

(b)  Carbon Pollution Regulation for Modified, Reconstructed, and Existing Power Plants. To ensure continued progress in reducing harmful carbon pollution, I direct you to use your authority under sections 111(b) and 111(d) of the Clean Air Act to issue standards, regulations, or guidelines, as appropriate, that address carbon pollution from modified, reconstructed, and existing power plants and build on State efforts to move toward a cleaner power sector. In addition, I request that you:

(i) issue proposed carbon pollution standards, regulations, or guidelines, as appropriate, for modified, reconstructed, and existing power plants by no later than June 1, 2014;

(ii) issue final standards, regulations, or guidelines, as appropriate, for modified, reconstructed, and existing power plants by no later than June 1, 2015; and

(iii) include in the guidelines addressing existing power plants a requirement that States submit to EPA the implementation plans required under section 111(d) of the Clean Air Act and its implementing regulations by no later than June 30, 2016. …

Sec. 2. General Provisions. …

(b) Nothing in this memorandum shall be construed to impair or otherwise affect:

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. …

[boldface added]

Lisa Heinzerling, who directed the EPA policy office during 2009-2010, has written strong critical analysis of OMB and its Office of Information and Regulatory Affairs. At Climate Progress:

Few people even know OIRA exists; in fact, the adjective that most often appears in descriptions of this small office is “obscure.” Even fewer people know that OIRA has effective veto power over major rules issued by executive-branch agencies and that the decision as to whether a rule is “major” — and thus must run OIRA’s gauntlet before being issued — rests solely in OIRA’s hands. Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.

What has EPA sent to OMB and how does it compare with what will come out the other end of the OMB process?



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