Through out the long and contentious election process the focus of the debate was getting America back to work. Much of the debate centered on tax policy and budget cuts. However, the President was accused of "over-regulation" which Mitt Romney argued cooled the economic recovery.
As part of the debate over regulation, environmental regulation was discussed. The President was accused of waging "a war on coal." Governor Romney also asserted that the President’s climate change regulations represented an over-reach.
Now that the election is over and the President has won a second term, what does a second term really mean for forthcoming environmental regulation. Most observers believe the President will be more emboldened in terms of environmental regulation now that he doesn’t need to worry about re-election.
Below are some of the areas in terms of environmental regulation that the Obama Administration will likely push forward with:
- Climate Change– Some of environmental groups supporting President Obama hope that he will push forward with a major piece of legislation on climate change. In the President’s first term, Democrats came close to passing a cap-and-trade bill that would have put in place the largest new environmental program since creation of the EPA and the early environmental statutes (Clean Air Act, Clean Water Act, Superfund). In reality, new legislation on climate change looks very unlikely. The Re publican’s still control the House and the margin is thin for the Democrats in the Senate. Instead, the Administration will continue to implement climate change regulations under EPA’s existing authority under the Clean Air Act. This will likely mean lowering the carbon emission thresholds that trigger New Source Review and Title V permitting utilizing the Tailoring Rule. It also means establishing emission standards for new major sources (i.e. New Source Performance Standards).
- Ozone- The President came into office promising to undo the Bush era ozone standard of .75 ppm stating the standard was not based on science. While the EPA proposed lowering the ozone standard it ended up punting on four separate occasions due to pressure from the business community. Now it appears almost a certainty that the EPA will finally move forward with a lower standard of .70 ppm.
- Coal-Fired Power Plant Emission Reductions- This past August the D.C. Circuit Court vacated U.S. EPA’s Cross-State Air Pollution Rule (CSAPR) also known at the "Transport Rule." The Transport Rule was the second attempt by EPA to establish emission standards for existing coal-fired power plants. The Transport Rule was blamed for potentially forcing the closure of a significant number of existing power plants threatening to driving up energy prices. CSAPR was the Obama’s Administration’s effort to fix the issues the predecessor Bush era program known as the Clean Air Interstate Rule (CAIR) which was also struck down by the Courts. In the Obama Administrations second term, EPA will once again attempt to fix this massive regulation.
- Fracking Regulation– The natural gas industry continue to boom in Pennsylvania, Ohio and West Virginia. The massive reserves found in the Marcellus and Utica Shale formations promise to provide home grown energy for a century. Fracking is used to access these deep reserves that were previously not accessible. Fracking uses deep wells and then breaks up the rock to release the gas. Environmentalists are very concerned with the air emissions, water pollution and potential to contaminate groundwater from the fracking process. The Obama Administration moved slowly in putting in place new regulations in his first term. EPA did establish federal air permitting requirements for new wells. The Obama Administration also created a federal agency fracking working group to look at the process and recommend new regulations and coordinate between federal agencies. It is very likely that in a second term will be proactive developing new regulation.
- Support for Renewable Energy- The Obama Administration is likely to continue its strong support for renewable energy like wind, solar and biomass. Its possible the President will explore a federal renewable energy standard similar to the renewable energy portfolio standards (RPS) imposed in many states. An RPS mandates a certain percentage of power production must be provided by renewable energy sources. It is possible the President will try and impose such a mandate nationally. This still seems unlikely given the make up of Congress. More likely is that the Obama Administration will continue financial support for the industry through tax breaks, grants and loans.
- Boiler MACT– In a second term, President Obama is likely to implement long-delayed emissions regulations for industrial boilers that apply to a whole array of industry. The Boiler MACT (Maximum Achievable Control Technology), was proposed in 2004 before being delayed by litigation in the Courts. EPA issued a new proposal in 2011 which was again delay due to controversy surrounding the sweeping new standards. EPA may issue the final rules as soon as December.
- The Role of the Courts- Many of the areas of regulation discussed above are involved in protracted litigation. Challenges to climate change regulation are still pending. EPA’s re-write of CASPR will be challenged again. There could be more challenges to the final boiler MACT rule. The final ozone rule will almost certainly be challenged. The petroleum industry will likely challenge any new fracking regulation. Overall, the second term will not only see significant new regulation but major uncertainty as proposals, both new and old, will be challenged in the Courts. Businesses like certainty. In the world of environmental regulation that almost never seems to be the case.