The U.S. Supreme Court issued two landmark decisions, Rapanos and SWANCC, which interpret the extent of federal jurisdiction under the Clean Water Act.  Since these decisions were issued the Army Corps of Engineers as well as Courts have had difficulty applying the tests for determining federal jurisdiction in a consistent and coherent manner.

The Army Corps of Engineers, in its 2008 Rapanos Guidance, set forth its methods for applying the Supreme Court tests for determining federal jurisdiction.   The prior written guidance left open key issues such as:

  • Which of the two tests (Kennedy or Scalia) should be utilized- see discussion below
  • Since the statutory language at issue, "waters of the United States,"  appears in other sections of the Clean Water Act how do the Supreme Court tests apply to regulatory requirements not directly addressed by the Supreme Court Decision.

The new 2010 Draft Rapanos Guidance (click link for a copy) attempts to address these issues as well as others. 

Perhaps most importantly, the draft guidance announces that its application will greatly expand the number of waters falling within federal jurisdiction- "the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.”   The Agencies criticize the 2008 Rapanos guidance as interpreting Justice Kennedy’s test too narrowly. 

Recap of Supreme Court Tests

The Rapanos decision contains two tests for determining federal jurisdiction.  The plurality test and the significant nexus test created by Justice Kennedy.  A key debate since the Supreme Court decision in the lower courts has been whether one or both tests should be used to determine jurisdiction.  Here is recap of the two tests that emerged from Rapanos:

  1. Significant Nexus Test- (Justice Kennedy) Federal Clean Water Act Jurisdiction extends to all waterways that have a "significant nexus" to a navigable water. A "significant nexus" occurs "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable
  2. Plurality Test- (Just Scalia) The test developed by the plurality has a more narrow focus than the Kennedy test.  Under the test, federal jurisdiction extends to only "relatively permanent, standing or continuously flowing bodies of water"

New 2010 Draft Rapanos Guidance

EPA and the Army Corp’s 2010 Rapanos guidance basically states the agencies will apply Justice Kennedy test exclusively, the more expansive of the two tests.  Also, as discussed above, the guidance contains a clear message that the Justice Kennedy test will be applied by the agencies in a more expansive manner than under the 2008 guidance. 

The new guidance also applies to more programs under the Clean Water Act (CWA)  The 2008 Rapanos guidance focused only on the CWA 404 regulations governing placement of fill in wetlands and streams.  The 2010 Draft Guidance is far more expansive, stating it is meant to apply to “whether a water body is subject to any of the programs authorized under the CWA."  Such CWA programs include sections 402 (NPDES), 311 (oil spill), 303 (water quality standards and TMDLs) and 401 (state water quality certification) programs.

Status of Written Guidance

The draft 2010 Guidance was sent to the Office of Management and Budget (OMB) for review. OMB has until March 20, 2011 to conclude its review (90 days from the date it was submitted).  EPA and the Army Corps have also said they will provide a limited opportunity for comment once the draft clears OMB review.

It goes without saying that there is concern with the new guidance.  Industry has already stated it believes it is overly expansive and also incorporates language into Justice Kennedy’s test that the Justice never intended. 

Based on the federal agencies attempt to greatly expand federal jurisdiction through release of the guidance, it will almost certainly be challenged. 

The U.S. Chamber commissioned a study of the economic impact of project that have been delayed or canceled as a result of federal and state permitting processes. As described by the U.S. Chamber on its website:

This study estimates the potential loss in economic value of 351 proposed solar, wind, wave, bio-fuel, coal, gas, nuclear and energy transmission projects that have been delayed or canceled due to significant impediments, such as regulatory barriers, including inefficient review processes and the attendant lawsuits and threats of legal action.

The Chamber does acknowledge you can’t blame the fact these project did not move forward exclusively on permitting:

As noted above, we do not believe that all of the subject projects will be approved or constructed even in the absence of any legal and regulatory barriers. Also, as with all economic forecasts, we recognize that there is an element of uncertainty. This could be true here because, to our knowledge, this is the first empirical study to quantify the macroeconomic and employment impact of the regulatory barriers imposed on the development and operation of so many energy projects.

The Study is a first real attempt to aggregate data on the impacts regulations on development. Below is a snaptshot of projects at issue in Ohio.

 

You don’t often get State court decisions on environmental law, especially on air permitting issues.  Recently, the 10th Appellate Court in Columbus issued a decision that has at least a few major implications for businesses in Ohio.  State of Ohio ex rel Ohio Atty. Gen. v. The Shelly Holding Co, et. al.,

There is a good summary of the facts behind the case and a discussion of the legal conclusions the Court reached on the blog American College of Environmental Lawyers by longtime environmental attorney Mike Hardy.  I won’t repeat the history of the case here.  Rather, let me highlight the major implications from the ruling for businesses that operate air sources within Ohio.

Ohio EPA’s Permit Backlog

Up until 2008, air sources were first issued a permit to install (PTI) to construct and start-up.  Then the source had to obtain a permit to operate (PTO) for continued operation.  With nearly 70,000 regulated air sources Ohio EPA had thousands of backlogged PTO applications.

To address the issue going forward, the law was changed in June 2008 and new sources could obtain a combined PTIO permit.  This reduced the need for two permits from 2 to 1 and extended the effectiveness from five years (PTO) to ten years (PTIO). (Click here for Ohio EPA chart on difference between the programs).

This was a good fix going forward, but what about businesses who were stuck with the system that existed prior to 2008?  The Court’s ruling on potential to emit (see below) shows the danger of the Agency’s failure to act on a timely basis.  Shelly submitted timely applications, but was placed at a major disadvantage because the Agency failed to act on those applications on a timely basis.

Key Lesson #1:  Even if a business fulfills its obligations on a timely basis it still can be placed at a regulatory disadvantage based on the Agency’s failure to act.

What is a Source’s Potential to Emit

A source of air pollution (boiler, paint line, etc.) must obtain a federal permit if it exceeds certain thresholds (100/250 tons per year).  There is a huge incentive for businesses to avoid obtaining a federal permit because they impose more onerous requirements. 

In determining whether a sources exceeds federal permitting thresholds, EPA looks at its design capacity, not its actual day-to-day emissions.  Design capcity is referred to as "potential-to-emit." (PTE).

Unless enforceable restrictions exist on design capacity, PTE is calculated using worst case assumptions- source operation 7 days a week, 365 days per year and 8,760 hours per year.  Enforceable restrictions include:

  1. air pollution control equipment;
  2. restrictions on hours of operation; and/or
  3. restrictions on the type or amount of material combusted, stored or processed.

The 10th Appellate Court rejected Ohio EPA’s claim that the restrictions must be federally enforceable (federal rule or permit).  The Court held state permits were deemed sufficient for purposes of enforceability.

However, it rejected Shelly’s claim that voluntary restrictions were sufficient, even if those restrictions are in permit applications pending Ohio EPA review.  Until the permit is actually issued, the Court held they don’t have sufficient legal effectiveness to avoid the worst case PTE calculation of 365 days a year.

Key Lesson  #2:  You can’t rely on permit applications as enforceable restrictions to avoid federal permits. 

Ohio EPA’s Failure to Follow the Law

Shelly was hurt by the failure of Ohio EPA act on its PTO applications.  Ohio law imposes an obligation on the Agency to issue permits within 180 days. 

The Court noted Ohio EPA failure to act on a timely basis and held that in considering penalties Ohio EPA failure to act "should not be held against the owner or operator."    An interesting sentence in the ruling-  "After the 180-day deadline passed, the burden falls on Ohio EPA to meet its obligation under law; and owner cannot be penalized for the Ohio EPA’s failure."

I can envision that sentence being quoted in future briefs by lawyers whose clients may face penalties partially as a result of Ohio EPA failure to perform its mandated functions on time.

Key Lesson #3:  Don’t forget Ohio EPA has legal obligations.  Their failure to meet those obligations could be a basis for a legal defense.

Stack Testing to Determine Compliance

Stack tests are samples of air emissions what a source is operating.  The accuracy of stack tests to determine whether a source is in compliance with its emission standards in a permit has been long debated. 

Businesses have argued that stack tests don’t represent normal conditions and are only "a snap shot in time."  Regulators argue that stack tests are a valid way of determining compliance.  Until a source passes a stack test (emissions are within limits), the assumption is the source is operating out of compliance with permit standards and subject to penalties.  Any associated penalties should be based on the time from the failed stack test until the source passes a subsequent stack test.

Key Lesson #4:  To avoid large civil penalties, business should act very quickly to make adjustments following a failed stack test.

 

This week U.S. EPA finalized its long awaited rule making establishing air emission standards for industrial and commercial boilers.  The standards are to reduce emissions of hazardous air pollutants (HAPs) by requiring sources to install or meet of Maximum Achievable Control Technology (MACT).

Controversial Rulemaking Process Comes to an End

EPA proposed MACT standards in spring of 2010 which were intended to replace previous rules that had been vacated by the D.C. Court of Appeals.  The spring proposal was met with harsh criticism from business interests who argued the standards were based on incomplete or inaccurate facts.  The business community argued that the poorly supported standards would result in huge costs.  In response, businesses poured in thousands and thousands of comments and supplied data supporting their arguments.

Reaction to the New Standards

Generally, most recognize the final rules are a huge improvement over the Spring 2010 proposal.  By some estimates, the final rules will cost about $1.8 billion less per year than the rules that were proposed last spring. 

However, there is still concern that the standards don’t provide needed flexibility.

“Despite the best efforts by the administration and [EPA], what we are left with is a rule that in spirit is a very positive development,” said Bob Cleaves, president and CEO of the Biomass Power Association. “I think a number of important changes were made. But I think it remains problematic.” (click here for more information on the Biomass Industry’s reaction to boiler MACT rules)

Some environmental groups are complimenting  EPA’s efforts to balance business concerns with protecting the environment.  Perhaps there is growing recognition that EPA’s regulations are under assault and there is a need for more balanced proposals. (see, NY Times Article on Boiler MACT Rules) 

"It appears that EPA has addressed many of the industry complaints while still putting out standards that would bring significant public health benefits," said Frank O’Donnell, president of the advocacy group Clean Air Watch. "Let’s hope that EPA stands its ground when industries argue for further changes. "

Some appear ready to conclude that this proposal shows the President Obama is listening to concerns regarding the price of EPA regulations and will scale back earlier proposals.  This seems to be perhaps overreaching.  It is more likely that the business community did an excellent job providing EPA good data to demonstrate their earlier proposal was flawed.  No doubt the pressure from the business community helped EPA to take a close look at that data.

Below is some general information regarding the requirements in the new rule.

Boilers Are Covered?

  • Boilers that emit or have the potential to emit more than 10 tons per year (tpy) of a single HAP or more than 25 tpy of a combination of HAPs
  • Boilers that burn coal, oil, or biomass, or non-waste materials.  It excludes boilers that burn solid waste.
  • Different requirements apply to boilers classified as large boilers (10 million BTU per hour or greater) versus small boilers (less than 10 million BTU)
  • HAPs include mercury, lead, dioxin, furans, formaldehyde and hydrochloric acid

What Requirements Apply?

The rule establishes standards for emissions of mercury, particulate matter (PM)
(as a surrogate for non-mercury metals), and carbon monoxide (CO) (as a surrogate for
organic air toxics)

New Boilers

  • Coal-fired boilers, with heat input equal or greater than 10 million Btu per hour, are required to meet emission limits for mercury, PM, and CO.
  • Biomass and oil-fired boilers, with heat input equal or greater than 10 million Btu per
    hour, must meet emission limits for PM
  •  Boilers with heat input less than 10 million Btu per hour must perform a boiler tuneup
    every two years.

Existing Boilers

  • Coal-fired boilers, with heat input equal or greater than 10 million Btu per hour, are required to meet emission limits for mercury and CO.
  • Biomass boilers, oil-fired boilers, and small coal-fired boilers are not required to meet
    emission limits. They are required to meet a work practice standard or a management
    practice by performing a boiler tune-up every 2 years.
  • All area source facilities with large boilers are required to conduct an energy
    assessment to identify cost-effective energy conservation measures.

Reaction to Revised Rules

The Clean Ohio program has released a new interactive tool called the"Project Location and Information Map" which provides an interesting overview of brownfield and greenfield projects that have received grant funding under the program. 

You can search by type of grant funds for all projects across Ohio.  You can also search by specific county and see all the projects in that area that received funding.

The project information is pretty limited once you select a specific site.  It basically has a picture of the site and a description of the type of funding received (the picture above was taken from interactive map).  There does not appear to be any details on the type of development anticipated or description of clean up issues encountered.

The State is inviting the project developers to provide more description, so perhaps there is an opportunity to give more detail.  It would be helpful if the description on the map at least identified the parties involved on the project.  

Due to the limited information, the map does not have much utility other than highlighting the large number of projects that have received grant funding across the State. However, you do have other options to gain more information about projects listed on the map. 

Perhaps you are interested in a property in close proximity to a project that received funding.  You always have the option of making a public record request to find out more details on a specific project.  Under public records law you are entitled to see all the documents generated regarding the investigation and clean up associated with a project.

Rumors had been swirling that there would possibly be a merger between Ohio EPA and the Ohio Department of Natural Resources (ODNR) in an effort to consolidate programs and reduce staff.  Such a proposal was debated in the prior Ohio Legislature as part of larger plan to reduce the total number of State Agencies.  Its possible that as budget discussion progress that proposal will see new life.

While State Agency mergers remain a possibility, Ohio EPA has already started to reorganize internally. Without an official announcement, word is that the Division of Hazardous Waste Management (DHWM) will be broken apart and portions merged with the Division of Solid and Infectious Waste Management (DSIWM) and the Division of Emergency and Remedial Response (DERR). 

The solid and hazardous waste permit writers and inspectors will be working together under one newly formed Division.  The DHWM clean up staff (RCRA closure and Corrective Actions) will be merged with the DERR staff.

With the dwindling number of permitted hazardous waste (RCRA) facilities, such a reorganization makes practical sense.  This will provide the Agency the opportunity to review work loads and reallocate staff to meet current needs.

Perhaps the most interesting portion of the reorganization to watch will be the merger of the DHWM clean up staff with DERR.  The line between Voluntary Action Program (VAP) clean ups and regulatory clean up in other programs has become increasingly thin.  For example, RCRA Corrective Actions can now be completed by entering the VAP program.

The administrative costs and clean up standards for standard RCRA closures are still much more onerous than VAP clean ups.  Will the merger of this staff lead to a reassessment of how clean ups are conducted?  While federal regulatory requirements still limit the State’s flexibility to some degree, there remains the possibility for more common sense and consistent approaches to clean up.

LexisNexis Environmental Law & Climate Change Community is honoring a select group of blogs that set the online standard for our practice area. I’m pleased to notify you that Ohio Environmenal Law Blog is one of the nominated candidates for the LexisNexis Top 50 Environmental Law & Climate Change Blogs for 2011. http://www.lexisnexis.com/COMMUNITY/ENVIRONMENTAL-CLIMATECHANGELAW/blogs/topblogs/archive/2011/01/24/LexisNexis-Top-50-Blogs-for-Environmental-Law-_2600_-Climate-Change-2011-Nominations.aspx.

I received an e-mail from Lexis/Nexis today about this blog’s nomination as a Top 50 Environmental Law & Climate Change blog for 2011.  I previously provided a link to the other nominated blogs which contain high quality content.  As a reader of this blog, if you would like to provide comments to LexisNexis on this or any other nominated blog, see the message and link below. 

Dear Joe:

For the first time, the

 We are asking our online community for their input on our list of nominees, and also welcome comments from your readers. If you’d like to request their support for your nomination, please ask them to comment on ELCCC’s announcement post at the following link:

 

The deadline for comments is 28 February 2011.

 

 

The Governor’s top legislative priority is the privatization of the State’s economic development functions.  House Bill 1, known as "JobsOhio", has been introduced and a vote in the Senate may come yet this week. 

The Ohio Department of Development (ODOD) plays a critical role in the administration of the Clean Ohio program which provides millions in grants for brownfield redevelopment.  The Department’s current role includes the following:

  • Review for Clean Ohio grant applications for completeness;
  • With the assistance of Ohio EPA, makes eligibility determinations;
  • Meets with applicants to discuss projects (known as "PRAMs");
  • Selects which projects will receive Clean Ohio Assistance Fund (COAF) funding which has recently become Phase II assessment grants;
  • Assists the Clean Ohio Council in evaluating projects for Clean Ohio Revitalization Fund (CORF) funding for clean up; and
  • Determines which projects can be reimbursed with grant funds.

On the brownfield projects I work on, the ODOD personnel are the key point of contact when evaluating projects and through out implementation of the project.  More than once, ODOD personnel have made absolutely critical decisions that impact the viability of projects or have made significant reimbursement decisions that cost  developers hundreds of thousands of dollars. 

With the privatization of economic development functions, ODOD’s key role will almost certainly be absorbed by another state agency.  Most likely, Ohio EPA will pick up these functions, but its possible the functions could stay with the newly created non-profit corporate entity.

How far away are we from that transition? House Bill 1 is only the first step in privatization of the Ohio Department of Development and the associated transfer of existing functions to other state agencies.  The bill basically establishes the non-profit corporation to be known as JobsOhio.  The Bill then calls for a six month consultation process to evaluate transition of the other functions of ODOD. 

Here is the relevant section of H.B. 1:

Sec. 187.05. The director of development, as soon as
practical after the effective date of this section, shall, in
consultation with the governor, evaluate all powers, functions,
and duties of the department. Within six months after that
effective date, the director shall submit a report to the general
assembly recommending statutory changes necessary to improve the
functioning and efficiency of the department and to transfer
specified powers, functions, and duties of the department to other
existing agencies of the state or to JobsOhio, or eliminate
specified powers, functions, or duties. The recommendations shall
be submitted in writing to the speaker and minority leader of the
house of representatives and the president and minority leader of
the senate.

After submitting the report, the director, in consultation
with the governor, shall continue to evaluate the department and
make additional recommendations on such matters to the general
assembly.

We are probably at least a year away from seeing any of ODOD’s responsibilities transition to other agencies or to the JobsOhio entity.  For now it will be the status quo.  But in the near future a crucial decision will be made as to who will administer ODOD’s critical Clean Ohio responsibilities.

I’m taking a break from the typical focus of my posts to address an article that just makes me crazy.  Forbes has come out with its annual "Most Miserable City List."  Last year Forbes ranked Cleveland No.1 and this year it dropped to No.10.  This is how Forbes described this year’s Cleveland ranking:

Last year’s most miserable city, Cleveland, fell back to No. 10 this year despite the stomach punch delivered by LeBron James when he announced his exit from Cleveland on national television last summer. Cleveland’s unemployment rate rose slightly in 2010 to an average of 9.3%, but the city’s unemployment rank improved relative to other cities, thanks to soaring job losses across the U.S. Cleveland benefited from a housing market that never overheated and therefore hasn’t crashed as much as many other metros. Yet Cleveland was the only city to rank in the bottom half of each of the 10 categories we considered.

First of all, I thought Forbes was considered a business magazine.  Since when does a pop culture development like a star basketball player leaving get factored its analysis?  But beyond this simple fact, Forbes has no clue as to what is happening in Cleveland right now.

There is a building boom in downtown Cleveland with over $2 billion dollars worth of construction and this construction boom is occurring during one of the toughest economies.  This new construction includes the Medical Mart and New Convention Center, Inner Belt Bridge Project, Flats East Bank Project, Aquarium, and Casino. 

The Cleveland Plain Dealer, a paper in my mind notorious for dwelling on negatives, had an editorial this weekend recognizing the positive developments in the Greater Cleveland region.  Those included:

• With evidence growing that manufacturing is actually leading the nation’s economic recovery, unemployment in Greater Cleveland has been running a full percentage point below the national average.

• Monster.com just named Cleveland the seventh-hottest job market in the country.

• Venture capitalists poured $221 million into this region last year — double the pace of such investments in 2009.

• The Milken Institute, a think tank that has consistently ranked Ohio among the least fertile states for innovation, just cited the state as its most improved for entrepreneurial activity.
 

Want even more indications of Cleveland’s positive direction?  From reforming local government to visionary new projects, Cleveland is heading in the right direction.

  • Travel & Leisure Magazine just name Cleveland one of the most visionary cities in the world for its urban farming efforts, including its mall to greenhouse transformation.  Only two other U.S. cities were even on the list.
  • Entrepreneur magazine recently ranked Northeast Ohio as one of the hottest entrepreneurial regions.
  • There is an on-going $350 million dollar renovation of the Cleveland Museum of Art transforming it into a showplace museum.
  • Government corruption is part of the criteria Forbes reviews, but it failed to consider recent developments.  Most cities do little about corruption issues and just try and get by.  No doubt Cleveland had its issues, but in November, local voters passed a ballot measure which completely reforms local County government. 
  • Cleveland has an organized and progressive sustainability movement which is serving as a model to other Cities-  Sustainable Cleveland 2019.  Partially in recognition for these efforts, a 2008 ranking had Cleveland jumping 12 spaces to the 16th most sustainable City in the U.S. and a lot has happened since then.
  • According to U.S. News and World Report, Northeast Ohio hospitals ranked in the top 10 of 11 specialty areas, including heart, pediatrics and urology.
  • TripAdvisor.com recently cited Cleveland as one of the top 10 most underrated destinations in the world
  • Cost of Living- A family of four can enjoy amenities and attractions in Northeast Ohio, comparable to any other major city or region in the nation, and save as much as 35%.
  • Site Selection Magazine named Ohio, for the fourth year in a row, as having the most new or expanded private-sector capital projects edging out Texas for the top spot.

One of the biggest issues facing Cleveland is its own inferiority complex.  Articles likes those written by Forbes don’t help to lift the region. To combat this issue, leaders organized an on-going branding effort to accentuate all the positive development in the Greater Cleveland region- Clevelandplus. (Check it out for the latest positive developments).

Before a magazine like Forbes creates a rankings that tags a city with a negative image, perhaps it could spend a little more time gathering information.  No doubt it overlooked all the recent developments I have highlighted.   

Maybe Forbes should issue a correction- Cleveland, one of the top 10 most improved Cities.  Just like Clevelanders, instead of dwelling on negatives, perhaps Forbes can start recognizing positive developments in its publication.

 

(Photo:  Innerbelt Bridge Design- ODOT webpage)

The AP is reporting that the Republican controlled House is expected to introduce legislation shortly that will strip all authority from U.S. EPA to regulate greenhouse gases (GHGs) under its existing authority in the Clean Air Act.  This would specifically target the EPA’s endangerment finding and could possibly go as far as saying GHGs are not a "pollutant" under the Clean Air Act.

The soon introduced legislation will be very aggressive according to a recent AP article:

Officials said the House bill, which was to be offered Wednesday, would nullify all of the steps the EPA has taken to date on the issue, including a finding that greenhouse gases endanger public health.

In addition, it seeks to strip the agency of its authority to use the law in any future attempts to crack down on the emissions from factories, utilities and other stationary sources.

The House bill joins similar efforts in the Senate:

Republicans are attempting similar restrictions in the Senate, where the political situation is more complicated. Sen. John Barrasso of Wyoming has introduced a more sweeping measure than the one House Republicans are drafting. At the same time, Sen. Jay Rockefeller, D-W.Va., has proposed a two-year moratorium on EPA attempts to regulate greenhouse gases, a plan that already has attracted a handful of Democratic supporters.

It will be very difficult to pass through the Senate the aggressive measures that will likely be included in the House bill.  Only the proposed 2 year delay of implementation is likely to pass the Senate.  Even if something does pass, the legislative efforts appear futile based on comments in an article appearing in Politico from Lisa Jackson, U.S. EPA Administrator:

“What has been said from the White House is that the president’s advisers would advise him to veto any legislation that passed that would take away EPA’s greenhouse gas authority,” Jackson told reporters on Capitol Hill. “Nothing has changed.”

Any Room for Real Compromise?

During the State of the Union, President Obama announced a plan to mandate 80% of the nation’s electricity from renewable sources by 2035.  The President signaled a willingness to consider an expansive definition of "renewable energy" that would include nuclear, clean coal and natural gas.  The President suggested financing energy projects by slashing $4 billion annually in government subsidies to oil and gas companies.

Many see the President’s proposal of a national renewable energy standard as a switch in strategy now that cap and trade is dead.  While there was no mention of climate change in the President’s speech, the renewable standard is seen as, perhaps, less distasteful means of reducing GHGs.  More importantly, it has some possibility of getting a few Republicans on board.

Republicans and the U.S. Chamber seem cool to the President’s plan.  However, reality is that U.S. EPA has moved forward and will continue to implement new GHG regulations under its existing authority.  The convoluted and complex rules need to prevented. (See, prior post Regulation under CAA "Absurd")

Perhaps a bill implementing a renewable energy standard offers a mechanism in which the Administration would find palatable a reduction or prohibition on EPA’s GHG regulatory authority.  Before dismissing the President’s plan, similar to the tax deal, Republicans should see what they could get as part of a broader compromise.  Because without compromise, EPA will continue to issue GHG regulations through 2012.