May 18, 2011

Lisa Jackson Steps Back (Again) on Boiler MACT: One of the Top 12 Rules Now in Indefinite Limbo. Delay Violates the CAA

This post was written by CPR Member Scholars Rena Steinzor and Catherine O'Neill, and Policy Analyst James Goodwin.

By any reasonable estimation, it should have been a jewel in the EPA’s regulatory crown. Released in February, the EPA’s final Boiler MACT rule (actually, it’s two rules—one addressing large boilers and the other addressing smaller ones) would annually prevent up to nearly 6,600 premature deaths, more than 4,000 non-fatal heart attacks, more than 1,600 cases of acute bronchitis, and more than 313,000 missed work and school days.  The final rule produced these enormous health benefits despite the fact it had been dramatically softened to placate industry critics. Because of these benefits, a recent CPR white paper had identified the Boiler MACT rule as one of the 12 “most critical environmental, health, and safety regulations still in the pipeline.” The EPA had projected that the rule would generate up to $54 billion in benefits at a cost of less than $2 billion; agency projections usually overestimate costs and underestimate benefits, and some benefits defy monetization.

Nevertheless, the EPA seems to treat this critical rule as if it were a source of shame: Monday, the agency announced that it would stay the effective date for the rule indefinitely while it carried out the formal “reconsideration” process for the rule under the Clean Air Act. (For those of you keeping score at home, the effective date was set to be this Friday, May 20.) The upshot is that the completion of this rule will likely be postponed until after the 2012 election; or, if a Republican ends up in the White House, the rule may never see the light of day. Meanwhile, thousands of people will needlessly die prematurely or suffer debilitating illnesses and health emergencies. The cost of the EPA’s timidity will be high indeed.

The industries to be regulated by this and other rules often behave as if the EPA parachuted onto their front lawns without notice, surprising them with a “train wreck” of new and economically ruinous requirements. That version could not be further from reality. The rules, many of which Congress required under the 1990 Clean Air Act Amendments and has never mustered the votes to pull back, accumulated in the pipeline during the long, irresponsible, and environmentally disastrous presidency of George W. Bush. They are emerging now only after having run the gauntlet of lengthy public notice and comment and judicial review. 

So, for example, the EPA has been under a set of court orders requiring it to complete the Boiler MACT rule since 2006. The agency succeeded in having these deadlines extended on several occasions, until finally the deadline for issuing a final rule was set for January 16, 2011. In December of 2010, confronted by a nasty and relentless regulatory backlash spearheaded by House Republicans, the agency sought to have the deadline extended once more—this time until April of 2012, an additional 15-month delay. This time, the presiding judge would not be moved. In a January of 2011 order, U.S. District Court Judge for D.C. Paul Friedman summarily denied the EPA’s request. In short, the court told the EPA that enough was enough: the agency had had plenty of time to complete the final Boiler MACT rule, and it would not be permitted to delay matters further.

Apparently, though, the EPA was not willing to take “no” for an answer. It couldn’t get a 15-month-plus delay from Judge Friedman, so it set about creating one of its own.

At the same time that it issued its final Boiler MACT rule, the EPA also announced that it was taking the highly unusual step of unilaterally launching a formal reconsideration process for the rule. (Normally, the agency begins the reconsideration process only after it has been formally petitioned by an affected party, and even then the agency is under no obligation to begin the process.) Significantly, however, section 307(d)(7)(B) of the Clean Air Act, which spells out the parameters of the reconsideration process, only authorizes the EPA to stay the effective date of a rule undergoing reconsideration for up to 90 days.

So, by what means of legal alchemy did the EPA manage to turn a 90-day stay into an indefinite one?  According to the EPA’s call for comments for the reconsideration process, the agency has elected to stay the effective date pursuant to the Administrative Procedure Act (APA), rather than to section 307(d)(7)(B) of the Clean Air Act. Section 705 of the APA, the EPA explains, provides that “an agency . . . may postpone the effective date of [an] action taken by it pending judicial review”—provided that the agency finds that “justice” requires staying the effectiveness of the rule until judicial review has been completed. Thus, the EPA set about cobbling together a weak explanation of why “justice” requires an indefinite stay of the Boiler MACT rule’s effective date.  After the rule has been delayed for more than 10 years, and after a federal judge set a hard deadline for issuing the final rule, it is hard to understand how concerns of justice would support additional delay. What about the thousands of people whose lives or health is put in danger by additional delay? If anything, justice requires the completion of the Boiler MACT rule as soon as possible.

Even worse, the agency also had to make a weak argument for why the later Clean Air Act provision (stipulating “90 days”) does not supersede the earlier APA provision. (Typically, when two laws conflict, courts will find that the later, more specific law—in this case the Clean Air Act—applies rather than the earlier, more general law—in this case the APA.)  Environmental groups are not persuaded, and are considering challenging the EPA’s indefinite stay as a violation of law.

In short, not only does the EPA’s indefinite stay of the Boiler MACT flout a clear court order, it violates the law.

The EPA’s indefinite stay is clearly meant to postpone completion of the Boiler MACT rule until after the 2012 election. It also provides yet another example of the Obama Administration throwing in the towel on an initiative to protect public health, safety, and the environment, as it tries a strategy of triangulation. Indeed, the EPA press release announcing the indefinite stay dutifully explains how the decision “is consistent with the president’s directives with respect to regulation, as set out in executive order 13563, issued on January 18.” As we noted then, the Executive Order heralded the new direction that the Obama Administration would take on regulatory issues during the remainder of his first term—a direction that embraced the conservative’s vision of regulation as an intrusive burden on business and the economy that must be slowed, with surprisingly little regard to the costs imposed on people and the environment. With about 17 months left until the 2012 elections, it appears environmentalists had better brace themselves for a bumpy, disappointing ride ahead.

Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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