June 24, 2011

EPA's Apparent Effort to Appease Environmentalists over the Boiler MACT Rule Not Very Appeasing

The EPA has developed an inexplicable penchant for making decisions that please no one. So, it should come as no surprise that its announcement today regarding the ongoing, will-they-won’t-they Boiler MACT saga falls into this category too. The agency traded in the indefinite delay it gave itself last month to “reconsider” the final Boiler MACT standards it issued in February for a firm deadline:  The EPA now promises to complete the reconsidered final standard by the end of April of 2012.

Environmentalists responded to the EPA’s earlier announcement that it would indefinitely delay the reconsidered final standard with equal parts anger and shock. (See here and here) To allow this indefinite delay, the agency exploited a loophole in the Administrative Procedure Act, crafting a one-sided “justice” analysis that considered only industry’s interests while completely ignoring those of the public and the environment.

It’s good that EPA has given itself an actual deadline. But let’s be clear on the cost of the ten-month delay in finalizing the regulation. Because EPA failed to finish the regulation on the original deadline, mandated by statute, Americans will suffer:

  • Up to 5,500 premature deaths;

  • Up to 3,300 non-fatal heart attacks; and

  • Up to 1,300 cases of acute bronchitis

Truly, the price is too high. But it’s apparently not high enough for industry and its supporters in Congress. A bill to delay and dilute the Boiler MACT rule is pending in the House. Meanwhile, anti-regulatory voices continue to attack the rule, despite the delay.

It’s not clear what the EPA hoped to gain from this delay. But, if the agency actually follows through with the April 2012 deadline, at least the rule will be firmly in place in case a President even less friendly to public health and the environment should be elected in November 2012. That’s a small victory, to be sure, but one that may become more familiar as the elections start to kick into full gear.


Catherine O'Neill, CPR Member Scholar; Professor of Law, Seattle University School of Law. Bio.

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