Former EPA senior policy counsel Sussman discusses agency’s challenges to meeting existing source rule deadline
Monica Trauzzi: Bob, EPA scored another major win this week when the Supreme Court upheld its Cross-State Air Pollution Rule. Is this telling in terms of what the court might support in the future on EPA’s interpretation of the Clean Air Act?
Robert Sussman: Well, this is a big win for EPA and a long time in coming. It comes on top of another very big win in the mercury and air toxics case, where EPA scored a very big victory in the D.C. Circuit. And I think what we’re seeing here is that the courts, the Supreme Court, the D.C. Circuit, are recognizing that environmental statutes are complicated. They raise difficult issues of interpretation. The answers are not always clear, and therefore the courts need to be very respectful of the agency’s policy judgments and give the agency deference. And so, I think that’s telling us that in the future if EPA does a conscientious job, if it makes difficult policy choices and explains them, the courts are going to tend to lean over to uphold EPA.
Monica Trauzzi: And we are expecting some difficult policy choices very soon. In a recently published article in UVA’s Environmental Law Journal, you write, “EPA’s leadership knows now that the president has its back, and this has removed a major source of uncertainty and indecision in the agency’s approach to GHG emission reduction.” What’s accounted for the shift in emissions strategy during the president’s second term?
Robert Sussman: Well, there are a number of things that are different now, as compared to the first term. First, the possibility of legislation is off the screen. There will not be climate legislation anytime soon. Secondly, EPA’s efforts to apply the Clean Air Act to greenhouse gases have by and large been successful. The Clean Air Act has worked. It has not been the economy-threatening debacle that many predicted, so I think that there’s confidence now that the Clean Air Act really is a viable tool. Most importantly is that emissions have dropped very significantly in the United States. EPA’s 2014 greenhouse gas inventory indicates that power plant emissions are 15 percent lower than they were in 2005. Economywide emissions are 10 percent lower, so that is telling us that the trajectory in the U.S. energy system is towards lower emissions and that we can build on it and build on it very successfully.
Monica Trauzzi: One of the major conversations we hear pertaining to the existing source rule and the president’s Climate Action Plan overall is the intensity of the deadline structure, both in terms of the actual rule and the state planning that will follow afterwards. What are the biggest potential pitfalls for this rule once it’s proposed, the existing source rule once it’s proposed, in terms of getting to that deadline?
Robert Sussman: Well, this is one of the most complicated rules that EPA will be issuing. There will be huge congressional interest, huge stakeholder interest. Comments will be very extensive, both technical and legal and policy comments, and I think that views in Congress and in the stakeholder community are going to be polarized and divided, so EPA has a huge amount of work ahead of it staying on track. Getting a final rule out in June 2015 is a daunting task. I know they’re going to pull out all the stops. I know that the White House is going to be cracking the whip on them, and so they’re going to do their level best, but it is a very difficult task, and then to give the states only a year after that to develop implementation plans is, I think, yet another very big challenge. And I think the states are going to want more time, some for questionable reasons, some for very legitimate reasons, and so EPA is going to have to, I think, arrive at a schedule, which allows the states to do the work that they need to do but also keeps the process moving forward. It’s going to be difficult.
Monica Trauzzi: So ultimately what does this mean? What do you predict? Will they meet the deadline, and if they don’t, what happens then?
Robert Sussman: Well, I don’t think there’s any doubt that EPA will get a final existing source rule out before the end of the administration. It may not be exactly in June of next year. It may be six months later, nine months later. Who knows? But I think they’ll get it done before the end of the administration. The bigger risk, I think, is that the state planning process will still be under way at the time we have a presidential election in 2016, and that will mean that the implementation process will be the responsibility of the next administration which comes in. And depending on the outcome of the election, that may not be a big deal, or it may be a very big deal.
Monica Trauzzi: Considering the budget and personnel challenges that are currently occurring at EPA, do you think the agency has adequate resources in place to move forward on the Climate Action Plan and meet all the deadlines?
Robert Sussman: I think that the resources that they need will be made available by the administrator and by OMB with the backing of the White House. The real question here, I think, relates to EPA’s overall agenda and whether looking beyond climate change EPA is going to have the resources to get done what it needs to get done, and there I think we’re looking at a mixed picture.
Monica Trauzzi: All right, Bob, appreciate your insight. Thank you for coming on the show. And thanks for watching. We’ll see you back here tomorrow.
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