The Roles of EPA and DOE in Environmental Legislation

By Greg Zimmerman, Executive Editor  
OTHER PARTS OF THIS ARTICLEPt. 1: A Mixed Bag of Bills Addresses Environment, Cap and TradePt. 2: This PagePt. 3: From Local to Global, Climate Change Legislation is Gaining Ground

If partisan bickering derails climate legislation in Congress, emissions reduction advocates still may have a consolation prize. Last December, after months of study, public hearings and public comment, EPA Administrator Lisa P. Jackson took a crucial step toward regulating greenhouse gas emissions. The so-called "endangerment finding" says that the current and projected atmospheric levels of the six main greenhouse gases, including carbon dioxide, "threaten the public health and welfare of current and future generations."

The endangerment finding provides the scientific justification for EPA to continue the work on regulating greenhouse gas emissions that began with the 2007 Supreme Court decision Mass. v. EPA. In that ruling, the high court determined that greenhouse gases are air pollutants, and EPA must regulate them under the Clean Air Act.

The first EPA regulation arrives in March in the form of stricter vehicle fuel efficiency standards. By 2016, new vehicles will have to meet an average fuel efficiency of 35.5 miles per gallon.

Most experts agree that EPA regulation will not have the same effect on overall emissions reduction as Congressional action could. One reason is that EPA regulation would not come with the financial incentives for emissions reduction and energy efficiency the proposed legislation includes.

A Poor Fit?

Another reason EPA regulation isn't the optimal situation, says Roy, is that the policy tools EPA has under the Clean Air Act are not well suited for regulating greenhouse gases. EPA has all but admitted as much, devising what's being called the "tailoring rule."

The tailoring rule would raise the threshold on greenhouse gas emissions for buildings EPA is required to regulate to 25,000 tons per year. The current thresholds under the Clean Air Act for pollutants like lead, sulfur dioxide and nitrogen dioxide are 100 and 250 tons per year, depending on building type. EPA says these thresholds are appropriate for those pollutants, but are not feasible for regulating greenhouse gas emissions.

To advocates of the tailoring rule, EPA is just streamlining the regulation and "tailoring" it to be more applicable to the greenhouse gas emissions of large industrial facilities and fossil-fuel-burning power plants. To critics, however, EPA is skirting the law and abusing its power.

"This is an admission by EPA that regulating carbon dioxide under the Clean Air Act is not practical," says Myron Ebell, director of energy and global warming policy for the Competitive Enterprise Institute. "It's EPA's way of getting around the Clean Air Act, regardless of what the statute actually says."

Some in Congress are also uncomfortable with EPA regulation. Murkowski, the ranking Republican on the Senate Energy Committee, has taken umbrage philosophically at the idea of EPA regulating greenhouse gas emissions. In January, she introduced Senate Joint Resolution 26, a "resolution of disapproval," which, according to Ebell, "is a symbolic expression of disapproval at EPA regulating greenhouse gas."

Murkowski's resolution, as well as a similar one introduced in the House in early February, is intended to stop EPA's attempt at "back door climate regulations with no input from Congress." It's an opening salvo in a Congress-EPA turf war over emissions reductions rules.

If Congress does pass a climate/energy bill, it might make EPA action moot. The Waxman-Markey bill would supercede EPA authority, although the Kerry-Boxer (CEJAPA) bill would retain it.


National Energy Code Proposal Draws Negative Reactions

The federal government has been trying for years to convince some states to make their energy codes stricter. The Waxman-Markey bill takes another approach: a threat to have the Department of Energy (DOE) write codes for them if states don't toughen theirs. The bill calls for a national model energy code that will reduce energy use by 30 percent compared to American Society of Heating, Refrigeration and Air-conditioning Engineers (ASHRAE) 90.1-2004 in 2010. If states don't adopt codes that achieve those energy targets, which step up to a 75 percent reduction for commercial facilities by 2030, DOE can enact enhancements or develop a wholly new code and put it in place. That would remove ASHRAE from the code-development process, and would turn energy code development from its current third-party consensus process into a federally dictated one.

"If this becomes law, and we didn't hit our targets, we'd lose our franchise," says Doug Read, program director of government affairs for ASHRAE. "DOE would take over and probably come up with a standard very similar to 90.1."

Other organizations are opposed to this aspect of Waxman-Markey as well. "We don't believe the federal government should change the way energy codes are developed," says Karen Penafiel, vice president, advocacy for the Building Owners and Managers Association. "We don't want to see Congress change the consensus process by setting mandatory targets."

Partly because of lobbying and educating efforts by ASHRAE and other organizations, the Senate energy bill is a bit softer than Waxman-Markey. The reduction targets are similar in both bills, but in the Senate version DOE wouldn't totally take over ASHRAE's standard. It would only "support development by code development organizations," so ASHRAE would still have control.

"ASHRAE in principle supports any legislation that drives us toward energy efficient buildings," says Gordon Holness, ASHRAE's president. "But legislation is one thing and our consensus process is quite another."

— Greg Zimmerman

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  posted on 3/1/2010   Article Use Policy

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