Boiler MACT Rule on Back Burner

The Environmental Protection Agency (EPA) recently requested an extension for implementing the proposed Boiler Maximum Achievable Control Technology (MACT) Rule, which was scheduled to go into effect on January 16, 2011. The EPA asked for the 15-month extension so that it could reconsider the rule based on comments and additional data it received that "raise questions about the agency's initial conclusions." Gina McCarthy, the EPA's assistant administrator for air and radiation, said that some of the pollution limits "were simply too tight to...be achievable."

If the District Court for the District of Columbia — the Court that ordered the EPA to set the standards as part of Sierra Club v. Lisa Jackson, Administrator, US EPA — accepts the extension, the EPA will re-propose the rule no later than June 1, 2011. Another 60-day comment period would follow, and a final rule would be released no later than April 13, 2012.

The request comes on the heels of criticism from the Council of Industrial Boiler Owners (CIBO), the Biomass Power Association and others that the rule would cause undue pressure on facility owners, who would be forced to invest in expensive control technology or close in the midst of an already struggling economy. A bi-partisan group of senators led by Olympia Snowe (R-Maine) expressed concern about the economic impact of the decision and requested the release of a Commerce Department study, which reportedly shows that capital costs and job losses would be much higher than the numbers originally released by the agency. To date, the EPA and the Commerce Department refuse to release this report. In addition, 40 senators and 115 congressmen — including dozens of Democrats with strong environmental credentials — have signed letters asking the agency to be less strict when issuing its final regulations.

The motivation behind this request is unclear. Some speculate that recent mid-term election results prompted the EPA to delay the rule’s implementation. With Republicans slated to take over majority leadership positions in both houses of Congress on January 3, threats to curb the EPA’s power to regulate greenhouse gas emissions, carbon in particular, are becoming louder. The theory here is that if the EPA is less confrontational — a position it adopted early in the Obama administration when it began aggressively rolling back Bush-era environmental policies — the new Congress will focus on other targets.

If this was indeed the motivation, it is unlikely to work. Fred Upton, the Michigan Republican who is on deck to become chair of the House Energy and Commerce Committee, has vowed to make limiting EPA authority one of his top priorities, even going so far as suggesting that Lisa Jackson should get her own parking space on Capitol Hill, as he intends to hold numerous hearings questioning the agency’s actions.

Jackson denies the delays were a response to potential Congressional hearings, however, citing instead the need to get further interpretation of the science.

For the President himself, the motivation is most likely to reside with the economy. In the long run, Obama remains committed to the environmental agenda he campaigned on. In the near term, however, his willingness to compromise when it comes to what is in the best interest of the economic recovery, as the tax deal he recently struck with Republicans demonstrates, is clear — even if he angers progressives in his own party by doing so.