For reasons of self-preservation, 2015 figures to be a very busy year for regulators in the Obama presidency. Under the Congressional Review Act (CRA), Congress has 60 business days from the promulgation of a major regulation to vote on a resolution that would vacate the rule. Due to the Presidential veto, however, the Congress’s CRA prerogative is usually toothless. Indeed, the only practical window for a successful CRA challenge occurs when the 60 day time limit (for Congress to act) overlaps with a new and like-minded presidential administration. And because the Congress only conducts, on average, about 10 business days a month, the Obama administration faces a deadline of about May 2016, by which it must promulgate all of its major regulations, in order to ensure that any one them cannot be subject to a successful Congressional Review Act resolution (under his successor President). As such, the clock is ticking, and most of this administration’s regulatory action will have to be wrapped up in the upcoming year. Below, I’ve listed what we can expect for 2015.
EPA’s Carbon Pollution Standards (Due Date: Any Day Now)
On January 8, 2014, EPA proposed a Clean Air Act rule to control greenhouse gas emissions from new coal fired power plants, known as the Carbon Pollution Standards. In practice, the regulation would effectively ban the construction of new coal-fired power plants, by requiring them to use carbon capture and sequestration, a technology that is far from ready for prime time. Under the Clean Air Act, EPA has one year from proposal to finalize a rule; it is most certain that the agency will miss this deadline (i.e., January 8, 2015). Nonetheless, the regulation is definitively in the pipeline and should be issued in the upcoming days.
The rule’s statutory foundations are sketchy, as we explain in CEI comments to EPA. And here, I give the top six reasons why the regulation is illegal as proposed.
In fact, EPA is taking a big risk if it decides to stay the course, and push the limits of what it could achieve with this rule. If the rule is vacated by Article III courts, then EPA loses its legal basis for its marque climate policy (the Clean Power Plan), as my colleague Marlo Lewis explained yesterday.
EPA’s “Natural Gas Strategy” (Due Date: January)