Roger Martella, EPA General Counsel in Bush Administration, Explains How EPA Regulation of Carbon Emissions May Be Close

Roger Martella, a partner at the Washington-based law firm Sidley Austin, recently discussed how the Obama Administration is moving ahead with a regulatory approach to reducing carbon emissions.

For those -- and there are a growing number -- who think that the U.S. Congress will not take action this year (or perhaps next year either) to address greenhouse gas emissions, the regulatory approach may be the path that the administration pursues. Of course, this has some important consequences not least of which is that a legislatively driven cap-and-trade scheme may not come to fruition.

Mr. Martella spoke to E&ETV's Monica Trauzii in mid-September ("Climate: Former EPA General Counsel Martella Discusses Agency's Push to Regulation Emissions," OnPoint, Sept. 17, 2009).

EPA GHG Endangerment Proposal: "A Game Changer"

One day after the U.S. EPA's historic proposed endangerment finding involving greenhouse gases, the sentiment across the country is that the Obama Administration's action has changed the political landscape.

U.S. Rep. Edward Markey, chairman of a U.S. House Energy Committee subcommittee that will begin hearings next week on legislation calling for a GHG cap-and-trade system and a long-time supporter of GHG reductions, characterized the decision as "a game changer," The Wall Street Journal reported today.  "It's now no longer a choice between doing nothing.  It is now a choice between regulation and legislation."

Consequently, a few things are clearer today:

• The U.S. is going to have a GHG emissions reduction scheme either through legislation or regulation.
• Congress is likely to take a more flexible (including, most importantly establishing a cap-and-trade system) approach to reducing GHG emissions; this is largely linked to the fact that the multiple stakeholder groups will have greater influence over elected representatives and senators than the "unelected" regulators in the EPA.
  
• No industry sector will want to be left out of the political discussions; expect increased lobbying of politicians as well as more TV and radio ads by stakeholder groups aiming to frame the overall issue; from past experience industry is well aware that it is easier to have "a seat at the table" during the legislative process as contrasted to the regulatory process.
• Left-wing and right-wing talkers, bloggers and other "self-anointed experts" will attempt to rally their own bases; whether this will add anything to the overall debate is questionable at best; what it will do is give the talkers another issue to ruminate over for the foreseeable future and a good way to increase ratings.  
• The U.S. has increased its global credibility in terms of addressing climate change; but the U.S. is so far behind the European Union that even with an enormous effort this year, the U.S. is unlikely to take the global leadership role away from the Europeans (a role, incidentally, that the Europeans greatly cherish).

To paraphrase former U.K. Prime Minister Winston Churchill, this is not the beginning of the end...rather it is the end of the beginning.

EPA Opens Comment Period for GHG Reporting Proposal

An EPA proposal for the first comprehensive U.S. national system for reporting greenhouse gas (GHG) emissions is now open for comment.

The Proposed Mandatory Greenhouse Gas Reporting Rule would cover about 13,000 facilities that account for nearly 85 to 90% of the nation's GHG emissions.  Some of the sectors covered by the system would include electricity generation, cement production, and iron and steel production.  All of these sectors are already covered now by the fully functioning European Union Emissions Trading Scheme.

Lisa Jackson, EPA administrator, said, "Our efforts to confront climate change must be guided by the best possible information.  Through this new reporting, we will have comprehensive and accurate data about the production of greenhouse gases."

The rule is being proposed under the authority of the Clean Air Act.

For those wanting to comment about the proposed rule, click here.  The 60 day comment period began April 10.