EPA Nominee Would Consider Applying Existing Laws to Current Issues

By Juliet Eilperin
Washington Post Staff Writer
Thursday, January 15, 2009

At the outset of Lisa P. Jackson's confirmation hearing yesterday to be Environmental Protection Agency administrator, Sen. John Barrasso (R-Wyo.) said many of his constituents fear that the incoming Obama administration will use existing laws to enact broad environmental rules.

"All fear for their economic future in today's political environment," he told Jackson and Nancy Helen Sutley, who is in line to chair the White House Council on Environmental Quality. "Ranchers and miners know that addressing climate change through the Clean Air Act is a disaster waiting to happen. That's something Congress never intended."

In her response a couple of hours later, Jackson agreed she would consider applying existing laws to issues that were not on the agenda 30 years ago when Congress passed them. The laws, she told Barrasso, "were meant to address not only the issues of today, but the issues of tomorrow."

The 4 1/2 -hour hearing before the Senate Environment and Public Works Committee underscored the dramatic shifts that could occur at the EPA and CEQ if Jackson and Sutley, as expected, are confirmed. While Jackson shied away from specifying what steps she would take upon beginning the job, the former head of New Jersey's Department of Environmental Protection said she would consider regulating coal ash waste from power plants in the aftermath of recent spills and take a more active approach toward other environmental concerns.

"Science must be the backbone of what EPA does," she said, adding that she aims to serve Americans who have suffered from "environmental negligence" such as the effects from untended Superfund sites or the government's botched response to Hurricane Katrina. "They are my conscience."

Sen. Barbara Boxer (D-Calif.), who chairs the panel, pressed Jackson on whether she would back measures to start regulating carbon dioxide, such as a finding that CO2 emissions endanger public health and welfare and a waiver allowing California and other states to impose their own regulations on greenhouse gas emissions from automobiles. Boxer's staff even prepared a "Report on the Tools Available Under the Clean Air Act to Immediately Reduce Global Warming Pollution" outlining how Jackson could do so.

It would take time to finalize either of these measures, both of which outgoing EPA Administrator Stephen L. Johnson rejected, because the agency would have to conduct a rule-making process on each. But David Doniger, policy director for the Natural Resources Defense Council's climate center, said that both could be concluded within months, and that the private sector would feel the impact immediately.

Boxer told Jackson she might end up angering senators such as Barrasso, but that just meant she was tackling a pressing issue. "You're not going to make everybody happy," Boxer said. "That's for sure, because if you do, that means you're doing nothing."

That sort of activism, however, alarms business leaders such as U.S. Chamber of Commerce President Thomas J. Donohue, who told reporters last week that his group wants Congress to take the lead on climate regulation.

"We're better off with the Congress making those decisions rather than the independent regulators who have just arrived in town on a white horse and want to do good things," he said.

But Frank O'Donnell, who heads the advocacy group Clean Air Watch, said he is optimistic that "an Obama administration will send a signal that it intends to use every power available to make progress on this critical issue until -- and even beyond when -- Congress takes action."

The waiver allowing California's tailpipe emissions law to go forward would affect half the U.S. auto market, Doniger said, adding that while a rule-making may take two to three months, "in political form, it's done the day it's announced."

Jeffrey Holmstead, who heads the environmental strategy section at the Bracewell & Giuliani law firm and is a former assistant EPA administrator for air and radiation, said making a finding that CO2 endangers public health could take a year or longer to finalize.

Even more daunting, he said, is the question of how EPA will apply a provision of the Clean Air Act that labels any emitter of 250 tons of a pollutant a year as a "major source" of pollution. When you apply that standard to carbon dioxide, he said, "any building in downtown Washington could be a major source."

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