04/26/2010 05:12 am ET Updated May 25, 2011

EPA's Pragmatic Approach to Regulating Climate

In the atmosphere of hypersensitive and largely symbolic climate politics, it was recently reported that EPA Administrator Lisa Jackson was backsliding on climate regulation. In a letter to Senator Jay Rockefeller of the Coal State of West Virginia, Administrator Jackson wrote:

I share your goals of ensuring economic recovery at this critical time and of addressing greenhouse gas emissions in sensible ways that are consistent with the call for comprehensive energy and climate legislation.

Her letter provides plenty of detail on the "sensible ways" in which EPA will phase in greenhouse gas regulations. To summarize, EPA will:
  • Not require new or modified facilities to reduce greenhouse gas emissions before 2011.
  • Only require facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions to address their greenhouse gas emissions in their permit applications during the first half of 2011.
  • Probably increase the size of facilities subject to these initial rules.
  • Not regulate small generators of greenhouse gas emissions before 2016.

This approach to regulation is the norm in U.S. environmental policy. Our history of pollution control has always been gradual - and always involved accommodation of local economic and political interests. The Resource Conservation and Recovery Act is a case in point. Though enacted in 1976, some of the final rules on hazardous waste dumps didn't go into effect until the 1990s. The increased quality of our air and water is the result of about four decades of incremental reform and progress.

The organizational structure of EPA itself is designed to ensure that state and local political and economic pressures are carefully accommodated. EPA is a very decentralized agency. While national policy is made in its Washington headquarters, much of the specifics of implementation is left to its ten regional offices. Regional Administrators are the organizational equals of the Assistant Administrators that formulate national policy in Washington. Like those Assistant Administrators, they report directly to the EPA Administrator. Unlike the Assistant Administrators, the work of EPA's Regional Officers is closely monitored by the Congressional delegations representing the states within each region. These Regional offices negotiate with local industries on the details of environmental permits and must be responsive to local economic forces and the demands of local elected officials.

All of this serves to ensure that the implementation of environmental regulation proceeds at a deliberate pace. The idea that environmental regulation has killed jobs and destroyed local industry is largely a myth. Progress has come, step by painful step, and America's air, water and land are all cleaner than they were when EPA was created in 1970. But there is no doubt that this progress has been very gradual. EPA is the regulatory tortoise and not the environmentalist hare - but just as in the children's fable, "slow and steady wins the race."

Administrator Jackson's letter to Jay Rockefeller is simply a recitation of the reality of our regulatory process. Her goal is to make it even more difficult for Republicans to succeed in their misguided and doomed effort to revise the Clean Air Act to prohibit EPA from regulating greenhouse gases. In order to overturn EPA's climate rules, Congress would need a veto-proof super majority. While there are times when I think that some of our representatives have lost their grip on reality, even they cannot believe that there are that many anti-environment votes in Congress.

One of the reasons that this deliberate pace of regulation has worked is that at crucial moments, the environmental community has successfully battled EPA and state agencies in court, and provided a political counterforce to the power exerted by industry. American environmental rules are serious, but environmental regulators know that they have to be "reasonable" at the same time. A second reason our system of regulation works is that American business leaders are smart enough to know that companies that anticipate the future can gain a competitive edge. If you know that greenhouse gas regulation is coming, it is better for your business if you design your new facility to be in compliance from the ground up. Retrofitting is more expensive than building compliance into the design specs.

Climate law is the wave of the future, and renewable energy and energy efficiency will ride that wave. But we are not going to dismantle our fossil fuel-based economy and turn off the lights, the computers and the AC. This transition is going to be gradual, and not everyone will think it is happening fast enough. But the only way to stop EPA from using the Clean Air Act to regulate greenhouse gases is to enact another law that is better suited to the task. Waxman-Markey anyone?