As OMB Watch recently reported, EPA is preparing to announce the regulatory scheme it will pursue for regulating greenhouse gas emissions in accordance with the Supreme Court's April decision which said greenhouse gases could be considered a pollutant under the Clean Air Act.

An EPA official has reportedly indicated the agency will pursue a regulatory scheme similar to that of California and the other states, wherein the agency would set targets to reduce emissions over time, according to BNA news service (subscription). More information on EPA's plans may surface when the agency releases its annual Regulatory Plan later in 2007.

EPA may only be in the early stages of a rulemaking, but the White House is already all over this like white on rice. As Frank O'Donnell at the Blog for Clean Air points out, the White House Office of Information and Regulatory Affairs has already held at least four meetings regarding potential greenhouse gas emissions regulations.

The list of attendees does not engender much confidence in the outcome of the rule. In addition to government personnel from EPA, USDA and the Departments of Transportation and Energy, OIRA has met with Shell, Frontier Oil, Hyundai, Nissan, Honda, Toyota, and some power companies from Nebraska.

Reg•Watch will wait patiently to see if OIRA invites anyone from the environmental, public health or energy security communities to solicit input.

One of the OIRA meetings also included a representative from the Vice President's Office. The Bush White House has kept Cheney's presence in these meetings to a minimum and generally only brings in a representative from the VP's office for the most significant of agency regulations.

Every two weeks, in OMB Watch's e-newsletter The Watcher, we analyze a few recent issues in regulatory policy. Here are the articles from the October 23 issue:

While Feds Dither, States Move to Regulate Greenhouse Gases
Kansas has rejected an air permit for proposed power plants due to the threat of the resulting greenhouse gas emissions. The decision makes Kansas the latest state to take proactive steps to stem greenhouse gas emissions while federal agencies and Congress delay action. Read more...

Bush Administration Tries to Reverse Old-Growth Forest Protection Plan
The U.S. Bureau of Land Management is trying to dismantle a 1994 landmark management plan that balances logging, endangered species and old-growth forest protections. BLM wants to revise the Northwest Forest Plan to allow logging on nearly one million acres of old-growth forest area. The proposed revisions ignore scientific recommendations, and the process appears to have been manipulated by Bush administration officials. Read more...

Report Finds Extensive Noncompliance with Clean Water Act Rules
A new report has found thousands of facilities are out of compliance with the requirements of the Clean Water Act. The report blames declining support for environmental enforcement during the Bush administration as a major cause of the regulatory violations. Read more...

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A subcommittee of the Senate Environment and Public Works Committee held a hearing last week on the current state of Superfund, the federal government's toxic waste clean-up program.

Senators and witnesses discussed how the Superfund program has fallen into disrepair under the Bush administration. One major problem has been a lack of adequate funding. In her opening statement, subcommittee chairman Sen. Hillary Clinton (D-NY) said, "The administration has tied itself into knots defending the absurd position that more money would not help all that much. And they have been extremely secretive about this project, keeping information from the public, and stonewalling this committee."

Rena Steinzor, Professor at the University of Maryland School of Law and scholar at the Center for Progressive Reform, testified about the funding shortfalls and the unfortunate consequences: "In constant dollars, revenue appropriated for the Superfund program now stand at levels 40 percent lower than the amounts Congress specified when it last reauthorized the program in 1986."

Steinzor argues the program's budget has been cut even though many Superfund sites pose a serious threat to communities. She points out, as is too often true with environmental impacts, Superfund neglect disproportionately effect poor and minority populations:

Many of these communities are low income and comprised of people of color. Of the 50 sites we studied, 60 percent were located in neighborhoods where households reported median incomes in the range of $40,000 and some 26 percent were in the midst of populations comprised of 40 percent or more racial or ethnic minorities.

For months, the White House Office of Information and Regulatory Affairs has been blocking the finalization of a rule that would enhance protections for the North Atlantic right whale. The National Oceanic and Atmospheric Administration (NOAA) is pursuing the rulemaking because the right whale is one of the most critically endangered marine species in the world.

Under Executive Order 12866, Regulatory Planning and Review, agencies are required to submit significant rules to the White House in order to give OIRA an opportunity to review and edit the rule.

However E.O. 12866 prescribes a time limit for the OIRA review period. OIRA is to complete its review within 90 days of receiving the rule from the agency. In consultation with the agency, OIRA may extend the review period once for 30 days. NOAA submitted the draft of the final rule on Feb. 20, 2007 which means OIRA has exceeded the time limit by 118 days and counting.

OIRA is holding up another NOAA rule as well. On May 29, NOAA submitted a draft proposed rule in which the agency hopes to expand protections for krill. Krill are shrimp-like creatures that serve as an important source of food for whales and other marine animals. Krill are the most abundant organism on earth (in terms of mass) but the species is in decline, according to an episode of Planet Earth Reg•Watch recently saw on the Discovery Channel.

OIRA generally places rules into three categories: economically significant (those expected to have an economic impact of $100 million or more); other significant (those that interfere with the actions of other agencies, materially alter budgetary impacts, or raise novel legal or policy issues); and nonsignificant (those OIRA wants to review even though they fail to meet any of the aforementioned criteria.)

The right whale rule is considered economically significant — the kind of rule OIRA generally pays lots of attention to. But the krill rule is considered nonsignificant which means the rule drew OIRA's attention for non-economic reasons.

Of course, because of the murkiness of the OIRA review process, the public is shut out of all proceedings. Therefore, it is currently impossible to know what OIRA has been doing with the rules all this time.

As Reg•Watch blogged this morning, the Environmental Protection Agency is all talk when it comes to enforcement of environmental regulations. A new report from U.S. PIRG titled Troubled Waters highlights the deficiencies in EPA's enforcement of Clean Water Act regulations.

Facilities that want to discharge pollutants into navigable waterways must first receive a permit from EPA. EPA uses the permit system to limit discharges and to monitor the polluting activity of the facilities.

The report finds, "Nationally, more than 3600 major facilities (57%) exceeded their Clean Water Act permit limits at least once between January 1, 2005 and December 31, 2005." Furthermore, the violations tend to be significant: "Major facilities exceeding their Clean Water Act permits, on average, exceeded their permit limits by 263%, or nearly four times the allowed amount."

One problem the report cites is poor enforcement during the Bush administration. President Bush has consistently pushed budgets which slash the agency's enforcement funding. Whether it's due to a lack of funding or a lack of interest, EPA has underwhelmed in enforcing the Clean Water Act:

In 2007, the EPA Office of Inspector General reviewed 56 major facilities in long-term significant non-compliance with Clean Water Act NPDES permits between July 2002 and June 2005. The Inspector General found that EPA and states did not take suitable enforcement actions to address all of the violations at 21 of the facilities and took no enforcement actions at eight of the facilities. At 35 of the facilities reviewed, none of the enforcement actions that the Inspector General's office could assess were taken in a timely manner, leading facilities to continue to violate their permits for extended periods of time.

As Reg•Watch mentioned earlier, officials claim the agency is focusing on polluters who leave a "big environmental footprint" and on "chronic offenders who are out of compliance." Too bad they're all talk.

The Bush administration has caught some flack recently for its poor record of enforcing environmental regulations and for the timidity with which it pursues prosecution of the nation's worst polluters. A Sept. 30 Washington Post article reported, "The number of environmental prosecutions plummeted from 919 in 2001 to 584 last year."

With that in mind, it was refreshing to see EPA negotiate a big environmental settlement which will go a long way in reducing air pollution. On Oct. 9, EPA reached a settlement with American Electric Power (AEP) in which the utility agreed to pay a $15 million civil penalty and "to undertake approximately $4.6 billion worth of pollution control measures at its existing plants over the next decade," according to the Natural Resources Defense Council (NRDC).

Unfortunately, there is a seedy underbelly to the settlement. According to today's Washington Post, EPA pushed to include a waiver which will grant AEP a get-out-of-jail-free card for future violations.

Buried in paragraph 133 of the [settlement] ... is a section that assures AEP that the government will not pursue any action stemming from the "modification" of these plants between now and Dec. 31, 2018...

The administration has repeatedly questioned the value of enforcing the current rules, and the settlement guarantees that AEP will not face federal prosecution if its activities over the next decade trigger this sort of federal review.

After the Sept. 30 Post article on the administration's lax enforcement efforts, EPA officials rushed to the agency's defense. EPA Deputy Administrator Marcus Peacock said, "My regular meetings with the enforcement office have left me with the impression they are doing a really good job." The head of EPA's Office of Enforcement and Compliance Assurance, Granta Nakayama, said the agency is going for quality, not quantity, by focusing on polluters who leave a "big environmental footprint" and on "chronic offenders who are out of compliance," according to BNA news service (subscription).

But if the AEP settlement is any indication, Nakayama is just blowing hot air. According to NRDC, "The Columbus, Ohio-based AEP owns 25 coal-fired electric plants in the United States, and was the number one industrial emitter of carbon dioxide, nitrogen oxides and sulfur dioxide pollution in the country, based on 2004 data." If that's not a big environmental footprint, what is?

Reg•Watch Update: "EPA's Lax Enforcement Fouls Water Too"

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

Bush Administration Delays Import Safety Changes While Congress Debates Solutions

States Sue Bush Administration over New Children's Health Insurance Requirements

House Energy and Commerce Committee Proposes Climate Change Legislation Framework

As Reg•Watch blogged earlier, environmental prosecutions have dropped dramatically during the Bush administration. A recent Washington Post article indicates EPA has not made prosecution a priority. Marcus Peacock, EPA's deputy administrator, has also blogged on the subject on his webpage, "Flow of the River."

Peacock sticks up for his agency. Whereas the Washington Post article focused on cuts in prosecutions, Peacock says EPA has measured increases in: "The number of pounds of pollution reduced due to enforcement actions; and the number of additional dollars invested in pollution control due to enforcement actions."

Peacock argues greater compliance naturally leads to a diminished need for prosecutions. Though he doesn't provide exact numbers, it's an interesting counter to what is presented in the Post.

Nonetheless, Peacock does not address the resource shortfall at the agency. As Reg•Watch mentioned before, EPA now employs only 172 criminal investigators even though federal law mandates a staff level of at least 200, according to the Post.

As Peacock acknowledges, "nobody has good data on compliance rates." So, if EPA doesn't know the level of compliance, why would it cut enforcement staff (in this case, criminal enforcement staff)? Also of concern, EPA's own failure to comply with federal law. Perhaps Mr. Peacock will blog on those subjects in the future.

Reg•Watch usually discusses federal policy and its implications. But even the best policies are useless if they are not properly enforced. In the case of environmental regulation, polluters may often have a financial incentive to avoid complying with federal regulations. The Environmental Protection Agency and the Justice Department both play a role in finding and penalizing those who do not comply.

However, according to The Washington Post, prosecutions of environmental ne'er-do-wells during the Bush administration are way down:

The number of environmental prosecutions plummeted from 919 in 2001 to 584 last year, a 36 percent decline, according to Justice Department statistics collected by Syracuse University's Transactional Records Access Clearinghouse. Those same Justice Department data also show that the number of people convicted for environmental crimes dropped from 738 in 2001 to 470 last year.

The article mentions the lack of a political will to prosecute polluters as a reason for the decline. Resources are also a problem:

The slower pace of enforcement mirrors a decline in resources for pursuing environmental wrongdoing. The EPA now employs 172 investigators in its Criminal Investigation Division, below the minimum of 200 agents required by the 1990 Pollution Prosecution Act, signed by President George H.W. Bush.

The actual number of investigators available at any time is even smaller, agents said, because they sometimes are diverted to other duties, such as service on EPA Administrator Stephen L. Johnson's eight-person security detail.

Reg•Watch update: "EPA Official Defends Drop in Environmental Prosecutions"