Is the EPA Playing Politics?

According to reports, the Environmental Protection Agency (EPA) may have held back on the publication of a new energy regulation in order to protect Democrats in the 2014 midterm elections.

In June 2013, President Obama asked the EPA to issue rules regulating carbon dioxide emissions from power plants, and the EPA proposed such standards on September 20, 2013.

But this is where the agency started to deviate from normal procedure.

Typically, rulemaking goes like this: The EPA proposes a new rule (usually, it announces this on its website for the public to see) and then — generally within five days — it submits the rule to the Federal Register for publication. Once published in the Federal Register, the public has a limited number of days to comment on the proposal. Notably, the Clean Air Act requires the EPA to finalize emissions rules for new power plants within one year of publication in the Federal Register.

But the September emissions rule was not sent to the Federal Register within five days. It was not even sent there a month later. Instead, a full 66 days after the rule was proposed, the EPA finally sent the proposal to the Federal Register for publication, on November 25, 2013.

What does this have to do with the 2014 midterms?

Because the publication date determines when the rule is finalized, pushing the publication date to January 2014 meant that the controversial rule would not become final until January 2015.

But had the EPA followed protocol and submitted the rule for publication in September within the usual 1-5 day window, it would likely have been published just prior to the November 2014 midterm elections. Senator James Inhofe (R – OK) said just this in a letter to EPA Administrator Gina McCarthy:

The costs of the President’s [greenhouse gas] regulations are going to be enormous with far-reaching and irreparable impacts on our electricity generation capacity, affordability and reliability. With this in mind, it makes sense that the American public would react negatively to the finalization of this first round of [greenhouse gas] regulations…This makes the timing of your proposal very important. If the rule was finalized by September 20, 2014, the American people would have about six weeks to consider the negative impact of the rule on the economy prior to going to the polls. In addition to this, my colleagues and I would have been able to force a vote on a resolution of disapproval against the final rule…This possibility of electioneering is deeply troubling.

Had the EPA submitted the rule in a timely fashion, lawmakers could have been forced to take a stand on it prior to the November elections.

The EPA has blamed the delay on consistency needs and “formatting” (it is not entirely clear what would make this rule so unique that it would require two months of formatting…), as well as the government shutdown. But the shutdown did not start until October 1, seven working days after the rule was proposed. As Sen. Inhofe said:

If the EPA had followed…protocol, the [New Source Performance Standards] rule would have been submitted to the Federal Register’s office two full working days before the shutdown.

Perhaps most damning of all, Administrator McCarthy, testifying before the Senate Environment and Public Works Committee, said, “I will assure you that as soon as that proposal was released, we had submitted it to the Federal Register office.” She went on: “The delay was solely the backup in the Federal Register office.”

The Office of the Federal Register disagrees. Federal Register Director Charles Barth said that his office did not receive the EPA’s proposal until November 25. Moreover, once the agency did receive it and scheduled it for publication on December 30, the EPA requested that publication date be pushed forward even farther, to January 8, 2014!

Politico reports that the EPA says it pushed for the delay because it did not want to release the rule during the holidays. So the government wanted to wait and release controversial news when the public was actually paying attention? That would be a first.

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