Q: Why is it important to give EPA some time to digest the cumulative economic impact analysis?

A: If the Agency proceeds while the cumulative impact analysis is still underway, the combined effect of the power-sector rules could have profound impacts on the national economy with minimal benefits. The nearest-term of these rules are the Utility MACT and the Clean Air Interstate Rules. According to the recent comprehensive analysis by the respected National Economic Research Associates (NERA), these two rules together could produce nationwide net employment losses totaling 1.44 million job-years by 2020. These rules will impact roughly 400,000 megawatts of oil- and coal-fired generation, which is about 40 percent of the current available capacity in the United States, and makes up nearly 50 percent of U.S. total electricity generation.

Q: Haven't the regulatory requirements been known for a while?

A: No. The actual terms of regulation have not been well known. In fact, with respect to the transport rule, the Agency has made major changes in its proposal even after it was published in the Federal Register. Also, Congress, when it adopted the 1990 Clean Air Act Amendments, specifically instructed the Agency to hold its consideration of air toxics standards for electric generating units in abeyance given the signal importance of such facilities to the national economy. Therefore, Congress well understood that additional time made sense to get the regulatory status of sector exactly right. The Agency has not done so in its current truncated approach to rulemaking but needs to do so to strike the right balance between jobs, security, reliability and environmental protection.

Q: Is there precedent for making the Agency await authoritative findings before proceeding with a regulation?

A: Many. For example, when Congress determined that EPA had insufficient information to regulate low-volume, high-toxicity wastes (like coal ash), it adopted an amendment that set up a specialized study, made recommendations, and awaited action before the Agency could proceed with regulation. Again, the importance of the underlying industrial sectors for energy security, competitiveness, economic concerns, and regulatory resources were at issue in this Amendment, known as the Bevill Amendment.

Q: Are you concerned that more time to perfect the rule might result in additional impacts on human health?

A: Getting a better rule is the best approach to protecting human health and the environment, and that's what this amendment is all about. The Utility MACT proposal, comes with virtually no identifiable incremental benefits. EPA found very limited benefits to mercury reductions and has not supplemented the record specifically regarding non-mercury HAPs. Gradient Corporation examined EPA's own database and found that the proposal would have a “negligible impact on mercury exposures” in most of the U.S. because mercury exposures are dominated by non-US. sources. Even EPA admits the Utility MACT rule is one of the most expensive ever - at least $11 billion - of which the American public can expect as little as a one-time benefit of $500,000, for a return as small as one dollar of mercury benefit for every $22,000 invested. The PM exposure the Agency claims to address in support of these rules has already been addressed in other rules on the books and being implemented. This is the same kind of double accounting that corporations are forbidden to do in their own affairs. Simply put, avoiding PM exposure is the way the Agency can make the extraordinary claim that these very expensive rules are cost-effective. Once those benefits are adjusted to take into account the effect of rules already adopted, the proposals becomes all cost and no additional benefit over current rules.

Q: Why does it make sense to allow more time for both the transport rule and the Utility MACT rule?

A: It is important for the amendment to cover both of these rules because of the schedule for their implementation. Simply put, these two rules drive the timing for the entire trainwreck of power-sector-related rules. The Utility MACT is due to go final by November 2011, and will be phased in over the following three years. The transport rule begins implementation starting in January 2012 for SO2 and NOx. So, if the Amendment fails to address either of these rules, the Agency and the regulated community simply will not have enough time to address cumulative impact without major compliance decisions already being a foregone conclusion. Also, the most recent economic analyses, as discussed above, look at the interaction between the two rules and find that taken together they endanger almost a million and a half high-paying industrial jobs.

Q: Doesn't the bill just kick the can – essentially delaying the inevitable?

A: No. If the Agency has the time to do its homework on these rules – something it claims it cannot do now because of court orders – the resulting rules will be based on better data and can take into account the cumulative effective of all the power-sector rules. Indeed, the resulting rules should be better able to survive judicial scrutiny. And, unlike appropriations riders which create a de-facto "stop work order" for the Agency, the TRAIN Act as amended will allow the Agency to continue to work on the rules in order to improve them – even as the report contemplated in the TRAIN Act is being completed."