With health care, jobs, and electoral politics dominating the legislative calendar, it is no surprise that environmental legislation is languishing in Congress.  The Administration’s response, however, is raising eyebrows.  While endorsing legislation authorizing greenhouse gas regulation and chemical control reform-both likely to shape the future cleantech industry-the Administration is not waiting for Congress to act. On climate policy, months before the House of Representatives passed its cap-and-trade bill, EPA had signaled its intent to revisit the Bush Administration’s denial of California’s waiver request to impose emission standards on new vehicles, issued a proposed endangerment finding for CO₂ under the Clean Air Act and proposed mandatory greenhouse gas regulations for large stationary sources.  Today, as the Senate remains gridlocked on climate change legislation, EPA has finalized its endangerment finding, granted California’s waiver, issued final GHG reporting requirements and proposed the mechanism by which it will impose permitting requirements on stationary sources releasing CO₂.

EPA has taken an equally aggressive approach to chemical control reform.  Early on, EPA Administrator Lisa Jackson identified legislative reform of the Toxic Substances Control Act (TSCA) as a top priority, even offering principles to guide legislative efforts.  With a Democrat in the White House, Democratic majorities in both chambers, several round of hearings in the record, and the likelihood of a legislative proposal in the near future, TSCA reform is more likely this congressional session than ever before.  Yet, the prospect of legislation has not prevented EPA from announcing an ambitious range of proposals under its existing (and often maligned) TSCA regulatory authority.  Invoking TSCA’s seldom-used section 6 authority, EPA announced plans to ban or restrict a variety of existing chemical uses deemed to pose unreasonable risks.  EPA also announced plans to increase the testing and data reporting requirements for other industrial chemicals and materials; and adopted a narrower interpretation of TSCA’s confidentiality provisions to increase public access to business information previously claimed as confidential by manufacturers. 

Congress’ reaction to EPA’s initiatives has been mixed.  Some lawmakers in both parties expressed concern over EPA’s regulatory climate proposals, prompting Lisa Jackson to lengthen the implementation time frames for some of EPA’s climate regulatory actions.  Others see EPA’s action as an effective stick to force legislative compromise.  Lawmakers have said little, however, about EPA’s recent efforts to reassert its current TSCA authority-indeed, the most recent hearing on TSCA reform was notable not for its discussion of chemical control policy but for the heated rhetoric surrounding the so-called “ClimateGate” issue that dominated the question and answer period.

Congress will have another opportunity to explore EPA’s regulatory strategy during hearings scheduled this week.  On Wednesday morning, Lisa Jackson will testify before the Senate Interior and Environment Appropriations Committee regarding EPA’s 2011 climate change budget.  On Thursday, March 6, EPA officials will testify before a House Energy and Commerce Subcommittee on TSCA’s role in regulating persistent and toxic chemicals.  These hearings may shed light on whether EPA will be able to sidestep, or be halted by, the political battles engulfing environmental legislation in Congress.

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