Law360: Obama Climate Plan Deals A Blow To McCarthy Confirmation

Obama Climate Plan Deals A Blow To McCarthy Confirmation

By Sean McLernon

This article was originally posted in Law360 on June 28, 2013

President Barack Obama’s recent decision to move ahead with a comprehensive plan to combat climate change without a permanent head in place at the U.S. Environmental Protection Agency leaves current nominee Gina McCarthy with a tougher path to confirmation by inflaming her critics and raising the regulatory stakes.

McCarthy, who currently heads the EPA’s air office, has already faced resistance from Republican lawmakers who have ramped up their outrage with the administration since the White House Tuesday to regulate carbon emissions from existing power plants and take other measures to lower the amount of greenhouse gases released into the atmosphere.

“It’s going to put red-state senators on the spot more than was already the case,” said American Enterprise Institute energy and environmental policy scholar Benjamin Zycher. “She was a difficult confirmation to begin with, and this makes it harder.”

By unveiling his climate initiative while McCarthy’s nomination remains in Senate limbo, the president showed he was prepared to start the regulatory process with acting Administrator Bob Perciasepe at the EPA helm and McCarthy still playing a large role in her leadership position at the Office of Air and Radiation.

Opponents have already pointed out that McCarthy helped develop many of the EPA’s air regulations over the last four years, and her ties to the administration and its upcoming rules for power plants creates new hurdles, according to Zycher. He estimated McCarthy’s confirmation odds at “no better than 50-50 at this point.”

Looking at her tenure running the air office, Zycher noted that rules like the Mercury and Air Toxics Standards had received intense criticism from many of the senators who will be voting on her nomination.

“She has a record of pushing regulations that no sensible person believes can pass a cost-benefit test,” Zycher said.

With McCarthy still in Senate limbo, the White House decided to move on climate change without her. The decision buys the administration more time to work through the lengthy rule-making process before the end of the term, according to Brookings Institute governance studies fellow Philip A Wallach. Many Obama administration officials are eager to act fast in spite of GOP resistance, which Wallach said could be emboldened following the release of the climate plan.

“Presumably, Republicans’ motivation is that they think publicizing this issue is good politics for 2014 and 2016,” Wallach said. “It’s a calculated, tactical decision.”

The president nominated McCarthy in March to replace Lisa Jackson, who stepped down earlier this year. During her four-year tenure as the agency’s clean air chief, McCarthy worked with Jackson over to spearhead a number of major agency actions involving air regulation, including emissions restrictions for new coal-burning power plants.

McCarthy advanced through the Senate Environment and Public Works Committee in May with a 10-8 party-line vote in her favor, but Republicans are still threatening a filibuster to prevent the full Senate from considering her nomination.

Ranking member Sen. David Vitter, R-La., and other Republicans have questioned the quality of the science the EPA used to determine Clean Air Act regulation issued during McCarthy’s tenure and have demanded unredacted copies of all of McCarthy’s emails regarding official EPA business.

Under normal circumstances, McCarthy would have already been confirmed as a pragmatic choice based on her credentials, according to Jeffer Mangels Butler & Mitchell LLP partner Jon Welner. In addition to running the EPA’s air office for four years, she has worked in Republican administrations as a state regulator in Connecticut and Massachusetts, including a stint under then-Gov. Mitt Romney.

“This is all operating at a hyperpartisan and symbolic level,” Welner said. “If the Republicans want to make a statement that they dislike the EPA, they may create continuous and increasing amount of difficulty for President Obama’s nominee.”

The president mentioned McCarthy during his climate speech in which he announced the plan Tuesday, interrupted by applause from the crowd at Georgetown University as soon as he uttered her name. He said McCarthy had been forced to “jump through hoops no Cabinet nominee should ever have to” because Republican lawmakers want to stop the EPA from regulating carbon pollution.

Obama demanded that the Senate confirm her without further delay, but the emissions regulations he talked about earlier in his speech rankled lawmakers who represent major coal-producing states, such as Sen. Joe Manchin, D-W.Va. Claiming the White House is pushing “unreasonable restrictions that will have disastrous consequences” for the country, Manchin said he believed the president had declared a war on coal.

“There is an open question, whether or not the timing of the announcement was wise,” Welner said. “On the one hand, it’s important for the president, if he intends to get something done on climate change, to come out forcefully and early and raise the issues he wants to address. On the other hand, it could provide an excuse for the nominee to be blocked.”

But even if administration’s opponents stop McCarthy from taking over the agency, she will still have a major hand in drafting new regulation as head of the air office. She was confirmed unanimously by the Senate for that position four years ago. And the agency is perfectly equipped to implement the president’s climate plan with Perciasepe in charge, according to Manatt Phelps & Phillips LLP attorney Adam Riedel.

The EPA is not a Cabinet-level agency and there is no limit on the time Perciasepe can serve as acting administrator, Riedel said.

“That’s part of the reason the administration may have felt more emboldened to roll out their regulations,” Riedel said. “They don’t need Gina McCarthy confirmed in order to go forward.”