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The EPA's Emissions Rule Delay Isn't an Environmental Setback

Brendan Hoffman/ Getty Images

On Wednesday, the Environmental Protection Agency announced a short delay to finalizing two landmark climate change regulations. One of the regulations, which limits carbon pollution from future power plants, was expected in its final form this week. A similar plan for controlling carbon emissions from existing and modified power plants also faced a June deadline. Now both final versions have been kicked to mid-summer

The delay does more than give the EPA an extra few months to issue controversial regulations on the power sector. The delay also gives the EPA time to prepare for legal challenges, putting it in a stronger position to fend off attacks in coming months.

The EPA's acting administrator for air quality, Janet McCabe, denied this was a part of the reason for the delay, telling reporters it was the “best policy outcome” for a series of related regulations that collected more than 2 million comments in an extended comment period. “These are individual rule packages and however those legal ramifications will fall out, we’re focused on the fact that these rules are a suite of rules affecting the industry. Given the issues that overlap we really need to be thinking about them in the same time frame.”

Jeff Holmstead, an energy industry analysts and former head of the EPA Office of Air and Radiation under President George W. Bush, said the decision means could pressure the rules' critics—coal plants and red states—into folding lawsuits into a single case. "It is part of a litigation strategy," Holmstead said, according to U.S. News & World Report. "If they can force these all into one case, it severely restricts challengers' ability to raise issues. If you have these rules that are all part of one case, and the court gives you a certain number of words for your brief, and you have a certain number of minutes for your oral argument—part of this is to disadvantage the challengers as much as possible in the litigation."

The delay also means Republicans can't use one option available to block the rule just yet. Yesterday, Senator James Inhofe laid out his strategy to use the Congressional Review Act to overturn the regulations. This 1990-era law lets lawmakers fast-track legislation that prevents regulators from implementing a rule. Senate Majority Leader Mitch McConnell wanted to use this tactic to block the rule while it was still in its draft form. The Government Accountability Office effectively shut this down, saying the CRA can't be used prematurely when the rule isn't final. Republicans will almost certainly come back to this tactic this summer, but don't expect it to work: The bill will require Obama's signature, which he won't give. Conservatives best hope for victory will be the courts.