Energy group warns EPA may use ‘sue-and-settle’ to cap emissions

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Gina McCarthy, President Obama’s pick to head the Environmental Protection Agency, said this week the agency won’t pursue unpopular low carbon fuel standards for vehicles, but her reassurance hasn’t convinced energy groups just yet.

“While EPA claims to have no intention of imposing an LCFS at this time, there is still reason to be vigilant, as EPA has established a track record of using ‘sue-and-settle’ as a means of implementing unpopular policies behind closed doors,” Consumer Energy Alliance Vice President Michael Whatley said Monday.

Such a lawsuit could allow the EPA to insist it has no plans to implement cap and trade, and still make the rules as part of a settlement without congressional approval, CEA said.

Cap-and-trade is popular with environmental groups, who say the cap on emissions is a cost-effective way to reduce pollution. But in practice, the economic impact of the policy is “devastating,” CEA said.

“Numerous independent studies have shown that a cap-and-trade program on transportation fuels would impose significant pain at the pump, and that is the last thing American families need right now,” the group said in Monday’s statement.

The EPA may not have plans to implement cap-and-trade regulations on vehicle emissions, but green groups haven’t given up that goal. The Institute for Policy Integrity has petitioned for the rules since 2009 and said in November 2012 it intends to sue the EPA to make sure they’re implemented.

A group of Republican senators wrote a letter to McCarthy in March urging the EPA not to participate in a “sue-and-settle” arrangement with Policy Integrity.

“The potential negative impact in this case is that it threatens to expand environmental regulation beyond original intent of the law and could have detrimental effects on the livelihoods of our fellow Americans that are not always understood by academia,” wrote Sens. David Vitter, R-La., Deb Fischer, R-Neb., Roger Wicker, R-Miss., and James Inhofe, R-Okla., on March 28.

McCarthy’s statement on the low carbon fuel standard was in response to questions from the Senate Environment and Public Works Committee as part of her confirmation process.

“EPA is not considering nor does it have any plans to seek to establish a federal LCFS,” she told the committee, according to CEA.

Those comments don’t change Policy Integrity’s determination to sue, Executive Director Michael Livermore told The Washington Examiner on Tuesday“McCarthy’s comments are orthogonal [at right angles] to our petition, so don’t change anything about our status,” he wrote in an email.

CEA’s sue-and-settle claim is “groundless,” he added.

Policy Integrity notified the EPA in November it plans to sue by the end of this month.

“Given the clear link between greenhouse gas emissions and global warming, EPA’s delay in acting and in responding to Policy Integrity’s petition is inconsistent with the agency’s legal requirements and scientific determinations,” the notice said.

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