'Emboldened' Obama faces promising odds on ozone

President Barack Obama’s ambitious proposal to crack down on smog-creating ozone pollution has every imaginable prospect for succeeding: He has the law and ample court precedent on his side, Congress has limited weapons to stop him, and no elections stand in his way.

Perhaps most of all, the second-term president who is taking so many aggressive actions to secure his environmental legacy is behaving much differently than the Obama who spoke about “reducing regulatory burdens” when he yanked the Environmental Protection Agency’s last ozone proposal three years ago.

Story Continued Below

“You’re seeing a president who’s been emboldened by the prospect of his remaining years,” said John Walke, a leading air quality attorney at the Natural Resources Defense Council. “The president has a strong upper hand on both the law and the politics, with the Clean Air Act and with his veto authority.”

(Also on POLITICO: 'The most expensive regulation ever')

The rule would lower the amount of ground-level ozone that is considered healthy to breathe, which in turn could require new industrial plants in much of the country to install costly pollution-control equipment years from now. But it would also reduce illnesses and premature deaths from asthma, bronchitis and heart attacks, EPA says.

Republicans still made it clear they intend to fight the proposal, which rankled them both for what they consider its job-destroying contents and for the timing of its roll-out on the day before Thanksgiving. Incoming Senate Majority Leader Mitch McConnell (R-Ky.) vowed right after Election Day to use the “power of the purse” to hobble Obama’s environmental agenda, and stopping the ozone rule has always been one of the GOP’s aims, along with blocking EPA’s climate regulations and building the Keystone XL pipeline.

Of course, Obama has his veto pen, and Republican leaders have made it clear they’re not looking to shut down the government to get their way.

(Also on POLITICO: Obama makes immigration joke at turkey pardon)

Opponents’ other options include suing to block the regulation, although the Supreme Court has supported EPA’s past judgment on clean-air matters and has strongly rejected demands that the agency consider the costs of these kinds of health protections. Or a future administration could just rewrite the rule, although that would face a stiff legal hurdle: By law, any changes must be based on the best science about ozone’s health effects.

Perhaps reflecting their dearth of short-term options, Republican leaders in Congress denounced the ozone proposal while remaining vague on what they intend to do about it.

“We’ll do everything possible to stop this regulation and help Americans have better job opportunities,” said Wyoming Sen. John Barrasso, chairman of the Senate Republican Policy Committee. Incoming Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) promised “rigorous oversight” for the rule.

House Majority Leader Kevin McCarthy (R-Calif.) offered a similar warning. “Should the president ignore his own cautionary words from 2011 and press on with this harmful regulation, the House will conduct aggressive oversight and use the proper legislative approach to continue to promote cleaning the air we breathe while ensuring our communities are not burdened with unrealistic regulations,” he said.

(Also on POLITICO: Is the tea party ready to chill out?)

Mainly, Republicans expressed unhappiness with the rule, and especially the way EPA issued it.

“Yet again we’re seeing the Obama administration release an incredibly expensive regulation on the eve of a major national holiday,” said incoming Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who will also chair the Appropriations subcommittee that oversees EPA’s spending. “The administration is clearly hoping to release this at a time when the vast majority of Americans are focused elsewhere, and that alone should tell us something about it.”

On the other hand, EPA’s opponents have been calculating that Obama sees ozone as less of a defining issue for his legacy than climate change, and that he may not be able to defend both in a showdown with Congress.

“The president may be forced to choose,” industry lobbyist Scott Segal said Wednesday. “We don’t know when that point will be and we don’t know on what basis the leverage would obtain. But he may not have enough political capital to spend on both rules.”

But Clean Air Watch leader Frank O’Donnell said he’s not worried Obama will roll over. “I can’t believe that the president would strike some deal that would somehow trade off public health protection for political reasons,” he said.

Walke noted that the White House previously threatened to veto House legislation in 2012 that would have hamstrung EPA’s rulemaking on pollutants like ozone, and more recently threatened to veto GOP-backed House bills aimed at EPA, including limits on the kinds of scientific studies the agency can consider. He said he would expect the same treatment for any future legislation attacking the ozone rule, which along with EPA’s climate regulations would be the clean-air centerpiece of Obama’s second term.

EPA Administrator Gina McCarthy said she’s confident Obama will defend the rule. “The president has every intention to ensure that EPA is doing its job, both legally and following sound science,” she said Wednesday.

The agency has one advantage compared with 2011, when Obama forced EPA to back off a similar ozone proposal over concerns about its high costs: Those costs have dropped considerably thanks to the many other environmental rules that have been enacted since then and are looming in the near future, for power plants and sulfur in gasoline, that will also have the effect of reducing ozone.

The ozone rule will also have health and economic benefits that far outweigh the expense, the agency estimated Wednesday. Beginning in 2025, the U.S. will annually avoid as many as 4,300 premature deaths, 2,300 cases of acute...