Obama to Name Top Climate-Change Regulator

The White House is expected to fill the EPA slot left vacant by Gina McCarthy’s promotion by naming Janet McCabe, a deputy who will be tasked with navigating the legal hurdles that lie ahead.

(The National Academy of Sciences/National Research Council)
National Journal
Justice Gilpin-Green and Coral Davenport
Aug. 28, 2013, 3:30 a.m.

Pres­id­ent Obama is ex­pec­ted to nom­in­ate Janet Mc­Cabe, a deputy ad­min­is­trat­or at the En­vir­on­ment­al Pro­tec­tion Agency’s clean-air of­fice, to head that di­vi­sion, ac­cord­ing to sources fa­mil­i­ar with his think­ing. The po­s­i­tion would put her at the heart of the pres­id­ent’s his­tor­ic and con­tro­ver­sial glob­al-warm­ing agenda. She would be charged with craft­ing massive new pol­lu­tion reg­u­la­tions af­fect­ing the na­tion’s coal-fired power plants — rules that could even­tu­ally freeze the na­tion’s coal in­dustry, but also po­s­i­tion the U.S. as a glob­al lead­er on cli­mate change.

An EPA spokes­man would not con­firm that Obama in­tends to nom­in­ate Mc­Cabe.

In a series of im­pas­sioned speeches this year, Obama has made clear that he wants to make fight­ing cli­mate change a corner­stone of his leg­acy. Just as clear is the cer­tainty that the di­vided, grid­locked Con­gress will not pass the sweep­ing le­gis­la­tion ne­ces­sary to do that. In­stead, Obama will flex his ex­ec­ut­ive muscles, us­ing the au­thor­ity of the EPA to roll out a series of reg­u­la­tions to slash the na­tion’s car­bon pol­lu­tion and fun­da­ment­ally re­shape the na­tion’s en­ergy sec­tor. The rules are already be­ing met with a swarm of polit­ic­al and leg­al push­back. Re­pub­lic­ans charge that with the cli­mate rules, Obama is wa­ging a “war on coal.” Mean­while, the coal in­dustry is pre­pared to meet the rules with an on­slaught of leg­al at­tacks.

That means Mc­Cabe, as the ex­pec­ted chief au­thor of the new cli­mate rules, has a heavy and his­tor­ic lift in front of her. She will step in­to the shoes of her boss, Gina Mc­Carthy, who last month was con­firmed as chief of the EPA. While Mc­Carthy will be the pub­lic face of the new cli­mate-change reg­u­la­tions, Mc­Cabe will act as her right-hand wo­man, tak­ing on the bur­den of draft­ing and leg­ally bul­let­proof­ing the rules, as well as work­ing with all the stake­hold­ers they’ll af­fect — states, elec­tric util­it­ies, con­sumers, and en­vir­on­ment­al ad­voc­ates.

Dur­ing Obama’s first term, Mc­Carthy held that role, as head of the Of­fice of Air and Ra­di­ation, with Mc­Cabe as her deputy. Last month, the White House named Mc­Cabe as act­ing dir­ect­or of that of­fice. Dur­ing her ten­ure, Mc­Carthy won praise from both en­vir­on­ment­al groups and pol­lut­ing in­dus­tries as a straight-talk­ing hon­est broker who in­cluded in­dustry of­fi­cials in the reg­u­lat­ory pro­cess — even if in­dus­tries didn’t al­ways like the out­come.

By all ac­counts, Mc­Cabe is po­si­tioned to con­tin­ue her boss’s leg­acy. Like Mc­Carthy, who served in the en­vir­on­ment de­part­ments of Con­necti­c­ut and Mas­sachu­setts, Mc­Cabe has a back­ground as a state en­vir­on­ment­al reg­u­lat­or — ex­per­i­ence that of­fi­cials say will be cru­cial in craft­ing the new rules, giv­en that their im­ple­ment­a­tion ul­ti­mately will be done by state agen­cies.

Ac­cord­ing to her of­fi­cial EPA bio, Mc­Cabe, be­fore join­ing EPA in Novem­ber 2009, was ex­ec­ut­ive dir­ect­or of Im­prov­ing Kids’ En­vir­on­ment, a chil­dren’s en­vir­on­ment­al-health ad­vocacy or­gan­iz­a­tion based in In­di­ana­pol­is, and was an ad­junct fac­ulty mem­ber at the In­di­ana Uni­versity School of Medi­cine’s De­part­ment of Pub­lic Health. From 1993 to 2005, she held sev­er­al lead­er­ship po­s­i­tions in the In­di­ana De­part­ment of En­vir­on­ment­al Man­age­ment’s Of­fice of Air Qual­ity. She was the of­fice’s as­sist­ant com­mis­sion­er from 1998 to 2005. Be­fore com­ing to In­di­ana in 1993, Mc­Cabe served as the Mas­sachu­setts as­sist­ant at­tor­ney gen­er­al for en­vir­on­ment­al pro­tec­tion and as­sist­ant sec­ret­ary for en­vir­on­ment­al im­pact re­view. Mc­Cabe gradu­ated from Har­vard Col­lege in 1980 and Har­vard Law School in 1983.

Her ex­per­i­ence as a reg­u­lat­or in In­di­ana will likely serve in her fa­vor. As a state that gen­er­ates about 90 per­cent of its elec­tri­city from coal, In­di­ana is ex­pec­ted to be one of the states hard­est hit by the cli­mate reg­u­la­tions. Both en­vir­on­ment­al­ists and in­dustry of­fi­cials say that back­ground has giv­en her a clear un­der­stand­ing of both the eco­nom­ic and reg­u­lat­ory chal­lenges that lie ahead as she writes rules that will crack down on coal, the na­tion’s biggest con­trib­ut­or to glob­al-warm­ing pol­lu­tion.

“She’s ba­sic­ally been Gina’s right hand and left hand for the last four years,” said Frank O’Don­nell, pres­id­ent of the group Clean Air Watch. “She’s well-po­si­tioned to work with Gina on the cli­mate rules. She’s got a clas­sic­ally good back­ground on it, hav­ing worked in state gov­ern­ment both in In­di­ana and Mas­sachu­setts.”¦ In­di­ana may not be ground zero for the coal in­dustry, but it’s pretty darn close.”

Of­fi­cials at Amer­ic­an Elec­tric Power, an Ohio-based util­ity that owns one of the na­tion’s largest fleet of coal-fired power plants, in­clud­ing plants in In­di­ana, say they are op­tim­ist­ic that Mc­Cabe’s Mid­west­ern back­ground means that she’ll take their in­dustry’s con­cerns un­der con­sid­er­a­tion.

John Mc­Manus, vice pres­id­ent of En­vir­on­ment­al Ser­vices for Amer­ic­an Elec­tric Power, wrote in an e-mail to Na­tion­al Journ­al, “We have op­er­a­tions in In­di­ana so we worked with Janet Mc­Cabe when she was with the In­di­ana De­part­ment of En­vir­on­ment­al Man­age­ment. She was will­ing to listen to in­dustry views at that time, and we would hope that if she is named as­sist­ant ad­min­is­trat­or for EPA’s Of­fice of Air and Ra­di­ation, she will con­tin­ue to be re­cept­ive to hear­ing our opin­ions about is­sues and reg­u­la­tions that af­fect our busi­ness.”

Ex­perts in en­vir­on­ment­al reg­u­la­tion said that Mc­Cabe will face a huge leg­al chal­lenge in craft­ing the cli­mate-change reg­u­la­tions, which are in many ways un­pre­ced­en­ted in the his­tory of en­vir­on­ment­al law. But they said Mc­Cabe is up to the chal­lenge.

“Janet’s won­der­ful,” said Adam Kush­ner, a part­ner at the en­vir­on­ment­al law firm Hogan Lov­ells, and former dir­ect­or of EPA’s Of­fice of Civil En­force­ment. “She has a very strong work­ing re­la­tion­ship with Gina. She’s very strong on the leg­al side. Very strong on the pub­lic health side. And she knows where all the bod­ies are bur­ied.”

It’s likely that Mc­Cabe could face a tough Sen­ate con­firm­a­tion pro­cess. Sen­ate Re­pub­lic­ans held up Mc­Carthy’s con­firm­a­tion for more than 100 days, and bar­raged her with more than 1,000 ques­tions, as coal- and oil-state law­makers at­tacked the EPA for pre­par­ing to is­sue rules that could kill jobs in their home states. However, even if she fails to win Sen­ate con­firm­a­tion, it’s ex­pec­ted that Mc­Cabe could carry out the job with the title of “act­ing” head of the clean-air of­fice.

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