In his first post-election press conference, President Obama spoke about the importance of clean energy. And lawyers fully expect the Environmental Protection Agency to move forward with new regulations and reinvigorate those that have stalled to help achieve this goal. "There will be more opportunity to create a new agenda than before," said Sidley Austin partner Roger Martella, a former general counsel of the EPA. "They'll have a full, solid, four-year block, the people are in place, they know the agency, and they're not as concerned about reelection in the near term."
In the event that EPA head Lisa Jackson steps down, environmental lawyers said potential replacements include Deputy Administrator Bob Perciasepe; Gina McCarthy, who is assistant administrator for the Office of Air and Radiation, and Mary Nichols, chairman of the California Air Resources Board.
One area where lawyers expect action is greenhouse gas emissions. In June, the U.S. Court of Appeals for the D.C. Circuit handed the EPA a resounding win when it upheld the agency's rules limiting emissions of six greenhouse gases. The expectation now is that the EPA will move forward to impose emission limits on power plants and petroleum refineries.
Lawyers also predicted the EPA will set air quality standards for ozone. Every five years, the standards are reviewed by the agency. The EPA considered tightening the standards ahead of schedule in 2011 but backed down, according to The New York Times, under orders from the president, who feared political fallout from industry opposition. When the standards are reviewed in 2013, "I do see it moving forward, though it's going to be a long slog," said Charles Warren, who chairs the environmental practice at Kramer Levin Naftalis & Frankel.
Warren also predicted pending rules dealing with emissions from industrial and commercial boilers will be finalized, despite "a lot of interim back and forth."
Another unsettled area of regulation is coal ash the byproduct of coal combustion. Granta Nakayama, a former EPA official who is now a partner at Kirkland & Ellis, noted that EPA "never got to the finish line" on the issue, unable to determine if it should be treated as solid or hazardous waste. "It doesn't fit neatly into either category," he said.
The Occupational Safety and Health Administration is another agency that failed to achieve some of its primary goals in Obama's first term. Agency head David Michaels has pushed for a major new injury and illness prevention program known as I2P2, calling it "absolutely a priority" in an interview earlier this year. But OSHA has yet to convene a small business advocacy review panel, the first step for a new regulation.
"I believe I2P2 will be the main priority. They're going to want to complete it," said Jonathan Snare, a partner at Morgan, Lewis & Bockius.
Another stalled rule sets combustible dust standards, and yet another would limit exposure to crystalline silica. The key stumbling blocks: cost/benefit and economic analysis.
Overall, Fisher & Phillips partner Edwin Foulke, who headed OSHA from 2006 to 2008, predicted "continued aggressive enforcement, more inspections and higher penalties."
ACROSS THE SPECTRUM
Lawyers sum up the top priority for the Federal Communications Commission in Obama's second term in one word. "It's going to be spectrum, spectrum, spectrum," said Jenner & Block partner Samuel Feder, a former FCC general counsel.
The agency is planning an all-new incentive auction, where broadcasters will be enticed to give up spectrum in exchange for a share of the proceeds when it is auctioned off to wireless broadband providers.