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The Week Ahead

Posted: July 7, 2014

House Readies EPA FY15 Bill Markup, EPA Ends Ability To Cite CAIR In Emissions Plans

House lawmakers this week are planning to mark up EPA's fiscal year 2015 appropriations bill, setting the stage for a pitched battle over controversial agency climate, water and other policies. Meanwhile, states, industry and others are poised to file comments this week on EPA's plan to no longer allow participation in the Bush-era Clean Air Interstate Rule emissions trading program to qualify as an adequate pollution measure in some Clean Air Act compliance plans.

EPA Funding Bill Markup

The House Appropriations Committee's interior panel will hold a July 9 markup of EPA's fiscal year 2015 spending bill. Although the subcommittee is yet to release text of the legislation, the measure is likely to aim to cut EPA's budget and block key policies, actions that the White House will almost certainly oppose.

The GOP-led House has repeatedly tried to use the appropriations process to reduce the agency's overall funding. And Republican critics of the agency have included provisions in prior unsuccessful spending bills to block various regulations. Among the policies that lawmakers might try to halt in the FY15 bill are EPA's greenhouse gas (GHG) limits for power plants and a joint rulemaking with the Army Corps of Engineers on the scope of the Clean Water Act (CWA).

President Obama has already signaled his opposition to such efforts, telling environmentalists recently that he opposes efforts to “dismantle” the CWA and cited the need to address economic concerns about the impact of the agency's GHG rules.

Regardless of how the House votes, any EPA budget bill faces an uncertain future in the Senate after appropriators there pulled the proposed energy and water bill -- which funds the Corps -- over concerns that vulnerable red-state committee members would vote with Republicans to attach amendments barring GHG rules and the CWA regulation, spurring fears that EPA could be funded through a continuing resolution in FY15.

Climate ESPS

EPA's proposed existing source performance standards climate rule for utilities, developed under section 111(d) of the Clean Air Act is the focus of a July 8 webinar by the Association for Demand Response and Smart Grid. Some states have said they are likely to use demand response among their options for crafting plans to comply with the ESPS' GHG reduction goals.

The webinar will also include discussion of a recent appellate ruling limiting federal energy regulators' role in shaping state and region retail power markets. Rep. Fred Upton (R-MI), chair of the House Energy & Commerce Committee, has said that the court's decision poses a significant hurdle for EPA's proposed existing utility climate rule, arguing that the rule similarly tries to exceed federal authority by forcing changes to energy markets.

UARG Ruling Fallout

Environmental attorneys and others continue to mull over the high court's recent ruling in Utility Air Regulatory Group v. EPA, which limited the scope of the agency's GHG permitting program. Specifically, the court said the agency violated the statute when it raised the mandatory thresholds for triggering permits beyond Clean Air Act-mandated levels.

The issue will likely be part of the focus of a July 10 call being hosted by environmental attorneys from Foley & Lardner. The GHG permit program is among the “significant” Clean Air Act developments the call will examine. Other topics slated for discussion include EPA's efforts to curb interstate air transport and its development of maximum achievable control technology air toxics rules.

The American Law Institute-Continuing Legal Education Group also held a July 7 webinar to discuss the case that it calls “the first test of the Obama administration’s authority to delay or decline selected statutory provisions.” Environmental Defense Fund General Counsel Vickie Patton and E. Donald Elliot, adjunct professor of law at Yale Law School and senior counsel with Covington & Burling spoke on the call.

Climate Conference

The Heartland Institute, a major think tank skeptical of global warming, is hosting a July 7-9 climate change conference in Las Vegas to hear from key critics of climate science.

Sen. James Inhofe (R-OK), who has described global warming theories as a “myth,” is among those slated to speak during the event, according to the agenda. Panelists will debate a host of topics including “combating climate myths with science,” the role of the social cost of carbon -- putting a value on the costs and benefits of reducing carbon dioxide -- and other issues.

Expect several speakers to use the conference as a venue for attacking EPA's proposed GHG standards for existing and newly constructed power plants, and possibly to address the fallout of the Supreme Court's recent ruling largely upholding EPA's GHG permitting program.


EPA is taking comment through July 9 on its proposal determining that participation in the Bush-era Clean Air Interstate Rule (CAIR) emissions cap-and-trade program can satisfy reasonably available control technology (RACT) mandates in state Clean Air Act compliance plans.

The U.S. Court of Appeals for the District of Columbia Circuit in a 2008 decision remanded CAIR to EPA after finding flaws in its trading program. The Obama EPA then developed the Cross-State Air Pollution Rule (CSAPR) as a legally valid replacement. But the D.C. Circuit in a split 2012 ruling then vacated CSAPR, and temporarily reinstated CAIR.

The Supreme Court in April then overturned the D.C. Circuit, upholding CSAPR's overall legal basis. EPA is now asking the appellate court to lift a stay on implementing CSAPR so that it can permanently replace CAIR, but the court has yet to rule on that motion.

Even so, the agency is moving to scrap reliance on CAIR in its policies. In a May 29 proposed rule, EPA says CAIR can no longer automatically satisfy RACT emissions control requirements in state implementation plans -- blueprints for Clean Air Act compliance. Still, the agency says that other air trading programs still could qualify as RACT.

'Constitutional Considerations'

The House Energy & Commerce Committee's environment and the economy panel is hosting a July 11 hearing on “Constitutional Considerations: State vs. Federal Environmental Policy Implementation.”

The committee says the hearing will examine “the interplay between the power of Congress to regulate interstate commerce and the power of the states under the Tenth Amendment.” Academic policy experts will provide insight into Constitutional considerations when Congress decides whether states or the federal government should lead implementation of various environmental policies.

While it is unclear what subjects the hearing will consider, the hearing comes as the panel's chairman, Rep. John Shimkus (R-IL), is grappling with crafting legislation

reforming the Toxic Substances Control Act (TSCA) that will expand EPA's current authorities to preempt state chemical control requirements.

The role is a new one for Shimkus and the House GOP, who generally favor giving states a greater role in environmental policy. But Shimkus told Inside EPA last year that he does not expect his Republican colleagues to oppose his efforts to expand federal preemption – even though many state officials are opposed to his efforts.

"If you are producing a product that goes across state lines, you could easily argue Constitutional support for preemption," he said. " I don't think you will have any problem with the conservative majority in the House on Constitutional issues of state preemption" when you are talking about interstate commerce in chemical products.

The hearing could also address other instances of preemption, including the dispute over how to address interstate transport of air pollution in the wake of the high court backing for EPA's CSAPR. Critics claim the rule unfairly imposed pollution reduction mandates on states given that EPA imposed compliance plans on states – though the rule allowed states to write replacement plans.

Drug Take-Back Plans

The U.S. Court of Appeals for the 9th Circuit will hear oral arguments July 11 in Pharmaceutical Research and Manufacturers of America (PhRMA), et al., v. Alameda County, et al., where pharmaceutical manufacturers want the court to declare an Alameda County drug take-back program unconstitutional because it places unnecessary burdens on interstate commerce.

Environmentalists, local government organizations and the California attorney general in briefs have urged the appellate court to reject the industry challenge to the novel program, arguing the county has authority to establish the program, emphasizing the program's environmental and public health benefits. Those amicus briefs echo arguments made by Alameda County that local governments have the right to determine waste disposal requirements and that any cost to pharmaceutical manufacturers is de minimis compared to the program's health and safety benefits.

Supporters of the program fear that if the court overturns it, that could threaten numerous other extended producer responsibility programs in California and across the country.

Hazardous Waste

The Environmental Law Institute (ELI) is hosting a July 10 event to discuss hazardous waste issues. Jeff Allmon, an associate with Paul Hastings, will address topics including EPA's proposed disposal rule for coal combustion residuals, the Resource Conservation & Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act -- known as the Superfund law.

Pesticide Volatilization

An extended public comment period closes July 11 on EPA's draft guidance documents assessing bystanders' risks, and limiting their exposures to, volatilization of conventional pesticides, an exposure pathway that environmentalists and farmworkers have urged EPA to consider when assessing pesticides for registration.

According to the agency, the documents “detail EPA's approach in developing a pesticide volatilization screening methodology for human health. Once final, these guidance documents will be posted on EPA's Web site, to promote consistent risk assessment practices and provide transparency for pesticide registrants and other interested stakeholders.”

PCB Imports

EPA is holding a July 8 informal hearing in Arlington, VA, on its recent decision to withdraw a direct final rule that granted the U.S. Defense Logistics Agency's (DLA) petition to the agency to import for proper disposal polychlorinated biphenyls (PCB) that the Defense Department owns at military installations in Japan.

After publishing the direct final rule, EPA received an adverse comment and request for a public hearing form a clinical associate at the Howard County General Hospital. The commenter noted that PCBs have been linked to a host of adverse health effects. That adverse comment prompted the agency's decision to revoke the direct final rule and schedule the hearing.

Sustainability Debate

ELI is also hosting a July 8 debate on the fate of sustainability's role in environmental policy planning. The event's website says that participants -- including a former top EPA official -- will discus whether the concept of sustainability works as a governance goal; what role resiliency should play as a goal; and the interplay between resiliency, sustainability, and traditional environmental law approaches in environmental governance.”

Among the panelists slated to attend is former EPA General Counsel E. Donald Elliot and several other attorneys and environmental academic experts.