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The Week Ahead

EPA Haze Controls Spur House Action; Particulate Proposal Under A Microscope

Posted: July 23, 2012

EPA efforts to control regional haze are fueling an expanded Republican move to end “sue and settle” agreements that critics say hand power to environmentalists and shut out affected states and industries. The House will debate the issue, this week as part of “Red Tape Week,” a GOP legislative offensive on regulatory review aimed largely at EPA.

Coming Up . . .

The problem, Senate Judiciary Committee ranking member Charles Grassley (R-IA) recently explained, is that, "[C]onsent decrees and settlement agreements have been used to circumvent the laws and procedures that govern how regulations are enacted and to speed up the process in ways that limit the public ability to fully participate and to exercise the rights guaranteed by our laws. These consent decrees or settlement agreements may come as a surprise to the regulated industry and the public."

The measure, H.R. 3862, has broad Republican support -- and likely will engender equally broad Democratic opposition. Passage in the House is probably a given, but Republicans face multiple obstacles to getting a vote in the Senate. EPA defends its authority to enter into such settlements and says they generally involve cases where the agency has already missed statutory deadlines for issuing rules.

Comments are due this week on EPA's proposed deadline settlement over particulate matter standards, an issue that is stirring controversy as the White House reviews -- and softens -- EPA's regulatory approach. Observers say the changes inserted by the White House Office of Management & Budget could be legally challenged under the Clean Air Act.

There's much more action brewing in Congress and at EPA:

On Capitol Hill

In addition to the “sue and settle” bill, House Republicans will offer several other bills as part of “Red Tape Week”: H.R. 4078, which would bar federal agencies from issuing major new rules until the unemployment rate drops to 6 percent or less -- a measure that would block EPA's pending greenhouse gas rule for model year 2017-2025 vehicles; H.R. 4607, which would bar lame-duck presidents from issuing "midnight" regulations; H.R. 4377, which would streamline, and limit judicial review of, permitting decisions; and H.R. 5952, which would allow judicial review of agency science.

The House will also consider a GOP-crafted plan to replace President Obama's offshore drilling policy with a more pro-energy development approach.

Sen. Frank Lautenberg (D-NJ) is holding another hearing this week to make the case for his bill reforming the Toxic Substances Control Act (TSCA), but prospects are dim. While Lautenberg's bill recently picked up the strongest endorsement yet from an EPA official, he does not seem to be making much progress winning support from any Republicans, whose backing is deemed critical to moving the bill. Sen. Lisa Murkowski (R-AK) told reporters last week that while she had signed a letter with Lautenberg praising EPA's plans to regulate flame retardant chemicals, it is “premature” to view that as support for broader TSCA reform.

The House Transportation & Infrastructure water resources and environment subcommittee meets July 25 to discuss how EPA can provide municipalities with more flexibility to comply with water quality requirements. This is a follow-on to a December 2011 hearing that examined how high regulatory costs were affecting municipalities' ability to finance their water infrastructure needs. EPA last week agreed to push off until 2014 a stormwater rule that has raised cost concerns among municipal officials and builders.

With the launch of a new campaign to replace EPA's renewable fuels standard with a national low carbon fuel standard, several congressional panels will examine federal vehicle policy this week. The Senate Energy & Natural Resources Committee will look into natural gas's role as a transportation fuel on July 24. Natural gas supporters tout their fuel as an important means of complying with vehicle pollution rules, but at the same time there are questions about whether natural gas can be widely adopted by vehicles even as many power plants switch to the fuel thanks to its low cost and as a way to comply with EPA air toxics and other rules.

The issue is especially current because White House officials are promising to provide the natural gas sector with “things you will like” in EPA's upcoming vehicle GHG rule. Speaking of vehicle GHGs, EPA sent its final version of the rule to the White House for review, in time for its release during the fall campaign.

The House Science Committee's energy and environment panel holds a hearing July 26 to examine the Department of Energy's advanced vehicles program, posing the question of whether this is an appropriate and effective use of taxpayer money. Promoting a widespread switch to electric vehicles is a key component of President Obama's climate change strategy. As such, DOE's vehicles program has become a target for GOP scrutiny.

In other congressional news, the Senate energy committee's water and power panel holds a hearing July 25 on water use efficiency.

And the House Energy & Commerce energy and power subcommittee votes July 24 on its “no more Solyndras” bill after postponing a vote last week amid concerns from Republicans that the measure went too far in rolling back the program for some coal and nuclear interests. The bill puts new restrictions on loan guarantees for clean energy projects, which are key to President Obama's climate change and energy strategy.

The Farm Bill is still awaiting a floor date; lawmakers from both parties are urging House Speaker John Boehner (R-OH) to schedule a vote before the House adjourns next week for a five-week recess.

The Senate this week is expected to vote on the Democratic plan to extend the Bush-era tax cuts for families earning up to $250,000; it's unlikely that debate will delve into broader tax reform issues.

Other matters on lawmakers' minds: Senate Majority Leader Harry Reid (D-NV) holds a July 25 “twitter town hall” on clean energy issues along with John Podesta, chairman of the Center for American Progress.

And speculation is intense on Capitol Hill that Mitt Romney will announce his running mate this week. Lawmakers who are on the media's short list -- if not Romney's -- include Rep. Paul Ryan (R-WI), author of the GOP's budget blueprint; Sen. Rob Portman (R-OH), an Energy & Natural Resources member; Sen. John Thune (R-SD), who serves on the Finance Committee; Sen. Marco Rubio (R-FL), a Commerce, Science & Transportation member; Sen. Rand Paul (R-KY), an energy committee member and frequent EPA foe; and Sen. Kelly Ayotte (R-NH), who serves on the transportation committee.

Louisiana's pro-energy development Gov. Bobby Jindal and former Minnesota Gov. Tim Pawlenty, who memorably apologized for previously supporting cap and trade, also garner frequent mentions. The Republican convention begins Aug. 27 in Tampa, but Romney has indicated he will announce his vice presidential choice beforehand.

At EPA

In addition to particulate matter controls, EPA officials this week are focused on environmental justice and other issues.

EPA's National Environmental Justice Advisory Council meets July 24-25 in Arlington, VA. The council will discuss issues including the role of environmental justice in the permitting process and in regulation of hydraulic fracturing.

Environmental justice refers to efforts to address disproportionate pollution impacts on low-income and minority communities, but disputes over the definition and goals of “EJ” are rampant. EPA's draft civil rights plan -- a component of its broader EJ strategy -- is being roundly criticized by industry and environmentalists.

At the state level, New York has become the first state to require power plant developers to assess and offset EJ impacts, but activists say the Empire State gave too much away to industry.

While other states are complaining about EPA-crafted implementation plans on haze that emerged from “sue and settle” consent decrees, Wyoming has its own proposal pending before the agency. Comments on that proposal, which are due July 23, will likely reflect the broader skirmish between EPA and multiple states in the West, Southwest and the Great Plains over haze controls.

Comments are also due July 23 on the EPA's landmark study of the potential impact of the planned Pebble Mine on Bristol Bay, AK, one of the world's most productive salmon fisheries. The study could provide the basis for an unprecedented EPA decision to block the planned mine even before a permit is sought. And EPA's top scientist has called the study an example of the agency's efforts to adopt a more sustainable, holistic approach to environmental regulation and one that environmentalists are hoping to duplicate in other sensitive areas slated for development.

But critics, including Sen. Murkowski, say EPA rushed the deadline for comments in order to limit input from local residents.

And EPA's Science Advisory Board takes another look at EPA's draft risk assessment of the asbestos unlawfully mined in Libby, MT, and distributed in consumer and other products around the country.

Contact: Charlie Mitchell (cmitchell@iwpnews.com)

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