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The Week Ahead

Congress Scrutinizes EPA's FY15 Budget, Court Weighs EPA Duty To Respond To Petitions

Posted: March 24, 2014

Lawmakers are holding a series of hearings to examine EPA's fiscal year 2015 budget request. A top appellate court is reviewing a suit that will test whether the agency has a duty to formally respond to a petition seeking greenhouse gas rules for coal mines. And EPA science advisors are slated to consider the agency's next air quality standard for ozone.

On Capitol Hill

Congress returns from a week-long recess with lawmakers slated to begin reviewing EPA's budget request for fiscal year 2015.

The Senate Environment & Public Works Committee kicks off the review with a March 26 hearing where EPA Administrator Gina McCarthy is slated to testify. McCarthy is also slated to appear at a March 27 hearing before the House Appropriations Committee's Interior & Environment Subcommittee.

The House Science Committee is also holding a March 27 hearing on EPA and other “science” agencies' budgets.

The agency's budget request for FY15 proposes to trim the agency's budget from $8.2 billion in FY14 down to $7.9 billion, but the cuts are targeted mostly at its water infrastructure funds, with many other programs slated to receive a slight increase, including helping states implement EPA's greenhouse gas (GHG) rules.

As they usually do, such hearings are likely to provide lawmakers with an opportunity to target a broad range of funding and programmatic concerns as the annual funding bill becomes a vehicle for possible legislative riders.

EPA's pending GHG rules will almost certainly draw concerns, especially given that House lawmakers have already voted to block development of the rules.

EPA's traditional regulatory authority is also likely to gain lawmakers' attention. For example, many GOP officials are likely to question EPA's plans for crafting a proposed rule clarifying the reach of the Clean Water Act over smaller waters, a measure the agency is said to be considering delaying until after its completes an underlying scientific assessment. In a similar vein, some lawmakers are likely to question the agency over its plan to veto the proposed Pebble Mine in Alaska, especially after the Supreme Court declined to review an appellate ruling that allows EPA to veto such projects “whenever” the agency finds potential harm.

And funding for the agency's water infrastructure program is likely to be an issue. State and municipal groups, for example, have already signaled they will work to maintain current funding levels for the infrastructure program. Some environmentalists and states, meanwhile, are likely to urge lawmakers to make the infrastructure funding contingent on projects being resilient to the effects of climate change.

In other congressional action, the Senate Judiciary Committee is slated to vote March 27 on the pending nomination of John Cruden to serve as the assistant attorney general for environment and natural resources. Cruden, who is expected to restore morale to an office that many observers say politicized EPA enforcement under the last appointee, is seen as a consensus choice who is likely to win easy confirmation. But two key GOP lawmakers, Sens. Charles Grassley (R-IA) and John Cornyn (R-TX), suggested in recent questions to the nominee that they may have concerns over several EPA policy matters.

And the House Transportation and Infrastructure Committee's water resources and environment subcommittee is slated to hold a March 25 hearing on the potential use of water quality trading to cost-effectively improve water quality.

EPA has encouraged the use of water quality trading, most notably in the cleanup plan for the Chesapeake Bay, where a federal judge last year dismissed on procedural grounds a challenge to the legality of such environmental trading. But uncertainty over EPA's authority has prompted several private sector efforts to encourage the practice. One group, for example, is crafting a best practices manualfor trading, while others are forming an alliance to promote trading.

In Court

The U.S. Court of Appeals for the District of Columbia Circuit is slated to hold oral arguments March 25 in WildEarth Guardians v. EPA, a case that tests the agency's ability to indefinitely defer a response to environmentalists' petition seeking GHG rules for coal mines.

The case is significant on the merits but is also important because it is the first of two appellate suits that will examine the agency's discretion to respond to petitions -- an issue that was first addressed by the Supreme Court's 2007 ruling in Massachusetts v. EPA but which few courts have considered since then.

Rulings in EPA's favor in either of the two pending cases could substantially strengthen the agency's ability to avoid responding to petitions for rulemaking, enforcement or other executive actions -- which would prevent environmentalists and other petitioners from suing on the merits -- despite the high court's 2007 holding in Massachusetts that found that courts have jurisdiction to review officials' failure to respond substantively to petitions and required the agency to address states' petition to regulate GHGs from motor vehicles.

At the Supreme Court, meanwhile, a group of residents near a North Carolina Superfund site are scheduled to defend an appellate ruling that found language in the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) broadly preempts state limits on when plaintiffs can bring toxic tort claims. The response brief from the residents in CTS Corporation v. Waldburger is due March 26.

CTS has argued that the "plain text" of the law and the constitutional principle of federalism require the high court to overturn the opinion from the U.S. Court of Appeals for the 4th Circuit. The Department of Justice and a group of defense attorneys have echoed these arguments in amicus briefs, where they say the appellate court made an overly broad reading of the law when it found CERCLA's language preempting state "statute[s] of limitations" also applies to time limits included in statutes of repose. A coalition of industry groups has also warnedthat unless the ruling is overturned, it may have the unintended consequence of extending tort liability far beyond environmental cases.

Regulatory Review

EPA's Clean Air Scientific Advisory Committee (CASAC) is holding a March 25-27 meeting in Chapel Hill, NC, to weigh EPA's latest scientific and policy assessments for its next ozone air quality standard.

The meeting is already shaping up to be a contentious one. One top GOP lawmaker is urging a halt to the review due to doubts about CASAC's independence. An industry official is urging CASAC to consider costs to be a factor in the review for the first time.

But environmentalists are urging EPA to significantly tighten its ozone national ambient air quality standard (NAAQS) beyond limits proposed by agency staff and CASAC in order to achieve co-benefits of reducing harmful climate impacts from ozone.

A new workgroup of EPA's National Drinking Water Advisory Council is scheduled to hold its first meeting March 25-26 in Arlington, VA, to discuss potential changes to the lead and copper rule. The first meeting will be focused on issues associated with optimal corrosion control treatment, or ensuring water systems are using the most updated technology to comply with the current rule. But the agency has identified a number of other issuesto consider as part of a comprehensive revision to the Safe Drinking Water Act regulation -- including how it defines a public utility's authority to oversee replacement of lead service lines. The working group is expected to provide recommendations to EPA on all the issues by the end of the year.

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