House Passes Anti-Environmental Package before Recess

9/25/2012

On Sept. 21, the House passed a package of anti-environmental bills in a last-ditch effort to further the majority’s regulatory reform agenda before adjourning until after the November elections. The legislation includes many measures already approved by the House that would limit the U.S. Environmental Protection Agency’s (EPA) ability to curb pollution and protect our natural resources.

The legislative package, short-titled the “Stop the War on Coal Act of 2012,” passed by a vote of 233 to 175 and would place far-reaching limits on EPA’s authority to protect the public. The legislation is comprised of five measures, four of which have already passed the House. The fifth, H.R. 3409, would restrict the U.S. Department of the Interior’s ability to issue rules affecting certain aspects of coal mining and coal production. Although the GOP has not successfully moved these bills through the Senate, the continued effort to chip away at public protections is a serious threat.

One of the bills included in the package is the Coal Residuals Reuse and Management Act (H.R. 2273), which would require the EPA to defer to states with respect to the regulation of coal combustion residuals, or coal ash, and limit federal oversight. EPA proposed two options for regulating coal ash in 2010, but a final rule has been stalled by EPA and the Office of Information and Regulatory Affairs (OIRA). H.R. 2273 would prevent EPA from regulating coal ash as a hazardous waste, one of the agency’s proposed alternatives. Under the bill, EPA would be forced to regulate coal ash as if it were a less toxic waste, like household garbage, even if coal ash was not adequately regulated by the states.

EPA conducted a technical analysis of the legislation at the request of Rep. Henry Waxman (D-CA), ranking member of the Energy and Commerce Committee. As a result of the findings of the completed analysis, Democratic staff have charged that the bill does not establish any legal standard for state programs, authorize meaningful review of state programs, or ensure other appropriate criteria for the disposal of coal ash. The staff object that H.R. 2273 “has not been the subject of any Committee hearing and the final text was made available only moments before it was to be reported out of Committee.” These concerns were echoed during the floor debate preceding the bill’s passage. Rep. James Moran (D-VA) said that the bill would create “a patchwork of compliance.” Nevertheless, the bill passed in the House in 2011, and a companion bill was introduced in the Senate.

Also included in the anti-environment package is the Clean Water Cooperative Federalism Act of 2011 (H.R. 2018), which the House also passed last year. This bill would dismantle the federal-state relationship envisioned under the Clean Water Act (CWA) by stripping EPA of its ability to object to state-approved permits under the National Pollutant Discharge Elimination System (NPDES) program, to revise state water quality standards, and to veto dredge and fill permits issued by the Army Corps of Engineers. In other words, the law would reduce federal authority to ensure high levels of water quality across the country.

OMB Watch blogged about this bill after it was introduced, cautioning that, by restricting or eliminating these important checks on state programs under the CWA, the bill would impair EPA’s ability to effectively carry out its statutory duties and ensure that the goals of the act are met. Though the latest version of this legislation is presented as an effort to restore a system of cooperative federalism under the CWA, the most recent version of the bill is yet another attempt to diminish EPA’s statutory authority.

The legislation also attacks control of dangerous greenhouse gas pollution. H.R. 910, the Energy Tax Prevention Act of 2011, sponsored by Rep. Fred Upton (R-MI), chair of the Committee on Energy and Commerce, would strip EPA of authority under the Clean Air Act (CAA) to "promulgate any regulation concerning, take action relating to, or take into consideration the emission of a greenhouse gas to address climate change." Ironically, Congress has failed to enact climate change legislation in any form, leaving the EPA no choice but to follow the requirements of the CAA and the U.S. Supreme Court by seeking to control emissions through regulations.

Even more far reaching is the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act (H.R. 2401), which passed the House in September 2011. TRAIN would require an interagency panel of non-experts to review EPA regulations before they are issued and to submit a report to Congress on the costs of proposed regulations. This requirement is redundant and unhelpful for two reasons: first, the EPA and the Office of Management and Budget (OMB) already conduct extensive cost-benefit analyses on proposed rules, so it is unclear what the opinion of non-experts would add other than delay. Second, under the TRAIN Act, the panel's report would have to consider "cumulative costs" of proposed and final regulations, a highly speculative analysis that would artificially inflate costs and stack the deck against issuing safeguards.

Unfortunately, these assaults on environmental protections are familiar. With this final act before recess, the House demonstrated its commitment to disabling agencies and safeguards that protect the environment and natural resources. Proponents advertise the bill as a way to aid the coal industry and help the economy, but opponents argue that the bill promotes a false choice between health and environmental safeguards and a sound economy. Marty Hayden of Earthjustice commented, “Not only does this bill fail to create jobs but it exposes Americans to dangerous pollutants that cause sickness and cancer. This wrongheaded initiative is a recipe for disaster for public health and our economy.” The Natural Resources Defense Council blogged that “Congressional intervention to protect polluters over people ignores what the majority of Americans want and puts us and our country’s ability to compete at risk.”

Image in teaser by flickr user glennia, used under a Creative Commons license.