EPA Remains Active as Congressional Impasse Continues

During the past six months, the Environmental Protection Agency has announced several initiatives as part of President Obama’s Climate Action Plan. The EPA proposed the Clean Power Plan in June, which aims to reduce carbon emissions from new and existing power plants on a state-by-state basis. The EPA in April also issued a proposed rule that would redefine the Clean Water Act’s definition of “Waters of the United States.” EPA has issued an open comment period for both proposals, which are still open.

Clean Power Plan: The EPA’s Clean Power Plan aims to reduce carbon emissions from existing power plants by 30 percent from 2005 levels, with the hope this can be accomplished by 2030. The EPA seeks to execute this plan by exercising Section 111(b) and Section 111(d) of the Clean Air Act.

The new EPA rule does not require states to reduce carbon dioxide emissions from individual electric generating units, but rather requires each state to reduce overall carbon intensity of the power sector in each state. With this plan, the EPA asserts that it gives states significant flexibility in exercising their energy emission reductions.

Fifteen governors have written a letter to the president addressing their concerns regarding EPA’s proposed rule. They argue the Clean Air Act prohibits “EPA from using Section 111(d) to regulate power plants because EPA already regulates these sources under another section of the Act.” In addition to the legal implications, states have expressed a list of other concerns ranging from the possibility of rapidly increasing offshore power to the concern of the availability and impacts of renewable energy.

On Capitol Hill, the House Science, Space and Technology Committee held a hearing on EPA’s 111(d) proposal Sept. 17. The panel included John Holdren, director of the White House Office of Science and Technology Policy and the president’s science adviser, and Janet McCabe of the EPA. Rep. Lamar Smith of Texas, chairman of the committee, expressed his concern that the proposed rule would be costly and have a negligible impact on climate change. Holdren responded by stating this rule “is a start” and any policy that leads to a significant impact on climate change must start somewhere.

A few days earlier, the Energy and Power Subcommittee of the House Committee on Energy and Commerce held a hearing on the 111(d) proposal, but centered the discussion on state perspectives. It included testimony from environmental and utility commissioners from Arizona, Indiana, Maryland, Montana, Texas and Washington. The state utility witnesses had different viewpoints, but generally agreed that the EPA proposed rule could have unintended adverse effects.

The EPA has extended its open comment period for the 111(d) proposal to provide an opportunity for the public to submit comments on the proposed rule to Dec. 1. The EPA, however, did assert that it still plans to meet its June 2015 date for the final rule. EPA’s open comment period for the 111(b) proposal for modified and reconstructed power plants ends Oct. 16.

Clean Water Act: The EPA, in conjunction with the U.S. Army Corps of Engineers, issued a proposed rule to clarify protection for streams and wetlands found under the Clean Water Act. EPA cites Supreme Court decisions in 2001 and 2006 that have contributed to the uncertainty and confusion surrounding what constitutes “Waters of the United States.”

The proposed rule has generated a lot of criticism among many farm groups and Republican lawmakers. According to The Hill, Rep. Doc Hastings of Washington, chairman of the U.S. House Natural Resources Committee, believes that, “under this plan, there’d be no body of water in America— including mud puddles and canals—that wouldn’t be at risk from job-destroying federal regulation.”

Two hundred House members wrote a letter to the EPA and the Army Corps of Engineers expressing their opposition to the EPA’s proposed rule. Sens. John McCain and Jeff Flake, both of Arizona, led the Senate in opposing the EPA’s rule proposal with their own letter. Both letters primarily expressed concern that the proposed rule would greatly expand federal authority over U.S. waters.

The EPA, however, has insisted its authority will not expand with this rule. In fact, EPA Deputy Administrator Bob Perciasepe asserted in a congressional hearing hosted by the U.S.  House Transportation and Infrastructure Committee the rule would “reduce the scope of waters covered under the Clean Water Act compared to the existing regulations on the book” and “would not assert jurisdiction over any type of waters not previously protected over the past 40 years.” The EPA has started a campaign called “Ditch the Myth,” aimed at addressing the concerns and misconceptions about the rule proposal.

Many lawmakers were not satisfied with the EPA’s assurances. The U.S. House of Representatives passed H.R. 5078 in early September that requires the Army Corps of Engineers and the EPA to withdraw the proposed rule. The Senate has not yet debated the bill.

The EPA and the U.S. Army Corps of Engineers have extended their request for comments until Oct. 20.