Sens. Inhofe, Vitter, Crapo, Capito, and Rounds

Regulatory reform has been a widely discussed solution in Washington to cut bureaucratic red tape and boost our economy. In a Republican-led Congress, we achieved it.

After years of hard work and negotiations, the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act marks the first time in more than a quarter of a century that Congress has sent reform of a major environmental law to the president's desk.

Over the last 40 years, American families have been exposed to untested chemicals on a daily basis due to the shortcomings of the well-intended but broken Toxic Substance Control Act (TSCA). Job creators and manufacturers have also suffered from inconsistent guidance of what chemicals can be used in their products.

The Lautenberg Act is the common-sense, conservative solution, creating unified protections for American families and American businesses while providing new safeguards and oversight requirements.

When working on the Lautenberg Act, we took into account the oversight that the Senate Environment and Public Works (EPW) Committee is regularly conducting over the Clean Air Act and Clean Water Act and addressed problems we see in these laws in order to make TSCA a smarter, more conservative regulatory agent that won the support of all principal stakeholders.

As a result, the Lautenberg Act will require that the EPA's regulatory decisions be based on the best available science and require the agency to show their work to the public and Congress.

No longer can chemical regulations that are the result of cherry-picked data justifying a politically motivated regulatory outcome be forced on job creators at the state or federal level. Instead, the EPA will need to justify its decisions by a substantial evidence standard and by using transparent scientific information while also taking into account costs when proposing any potential regulation.

We also looked to the Constitution for guidance to address the unworkable and insufficiently protective regulatory patchwork under the current law. Because current law has resulted in only a very limited preemption of chemical regulations, it has empowered a couple larger, liberal states to impose its regulations on the rest of the nation.

As a result, job creators have been faced with a decision: Either embark on a costly venture to create new manufacturing facilities and distribution channels to get reformulated produces into different states in order to meet inconsistent standards or forcefully adhere to the most strict, often unreasonable and frequently non-protective standard of the largest state.

We addressed the state preemption issue by instead giving all states a voice in the regulatory process while also providing industry with a consistent, reliable standard for regulating chemicals and protecting our citizens.

We sought to balance states' rights and recognize efforts states have already taken in the absence of a functioning federal program while continuing to support and protect interstate commerce.

Congress can responsibly update environmental laws and do it in a way that is consistent with conservative principles. With the Lautenberg Act, the law can once again work to protect public health while also supporting our economy, which includes the $800 billion chemical industry that impacts more than 7 million related American jobs and is the catalyst for almost all U.S. manufacturing.

The Lautenberg Act is proof that the Republican majority is working for Americans and is accomplishing things that have been impossible to achieve for decades.

U.S. Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee; U.S. Sen. David Vitter (R-La.), lead-GOP sponsor of the Lautenberg Act; U.S. Sen. Shelley Moore Capito (R-W.Va.); U.S. Sen. Mike Crapo (R-Idaho); and U.S. Sen. Mike Rounds, chairman of EPW Subcommittee on Superfund, Waste Management and Regulatory Oversight.

Editorial Board

Congress is finally getting serious about hazardous chemicals in household products and industrial goods. The House is expected to vote on Tuesday on a bill overhauling a 1976 chemical safety law that has made it hard for federal regulators to ban toxic substances, even known carcinogens like asbestos. The Senate is expected to follow later in the week.

The bipartisan legislation would direct the Environmental Protection Agency to review chemicals to determine whether they threaten human health or the environment. Regulators would be required to give priority to the riskiest chemicals, evaluate at least 20 substances at a time and finish each evaluation in no more than seven years.

The reviews would have to pay special attention to the harm the chemicals could cause to vulnerable groups like children, industrial workers, pregnant women and poor people. Substances commonly stored near drinking water sources would move to or near the top of the list.

These changes represent a big improvement over the 1976 law, the Toxic Substances Control Act, under which the E.P.A. has been able to ban or restrict the production or use of only five chemicalsout of the roughly 85,000 in use today. The 1976 law is written in such a way that it can be almost impossible for the E.P.A. to do a satisfactory job, in part because it does not require manufacturers to provide safety data before a product hits the market.

And courts have often interpreted the 1976 law in the industry’s favor. In 1989, the environmental agency banned most asbestos-containing products, but two years later the United States Court of Appeals for the Fifth Circuit overturned the ban for many products containing asbestos, some of which are still on the market. Asbestos-related diseases cause about120,000 deaths a year globally.

The latest bill is the product of painful compromises on both sides and, as with any compromise, is not perfect. The biggest potential problem is that it would pre-empt states from imposing restrictions on chemicals that the E.P.A. has reviewed or is in the process of evaluating. State laws and regulations enacted before April 22 would be allowed to stand and states could ask for waivers from pre-emption for laws or regulations enacted after that date.

Industry pushed for pre-emption because it is easier to deal with one federal regulator than a patchwork of state laws. States like California have often been more willing to ban and regulate dangerous substances and have had stronger legal authority to do so than the E.P.A., which is why some public interest groups and some state regulators are unhappy with the pre-emption provision. That said, pre-emption is unlikely to be a major problem as long as the legislation empowers the E.P.A. to do its job and the agency acts with urgency.

Under the measure, the chemical industry would contribute $25 million a year to help pay for the agency’s work. That’s a good start, but it will cover only a portion of the money the agency needs to review thousands of chemicals; the rest will come from the federal budget. A lot will depend on whether Congress continues to provide sufficient resources to the E.P.A., long a favorite target of anti-regulatory legislators.

Sen. Capito

Infrastructure matters. It matters to our economy, our communities, our health and our safety. From electricity and internet, to pipes and ports, infrastructure is an interconnected web that reaches into every aspect of our lives. It brings jobs and new opportunities, and it has the power to transform America.

My state of West Virginia is a prime example of the power of infrastructure.

Located in the heart of Appalachia, we are the transportation hub of the Mid-Atlantic. Bridges and highways help fuel our economy, provide access to remote areas, and enable us to transport necessary goods and services.

At the same time, a lack of critical infrastructure brings its own set of challenges. Insufficient broadband and energy infrastructure are two hurdles West Virginia must overcome in order for the economy to grow.

According to the 2016 Broadband Progress Report, West Virginia is ranked 48th in the nation for broadband accessibility. Thirty percent of West Virginia residents do not have access to broadband service that meets the Federal Communications Commission’s benchmarks, and in rural areas of the state this number is as high as 48 percent. In order to attract and retain businesses, we must improve connectivity. But, we cannot do this without the infrastructure necessary to bridge the digital divide.

Last year, I launched my Capito Connect Plan to serve as a roadmap for expanding this critical resource. I am working with my colleagues on the Senate Appropriations Committee, and with partners at the local, state and federal level to identify funding opportunities and bring innovative solutions to the table.

One strategy, known as “dig once,” would enable broadband deployment to be completed at the same time as road construction projects. The Federal Highway Administration estimates that 90 percent of the cost of deploying broadband consists of digging up and replacing the road. Installing broadband conduits as part of federal transportation projects can significantly cut costs, make broadband deployment easier in underserved areas and yield a greater return on investment.

Energy infrastructure is another challenge in West Virginia. While we are producing an unprecedented amount of natural gas, a large portion of it has nowhere to go due to a lack of infrastructure. This means producers are not reaching their full capabilities, and American families and manufacturers are missing out on a crucial energy source.

A provision I included in the recently passed Energy Policy Modernization Act, will provide greater certainty around the timeframe for natural gas pipeline approvals, so pipelines can be constructed quickly and meet our energy transportation needs. We must continue removing barriers that stand in the way of this critical energy infrastructure.

These challenges aren’t limited to West Virginia. Nationwide, aging roads, bridges, sewers and highways are in critical need of updating.

For years, Congress passed a series of short-term transportation funding extensions. During that time, states were only assured federal funding for a period of weeks or months – making significant improvements difficult.

Last year, we passed the first multi-year transportation funding bill in more than a decade, which will help advance key projects. In order to make lasting improvements, we must continue to make long-term investments a top priority.

A recent report by the American Society of Civil Engineers found that the average American household could lose $3,400 annually for the next 10 years because of deteriorating infrastructure. The same report found that the infrastructure investment gap could cost the economy up to $4 trillion and 2.5 million jobs by 2025.

In order to save jobs and keep families’ hard earned money in their wallets, we must prioritize investments in infrastructure.

The Senate Environment and Public Works Committee recently passed the Water Resources Development Act of 2016, which makes important investments in clean water infrastructure projects. This important infrastructure bill passed overwhelmingly in the committee and demonstrates the Senate’s continuing bipartisan consensus for infrastructure.

This bipartisan collaboration is exactly what we need to address our nation’s infrastructure demands.

By fostering partnerships across party lines, and between the private and public sectors, we can make the long-term investments in America’s infrastructure that are needed to move our country forward.

EPA is pushing back against GOP calls to halt all work on its power plant greenhouse gas rule in light of the Supreme Court stay, arguing that the court's order is “ambiguous” on the issue of whether all of the rule's deadlines must be delayed if the rule survives legal challenge and that the issue will not be settled until that occurs.

“The ultimate effect of the stay on [Clean Power Plan (CPP)] deadlines will be determined when the stay is lifted,” acting EPA air chief Janet McCabe says in an April 18 letter to Senate environment committee Chairman James Inhofe (R-OK) that was obtained by InsideEPA/climate April 29.

The letter is a response to Inhofe's March 10 letter arguing that the high court's stay order includes “inherent” requirements to postpone, or toll, all of the deadlines in the rule to account for the litigation.

As evidence, Inhofe had argued that a stay application from electric co-ops asked the high court to “extend all compliance dates by the number of days between publication of the Rule and a final decision in this consolidated appeal.”

But McCabe in her recent letter -- which echoes her earlier comments that it is “premature” to speculate whether the rule's deadlines would be delayed -- says that “different applicants requested different relief.”

“The government interpreted the stay applicants' opening briefs as requesting that all CPP deadlines be tolled, and it opposed the stay in part on the grounds that such relief would be extraordinary and unprecedented,” she writes. “In their reply brief, however, the States clarified that they were only seeking a stay that would relieve States of the obligation to comply with CPP deadlines during the litigation and that the stay would not necessarily provide for day-to-day tolling of the deadlines.”

She adds that the high court's Feb. 9 orders “did not discuss the parties' differing views of whether and how the stay would affect the CPP's compliance deadlines, and they did not expressly resolve the issue.”

The Department of Justice, on EPA's behalf, said in a Feb. 4 brief to the high court that stay applicants “appear to seek much more than interim relief that would 'temporarily divest [the Rule] of enforceability' while review is ongoing. . . . Rather, they explicitly or implicitly ask this Court to toll all of the relevant deadlines set forth in the Rule, even those that would come due many years after the resolution of their challenge, for the period between the Rule’s publication and the final disposition of their lawsuits.”

But a coalition of states opposing the rule, led by West Virginia, said in a Feb. 5 reply brief that “contrary to EPA’s assertion . . . the States’ requested relief is a straightforward [Administrative Procedure Act] stay, which 'halt[s] or postpone[s] [the Power Plan, [including] by temporarily divesting [the Power Plan] of enforceability.'”

The states added: “In the unlikely event the Plan survives judicial review, . . . tolling would be appropriate as a matter of basic fairness. But the exact shape of such an equitable disposition need not be decided today.”

The states cited a 1999 U.S. Court of Appeals for the District of Columbia Circuit decision in Michigan v. EPA that accepted post-decision briefing on a similar issue for an air regulation and then tolled the deadline for states to submit compliance plans after the stayed rule was upheld.

Deadline Advocacy

The deadline issue has been the subject of advocacy from both supporters and opponents of the rule, also known as the existing source performance standards (ESPS).

For example, a recent report from the Institute for Policy Integrity (IPI) at New York University largely agrees with EPA's view, arguing the D.C. Circuit likely would settle the issue if the rule is upheld.

Further, the IPI report says that the D.C. Circuit in that scenario should avoid delaying the rule's compliance deadlines because greater deployment of renewable power over the coming years could ease compliance.

“It is likely that compliance with the Clean Power Plan will be achievable on a shorter timeframe than originally envisioned,” the report says, arguing that recently extended tax credits for wind and solar power will deploy much more zero-emission resources than EPA projected when it finalized the rule in August 2015.

IPI's report serves as a rebuttal to a March 2 white paper from the U.S. Chamber of Commerce that sought to build a legal case for why the high court stay requires a delay for all ESPS state plan submission and compliance deadlines.

Similarly, an April 8 post from the law firm Jones Day charges that EPA is “creating a confusing situation for those charged with implementing the Clean Power Plan.” It argues the agency must confirm that the stay means “compliance deadlines must therefore be postponed” to offer clarity to industry and states.

Associated Rules

In her recent letter, McCabe also confirms that the agency will continue work on associated rules -- including an early action incentive program and model trading rules -- because some states have “asked us to move forward with our outreach and to continue providing support and developing tools” to aid implementation.

“We will move forward developing these actions in a way that is consistent with the stay while providing states the tools they have asked for to help address carbon pollution from power plants,” she writes.

McCabe adds that EPA “has in the past moved forward with preparing for the potential implementation of a rule while it has been stayed, in anticipation of the possibility that the stay could be lifted. Such actions are unaffected by a stay.” To support the point, she cites a 2009 Supreme Court ruling in Nken v. Holder, which concerned how to consider a stay request of a deportation order.

EPA's position is further confirmed by its April 26 move to send a proposed update to its Clean Energy Incentive Program to the White House for inter-agency review. -- Lee Logan (llogan@iwpnews.com)

http://insideepaclimate.com/daily-news/epa-says-high-court-ambiguous-possible-delay-esps-deadlines