The Ongoing Waters War: Understanding the Firestorm Over US EPA’s Massive Draft Report and New Army Corps and EPA Proposed Rule on Connectivity of America’s Waters

by William Buzbee | October 01, 2013

On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes.   It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 “guidance” document regarding what “waters” could be protected; it had been in limbo for many months before the White House regulatory “czar,” the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just a draft. Even under the most optimistic scenario, it will be months, perhaps years, before these draft proposals are finalized. Nevertheless, these steps have already provoked news attention, blistering attacks by legislators and industry groups, and applause by environmental groups. Why all the hoopla? 

This blog provides context about these actions, explains why the stakes are indeed high, and flags the key issues and likely points of contention as this ongoing regulatory war unfolds. By way of disclosure, I should note that although I draw mostly on the ...

The SBA’s Office of Advocacy Criticism of Its ‘Crain and Crain’ Report: A Dollar Short and A Day Late

by Sidney Shapiro | October 01, 2013
Call it buyer’s remorse. The Office of Advocacy of the Small Business Administration (SBA) is publicly—albeit meekly—tiptoeing away from a now-infamous report that it commissioned, in which economists Nicole Crain and Mark Crain purported to find that federal regulations cost the economy $1.75 trillion in 2008. After being roundly criticized by CPR, the Congressional Research Service, and others, SBA’s Office of Advocacy now explains, referring apparently to the $1.75 trillion figure that “the findings of the study have been taken out of ...

Time to Stand Up and Be Counted

by Bill Funk | September 30, 2013
Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a ...

20 Years of 12866

by Lisa Heinzerling | September 30, 2013
This coming Friday marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House – acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) – would review major agency rules before they were issued. Executive Order 12866, and ...

CPR's Sid Shapiro in the Hill: In Defense of Regulation

by Erin Kesler | September 25, 2013
The responsible scholarly literature — as opposed to calculations cooked by business-friendly think tanks — has refuted the opponents’ claims of regulatory costs far in excess of the benefits of regulation. The same literature reminds us that not regulating also has costs — costs paid by the American public rather than by regulatory entities. Consider the Environmental Protection Agency’s long-delayed revisions to air quality standards required by the 1990 Clean Air Act Amendments. If it succeeds, and if the anti-regulation ...

Waiting for the Stormwater Rule

by Dave Owen | September 24, 2013
Last week, E&E News reported a breakdown in talks over EPA’s long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a  new timeline. The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard ...

Important Strides in OSHA's New Silica Rule but Advocates have a Long Road Ahead

by Matt Shudtz | September 24, 2013
As we noted on the day of the announcement, OSHA has – at long last – released a proposal to better protect workers from respirable silica. We didn’t have much to say about the substance at the time because we simply hadn’t had the opportunity to read through the massive proposal. (It’s over 750 pages, with almost 1600 additional pages in the risk assessment and economic analysis documents – OSHA clearly doesn’t take their regulatory responsibilities lightly.) Having had a chance to get ...

EPA’s New Source Proposal: The 'Category' Question

by Alice Kaswan | September 23, 2013
On September 20, 2013 the EPA proposed new source performance standards for greenhouse gas emissions for new power plants.  Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire.  The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can ...

New Source Standards for Power Plants: The Status Quo and Sensible Government

by David Driesen | September 20, 2013
Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants. The new source standards promulgated today will tend to lock in the current status quo. ...

EPA’s Authority to Impose Emissions Regulations is Clear under the Clean Air Act

by Alexandra Klass | September 20, 2013
This entire week, the coal industry and electric utilities have been decrying the EPA’s proposed rule, released today, limiting CO2 emissions from new coal-fired power plants. Experts predict the proposed rule will place limits on coal-fired power plants that will make them impossible to operate in the absence of carbon capture and sequestration (CCS) technology, which will significantly increase the cost of running existing plants and building new plants. These costs, as well as today’s low natural gas prices (and ...

Transparency Withdrawn: A New Tactic for Shielding OIRA’s Regulatory Review Activities?

by James Goodwin | September 18, 2013
Yesterday, the Environmental Protection Agency (EPA) announced that it was “withdrawing” from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act. The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 ...

House Republicans to hold hearing on climate change, can I get a witness?

by Robert Verchick | September 17, 2013
Everything’s upside down. Last week a Democratic president urged a military strike in the Middle East while Republicans dithered about quagmires. Tomorrow, a subpanel of the House Energy and Commerce Committee will launch its first climate change hearing in years and hardly any Obama administration official is willing to show up.  Representative Ed Whitfield (R-Ky), who chairs the Committee’s Energy and Power subpanel, says the committee requested presentations from 13 federal agencies. But as of this post only EPA Administrator ...

Federal Court Upholds Bay TMDL, Freeing EPA and the States to Focus on Enforcement

by Anne Havemann | September 17, 2013
In a much-anticipated opinion, a district court judge on Friday upheld the Bay TMDL, or pollution diet, against a challenge brought by the American Farm Bureau. The decision affirms that EPA’s Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA), not to mention the various consent decrees, memoranda of understanding (MOU), and a presidential executive order. The Chesapeake Bay Total Maximum Daily Load (TMDL) is a cap on the total amount of nitrogen, phosphorus, ...

Roll Call: Toxics Control Bill Will Handcuff EPA

by Erin Kesler | September 13, 2013
Earlier this week, Roll Call published an op-ed by CPR Scholars Thomas O. McGarity and Wendy Wagner entitled, "Toxics Control Bill Will Handcuff EPA." The piece concludes: In our decades of research and writing on tort law and environmental regulation, we have never seen a pre-emption provision that intrudes more deeply into the civil litigation system at the state level than the one in this bill. If victims of toxic chemical exposure attempt to recover damages at the state level, their cases ...

Energy Efficiency is Too Important for Political Stasis

by Rena Steinzor | September 12, 2013
Late last month, the Department of Energy proposed long overdue energy efficiency standards for commercial refrigeration units and published them for public comment yesterday. The rules, which had been held up at OMB’s Office of Information and Regulatory Affairs (OIRA) for almost two years will resultin savings of over $28 billion for businesses over the next 30 years and reductions in carbon emissions of 350 million tons over the same period. As we’ve discussed numerous times, rules are required by ...

The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots

by Erin Kesler | September 09, 2013
Center for Progressive Reform Member Scholar and University of Texas School of Law professor David Adelman has written an article for the Indiana Law Journal entitled,"The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots." According to the abstract:  This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air ...

Important Article on GHG Trading and Hot Spots

by Dave Owen | September 09, 2013
For years, environmental activists have worried that emissions trading systems will create “hot spots.”  The fear, in a nutshell, is that even if the trading system succeeds in reducing overall levels of pollutants, pollution levels in areas with lots of emissions purchasers will rise.  It seems quite plausible to anticipate that the areas seeing increases will contain concentrations of older industrial facilities, and it seems equally plausible, based on years of environmental justice studies, to anticipate that those older facilities ...

GHG Trading and Co-Pollutants: Expanding the Focus

by Alice Kaswan | September 09, 2013
I agree with David Owen’s recent blog post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels ...

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